author: OLSZEWSKI, Judge:

text:
    606 A.2d 522
    SOLCAR EQUIPMENT LEASING CORP., Appellant, v. PENNSYLVANIA MANUFACTURERS’ ASSOCIATION INSURANCE CO. and Joseph E. and Sandra Kampf and Lazaro S. and Luisa Arocena and Dr. Rodolfo and Thelma Etorma and Dr. Fidel W. and Marlynie Bautista and Theodore and Susan Johansen and Richard and Jacqueline Benz and Frank R. and Madeline T. Micucci and Harry L. and Dorothy Raudenbush and Michael Chwieroth and Morris and Sarah Halper and Adam Cavalier, Jr. and Laraine Reo and Charles Parsons and Patricia Dool and Vallery and Barbara Cummings and Robert E. and Darlene Gattuso and Kevin and Ellen Crawford and Michael C. and Lynda Carol Bartha and Robert and Jacqueline McCleary and Joanne P. and Vincent J. Nicastro and Ellen and Robert Ragan and James T. and Marybeth McStravock and Joseph C. and Patricia A. Bonadonna and Mary Kay and William P. James and Sunder Isaac and R.N. Isaac, H/W Individually and d/b/a Ramex International, Inc. (Two Cases) Appeal of Frank and Madeline MICUCCI, Harry and Dorothy Raudenbush, Michael Chwieroth, Morris and Sarah Halper and Adam Cavalier and Laraine Reo, and Charles Parsons and Patricia Dool, and Vallery and Barbara Cummings, and Joseph and Sandra Kampf, and Lazaro and Luisa Arocena, and Dr. Rodolfo and Thelma Etorma, and Dr. Fidel and Marlynie Bautista and Theodore and Susan Johansen and Richard and Jacqueline Benz and Robert and Darlene Gattuso and Kevin and Ellen Crawford and Michael and Lynda Bartha and Robert and Jacqueline McCleary, and Joanne and Vincent Nicastro, and Ellen and Robert Ragan and James and Marybeth McStravock, and Joseph and Patricia Bonadonna and Mary and William James.
    Superior Court of Pennsylvania.
    Argued Feb. 6, 1992.
    Filed April 7, 1992.

      Stephen W. Edwards, Philadelphia, for appellants.
    Phillip J. Meyer, Philadelphia, for appellant (at 781) and for Solcar, appellee (at 1012).
    Gerhard P. Dietrich, Philadelphia, for Pa. Mfr. Assoc. Ins. Co., appellee.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal by Solear Equipment Leasing Company (Solear) from an order entered February 13, 1991, in the Court of Common Pleas of Philadelphia County, granting Pennsylvania Manufacturers’ Association Insurance Company’s (PMA’s) motion for summary judgment. In the present appeal, Solear is pursuing a declaratory judgment action to determine whether its insurance policy with PMA covered damages resulting from Solcar’s work. If the policy is held to cover these damages, as both Solear and the homeowners argue, PMA would be required to defend Solear in pending law suits in which Solear was an additional defendant. The facts of this case are as follows.

The underlying action arose from the construction and sale of homes in the Regency Hill section of Philadelphia. Solear was a subcontractor working for the general contractors, Isaacs and/or Ramex International Inc., on the Regency Hill project. Solcar’s job was to pour concrete for the construction of the homes, including concrete walls, footings and windows. (R.R. at 73a.) When the work was completed, three lawsuits, all by homeowners, were brought against Isaacs, alleging that Isaacs and Ramex negligently constructed the Regency Hill homes. Ramex joined the subcontractors, including Solear, as additional defendants. In its joinder action, Ramex alleged that any damages suffered by the homeowners were because of Solcar’s negligence and breach of contract, and that Solear was obligated under contract to indemnify Ramex against plaintiffs’ claims. In turn, Solear filed a declaratory judgment action, seeking to establish that PMA owed it coverage for the lawsuits under the PMA policy. PMA denied that it owed Solear any defense or indemnification, because the claims against Solear for damages in the underlying actions were excluded from coverage. Ramex and the homeowners were included as necessary parties.

After the pleadings were concluded, both PMA and Solear moved for summary judgment. Though PMA responded, homeowners and Ramex did not respond to the summary judgment motion. Initially, the motion was assigned to Judge Nicholas D’Alessandro of the Philadelphia Court of Common Pleas. The case was continued several times between March and December, 1989, so that the summary judgment motion could be considered. In December, 1989, the case was called to trial before Judge Alfred DiBona. On January 16, 1990, the declaratory judgment arguments for Solear were heard before Judge DiBona. At that time, the judge was informed of the outstanding summary judgment motion, but the parties agreed to go ahead with trial to bring it to some final conclusion. At this bench trial, the only evidence presented were the relevant insurance contracts and allegations from the pending lawsuits regarding the concrete work. It is worth noting that at this hearing, counsel for Solear stated that “there are no fact questions in this case and only legal issues regarding insurance coverage ...” (Hearing transcript, January 16, 1990, at 1; R.R. at 134a.) Counsel for homeowners stated that they “stood in the same position as Solear Equipment.” (H.T., January 16, 1990, at 14; R.R. at 150a.)

On April 2,1990, Judge D’Alessandro, who was originally assigned the summary judgment motion in this case, entered an order denying PMA’s motion for summary judgment, “without prejudice to the trial judge’s right to reconsider the matter at a later stage in the proceedings, if there remain disputed issues of material fact.” (R.R. at 121a.)

On February 13, 1991, Judge DiBona filed an opinion and order granting PMA’s summary judgment motion, holding

The Court likewise finds no allegations that an “accident” occurred. What has been alleged is improper and and defective workmanship and materials by this plaintiff, Solear, and others. This conduct has been pled as “negligence”, but the claims of negligence and breach of contract must allege an “occurrence” or an accident. Contrary to the position of Solear, this Court does not classify a claim of lack of structural integrity and breach of contract as an unexpected or unanticipated event within the provisions of the policy.

Trial court opinion at 5-6. Even assuming an occurrence as required by the contracts, the court added, the claims were excluded from coverage because the underlying claims did not contain any allegations that there was property damage other than Solcar’s own work product. Id.

From a review of the briefs for Solear, homeowners, and PMA, it seems that the parties are in agreement regarding the basic allegations contained in the underlying action. All agree that the homeowners allege that the construction “jeopardized the structural integrity of the homes and created a seriously hazardous condition.” (Brief for homeowners at 6; brief for Solear at 5; brief for PMA at 7.) Allegations in the underlying action which concern Solcar’s negligence aver: the existence of undersized footings,

19. Defendants, S. Isaac and R.N. Isaac, d/b/a Ramex, planned and constructed all of the homes with foundation footings at a depth of not more than sixteen inches.
20. Defendants, ... knew or by the exercise of reasonable care should have known, that the construction of the homes with foundation footings at a depth of not more than sixteen inches jeopardized the structural integrity of the homes and created a seriously hazardous condition.

(Homeowners’ complaint, paragraphs 19 and 20, R.R. at 17a-18a.);

improperly prepared concrete foundations,

40. Defendants ... planned and constructed all of the homes by preparing the concrete foundations improperly.
41. Defendants ... knew or ... should have known that construction of the homes with the concrete improperly prepared would jeopardize the structural integrity of the homes and would create a seriously hazardous condition.

(R.R. at 20a-21a.);

lack of reinforcing rods,

43. Defendants ... planned and constructed the homes without the necessary reinforcing rods in the concrete walls.
44. Defendants ... knew or ... should have known that the construction of the homes without the reinforcing rods jeopardized the structural integrity of the homes and created a seriously hazardous condition.

(R.R. at 21a.); and,

failure to adequately waterproof the homes,

46. Defendants ... planned and constructed the homes without the necessary waterproofing.
47. Defendants ... knew or ... should have known that the construction of the homes without the necessary waterproofing jeopardized the integrity of the homes and created a hazardous condition.

(R.R. at 21a-22a.).

Solear and the homeowners argue that these allegations should survive the summary judgment motion, because they infer that there was property damage to other than Solcar’s own work, thus removing it from the policy exclusions. PMA argues that summary judgment was entirely proper in this case because the allegations in the underlying action do not create any inferences which could take it out of the policy exclusions. As damages, plaintiffs in the underlying action request settlement expenses (R.R. at 25a-26a), damages for loss and enjoyment of their properties and ability to sell or transfer the homes (R.R. at 27a), reduced fair market value of the homes to zero (R.R. at 27a), and impossibility that the homes’ fair market value will ever increase (R.R. at 27a).

For our review, appellants present a total of four issues. The homeowners pose for our review

1) whether Judge DiBona properly considered PMA’s summary judgment motion, when it had been ruled on first by Judge D’Alessandro; and,
2) whether the summary judgment motion was properly granted.

Both Solear and the homeowners ask us to review

3) whether there was an “occurrence” within the meaning of the PMA insurance contract which would have required PMA to defend and indemnify Solear; and,
4) whether PMA properly denied insurance coverage because it found the claims set forth to be excluded from coverage.

We will first undertake the summary judgment issues presented by the homeowners. At the outset, we note that the homeowners never objected to Judge DiBona hearing this case. At the bench trial, the parties agreed to proceed in order to finally resolve this matter. (R.R. at 144a.) The first issue concerning the summary judgment motion is whether Judge DiBona was competent to grant the summary judgment motion, when Judge D’Alessandro had previously denied the motion.

We have held that ordinarily, “a trial judge should not place himself in a position to overrule a decision by another judge of the same court in the same case.” Salerno v. Philadelphia Newspapers, 377 Pa.Super. 83, 87, 546 A.2d 1168, 1170 (1988). The purpose of this rule is to promote judicial economy and efficiency, and to ensure some measure of pre-trial finality. Id. We have taken note that this rule is applied most often where a determination is to be made whether to grant summary judgment or non-suit, both situations where plaintiff is given the benefit of all evidence in his favor, together with all inferences arising therefrom. Baker v. Morjon, Inc., 393 Pa.Super. 409, 411-13, 574 A.2d 676, 677 (1990). In Baker, we also noted that this rule will not “allow refuge to a party against whom judgment is sought where such judgment is the best means to promote judicial economy and efficiency." Id., 393 Pa.Superior Ct. at 413, 574 A.2d at 678.

In the instant case, the record reveals the testimony upon which Judge DiBona made his ruling, as well as his rationale for ruling as he did, is in the form of an opinion. Such is not the case with Judge D’Alessandro’s order denying summary judgment. We do not have the benefit of Judge D’Alessandro’s rationale; nor are we a fact-finding entity which is entitled to speculate. As we held in Salerno:

We can discern no reason for prohibiting the consideration and granting of a summary judgment if the record as it then stands warrants such action. This is particularly true when the [previous motion] w[as] denied without an opinion____ Moreover, where, as here, dismissal of the entire complaint on motion for summary judgment is appropriate, preclusion of consideration of the summary judgment motion by application of the rule stated, would have further burdened the parties and the court by requiring them to undergo the time and expense of an unnecessary trial, and thereby thwart the very purpose the rule was intended to serve, i.e. that judicial economy and efficiency be maintained.

Salerno 377 Pa.Super. at 87-88, 546 A.2d at 1170 (citations omitted) (footnote added). Thus we find, as we did in the similar case of Salerno, that a mechanical application of the collateral judgment rule as appellants advocate would be in error. We find that Judge DiBona’s ruling was proper. Appellants’ first allegation of error cannot succeed.

Second, appellants contend that the grant of summary judgment in this case was erroneous. Once again, we note our standard upon review of summary judgment motions:

Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P. 1035(b), 42 Pa.C.S.A. The moving party has the burden of proving the non-existence of any genuine issue of material fact. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). We must view the record in the light most favorable to the non-moving party, resolving against the moving party any doubts as to the existence of a genuine issue of material fact. Id. By applying the standard set forth above, we find that summary judgment was proper in this case.

The crucial issue in this case is whether PMA is obligated to defend and indemnify Solear for its faulty work. The yardstick for making this determination is the insurance contract entered into by the parties. Both Solear and homeowners agree that the relevant portions of the insurance contract are the following:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence____
Occurrence means:
1. an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured, or
2. any intentional act by or at the direction of the insured which results in bodily injury, if such injury arises solely from the use of reasonable force for the purpose of protecting persons or property.
“Property damage” means:
1. physical injury to or destruction of tangible property which occurs during the policy period, including the loss or use thereof at any time resulting therefrom, or
2. the loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.

(Brief for homeowners at 10; brief for Solear at 10-11; trial court opinion at 3-4.) If the averments in the underlying action concerning Solcar’s work contain allegations of an occurrence or accident, as we have interpreted those terms, summary judgment was improper. If, as PMA argues, the averments contain nothing more than allegations of negligence, which do not also allege an “occurrence,” then summary judgment was proper.

We have addressed the obligations of an insurer toward its insured in the past. This Court has held that:

[I]t is axiomatic that an insurer under a general liability policy has two duties to its insured. The first duty is to defend its insured against claims where the allegations are sufficient to bring those claims under the terms of the policy and the second duty is to pay that which it has agreed to pay in appropriate cases under the terms of the policy. See D’Auria v. Zurich Ins. Co., 352 Pa.Super. 231, 507 A.2d 857 (1986). The duty to defend is however, limited only to those claims covered by the policy, “[t]hus, the insurer owes a duty to defend if the complaint against the insured alleges facts which would bring the claim within the policy’s coverage if they were true.” Id., 352 Pa.Superior Ct. at 235, 507 A.2d at 859.

Creed v. Allstate Ins. Co., 365 Pa.Super. 136, 139-40, 529 A.2d 10, 11 (1987) (emphasis added). In Creed, we also held that

It must be pointed out that the question of whether a duty to indemnify arises depends upon the type of claim in issue. It should be noted that an inquiry into whether a loss is within policy coverage is a question of law and may be decided by motion for summary judgment.

Id., 365 Pa.Superior Ct. at 140, 529 A.2d at 12 (citations omitted).

Therefore, our responsibility in this case is to examine the substance of the underlying action and determine whether allegations exist which would bring this action under the coverage of the insurance policy. Though we find the circumstances of the instant case to be quite compelling, we agree with the trial court that they do not. Appellants erroneously contend that Solcar’s substandard performance, which contributed to massive property damage in the Regency Hill homes, makes this claim a covered one. We are not shocked that Solcar’s slipshod construction work caused the homes to be of little value. However, this was not an accident or occurrence, a prerequisite under the insurance contract for reimbursement. Solear was negligent and nothing more. The insurance contract at issue is not a performance bond or any type of construction malpractice insurance. We find that the trial court was correct in its grant of summary judgment on the pleadings it was confronted with. The homeowners' second allegation of error therefore fails.

Third, we are asked to determine whether there was an “occurrence” in this situation to justify the award of insurance proceeds to Solear. Though we find that this issue is moot because of our disposition of the homeowners’ second argument, we will briefly address it. As stated in the insurance policy, “occurrence” means:

1. an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured, or
2. any intentional act by or at the direction of the insured which results in bodily injury, if such injury arises solely from the use of reasonable force for the purpose of protecting persons or property.

(R.R. at 88a.)

We are guided in our resolution of this issue by our Supreme Court’s disposition of this same question. In an interpretation of identical language from an insurance contract, the Supreme Court held that an occurrence does not encompass negligence. Gene v. Harvey Builders v. Pa. Mfrs. Ass’n, 512 Pa. 420, 517 A.2d 910 (1986). In Harvey Builders, the homeowners’ complaint alleged that the contractor performed negligently and misrepresented the condition of the home sites to the home buyers. The Court held that these claims were excluded from coverage because they were not occurrences, or fell under policy exclusions. Id., 512 Pa. at 425-27, 517 A.2d at 913.

The trial court in the instant case made the same finding, based on its correct reading of Harvey Builders. We find no error in this ruling. Since there is no personal injury, occurrence or accident alleged in the underlying action, PMA owes no defense or indemnification to Solear under their insurance contract. Appellants’ third allegation of error will not afford them relief.

The fourth contention of error presented for our review is whether coverage was properly denied by operation of paragraphs, seven through nine of the insurance policy. Paragraphs seven through nine, detailing exclusions, are as follows:

7. (c) Property damage.
With respect to the completed operations hazard, to property damage to work performed by the named insured arising out of such work or any portion thereof, or out of such materials, parts or equipment furnished in connection therewith;
******
(e) to the named insured's product arising out of such products or any part of such products.
8. loss of use of tangible property which has not been physically injured or destroyed resulting from
(a) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement, or
(b) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level of performance quality, fitness or durability warranted or represented by the. named insured;
but this exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of the named insured’s products or work performed by or on behalf of the named insured after such products or work have been put to use by any person or organization other than an insured;
9. damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the named insured’s products or work completed by or for the named insured or of any property of which such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein.

(R.R. at 83a-84a) (emphasis added).

The policy limitations set forth above are clear and free from ambiguity. These provisions explicitly preclude coverage for “property damage to the named insured’s products arising out of such products,” and for “loss of use of property from the failure of the named insured’s products or work performed ... to meet the level of performance quality ... represented by the named insured.” Appellants herein allege property damage to the homes as a result of Solcar’s faulty concrete work. Even were we to find an occurrence which would at first blush require PMA to defend, these coverage exclusions preclude finding a duty on PMA’s part. Our highest state court, in a factually similar case, held that where the language of the contract is clear and unambiguous, a court is required to give effect to that language. See Standard Venetian Blind Co. v. American Empire Ins., 503 Pa. 300, 305-06, 469 A.2d 563, 566 (1983). For the above reasons, we hold that the policy exclusions in the insurance contract at issue would bar the relief sought by appellants. Their fourth allegation is therefore without merit.

For the foregoing reasons, the order granting summary judgment is affirmed. Jurisdiction relinquished.

      . The claims against Solear for which it claims coverage are set forth in the complaints filed by the homeowners in the underlying action.

      . Solear listed three issues in the "Statement of Questions Involved” section of its Brief, at page 3. However, we find question number one, which involves the refusal of PMA to indemnify and defend, to be waived because the brief contains no argument on this point. Nonetheless, this argument will be addressed by way of the other issues presented, so Solear will suffer no prejudice from our finding of waiver.

      . In addition to these four issues, PMA raises a fifth. In its brief, PMA's first question presented is whether the homeowners have improperly attempted to introduce facts not of record. (Brief at 1.) This issue was also the basis of a “Motion to Strike Parts of Homeowners’ Brief’ filed by PMA. We recognize that matters raised for the first time on appeal are waived and will not be considered; however, the facts which homeowners attempt to introduce, by virtue of our disposition of the remainder of this case, will not benefit it. Therefore, we will not separately address this issue raised by PMA.

      . See discussion of appellant’s second issue, below.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    606 A.2d 529
    COMMONWEALTH of Pennsylvania v. Tamara Sue OSBORNE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1992.
    Filed April 23, 1992.
    Petition for Allowance of Appeal Denied Sept. 10, 1992.

      James M. Goodwin, Asst. Public Defender, Sharon, for appellant.
    Robert G. Kochems, Asst. Dist. Atty., Media, for Com., appellee.
    Before ROWLEY, President Judge, and FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered after a jury convicted appellant, Tamara Sue Osborne, (Ms. Osborne), of driving a vehicle while her blood alcohol content (BAC) was 0.10 percent or greater in violation of 75 Pa.C.S.A. § 3731(a)(4). Ms. Osborne was sentenced to a term of imprisonment of thirty days to three months, to the payment of a fine in the amount of three hundred dollars ($300.00) and to a license suspension of one year.

On appeal, Ms. Osborne raises the following issues: (1) That it was error to admit the testimony of a State Trooper concerning the horizontal gaze nystagmus (HGN) test; and (2) that the verdict was against the weight of the evidence in that (a) no evidence was presented to demonstrate that the testing equipment was properly checked and (b) no evidence was presented relating the BAC test result back to the time when Ms. Osborne was driving on the night in question.

We are constrained to vacate the judgment of sentence since the law of this Commonwealth, as recently announced by our supreme court, requires the relating back of a BAC test result to the time of driving.

In Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), our supreme court vacated the judgments of sentence on the basis that the statute in question, 75 Pa.C.S.A. § 3731(a)(4), requires the relation back of a BAC test result to the time when the accused was driving. This statutory provision reads: “Driving under the influence of alcohol or controlled substance (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while: (1) * * *; (2) * * *; (3) * * *. (4) fljg amount of alcohol by weight in the blood of the person is 0.10% or greater.” Emphasis supplied.

The court held in those cases that relating back a BAC test result to the time when an accused was driving is mandated by the plain language of the statute, since, by its very terms, a violation occurs only when a person’s BAC is equal to or exceeds 0.10 percent while he/she is driving. The supreme court compared the statutory language of Section 3731(a)(4) with language from statutes of other jurisdictions which substitute the phrases “as shown by” or “as determined by” for the word “while” and replace the phraseology of subsection (a)(4) with language reading “as shown by” or “as determined by” “a blood alcohol test administered [within a specified time] after driving has ceased.” Jarman, supra, 529 Pa. at -, 601 A.2d 1229 at 1230; Modaffare, supra, 529 Pa. at -, 601 A.2d 1233 at 1235. Emphasis in texts. The court then aptly summarized its position as follows:

Under such statutes [from other jurisdictions], the facts of the present case might readily support a conviction. Our statute, however, is more limited in its focus. It makes one’s blood alcohol content while driving the pivotal issue.

Jarman, supra, 529 Pa. at -, 601 A.2d 1229 at 1230; Modaffare, supra, 529 Pa. at -, 601 A.2d 1233 at 1235. Emphasis in texts.

We note that the BACs of both Mr. Jarman and Mr. Modaffare tested minimally above 0.10 percent. Mr. Jar-man’s BAC test result was 0.104 percent, while Mr. Modaffare’s result read 0.108 percent. One hour had elapsed between the time when Mr. Jarman was stopped for a burned-out light bulb and the time when a sample of his blood was drawn at the hospital. Approximately two hours had passed between the time when Mr. Modaffare struck a parked car and when a sample of his blood was drawn for the purpose of determining the presence of alcohol therein.

At Mr. Jarman’s trial, an expert witness, the director of the laboratory of the hospital where the blood had been drawn, offered uncontradicted testimony on behalf of the Commonwealth that a ten percent margin of error exists with respect to the hospital blood testing equipment and that an individual’s BAC usually peaks approximately sixty to ninety minutes after drinking terminates. The witness opined that because of this, Mr. Jarman’s BAC was probably still rising at the time of the blood withdrawal and may not have reached even 0.10 percent at the time when he was driving. Therefore, the court concluded that no evidence existed that Mr. Jarman’s BAC equalled or exceeded 0.10 percent at the time when he was driving.

In Mr. Modaffare’s case, the Commonwealth offered the uncontradicted testimony of the physician who drew the blood that a person’s BAC peaks approximately one hour after cessation of drinking and then declines. This witness further opined that when Mr. Modaffare’s blood was drawn, his BAC was probably declining. The physician did concede upon cross-examination, however, that Mr. Modaffare’s BAC may have peaked between the time of the accident and the time when the blood sample was taken. As in Jarman, the witness in Modaffare was unable to render an opinion as to whether Mr. Modaffare’s BAC was 0.10 percent or greater at the time of the accident. Therefore, the evidence was insufficient to sustain Mr. Modaffare’s conviction for violation of 75 Pa.C.S.A. § 3731(a)(4).

The supreme court in both cases held that a strong inference of guilt due to an illegal BAC while the accused is driving would exist where the BAC test result significantly departed above 0.10 percent and where a blood sample had been obtained a short time after the accused had been stopped by the police. Otherwise, as in Jarman and Modaffare, where the respective BAC test results had minimally exceeded 0.10 percent and where the suspects’ blood samples had been drawn shortly after they were stopped by the authorities, this inference is considerably weakened.

However, the supreme court did not draw a bright numerical line between what it would consider to be a minimal upward departure suggesting a weak inference of guilt and what would constitute a significant upward deviation which would give rise to a strong inference of guilt. In like vein, the supreme court failed to establish a temporal cut-off for the drawing of a suspect’s blood to indicate either a weak or a strong inference of guilt. In our view, and in accordance with the dual standards set by our supreme court in Jarman and Modaffare, the stronger the inference of guilt, the less significant is the necessity for evidence of relating back. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence of relating back an accused’s BAC test result to the time of driving.

Lacking any brightline numerics from our high court in this regard, we must conclude that the absence of evidence relating back Ms. Osborne’s BAC test result to the time when she was driving weakens the inference of her guilt. Ms. Osborne’s BAC was determined to be 0.1488 percent when she was tested at the hospital. We deem this reading to be not a substantial departure from 0.10 percent. As to the temporal sequence of events, Ms. Osborne was stopped by Trooper Whalen at approximately 10:15 p.m. and was transported to Sharon Regional Hospital where, at approximately 11:05 p.m., a sample of her blood was drawn for BAC testing purposes. We would also consider the lapse of time of approximately fifty minutes a significant factor weakening the inference of guilt because Ms. Osborne testified, without contradiction, that she had stopped drinking beer at her home at approximately 9:30 p.m. She then drank another half can of beer with her boyfriend at his place of employment at approximately 10 p.m., a mere fifteen minutes before she was stopped by Trooper Whalen. Therefore, it is probable that Ms. Osborne’s BAC was still rising at 11:05 p.m. when she was having her blood sample drawn at Sharon Regional Hospital and that, consequently, her BAC at the time of driving at 10:15 p.m. may have been below 0.10 percent.

This being the case, the jury was left to impermissibly speculate upon Ms. Osborne’s actual BAC at the time when she was driving, especially since the Commonwealth failed to introduce any expert witness who was able to relate back the result of the BAC test to Ms. Osborne’s actual BAC at the time when she was driving on the night in question. Commonwealth v. Jarman, supra. The witness whom the Commonwealth did produce was the laboratory technician who tested Ms. Osborne’s blood sample. This witness testified that he was not trained to determine the absorption rate of alcohol into the bloodstream.

The circumstances of this case illustrate the necessity of producing evidence relating back the BAC test result to the time when the accused was driving to sustain the Commonwealth’s burden of proving beyond a reasonable doubt that he/she “dr[o]ve ... while[] ... the amount of alcohol by weight in [his/her] blood [was] 0.10% or greater.” Given the lack of any evidence attempting to relate back Ms. Osborne’s BAC test result to the time when she was driving, we conclude, with constraint, but pursuant to our supreme court’s directive in Commonwealth v. Jarman, supra, and in Commonwealth v. Modaffare, supra, that the judgment of sentence must be vacated and that Ms. Osborne must be discharged from criminal liability.

Judgment of sentence vacated; appellant discharged.

ROWLEY, J., concurs in the result.

      . Ms. Osborne was also charged with but was acquitted of violating the impaired driving provision of the Motor Vehicle Code, 75 Pa.C.S.A. § 3731(a)(1).

      . Ms. Osborne miscasts the contentions comprising her second issue as weight of the evidence claims. It is apparent from a reading of her argument, however, that she is actually attacking the sufficiency of the evidence of her blood alcohol count at the time when she was driving to warrant a conviction under 75 Pa.C.S.A. § 3731(a)(4) and that the Commonwealth produced no evidence demonstrating that the equipment used to test the blood sample drawn from her was operating properly on the night in question.

       Arguably, statutes such as these [from other jurisdictions] may be more responsive to societal concerns about drunk driving, making it easier to obtain convictions. Such arguments could properly be addressed to our legislature, rather than to this Court, for we are constrained to apply the plain language of the existing statute.

      . Ms. Osborne is entitled to the benefit of the supreme court's rulings in Commonwealth v. Jarman, supra in text, and in Commonwealth v. Modaffare, supra in text, because she has properly preserved the issue of relation back through all stages of the proceedings where this issue could have been raised. See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) and Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983).

      . In light of our disposition, we deem it unnecessary to address the remaining issues of the admissibility of Trooper Whalen's testimony concerning the HGN test and whether sufficient evidence existed to demonstrate that the testing equipment used to analyze Ms. Osborne’s blood sample was operating properly on the evening in question.


author: POPOVICH, Judge:

text:
    606 A.2d 532
    TURNER HYDRAULICS, INC. v. SUSQUEHANNA CONSTRUCTION CORPORATION and George Forbes and Forbes Chevrolet. Appeal of FORBES CHEVROLET, INC.
    Superior Court of Pennsylvania.
    Argued March 10, 1992.
    Filed April 27, 1992.

      Hillel Levinson, Harrisburg, for appellant.
    James G. Gault, Carlisle, for appellee.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from the judgment entered in favor of the plaintiff, Turner Hydraulics, Inc., and against the defendant, Forbes Chevrolet, Inc. in the amount of $50,532.86 (plus interest). We affirm.

On appeal, the defendant challenges the trial court’s refusal to enter judgment non obstante veredicto. Our sole duty in assessing such a claim is to decide whether there was sufficient evidence to sustain the verdict, granting the verdict-winner the benefit of every favorable inference reasonably to be drawn from the evidence. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251, 254 (1980). All unfavorable testimony and inferences must be rejected. Smith v. Kravitz, 173 Pa.Super. 11, 93 A.2d 889 (1953). In compliance with such standards, the following facts, as warranted by the evidence and established by the verdict, appear.

On or about November 13, 1986, George Forbes, the president and sole stockholder of Forbes Chevrolet, Inc., contracted with Susquehanna Construction Corporation to erect a new facility to house his dealership. Susquehanna subcontracted a portion of the work to Turner Hydraulics, Inc., which was operated by Billy Ray Turner (president) and his son, Danny Lee Turner (vice-president).

In late November of 1986, Danny Lee Turner submitted a bid on the Forbes project. Prior to commencing work, however, Danny Lee Turner realized that he had neglected to include the cost of 4 items (valued at approximately $10,000.00) in the bid accepted by Susquehanna.

To determine whether payment would be made for the excluded items, Turner spoke with Frank Black, an 18-year parts and service manager for Forbes Chevrolet, Inc. At the worksite, any questions Turner had would be directed to Black. Specifically, with regard to the items missing from the bid, Black told Turner:

... Mr. Forbes is a fair and honest man, ... he will make sure it is taken care of, whether it is taken care of by Susquehanna alone or [Forbes] takes care of it. [Turner] w[ould] be paid for it.

N.T. 10/3/90 at 14. This made Turner feel “one hundred percent better.”

Prior to completion of construction, the employees of Turner Hydraulics, Inc. were ordered off the job by Billy Ray Turner on two occasions, once in early February and again in March of 1987, for Susquehanna’s failure to pay. After each incident, Frank Black phoned Billy Ray Turner and “assured” him that he would be paid “one way or the other”, that George Forbes was a “fair man” and that Forbes would see to it that Turner Hydraulics, Inc. would be paid. Susquehanna ultimately did make partial payment to Turner.

The Turners resumed work because of Black’s assurances that they would receive payment. Id. at 64. This position was stated consistently throughout the plaintiff’s case; to-wit:

[Counsel for defendant-Forbes Chevrolet, Inc.:]
Q Now, is that how he [Black] indicated it to you, to the best of your recollection, I will see that you get paid?
[Billy Ray Turner:]
A One way or the other.
Q Well, and you are saying he said one way or the other?
A Yeah. If Susquehanna doesn’t, George Forbes would.
Q But he didn’t say that, did he?
A Frank Black said that.
Q No. He didn’t say George Forbes would, did he?
A He did.

N.T. 10/3/90 at 62.

Frank Black testified that Mr. Forbes gave him the “responsibility of designing everything” at the new dealership, e.g., service write-up area, service department, parts department, body shop and show room. In fact, Black described himself as “sort of the Forbes Chevrolet, Inc. representative on the scene____” (Emphasis added)

Further, Black would be at the site every day to talk to each subcontractor and resolve any problems which might arise, e.g., general contractor’s (Susquehanna’s) non-payment of wages to subcontractors. When this did occur, Black would do everything he could, as the representative of Forbes Chevrolet, Inc., to pressure (“ride herd” over) the general contractor to pay.

Black admitted “assuring” the Turners that he “would do everything in [his] power to get them paid. * * * [He] told [the Turners] that Mr. Forbes was a very fair and honest man. And that [the two] would do, together, ... everything one could to get them paid.” Id. at 86, 89-90.

However, Black denied informing the Turners that either George Forbes or Forbes Chevrolet, Inc. would pay if Susquehanna defaulted. Id. at 91. Nonetheless, he conceded that when he informed the Turners that he would do everything to assure payment, he never qualified the statement with the caveat that payment would be forthcoming the subcontractors from Susquehanna. Id. at 95.

George Forbes stated that “at no time” did he authorize Black to execute any contracts) for Forbes or Forbes Chevrolet, Inc. Black was merely the “service and parts director” for the dealership.

At the completion of the non-jury trial, the court entered a verdict in favor of the plaintiff and against Forbes Chevrolet, Inc. See note 1, supra. In an opinion in support of the award, the court concluded that Black was Forbes Chevrolet, Inc.’s “agent” whose “assurances” to the Turners “induced” them to return to work in the face of nonpayment by Susquehanna. Once the verdict was reduced to judgment, this appeal was perfected.

The sole question, as we view the case, is whether the defendant-Forbes Chevrolet, Inc. entered into a contract, through its employee-Frank Black, with the plaintiff.

It is a general rule of law that the principal in a principal/agent relationship is only “bound by, and liable for, the acts which his agent does with or within the actual or apparent authority from the principal, and within the scope of the agent’s employment____” 3 Am.Jur.2d, Agency § 261.

In this Commonwealth, the doctrine of apparent authority has been incorporated into the principles of agency law. See Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215, 1221 (1987), appeal denied, 518 Pa. 627, 541 A.2d 1138 (1988). Apparent authority exists where a principal, by words or conduct, leads people with whom the alleged agent deals to believe that the principal has granted the agent authority he or she purports to exercise. Stallo v. Insurance Placement Facility of Pa., 359 Pa.Super. 157, 518 A.2d 827 (1986), appeal denied, 515 Pa. 609, 529 A.2d 1082 (1987).

The third party is entitled to believe the agent has the authority he purports to exercise only where a person of ordinary prudence, diligence and discretion would so believe. Thus, a third party can rely on the apparent authority of an agent when this is a reasonable interpretation of the manifestations of the principal.

Bolus, supra, 363 Pa.Super. at 262, 525 A.2d at 1222; Hill v. State, 86 Md.App. 30, 585 A.2d 252, 255 (1991); 1 Restatement (Second) Agency § 8.

The nature and extent of an agent’s authority is a question of fact for the trier. Joyner v. Harleysville Insurance Co., 393 Pa.Super. 386, 574 A.2d 664, 668 (1990), appeal denied, 527 Pa. 587, 588 A.2d 510 (1990); Bolus, supra; Lesch v. Chevron, 75 Md.App. 669, 542 A.2d 1292 (1988). Also, the trier-of-fact is to evaluate the conduct of the parties in light of all the circumstances in determining the existence of apparent authority. 1 P.L.E. Agency § 4; Edart Truck Rental v. B. Swirsky and Co., 23 Conn.App. 137, 579 A.2d 133, 136 (1990). Apparent authority may be derived from a course of dealing or a single transaction. 3 Am.Jur.2d, Agency § 79; Bills v. Wardsboro School Dist., 150 Vt. 541, 554 A.2d 673, 675 (1988).

In this case, the defendant-Forbes Chevrolet, Inc.’s employee (Black) twice induced the Turners to return to the job site with “assurances” that George Forbes, the president and sole owner of Forbes Chevrolet, Inc., would' make sure that they would receive compensation for work performed. In fact, both Turners testified that the only reason they returned to the project was on the strength of Black’s assurances that payment would be forthcoming “one way or the other”.

Danny Lee Turner had no reason to disbelieve Black, an employee of Forbes Chevrolet, Inc. who was constantly at the construction site and with whom Danny Lee Turner spoke to in resolving any work-related problems which might arise.

Both Black and Forbes denied ever having made any statements to the effect that Black was cloaked with the authority to bind Forbes Chevrolet, Inc. Because of the conflicting testimony, it was for the trier-of-fact to sift through the evidence and believe all, none or some of the evidence presented by the litigants. Joyner, supra; 1 P.L.E. Agency § 6.

From the result reached, it is obvious that the trial court found that Black had the apparent authority to bind Forbes Chevrolet, Inc. We agree and do so on the basis of the following facts:

1) Black’s 18-year-employment with Forbes Chevrolet, Inc.;
2) Black’s blanket authority from George Forbes, the sole owner of Forbes Chevrolet, Inc., to design the new dealership;
3) Black’s presence on a “daily” basis at the work site;
4) Black’s self-defined status as the “representative” of Forbes Chevrolet, Inc. on the project;
5) Black’s willingness to “do everything that [he] could do as a representative of Forbes Chevrolet, Inc. to get [the subcontractors] paid”;
6) Black’s authority to oversee the progress of the work “he and Forbes” had agreed upon and reviewed at the end each day;
7) Black’s authority to resolve disputes involving subcontractors and the general contractor (Susquehanna) — he would apply “pressure” upon Susquehanna to pay the subcontractors; and
8) Black, in the company of the president of Susquehanna, would review the daily progress of the subcontractors.

In light of the preceding, we find that the Turners acted reasonably under the circumstances, i.e., resumed work at Black’s prompting and with his assurances that Forbes (as president and sole stockholder of Forbes Chevrolet, Inc.) would pay if Susquehanna failed to do so. Costanzo v. Chianese, 177 Pa.Super. 414, 110 A.2d 802 (1955); New Hampshire Bituminous v. Tab Aviation, 132 N.H. 38, 566 A.2d 153 (1989).

Having carefully reviewed the particular facts of this case and the law of agency in Pennsylvania, we agree with the trial court’s conclusion that Frank Black, an agent for Forbes Chevrolet, Inc., exposed his principal to liability with his assurances of payment to the Turners should Susquehanna fail to honor its contractual obligations with regard to the Forbes project. Id.

Judgment affirmed.

      . The plaintiff also filed suit against the general contractor (Susquehanna Construction Corporation) and the owner of the Chevrolet dealership (George Forbes), in his individual capacity. With regard to these parties, the court ruled in favor of Mr. Forbes and against Susquehanna. No appeal has been filed challenging these rulings.

      . As far as Billy Ray Turner was concerned, “no other factor prompted" him to go back to work except Black’s assurances that “Forbes would pay ... if Susquehanna didn’t____” N.T. 10/3/90 at 57. It was Turner’s understanding, from his conversations with Black, that “one or the other ... Susquehanna or ... Forbes" would pay. Id. at 60. Turner was unwavering on this point during cross-examination. Id. at 62-63.

      . Pennsylvania recognizes 4 ways in which an agent’s authority may be acquired: 1) expressly; 2) impliedly; 3) by apparent authority; and 4) by estoppel. Bolus, supra.


author: WIEAND, Judge: JOHNSON, Judge,

text:
    606 A.2d 905
    Samuel C. HUTCHISON v. Father Francis LUDDY, Bishop James Hogan, Monsignor Thomas Madden, Monsignor Roy F. Kline, Monsignor Paul Panza, Monsignor Ignatius Wadas, Diocese of Altoona-Johnstown, St. Mary’s Catholic Church, Cardinal John Krol, and the Arch-Diocese of Philadelphia. Appeal of Bishop James HOGAN, Monsignor Thomas Madden, Monsignor Roy F. Kline, Monsignor Paul Panza, Monsignor Ignatius Wadas, Diocese of Altoona-Johnstown, St. Mary’s Catholic Church.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1991.
    Filed Feb. 24, 1992.
    Reargument Denied May 1, 1992.

      Maria Zulick, Pittsburgh, for appellants.
    Richard M. Serbin, Altoona, for appellee Hutchison.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

The issue of first impression in this appeal is whether a church can avoid the discovery of relevant information in a civil action against the church by putting it in a place which is designated by canon law as a “secret archive.” After examining the relationship between canon and civil law, the statutory clergyman’s privilege, and concerns raised by the First Amendment of the Constitution of the United States, we conclude that the trial court properly permitted discovery of relevant, non-privileged information in the church’s possession.

On October 26, 1988, Samuel C. Hutchison commenced a civil action in Somerset County to recover damages against the Reverend Father Francis Luddy for alleged pedophilic sex acts performed while Father Luddy was serving a pastorate in the Borough of Windber, Somerset County. Later, on December 29, 1989, an amended complaint was filed, alleging that Bishop James Hogan, Monsignor Thomas Madden, Monsignor Roy F. Kline, Monsignor Paul Panza, Monsignor Ignatius Wadas, Diocese of Altoona-Johnstown and St. Mary’s Catholic Church (“Altoona-Johnstown parties”) had negligently hired, or retained Father Luddy and had assigned him to a pastorate when they knew or should have known of his pedophilic tendencies.

As part of pre-trial discovery, Hutchison served the Altoona-Johnstown parties with a Request For Production of Documents for Inspection. The request was, inter alia, for the production of documents pertaining to alleged sexual misconduct with minor male children by priests assigned to the Altoona-Johnstown Diocese for the years 1972 through 1987 (Request for Production No. 9); documents pertaining to reports of sexual misconduct by priests assigned to the Altoona-Johnstown Diocese for the years 1972 through 1987 (Request for Production No. 15); the complete personnel files of defendant Father Luddy (Request for Production No. 11) and other specified priests (Requests for Production Nos. 35, 36 and 36 [37]); and documents pertaining to allegations of sexual involvement with minor male children by specified priests (Requests for Production Nos. 30, 31 and 32). Hutchison also requested documents kept by the Diocese of Altoona-Johnstown in a file maintained pursuant to Canon 489 of the Code of Canon Law of the Catholic Church. More specifically, Hutchison asked for:

documents in the Canon 489 file which in any way pertain to Father Francis Luddy, for the years 1974 through the present. (Request for Production No. 27).
documents in the Canon 489 file which pertain to any alleged and/or actual reports of sexual involvement with minor male children by priests in the Altoona-Johnstown Diocese, for the years 1974 through the present. (Request for Production No. 28).
documents in the Canon 489 file relating to a specifically named priest. (First Supplemental Request for Production No. 9).

In response to the request for a complete copy of Father Luddy’s personnel files, the Altoona-Johnstown parties averred that the documents were not discoverable because “they would be contained in secret archive files as maintained by the diocese pursuant to Canons 489 and 490 of the Code of Canon Law____” The Altoona-Johnstown parties refused to produce any documents in the “secret archive” concerning Father Luddy and other identified priests for the same reason.

When the requested documents were not forthcoming, Hutchison filed a motion requesting the trial court to order compliance with Hutchison’s requests for the production of documents. A countervailing motion was filed by the Altoona-Johnstown parties, in which they requested a protective order to prevent the discovery of documents because of defects in the requests and because the documents sought were privileged.

In ruling on these opposing motions, the trial court agreed with the Altoona-Johnstown parties that the requests for production were unreasonably broad in scope and sought to discover matters not relevant to the action. Thus, the court found no legitimate reason for requiring revelation of complete personnel files and limited discovery to incidents of actual or alleged sexual misconduct by priests with minor, male children and information pertaining to the assignment and transfer of priests. The trial court also concluded that the time period referred to in Hutchison’s requests was too broad; and, therefore, restricted the production of documents to the period between 1972 and 1985. Finally and most significantly for purposes of this appeal, the trial court denied Altoona-Johnstown’s request for a protective order regarding materials in the Canon 489 file. However, the trial court’s order granted leave to the Altoona-Johnstown parties to seek further protective orders or to present the documents for in camera review before disclosure to the adverse party.

Both Hutchison and the Altoona-Johnstown parties filed motions for reconsideration, and the Altoona-Johnstown parties requested an amendment certifying the court’s order for immediate appeal, coupled with an interim stay or supersedeas. The trial court refused the motion for reconsideration by the Altoona-Johnstown parties but granted their requests for a stay and certification of the case for immediate appeal. Thereafter, the Altoona-Johnstown parties filed in the Superior Court an immediate appeal and also a petition for permission to appeal from an interlocutory order. Hutchison filed a motion to quash the appeal. The Superior Court denied the motion to quash the Altoona-Johnstown parties’ appeal on the basis of the rule announced in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and followed by the Supreme Court of Pennsylvania in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). In view of this denial, the petition for leave of court to file an appeal from an interlocutory order was dismissed as moot.

In Cohen v. Beneficial Industrial Loan Corporation, supra, the Supreme Court of the United States held that orders collateral to the principal action were appealable if the claimed right was too important to be denied review and the question to be presented was such that, if review were to be postponed until final judgment in the principal action, the claimed right would be irreparably lost. This is also the law in Pennsylvania. Pugar v. Greco, supra. The order from which the instant appeal was taken does not decide the principal action but is collateral thereto. In effect, it directs the Roman Catholic Church to produce for discovery certain records which the Church deems secret. The right of confidentiality claimed by the Church is too important to be denied review; and to postpone review until final judgment in the main action would cause the claimed right to be irreparably lost. Therefore, we deem the present appeal proper and will consider the merits of the claim of confidentiality asserted by the Church in opposition to plaintiffs several requests for discovery.

It is the responsibility of the trial court to “oversee discovery between the parties and therefore it is within that court’s discretion to determine the appropriate measure necessary to insure adequate and prompt discovering of matters allowed by the Rules of Civil Procedure.” Stern v. Vic Snyder, Inc., 325 Pa.Super. 423, 436, 473 A.2d 139, 146 (1984). With regard to requests for protective orders, the Commonwealth Court has appropriately observed:

There are no hard-and-fast rules as to how a motion for a protective order is to be determined by the court. Whether to grant or deny the motion, and what kind or kinds of protective orders to issue are matters that lie within the sound judicial discretion of the court, and the court’s determination as to these matters will not be disturbed unless that discretion has been abused.

Allegheny West Civic Council, Inc. v. City Council of the City of Pittsburgh, 86 Pa.Commw. 308, 314, 484 A.2d 863, 866 (1984). See also: Kepple v. Fairman Drilling Co., 380 Pa.Super. 52, 551 A.2d 226 (1988), appeal denied, 522 Pa. 604, 562 A.2d 827 (1989); Leonard v. Leonard, 353 Pa.Super. 604, 510 A.2d 827 (1986).

Canon 489 of the law of the Roman Catholic Church dictates: “There is to be a secret archive ... or at least a safe or file in the ordinary archive, completely closed and locked and which cannot be removed from the place,” for “documents to be kept [and] protected most securely.” Canon 490 states further that “[o]nly the bishop” governing the diocese may possess the secret archive’s key and that “documents are not to be removed from the secret archive or safe.” Appellants contend that the trial court’s discovery is violative of these provisions of canon law.

The law pertaining to discovery in civil actions appears at Pa.R.C.P. 4001 et seq. In general, “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ... including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things____”

Insofar as the canons of the Church are in conflict with the law of the land, the canons must yield. St. Joseph’s Lithuanian Roman Catholic Church’s Petition, 273 Pa. 486, 492-493, 117 A. 216, 218 (1922). Accord: St. Peter’s Roman Catholic Parish v. Urban Redevelopment Authority of Pittsburgh, 394 Pa. 194, 198, 146 A.2d 724, 726 (1958). Here, it is the Pennsylvania rules of discovery which are controlling. Merely because Canon 489 is controlling in the internal operation of the affairs of the Church does not mean that it permits evidence pertaining to sexual molestation of children by priests to be secreted and shielded from discovery which is otherwise proper.

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

Minersville School District v. Gobitis, 310 U.S. 586, 594-595, 60 S.Ct. 1010, 1013, 84 L.Ed. 1375, 1379 (1940) (footnote omitted).

An application of Pa.R.C.P. 4001 et seq. requires that a determination be made as to the relevancy of the information sought and whether the information is privileged. The trial court determined, and we agree, that evidence in the files of the Altoona-Johnstown parties pertaining to Father Luddy’s alleged sexual molestation of Hutchison is relevant. Similarly, the circumstances involved in the handling of Father Luddy and other named priests, if any, who were known to be pedophilic, would be relevant to plaintiff’s claim that the Altoona-Johnstown parties were negligent in concealing such tendencies and that this contributed causally to his own molestation.

The record before this Court does not suggest that the information sought to be discovered is privileged. “Evidentiary privileges are not favored; ... exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth.” Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115, 133 (1979), quoting United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1065 (1974).

Pennsylvania statutory law recognizes a privilege for communications made in confidence to a clergyman. The statute, appearing at 42 Pa.C.S. § 5943, provides in pertinent part as follows:

No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, ... who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

This privilege protects “priest-penitent” communications; it does not protect information regarding the manner in which a religious institution conducts its affairs or information acquired by a church as a result of independent investigations not involving confidential communications between priest and penitent.

In Fahlfeder v. Com., Pennsylvania Board of Probation, 80 Pa.Commw. 86, 470 A.2d 1130 (1984), a parolee alleged that testimony by a clergyman from the parolee’s rehabilitation residence was in violation of the statutory privilege at Section 5943. In rejecting this argument, the court stated:

Clearly, this provision of the Code does not prohibit all testimony by members of the clergy. Rather, it is limited to information told in confidence to them in their role as confessor or counselor. Petitioner established nothing in the record here indicating a confessor/penitent relationship with [the clergyman], and the record does not indicate that the admissions by Petitioner were offered in confidence____ Without a demonstration that his role was that of confessor or confidant, the admissions sought to be excluded did not fall within the protection of Section 5943.

Id., 80 Pa.Commw. at 90, 470 A.2d at 1133. (emphasis in original).

The applicability of § 5943 was also at issue in Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990). There, the defendant argued that communications with a clergyman in the course of his duties were presumed to be privileged and that there was no requirement that they be confessional or penitent in nature. The court held, consistently with Fahlfeder, as follows:

[O]ur legislature did not intend a per se privilege for any communication to a clergym[a]n based on his status. We therefore look to the circumstances to determine whether appellant’s statements were made in secrecy and confidence to a clergyman in the course of his duties____ Appellant never sought [the clergyman] in a confessional role; further there was no evidence that [the clergyman] was acting in any capacity other than that of counselor. Thus, the statements were not motivated by religious considerations or in order to seek the forgiveness of God. Accordingly, they were not made to [the clergyman] in the course of his duties as a minister.'.. [T]here is no basis to conclude that appellant’s statements were made confidentially or for religious, penitent purposes. Therefore, we conclude that section 5943 does not apply.

Id., 392 Pa.Superior Ct. at 343-344, 572 A.2d at 1265.

Courts of other jurisdictions have similarly limited the privilege to situations in which it has been demonstrated that the communication was made in the context of a confession or spiritual matter. The mere fact that a communication was made to a clergyman or documentation was transmitted to a clergyman is insufficient in itself to invoke the privilege. See: United States v. Gordon, 655 F.2d 478 (2d Cir.1981) (testimony of priest admissible where communication related to business relationships, not spiritual matters); United States v. Wells, 446 F.2d 2 (2d Cir.1971) (letter to priest not privileged in absence of evidence that purpose was to obtain religious or other counsel, advice,, solace, absolution or ministration); Keenan v. Gigante, 47 N.Y.2d 160, 417 N.Y.S.2d 226, 390 N.E.2d 1151 (1979) (privilege seeks to protect only communications made to a clergyman in his spiritual capacity).

In the instant case, the trial court applied the statutory privilege consistently with the decided cases. The court determined that the Altoona-Johnstown parties had failed to show

in what manner the requested material was revealed or given to church representatives, or, for that matter, whether any of the requested information was disclosed to a priest or clergyman at all. Defendants have not shown that the request would cause disclosure of any information given by anyone, or to anyone, in confidence. We conclude that defendants have not met their burden of showing that any of the requested material is confidential within the meaning of Section 5943. We, therefore, reject defendants’ blanket assertion of privilege based on Section 5943 of the Judicial Code.

We agree that this was a correct interpretation of the statutory privilege. We observe, moreover, that the trial court’s order has preserved the right to seek a further protective order in the event that in camera review of the church’s file discloses privileged material. The trial court did not err, when on the record established in this case, it refused to find that the information sought to be discovered was privileged.

Appellants argue, however, that the Canon 489 file is a religious practice, constitutionally protected from a state's discovery laws. In support of this argument, appellant cites and relies upon decisions which have held that a state may not interfere with a party’s religious beliefs. See, e.g. Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (Jehovah’s Witness entitled to state unemployment compensation benefits); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (state law requiring school attendance for all students under the age of sixteen held invalid as applied to Amish children); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (Sabbatarian employee who declined to work on holy day of Saturday eligible for state unemployment compensation). Compare: Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

These decisions, however, have no applicability to the case sub judice. Neither the discovery rules adopted by the Pennsylvania Supreme Court nor the order entered by the trial court in this case interferes with the free exercise of religion.

Free exercise of religion, as it is encapsulated in the First Amendment, embraces two concepts — freedom to believe and freedom to act. The first is absolute, but the second remains subject to regulation for the protection of society. Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). We are not concerned here with the former; Holmes and other congregation members remain unimpeded in the cerebral sphere. The sole issue is whether the Church may refrain from producing documents under a narrowed court order. There is no doubt that this constitutes conduct.

United States v. Holmes, 614 F.2d 985, 989 (5th Cir.1980). Decisions expressing judicial reluctance to become entangled in internal church conflicts are also inapplicable.

Those cases are premised on a perceived danger that in resolving intrachurch disputes the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs. 426 U.S., at 709-710, 96 S.Ct., at 2380-2381. Such considerations are not applicable to purely secular disputes between third parties and a particular defendant, albeit a religious affiliated organization, in which fraud, breach of contract, and statutory violations are alleged.

General Council on Finance and Administration of the United Methodist Church v. Superior Court of California, 439 U.S. 1369, 1373, 99 S.Ct. 35, 38, 58 L.Ed.2d 77, 81-82 (1978) (Rehnquist, J.).

The instant case is more akin to Ambassador College v. Geotzke, 675 F.2d 662 (5th Cir.1982), where a challenge was made to the validity of a gift to Ambassador College on grounds of fraud and undue influence. During the discovery phase of the litigation, Ambassador College, an entity endowed and supported by the Worldwide Church of God, refused on First Amendment grounds to respond to many of plaintiffs interrogatories and requests for the production of documents. The trial court entered an order compelling Ambassador College to answer plaintiffs requests. Ambassador College sought a declaratory judgment in federal court, under 42 U.S.C. § 1983, that the trial court’s order was an unconstitutional infringement upon its freedom of religion. The Fifth Circuit responded to Ambassador College’s contentions as follows:

We are faced with the scenario of a church and an individual contesting the validity of a gift by deed. There is no danger of government seeking to monitor or regulate a religious group. Indeed, the only government involvement in this case at all is the Georgia trial court’s enforcement of the discovery order. We find that there are simply no free exercise considerations of even arguable validity raised by Ambassador College. Ambassador College has not demonstrated how its religious liberty would be infringed upon if it is required to answer the questions put to it____ Thus, the church must respond to discovery requests, as any other similarly situated litigant would be required____ The raising of a first amendment right does not require a balancing test of the interests involved in discovery.

Id. at 664-665 (emphasis in original).

A similar analysis was employed by the court in Pagano v. Hadley, 100 F.R.D. 758 (D.Del.1984), where the church had moved to quash a subpoena seeking documents from a priest’s personnel file. In rejecting the church’s “free exercise” argument, the court held that the production of the personnel file “will not interfere with the Bishop’s right to believe as he chooses and to engage in the religious observances of his faith.” Id. at 761. The court appropriately observed that although courts have always been careful about involvement in internal church affairs, “the production of existing documents needed for civil litigation in response to a subpoena simply does not involve any entanglement.” Id. The court concluded its analysis with the following observation:

Information in the possession of the Church has always been subject to civil process. This is precisely why states like Delaware have adopted statutes creating a priest-penitent privilege. If the Bishop were right about the protection afforded by the Constitution, there would be no need for such a privilege.

Id. (footnote omitted). Pagano was cited with approval in two cases involving bankruptcy proceedings. In In re The Bible Speaks, 69 B.R. 643, 647 (D.Mass.1987), the court held that cases involving civil litigation between private parties pose “no danger ... that the government will unconstitutionally entangle itself in church affairs by seeking to monitor or regulate religious activity. The state is not even a shadowy presence in this discovery'[as] the information requested relates to a private, secular dispute between an individual and a religious organization____” Similarly, in In re Contemporary Mission, Inc., 44 B.R. 940, 943 (D.Conn.1984), the court held that the church’s “First Amendment rights” claim does not assert a cognizable privilege allowing refusal of discovery requests because otherwise “any group could avoid discovery procedures by merely claiming to be a religious organization.”

We hold, consistently with the decided cases, that where the only action required of a religious institution is the disclosure of relevant, non-privileged documents to an adversary in civil litigation, such action, without more, poses no threat of governmental interference with the free exercise of religion. In the instant case, there is not one iota of evidence that court ordered discovery will “chill” the rights of appellants in the conduct of their religious affairs or inhibit their parishioners from engaging freely in the practice of their religious beliefs and activities. As the trial court appropriately observed, “[t]he relevant inquiry is not whether the church gives a file a particular name, but whether disclosure of the information requested from that file interferes with the exercise of religious freedom.”

It is obvious from the opinion of the trial judge that he gave, exceedingly careful consideration to the requests made by the parties pursuant to the Pennsylvania Rules of Discovery. His analysis is cogent and his rationale has been articulately expressed. We agree that discovery of documents contained in the Canon 489 file will not impermissibly intrude upon theological doctrine or the practice of religion. The requested documents are relevant as they pertain to conduct of one or more church officials which is the subject of civil litigation. This information has not been shown to be privileged, and its discovery is not proscribed by the First Amendment free exercise clause of the Constitution. Therefore, the order allowing discovery and denying appellants’ motion for protective order is, as it must be,

Affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

This case arises out of the trial court’s disposition of a motion to compel discovery, and an opposing petition for a protective order. Because I conclude that we are without jurisdiction to entertain the issues presented, I would quash this appeal.

Samuel C. Hutchison filed a civil action claiming damages against Father Francis Luddy as a result of various sexual acts allegedly performed by Luddy through the year 1985, while Luddy was serving as a pastor. Hutchison’s complaint also asserted causes of action against Bishop James Hogan, Monsignor Thomas Madden, Monsignor Roy F. Kline, Monsignor Paul Panza, Monsignor Ignatius Wadas, the Diocese of Altoona-Johnstown, St. Mary’s Catholic Church, Cardinal John Krol and the Arch-Diocese of Philadelphia stemming from the same incidents.

In the course of this litigation, Hutchison filed a motion to compel discovery against Defendant-Appellants Bishop Hogan, Monsignor Madden, Monsignor Kline, Monsignor Panza, Monsignor Wadas, the Diocese of Altoona-Johnstown, and St. Mary’s Catholic Church (hereafter the “Altoona-Johnstown parties”) requesting that the trial court order compliance with Hutchison’s requests for production of documents. The motion also requested dismissal of the Altoona-Johnstown parties’ objections to those requests. The Altoona-Johnstown parties filed a motion requesting a protective order, contending that production should not be compelled on the basis of alleged defects in the requests and on the basis that some of the documents sought are privileged. The trial court granted in part and denied in part each of the parties’ motions, and the Altoona-Johnstown parties appeal.

In ruling on competing motions, the trial court denied the Altoona-Johnstown parties’ request for a protective order regarding materials contained in the Canon 489 file; however, the order permitted Altoona-Johnstown Clergy to submit further protection requests or present the documents for in camera review within thirty days.

The Altoona-Johnstown parties filed notice of appeal with this court. See 42 Pa.C.S. § 742; Pa.R.A.P. 702, 42 Pa.C.S. The Altoona-Johnstown parties also filed a Petition for Review. See 42 Pa.C.S. § 702(b); Pa.R.A.P. 1311, 42 Pa.C.S. In response, Hutchison filed both a Motion to Dismiss, for jurisdictional reasons, and an Application for Disposition and/or Advancement of Argument of the Motion to Dismiss or/alternatively Advancement of Argument of Case.

On July 8, 1991, we determined that we possess jurisdiction over this case as a direct appeal; therefore, we issued an order dismissing as moot the Altoona-Johnstown parties’ Petition for Review. For the same reason, we also issued an order denying Hutchison’s Motion to Dismiss. Finally, we issued an order dismissing as moot Hutchison’s Application for Disposition and/or Advancement of Argument of the Motion to Dismiss or/alternatively Advancement of Argument of Case. Accordingly, this appeal is before this panel as a direct appeal.

In determining that jurisdiction exists to entertain this case as a direct appeal, we relied upon Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and our decision in Hutchison v. Luddy, 398 Pa.Super. 505, 581 A.2d 578 (1990). Our decision in Hutchison v. Luddy, however, has since been reversed by a per curiam order of our Supreme Court which stated that the order under review was not final and, therefore, not appealable. Hutchison v. Luddy, 527 Pa. 525, 594 A.2d 307 (1991). I find it appropriate, therefore, that we reconsider whether this case is properly before us, pursuant to 42 Pa.C.S. § 742.

It is well settled that an appeal to this court, unless otherwise permitted by statute, will lie only from a final order, Pugar v. Greco, 483 Pa. 68, 72, 394 A.2d 542, 544 (1978); See 42 Pa.C.S. § 742; Pa.R.A.P. 341, 42 Pa.C.S. A final order is usually one which ends the litigation, or alternatively, disposes of the entire case. Pugar, 483 Pa. at 73, 394 A.2d at 545, citing Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974). Here, it is beyond dispute that the order in question, governing discovery, neither ends the litigation, nor disposes of the entire case. However, in determining what constitutes a final order, our Supreme Court, in Pu-gar, and Piltzer, has embraced the approach set forth in Cohen v. Beneficial Industrial Loan Corporation, 337, U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). There, the U.S. Supreme Court employed “a practical rather than technical construction” of the finality requirement, and created an exception to the traditional final judgment rule. Thus, the appellate courts of this state are to apply the approach of Cohen to determine whether the order is appealable, despite that it neither ends the litigation nor disposes of the case, as an exception to the traditional final judgment rule.

In Cohen, a district court had denied a defendant’s petition to require the plaintiff to post security to cover the defendant’s expenses and counsel fees should plaintiff’s action prove unsuccessful in a stockholders’ derivative action. The Supreme Court determined that that order was sufficiently final and appealable to permit review. A three-part test to determine appealability was articulated as follows: (1) the right sought to be protected in the appeal is separable from, and collateral to, the rights asserted in the action; (2) the claim must be too important to be denied review; and (3) the question was such that, if review was postponed until final judgment in the case, the claimed right would be irreparably lost. Applying the three part test, the Supreme Court concluded that the order denying a petition to post security was sufficiently final to permit appellate review.

Pennsylvania appellate courts have, on several occasions, interpreted and applied the Cohen test to orders related to discovery. In Gottschall v. Jones & Laughlin Steel Corporation, 333 Pa.Super. 493, 482 A.2d 979 (1984), cert. denied, 474 U.S. 845, 106 S.Ct. 134, 88 L.Ed.2d 1.10 (1985), this court addressed the appealability of an order which temporarily sealed documents claimed by the defendants to be privileged until a hearing could be had on the privilege issue. We stated that because the information sought had the potential to determine the ultimate issues of liability, and might even disqualify the plaintiff from pursuing the cause of action, the order involved issues not separable from and collateral to the underlying action for the purposes of Cohen. Gottschall, 333 Pa.Super. at 500, 482 A.2d at 983. We therefore held that the order was interlocutory and unappealable. Id.

In Doe v. Commonwealth Department of Public Welfare, 105 Pa.Cmmw. 482, 524 A.2d 1063 (1987), the plaintiff alleged that she had been abducted and raped by an escaped prisoner as a result of the negligence of the defendants, and instituted a personal injury action. In discovery, Doe sought, inter alia, a memorandum which outlined the psychological status of the attacker and chronology leading up to the escape, and a document containing a retrospective analysis from several departments on the inmate’s admittance, background and escape. Although the defendants refused to produce the documents on the basis of a claimed statutory privilege, the trial court concluded that the claimed privilege was inapplicable, and directed in camera inspection for determinations of relevancy. The defendants contended on appeal that the discovery order fell into the “collateral order” exception to the final order requirement. The Commonwealth Court held that, because the documents sought had the potential to determine the ultimate issues of liability, the order compelling discovery was not separable from and collateral to the merits of the action for the purposes of determining appealability under Cohen. Doe, 105 Pa.Cmmw. at 485-87, 524 A.2d at 1065. Similarly, in Commonwealth Department of Environmental Resources v. Texas Eastern Transmission Corporation, 130 Pa.Cmmw. 655, 569 A.2d 382 (1990), the Commonwealth Court held that an order which compelled discovery of documents against a claim of attorney-client privilege was not separable and collateral, but rather, was interlocutory and unappealable under Cohen.

Guided by Gottschall, Doe and Texas Eastern Transmission Corp., I conclude that the order here-involved cannot satisfy the “separate and collateral” prong of the Cohen test. The order compels discovery of documents related to Father Luddy, the sexual misconduct of priests of the Altoona-Johnstown Diocese with male children, and the transfer and assignment of priests of that diocese. This information is relevant to the resolution of the ultimate issues of the underlying claims; therefore, the trial court’s order cannot be deemed separable from and collateral to the issues and rights asserted in the action. Accordingly, the order in question fails the first requirement of the three-part Cohen test, and it is not necessary to consider the two remaining elements. See Gottschall, 333 Pa.Super. at 500, 482 A.2d at 983; Doe, 105 Pa.Cmmw. at 485-87, 524 A.2d at 1065.

Furthermore, as the order appealed from expressly permits the Altoona-Johnstown parties to submit further requests for protective orders as to any document contained within the file, I find it difficult to deem the order to have been final in any respect with regard to the production of those documents.

Finally, this court has expressed its reluctance to provide supervision of discovery proceedings in cases pending in the trial courts. See McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 493 A.2d 84 (1985). Similarly, the Commonwealth Court in Doe, citing Borden Co. v. Sylk, 410 F.2d 843, 846 (3rd Cir.1969), noted the potential burden which appeals from discovery orders would have on appellate courts, and observed that, to allow such appeals as a matter of right, “would constitute the [appellate courts] as second-stage motion courts----” Doe, 105 Pa. Cmmw. at 486, 524 A.2d at 1065. I believe that these concerns are valid.

I conclude that the order in question is interlocutory and unappealable fully cognizant of our recent decision in Commonwealth v. Miller, 406 Pa.Super. 206, 593 A.2d 1308 (1991). There, we reviewed a trial court order directing the Women’s Resource Center of Fayette County to provide to the trial court, for in camera inspection, all records and information in their possession pertaining to an alleged victim of a sexual assault. We determined there that the order satisfied the three prongs of Cohen, including the “separable and collateral” aspect, and proceeded to consider the merits of the appeal. However, Miller is to be distinguished from the case at bar because the order in Miller compelled discovery from a non-party. This court has previously noted that an order compelling discovery of a person not party to the original complaint could arguably be appealed under the collateral order doctrine. See Steel v. Weisberg, 347 Pa.Super. 106, 500 A.2d 428 (1985). The order involved here, however, compels discovery from a party.

The Majority Opinion, without analysis, declares that “[t]he order from which the appeal was taken does not decide the principal action but is collateral thereto.” Majority Opinion at 143-144. This assertion appears to ignore both Gottschall and Doe, supra. I need not disagree with the Majority’s conclusion that the Church’s claimed right of confidentiality is too important to be denied review. Nor need I dispute the Majority’s assertion that to postpone review until final judgment would cause the claimed right to be irreparably lost. The three prongs of the Cohen test are conjunctive; all three must be satisfied for the rule to be implemented. Where, as here, the right sought to be protected is neither separable from, nor collateral to, the rights asserted in the action, the remaining two prongs of the Cohen test are rendered immaterial.

Moreover, the Majority concedes that the order now under review grants leave to the Altoona-Johnstown parties to seek further protective orders or to present the documents for in camera review before disclosure to the adverse party. On this basis, it cannot be reasonably argued that the review of the claimed right is being postponed until final judgment.

Nor can I agree with the majority that to quash the appeal “serves no purpose other than delay.” Majority Opinion, page 144 n. 2. For the reasons I have stated, I conclude that the order is interlocutory. The order is not among those interlocutory orders for which appellate review exists as of right. See Pa.R.A.P. 311, 42 Pa.C.S. Our jurisdiction to review the order, therefore, must rest, if at all, in 42 Pa.C.S. § 702(b) Interlocutory appeals by permission. See also Pa.R.A.P. 312, 42 Pa.C.S. An appellate court is authorized to exercise its discretion to permit an appeal from some interlocutory orders. 42 Pa.C.S. § 702(b). However, our Superior Court Internal Operating Procedures direct that petitions for permission for review are subject to review and vote by all of the commissioned judges. Int.Op.Pro. § 302(A). It is my opinion that the right of the full Court to review and consider whether to permit an appeal by permission serves purposes other than “delay.” Because I am unable to find any proper basis for this panel to proceed to entertain the merits of this appeal without further empowerment from the full Court, I must respectfully dissent from my distinguished colleagues’ decision.

For the foregoing reasons, I conclude that the Order of March 2, 1990, as amended by the Order of March 27, 1990, is not appealable as a final order under 42 Pa.C.S. § 742. Accordingly, I should conclude that we lack jurisdiction to consider the merits of the issues presented, and that we are required to quash this appeal.

      . The Superior Court utilized a similar rationale in reaching the merits in Hutchison v. Luddy, 398 Pa.Super. 505, 581 A.2d 578 (1990). The Supreme Court subsequently reversed and held that the order in that case was interlocutory and non-appealable. The order from which the appeal had been filed in that case, however, had merely denied a motion to seal the record.

      . To quash the appeal without prejudice to appellants’ right to once again petition the Court to hear an interlocutory appeal would serve no purpose other than delay; and, therefore, we have rejected such an approach.

      . The cases cited by appellants include the following: The Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952).