author: KELLY, Judge: POPOVICH, Judge,

text:
    554 A.2d 946
    COMMONWEALTH of Pennsylvania v. Gary L. SWAVELY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1988.
    Filed Feb. 23, 1989.

      George A. Gonzalez, Assistant Public Defender, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.
    Before MONTEMURO, KELLY and POPOVICH, JJ.
   KELLY, Judge:

We are called upon, in this appeal, to determine whether the imposition of separate consecutive sentences for delivery of two different prohibited narcotics in a single plastic vial and in a single sale violated the double jeopardy proscription against multiple punishments for a single offense, and whether the imposition of separate consecutive sentences violated Pennsylvania’s merger doctrine. Upon careful review of the record and the applicable authority, we find neither the double jeopardy proscription nor the Pennsylvania merger doctrine were violated. Accordingly, we affirm the trial court’s order denying appellant’s petition for post-conviction relief.

Appellant, Gary L. Swavely, was arrested and charged in six separate counts with violating the Controlled Substance, Drug, Device and Cosmetic Act (the Act), 35 Pa.C.S.A. § 780-113(a)(16) and (a)(30). Following a jury trial, appellant was convicted of possession with intent to deliver and delivery of a Schedule II controlled substance (Tuinal) and possession with intent to deliver and delivery of a Schedule IV controlled substance (Talwin). Timely post-verdict motions were filed, argued and denied. On October 3, 1985, the appellant - was sentenced, pursuant to 35 Pa.C.S.A. § 780 — 113(f)(1) and (3), to two consecutive terms of imprisonment, one term for delivery of the Tuinal, and one term for delivery of the Talwin. A direct appeal was taken to this Court in which appellant alleged ineffective assistance of trial counsel. This Court, by memorandum opinion, affirmed judgment of sentence on June 30, 1986.

Appellant subsequently filed a petition under the Post-Conviction Hearing Act alleging that his post-trial counsel was ineffective for failing to challenge the legality of the sentence. Specifically, appellant claimed that post-trial counsel should have challenged the trial court’s imposition of consecutive sentences which appellant claimed violated his constitutional right against double jeopardy. Appellant claimed that he was sentenced twice for the same criminal offense. Appellant also argued that the Commonwealth used perjured testimony to obtain his conviction and that post-trial counsel was ineffective for failing to raise this issue. Following a hearing held December 23, 1987, the trial court denied appellant’s request for post-conviction relief. This timely appeal followed.

Appellant’s only contention on appeal is that his trial counsel and post-trial counsel were ineffective in failing to raise and preserve in the trial court and in this Court on direct appeal the issue of whether the appellant should have been sentenced twice for the same criminal transaction. We find no merit to this contention.

Initially, we note that appellant’s claim, that trial counsel was ineffective for failing to challenge in the trial court the legality of the sentence imposed, has been waived as it was not raised at the earliest stage of the proceedings at which trial counsel no longer represented appellant. Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 645 (1982); Commonwealth v. House, 371 Pa.Super. 23, 27, 537 A.2d 361, 363 (1988); see also Commonwealth v. Fuller, 353 Pa.Super. 120, 509 A.2d 364 (1986). The question we are concerned with in this appeal is whether appellate counsel was ineffective for failing to challenge, on direct appeal, the legality of the sentence imposed. Of course, this claim could have been presented directly as a challenge to the legality of sentence instead of indirectly via an ineffective assistance of counsel claim. We note, however, that the election to present it in the form of an ineffectiveness claim has no practical effect on the disposition of this appeal.

Preliminarily, we note that the law presumes that counsel is effective and that the burden of establishing ineffective assistance of counsel rests upon the appellant. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). In order to establish a claim of ineffectiveness, appellant must show that: by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had an objectively reasonable basis designed to effectuate appellant’s interest; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been more favorable to appellant. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Carelli, 377 Pa.Super. 117, 546 A.2d 1185 (1988); Commonwealth v. Petras, supra.

As stated previously, appellant’s underlying claim is that imposition of separate consecutive sentences for delivery of two different prohibited narcotics in a single sale and in a single package violated the double jeopardy proscription against multiple sentences for a single offense and the Pennsylvania merger doctrine. After careful review, we find this claim wholly without merit.

I. DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Appellant’s claim is that the trial court imposed separate consecutive sentences for a single offense. We are concerned, therefore, with only the third of these three guarantees. As such, the question we need to consider is whether delivery of a Schedule II drug and a Schedule IV drug in a single transaction constitutes the same offense for sentencing purposes.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court enunciated the appropriate test to be applied to determine whether a single transaction violates two distinct statutory provisions. The Court stated:

The applicable rale is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not 'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’

Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. (Emphasis added). See also United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Illinois v. Vitale, 447 U.S. 410, 100 S.Ct 2260, 65 L.Ed.2d 228 (1980). Thus, for two crimes arising from the same transaction to constitute the same offense, a comparison of their statutory elements must reveal that proof of one offense will necessarily prove the other. Illinois v. Vitale, supra. Applying the test, we must conclude that here, although both counts arise from a single sale, two offenses were committed as neither offense constitutes a lesser included offense of the other.

Instantly, appellant was charged in separate counts with two violations of 35 Pa.C.S.A. § 780-113(a)(30), delivery of a controlled substance. Delivery is defined under the Act to mean “the actual, constructive, or attempted transfer from one person to another of a controlled substance, other drug, device or cosmetic whether or not there is an agency relationship.” 35 Pa.C.S.A. § 780-102. Thus, in order to find appellant guilty on count five, delivery of a Schedule II controlled substance, Tuinal, the jury had to conclude that there was a transfer of Tuinal from appellant to another person. However, in order to find appellant guilty of count six, delivery of a Schedule IV controlled substance, Talwin, the jury had to conclude that there was a transfer of Talwin from appellant to another person. Thus, delivery of Talwin is not a lesser offense to be included within the offense of delivery of Tuinal. Each offense includes an element distinctive of the other, i.e. the particular controlled substance. Therefore, we conclude that when the vial containing the two separate drugs was delivered, two separate offenses occurred, and sentencing on both offenses did not violate the Double Jeopardy Clause of the Fifth Amendment.

Additionally, the trial court found, and we agree, that assuming, arguendo, the delivery of the two drugs in one sale constituted a single offense, the double jeopardy clause would not be violated by cumulative punishments because our legislature specifically authorized it for the particular offense involved. Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980); see also Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); United States v. Gomberg, 715 F.2d 843 (3rd Cir.1983); United States v. Boffa, 688 F.2d 919 (3rd Cir.1982).

The statutory scheme of the Act divides the list of controlled substances established by the General Assembly into five separate categories. These five categories are designated in the Act as “Schedules” and are numbered Schedule I through Schedule V. The placement of a substance within a particular Schedule depends upon its potential for abuse, its accepted medical use, and its perceived dangerousness. 35 Pa.G.S.A. § 780-104. An examination of Schedule I through Schedule V reveals that Schedule I is concerned with the most dangerous controlled substances and each succeeding Schedule is concerned with progressively less dangerous controlled substances. Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979); 35 Pa.C.S.A. § 780-104; see also Commonwealth v. Teada, 235 Pa.Super. 438, 344 A.2d 682 (1975). Each Schedule in turn has various subsections. Generally, the placement of a controlled substance within a particular subsection is based upon whether the dangerousness of the particular substance requires that it be prohibited regardless of the quantity involved, or whether dangerousness of the particular substance depends upon the fact that the quantity involved has a “potential for abuse.” Commonwealth v. Driscoll, supra; Commonwealth v. Teada, supra; 35 Pa.C.S.A. § 780-104(2), (3), and (4).

By categorizing controlled substances in this manner, the legislature has determined that all controlled substances are not alike, but that each is distinctive and that its treatment under the Act depends upon its peculiar dangerousness, potential for abuse, and medical usefulness. Thus, Section 780-104 is not merely'a list of prohibited controlled substances; rather, it is a detailed expression of the legislature’s qualitative analysis of the relative threat to the community posed by each of the various specified substances.

Recognizing that there are significant differences between controlled substances, the legislature authorized punishments which correspond with the relative threat to the community posed by an unauthorized possession, use, or transfer of the controlled substance involved. Section 780-113(f) provides:

Any person who violates clause (12), (14) or [clause] (30) of subsection (a) with respect to:
(1) A controlled substance or counterfeit substance classified in Schedule I or II which is a narcotic drug, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding fifteen years, or to pay a fine not exceeding two hundred fifty thousand dollars ($250,000), or both or such larger amount as is sufficient to exhaust the assets utilized in and the profits obtained from the illegal activity.
(1.1) Phencyclidine; methamphetamine, including its salts, isomers and salts of isomers[,]; coca leaves and any salt, compound, derivative or preparation of coca leaves; any salt, compound, derivative or preparation of the preceding which is chemically equivalent or identical with any of these substances, except decocanized coca leaves or extract of coca leaves, which extracts do not contain cocaine or eegonine; and marihuana in a quantity in excess of one thousand (1,000) pounds, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding ten years, or to pay a fine not exceeding one hundred thousand dollars ($100,000), or both, or such larger amount as is sufficient to exhaust the assets utilized in and the profits obtained from the illegal manufacture or distribution of these substances.
(2) Any other controlled substance or counterfeit substance classified in Schedule I, II, or III, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding five years, or to pay a fine not exceeding fifteen thousand dollars ($15,000), or both.
(3) A controlled substance or counterfeit substance classified in Schedule IV, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding three years, or to pay a fine not exceeding ten thousand dollars ($10,000), or both.
(4) A controlled substance or counterfeit substance classified in Schedule V, is guilty of a misdemeanor and upon conviction thereof shall be sentenced to imprisonment not exceeding one year, or to pay fine not exceeding five thousand dollars ($5,000), or both.

35 Pa.C.S.A. § 780-113(f). (Emphasis added). Thus, the maximum punishment authorized depends initially upon the type of substance involved and in certain cases the amount of the substance involved.

Pursuant to authority delegated by the legislature, the Sentencing Commission has further refined the sentencing process for drug cases. The revised guidelines for sentencing in drug cases trichotomize the applicable sentencing ranges for narcotics, cocaine, phencyclidine, methamphetamine, and marijuana based on the quantity of the drug involved. There are also new offense gravity score listings for drug offenses which correspond to the new sentence range chart. See New Guidelines Promulgated, 5 Monitor, 1-3, 15-16 (Pa.S.C., April 1988); §§ 303.8(d), 303.9(c). These changes were specifically designed to remedy the perceived excessive leniency of the guidelines formerly in effect. See New Guidelines Promulgated, supra, at 1.

Generally speaking, the gradation and sentencing structure for drug offenses indicates an intent to delineate offenses by the drug involved and to determine where within the statutory limits to sentence the offender based upon the amount involved and other general sentencing factors. Logically, when two drugs are transferred in one illegal sale there are three possible sentencing alternatives under the applicable statutes and revised guidelines.

The first possible scenario involves the delivery, in a single sale, of two different forms of the same substance; e.g. marijuana and hashish. Because hashish falls within the statutory definition of marijuana, only one type of controlled substance has been provided and therefore separate convictions must merge for sentencing purposes. See Commonwealth v. Gruber, 378 Pa.Super. 291, 548 A.2d 617 (1988). Pursuant to the revised guidelines, however, the weight of the marijuana and hashish would be aggregated for purposes of determining the applicable guideline ranges. Hence, both the marijuana and the hashish deliveries are considered in accessing the sentence to be imposed.

The second possible scenario involves the delivery of a mixture or compound, in a single unit, containing a detectable amount of more than one controlled substance. Pursuant to the new guidelines, the mixture or compound is to be deemed to be composed entirely of the controlled substance which has the longest suggested guideline penalties. 204 Pa.Code § 303.9(c)(1) (Sentence Range Chart). Again, the weight of both controlled substances are aggregated to determine the amount of the substance involved for sentencing purposes.

The third possible scenario is that presented in the instant case. Neither of the sentencing alternatives previously discussed is applicable here. Tuinal and Talwin do not constitute different forms of the same substance, and they were separated, rather than contained in a single compound, when delivered.

This particular scenario lends itself to two possible sentencing alternatives. First, the conviction for delivery of Talwin could be deemed to merge with the conviction for delivery of Tuinal and appellant would be sentenced for the delivery of the substance with the longer penalty. However, appellant would thereby avoid punishment for the offense of illegally delivering Talwin based solely on the fortuitousness of having made the transfer in a single sale in which an even more dangerous drug was also transferred. The second option is to recognize that while only one sale occurred, two separate offenses were committed and appellant should be sentenced separately for both offenses. In light of our legislature’s concern with the drug problem facing our Commonwealth, we find the latter interpretation is the far more reasonable one.

We find that in setting forth, in separate statutory provisions, the punishments to be imposed for violations where the violation involves a particular type of substance, the legislature has given the courts the authority to impose separate sentences for the delivery of two different drugs, even though they were delivered in one transaction. As there is no language clearly and specifically indicating that the legislature intended, where more than one substance is involved, to have the defendant sentenced only with respect to the substance with the greatest penalty, we decline to interpret the statute in such a narrow manner. To do so would be wholly inconsistent with the manifest intent of the legislature to enhance deterrence of drug offenses by increasing authorized sanctions and authorizing guidelines which likewise indicate the grave nature of the threat which illegal drug trafficking presents to our Commonwealth and society in general. We find, therefore, that the trial court was correct in finding that the imposition of consecutive sentences was legal and within its discretionary authority.

II. MERGER DOCTRINE

In a related assertion, appellant argues that even if multiple punishment does not place the appellant in double jeopardy, it is, nonetheless, a violation of the Pennsylvania merger doctrine. Again, we disagree.

The merger doctrine acts to limit the multiplicity of sentences which may be handed down for those crimes which, in effect, constitute a single crime. According to the decision by our Supreme Court in Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987), there is a two pronged test which must be satisfied before merger of the two offenses is required:

First, the crimes must ‘necessarily involve’ one another. Second, even if the two crimes necessarily involve one another, they do not merge if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest.

Williams, supra, 522 A.2d at 1101; see also Commonwealth v. Williams, 368 Pa.Super. 315, 534 A.2d 101 (1987).

In this case, the two separate offenses committed did not necessarily involve one another. Though contained in the same vial when transferred, neither offense required the existence of the other drug for its completion. Either offense could readily have been completed without the other. That appellant chose to complete both crimes in one transfer does not render one crime necessarily included in the other. Furthermore, we do not find, as appellant argues, that they both violated a single interest which the Commonwealth meant to protect. An examination of the language of the particular statute and the context in which each provision of the statute appears in the Code leads us to the conclusion that the multiple sentences vindicate substantially different interests. See Commonwealth v. Williams, 368 Pa.Super. 315, 534 A.2d 101 (1987); Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985).

A sentence imposed pursuant to 35 Pa.C.S.A. § 780-113(f)(1), carries a sentence of up to fifteen years. This provision of the Act deals with violations where the substance involved is a narcotic drug classified in Schedule I or Schedule II, which includes Tuinal. A narcotic has been defined under the Act to mean “any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis: (i) opium, (ii) any opiate having an addiction-forming or addiction-sustaining capacity similar to morphine, but not including the isoquinoline alkaloids of opium, (iii) any compound, manufacture, salt, derivative, or preparation of opium or any opiate, and (iv) any substance, compound, manufacture, salt, derivative, or preparation thereof, which is chemically identical with any of the substances referred to in (i), (ii) or (iii). Moreover, a review of § 780-104(2) reveals that the legislature has determined that a Schedule II drug has a high potential for abuse which may lead to severe psychic or physical dependence. See 35 Pa.C.S.A. § 780-104(2). Thus, the legislature promulgated legislation which imposes the most severe sentence for those persons convicted of possession or distribution of narcotic drugs classified as a Schedule II controlled substance. A sentence imposed pursuant to 35 Pa.C.S.A. § 780-118(f)(3), however, carries a maximum sentence of only three years. This provision concerns Schedule IV drugs which have been recognized as having a relatively low potential for abuse, but are still considered to be dangerous. See 85 Pa.C.S.A. § 780-104(4). Talwin is included in Schedule IV.

By categorizing a controlled substance according to its degree of danger and potential for abuse and scaling the sentence to be imposed accordingly, the legislature has manifested a clear intent that the punishment imposed be inextricably linked with the particular drug or drugs involved in the transaction. Furthermore, we find the interest the legislature sought to vindicate, i.e. deterring drug use and drug trafficking, increases qualitatively as well as quantitatively with the dangerousness of the drug involved. To allow a defendant to deliver several drugs in one transaction but restrict his sentence because only one delivery occurred, regardless of the type of drugs sold, would undermine the legislative intent embodied in the Act, 35 Pa.C.S.A. § 780-101 et seq. and would depreciate the seriousness of the offense in a manner neither suggested nor warranted by statute or caselaw. This we cannot do, as such a construction would be inconsistent with the manifest intent of the legislature. See 1 Pa.C.S.A. § 1901 et seq. See Commonwealth v. Abbott, 319 Pa.Super. 479, 466 A.2d 644 (1983) (it is indisputable that the statute outlawing traffic in prohibited substances is designed to banish the dread evil that illegal drugs have inflicted upon individual victims as well as upon society as a whole). Accordingly, we hold that merger of the offenses is not warranted.

Based upon the foregoing, we find appellant’s underlying contention is wholly without merit, therefore, his appellate counsel cannot be considered ineffective for failing to challenge the legality of this sentence on direct appeal. Commonwealth v. Wells, 513 Pa. 463, 468, 521 A.2d 1388, 1390 (1987).

Accordingly, we affirm the order of the trial court dismissing appellant’s P.C.H.A. petition.

ORDER AFFIRMED.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

Upon review of the majority’s opinion, I dissent. I am convinced that two separate judgments of sentence for delivery of a controlled substance arising from a single delivery of a single vial containing two different controlled substances violate the double jeopardy proscription against multiple punishments for a single offense.

The Drug Act prohibits: “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance____” 35 Pa.C.S.A. § 780-113(a)(30). A controlled substance is defined as “a drug, substance, or immediate precursor included in Schedules I through V of this act.” The focal point of the double jeopardy issue is whether 35 Pa.C.S.A. § 780-113(a)(30) is read in conjunction with the Schedules, thus, making the Schedule (or, as the majority’s opinion implies, the chemical make-up) of the drug an element of the offense. The effect of the majority’s opinion is that the Schedule or chemical make-up of the drug is an element of the offense of delivery of the drug. However, I am convinced that the Schedules were not intended to be employed as an element of the drug offense itself, but rather the Schedules were created solely for the purposes of imposing sentences consistent with the individual drug’s potential harm to society. In essence, the Schedules are merely a sentencing guideline based on the legislature’s qualitative analysis of the individual drug’s potential for harm.

In sum, I would hold that when two different drugs, contained in a single vial, are delivered in a single transaction, only one violation of the Drug Act occurs. The appellant is correct: The double jeopardy proscription against multiple punishments for a single offense has been violated; and appellate counsel was ineffective for failing to attack the legality of sentences. Accordingly, under the facts before us, the separate sentences for delivery should be vacated and a single sentence should be imposed based upon the drug in the Schedule with the greater possible sentence, that being Tuinal.

      . For sentencing purposes, the convictions for possession with intent to deliver merged with the convictions for delivery.

      . Commonwealth v. Swavely, 357 Pa.Super. 639, 513 A.2d 1078 (1986).

      . An example of two crimes arising from the same transaction constituting the same offense is possession, 35 Pa.C.S.A. § 780-113(a)(16), and possession with intent to deliver, 35 Pa.C.S.A. § 780-113(a)(30). The proof necessary to convict a defendant of possession with intent to deliver includes proving all of the elements of possession. Thus, possession is a lesser included offense of possession with intent to deliver and the former merges with the latter for sentencing purposes.

      . Tuinal, a moderately long-acting barbituate, is a central-nervous system depressant. In ordinary doses, the drug acts as a hypnotic. However, physicians have been warned that prolonged, uninterrupted use of barbituates (particularly the short-acting drugs), even in therapeutic doses, may result in psychic and physical dependence. Withdrawal systems due to physical dependence following chronic use of large doses of barbituates may include delirium, convulsions and death. See Physicians' Desk Reference, (39th Ed.1985) at 1176-77.

      . Talwin NX is an analgesic intended for oral use only. However, there have been instances of psychological and physical dependence on parenteral pentazocine in patients with a history of drug abuse. Furthermore, severe, potentially lethal, reactions may result from misuse of Talwin NX by injection either alone or in combination with other substances. See Physicians’ Desk Reference, (42nd Ed.1988) at 2252-2253.


source: Caselaw Access Project

author: MELINSON, Judge: WIEAND, Justice,

license: Public Domain

text:
    554 A.2d 954
    William R. STENGER, Donna A. Stenger, Craig Stenger and Barry Stenger, Minors hy Their Parents and Natural Guardians William and Donna Stenger v. LEHIGH VALLEY HOSPITAL CENTER, Samuel Huston, Theodore J. Matulewicz, M.D., Barry J. Slaven, M.D., Hospital Central Services, Inc., H.C.S.C. Blood Center T/A Samuel W. Miller Memorial Blood Center, Lyndall Molthan, M.D., and Joseph Yelo and the Morning Call, Inc. Appeal of The MORNING CALL, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1988.
    Filed March 1, 1989.

      Malcolm J. Gross, Allentown, for appellant.
    Pamela W. Higgins, Philadelphia, for Stenger, appellees.
    Edward C. McCardle, Allentown, for Lehigh, appellees.
    David L. Haber, Pittsburgh, for H.C.S.C., appellees.

      Before WIEAND, McEWEN and MELINSON, JJ.
   MELINSON, Judge:

This is an appeal from an order of the Court of Common Pleas of Lehigh County, denying the petition to intervene filed by appellant, The Morning Call, Inc. (hereinafter “The Morning Call”).

In March of 1987, William R. Stenger, Donna A. Stenger, Craig Stenger, and Barry Stenger, the plaintiffs in the underlying action, filed a complaint against Lehigh Valley Hospital Center (hereinafter “LVHC”), Samuel Huston, Theodore J. Matulewicz, i,LD., Barry J. Slaven, M.D., Hospital Central Services, Inc., H.C.S.C. Blood Center t/a Samuel W. Miller Memorial Blood Center, Lyndall Molthan, M.D., and Joseph Yelo, the defendants in the underlying action. All of these parties are appellees in the action at bar. The complaint in the underlying action alleged that while receiving treatment at LVHC, Donna A. Stenger was transfused with units of blood which were contaminated with Acquired Immune Deficiency Syndrome (hereinafter “AIDS”), and from this transfusion she contracted the AIDS virus. The complaint also alleges that shortly after Donna Stenger was diagnosed as having AIDS, her husband, William Stenger, and son, Craig Stenger, tested positive for exposure to the virus.

Discovery proceedings began with the deposition of William Stenger on April 15, 1987. The deposition was adjourned prior to completion. The Stengers filed a motion for a protective order, contending that such an order was necessary to preserve the confidentiality of future depositions. Following argument and with the agreement of counsel, the trial judge, the Honorable John E. Backenstoe, President Judge of the Court of Common Pleas of Lehigh County, entered a protective order on April 30, 1987, relating to future depositions.

On May 11, 1987, The Morning Call, a Lehigh County newspaper, filed a petition to intervene in this lawsuit in order to file exceptions to the protective order. Thereafter, the trial court ordered the exceptions filed and issued upon all of the appellees a rule to show cause why the newspaper should not be permitted to intervene for the purpose of seeking to vacate the protective order. The appellees filed responses as directed by the trial court, opposing the petition to intervene and addressing the substantive issues raised by the exceptions. Oral argument was heard by President Judge Backenstoe on July 1, 1987, regarding The Morning Call’s right to intervene and the merits of the exceptions. On November 6, 1987, the court issued an opinion and order denying intervention and rejecting each of the exceptions filed by The Morning Call. In pertinent part, the order provided:

1. No persons other than parties and their counsel, and experts and/or investigators executing Exhibit “A” hereto, shall attend any of the depositions scheduled or to be scheduled in this case.
2. There shall be no disclosure, copying, summarizing or use of the information discovered in depositions, interrogatories or any other formal discovery process by any party in this case, other than for use in the preparation of pleadings, or for preparation and trial of this case, including review by experts of the parties [sic] choosing and all such documents shall be and remain under seal.

The Morning Call filed a notice of appeal with this court from Judge Backenstoe’s order. On April 12, 1988, we entered an order directing the parties to brief the threshold issue of whether the appeal is from a final order or is interlocutory.

Accordingly, we must first address whether the trial court order denying The Morning Call’s petition to intervene is a final, appealable order. In the seminal case on the subject, the Pennsylvania Supreme Court held that “[a]s a rule, an appeal will not lie from an order refusing leave to intervene, because such order is not a final one, [however] cases may arise where a denial of a petition to intervene would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way; and in such cases the refusal to permit an intervention is a final .order or decree as to the petitioner[.]” Frey’s Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912); see also Scharnitzki v. Bienenfeld, 368 Pa.Super. 610, 534 A.2d 825 (1987). Because a petition to intervene might be the only way a petitioner can obtain judicial relief, the decision whether to quash an appeal from an order denying a petition to intervene is intertwined with a consideration of the merits of the case, for “the finality of an order is a judicial conclusion which can be reached only after examination of its ramifications.” Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 281, 446 A.2d 614, 615 (1982), quoting Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). Therefore, we must examine the merits of The Morning Call’s petition in order to determine whether the trial court’s order “is a practical denial of relief to which The Morning Call is entitled.” See Boise Cascade, 300 Pa.Super. at 282, 446 A.2d 614.

Whether to allow intervention is a matter vested in the discretion of the trial court and that court’s decision will not be disturbed on appeal absent a manifest abuse of its discretion. Wilson v. State Farm Mutual Automobile Insurance Company, 512 Pa. 486, 517 A.2d 944 (1986); M. London, Inc. v. Fedders Corp., 306 Pa.Super. 103, 452 A.2d 236 (1982). A trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will. M. London Inc., 306 Pa.Super. at 106-107, 452 A.2d 236.

Pennsylvania Rule of Civil Procedure 2327 sets forth the four categories of persons who may be permitted to intervene in a civil action. The Rule provides as follows;

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or
(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or
(3) such person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.

Although not specifically stated in its brief to this court, The Morning Call is presumably basing its argument on subsection four (4) of Rule 2827. .Specifically, The Morning Call claims that both federal constitutional law and common law support the contention that The Morning Call should be allowed to intervene to gain access to what The Morning Call terms the “judicial records” at issue.

Initially, we note, as the attorney for The Morning Call conceded at oral argument, that the media has no greater right of access to any judicial proceeding or document than does any other citizen. As stated by our Supreme Court, “access rights of the news media, and of the general public, are identical in scope.” Commonwealth v. Fenstermaker, 515 Pa. 501, 504 n. 1, 530 A.2d 414, 416 (1987), citing Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 548 (1965).

I. CONSTITUTIONAL LAW

The First and Fourteenth Amendments to the United States Constitution implicitly guarantee the public a qualified right of access to a criminal trial. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); U.S. CONST. amend. I; U.S. CONST. amend XIV section 1. Furthermore, the Sixth Amendment mandates that an “accused shall enjoy the right to a speedy and public trial”. U.S. CONST. amend. VI. In reviewing the history of criminal trials in England and in Colonial America, the Richmond Newspapers Court concluded that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, 448 U.S. at 573, 100 S.Ct. at 2825. The Court noted, however, that its holding “does not mean that the First Amendment rights of the public and representatives of the press are absolute.” Richmond Newspapers, 448 U.S. at 581 n. 18, 100 S.Ct. at 2830 n. 18. “The right to speak and publish does not carry with it the unrestrained right to gather information.” Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965). Rather, “[t]he presumption of [First Amendment] openness [for access to a criminal trial] may be overcome ... by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was proper.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984). Thus, even in the context of a criminal trial, where federal Constitutional guarantees both explicitly and implicitly apply, access rights of the public are subject to limitation by judicial discretion and necessity.

The already compromised access rights of the public, and of the press as members thereof, are subject to further limitations when the proceeding is not criminal, but civil, involving only private litigants. See Seattle Times v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984); United States v. Smith, 776 F.2d 1104 (3d Cir. 1985).

Moreover, and perhaps more significantly, a clear distinction must be drawn between First Amendment access rights to publish information acquired during trial, and access rights to publish information obtained in a pretrial discovery context. It is in a pretrial discovery context in preparation for a civil trial between private litigants, as is the circumstance at bar, that First Amendment access rights to litigation are at their nadir. See Seattle Times Company v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). In fact, the Supreme Court of the United States has stated that an order prohibiting dissemination of pretrial discovery information is not even the kind of classic prior restraint that requires exacting First Amendment scrutiny. Seattle Times, 467 U.S. at 33, 104 S.Ct. at 2207; see also Gannett Company v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

In Seattle Times, the Supreme Court of the United States addressed the issue of a newspaper’s right to publish information gathered through the pretrial discovery process in the course of civil litigation. The newspaper that sought to publish pretrial discovery information in that case was actually a party to the lawsuit. Nevertheless, the trial court granted Rhinehart, a leader of a religious group, a protective order which, like the protective order at bar, prohibited the newspaper from disseminating information obtained in the discovery process. As in the case at bar, the order did not apply to information gained through means outside of the discovery process. Further, the trial court’s protective order in Seattle Times was based upon a Washington State rule almost precisely similar to this Commonwealth’s protective order rule of civil procedure, utilized by the trial court at bar. Compare Washington Superior Court Civil Rule 26(c) with Pa.R.Civ.P. 4012.

The critical inquiry faced by the Supreme Court was whether a protective order precluding the party-newspaper from disseminating information gathered during the pretrial discovery process was an infringement on that party’s First Amendment rights. The Court found that it was not. Initially, the Supreme Court analyzed the Washington State rule of civil procedure defining the parameters of discoverable information. The Court noted that under the rule, a party “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Seattle Times, 467 U.S. at 29, 104 S.Ct. at 2205, quoting Washington Superior Court Civil Rule 26(b)(1). The rule further provides that discovery is not limited to matters that will be admissible at trial, so long as the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” Seattle Times, 467 U.S. at 29-30, 104 S.Ct. at 2206, quoting Washington Superior Court Civil Rule 26(b)(1). The Court commented that the only express limitations contained in the rules are that the information sought is not privileged, and is relevant to the subject matter of the pending action. Accordingly, the Court observed that much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action, and that the discovery rules often allow extensive intrusion into the private affairs of both litigants and third parties. Seattle Times, 467 U.S. at 30-33, 104 S.Ct. at 2206-2208. The Court noted:

“Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c). It is clear from experience that pretrial discovery by depositions and interrogatories has significant potential for abuse. This abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties. The Rules do not distinguish between public and private information. Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery.”

Seattle Times, 467 U.S. at 34-35, 104 S.Ct. at 2208.

In further commenting upon the private nature of the pretrial discovery process, the Court stated that “pretrial depositions and interrogatories are not public components of a civil trial.” Seattle Times, 467 U.S. at 33, 104 S.Ct. at 2208. “Discovery rarely takes place in public. Depositions are scheduled at times and places most convenient to those involved. Interrogatories are answered in private.” Id. at 33 n. 19, 104 S.Ct. at 2207 n. 19.

Because of these factors, the Court found that restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information. Seattle Times, 467 U.S. at 33, 104 S.Ct. at 2207. The Court stated that “the prevention of abuse that can attend the coerced production of information under a State’s discovery rule is sufficient justification for the authorization of protective orders,” Id. at 35-36, 104 S.Ct. at 2209, and that “the trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.” Id. at 36, 104 S.Ct. at 2209. Therefore, the Court held “that where ... a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.”

Although the issue in Seattle Times was freedom of the press to publish, rather than the public’s right of access, the reasons that existed for the Supreme Court’s holding in that case exist in the present case. Both cases are civil in nature. Both involve pretrial discovery information. The Pennsylvania Rules of Civil Procedure, like Washington’s rules regarding civil procedure analyzed by the Supreme Court in Seattle Times, permit discovery of any matter, not privileged, that is -relevant to the subject matter involved in the pending action. Pa.R.Civ.P. 4003.1. Again, as is the case with the Washington rules, the Pennsylvania rules do not limit discovery to admissible trial information, but rather, allow for the discovery of information inadmissible at trial, provided that the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” Pa.R.Civ.P. 4003.1. Furthermore, discovery practices in Pennsylvania fit into the generalizations drawn by the Supreme Court in Seattle Times. Discovery in Pennsylvania rarely takes place in public. Depositions are usually scheduled in private quarters, at times and places most convenient for those involved. Interrogatories are also privately answered. Thus, the privacy concerns regarding the scope and manner of discovery articulated by the Supreme Court in Seattle Times are clearly present at bar.

Here, the discovered information to which The Morning Call seeks access contains intimate, personal details of the Stengers’ lives. Encompassed therein is information about their sexual practices, their idiosyncrasies, and their personal hygiene habits. See Brief of Appellees, William, Donna, Craig, and Barry Stenger, page 11. This information elicited from the Stengers must only be reasonably calculated to lead to the discovery of admissible evidence; thus, such information may not even meet the standards for admissibility at trial. Furthermore, the parties may settle the litigation before trial even begins; thus, none of this intensely private information would be subject to public scrutiny at a trial.

If the parties do proceed to trial, The Morning Call would clearly have access to publish the evidence admitted at trial. The fact that The Morning Call is not a party to the litigation, unlike the petitioner in Seattle Times, serves to vitiate The Morning Call’s claim even further. Here, all of the parties to the lawsuit,' not just the Stengers, have supported the protective order issued by President Judge Backenstoe.

Moreover, as was the situation in Seattle Times, the trial court here relied upon a rule of civil procedure that allows the court, in its discretion, to implement a protective order to save a party from unreasonable embarrassment, annoyance or burden. Pa.R.Civ.P. 4012. There is no doubt that the contraction of the deadly AIDS virus has caused the Stengers unbearable misery. Certainly, the publication of their affliction in various newspapers has exacerbated this misery. The publication by The Morning Call of additional intimate details of the Stengers’ lives would needlessly add humiliation to their distress. Clearly, good cause, as required by Pa.R.Civ.P. 4012, the Pennsylvania counterpart to Washington Rule 26(c), existed for the protective order.

Finally, the protective order at bar was narrowly tailored to apply exclusively to information communicated in the discovery process. The Morning Call has not been precluded from publishing information about the Stengers obtained from independent research. It has access to judicial records, as that term has been defined by judges, not newspapers, and it is free to publish the fruits of this access. If the parties proceed to trial, The Morning Call can also publish all information garnered at that proceeding.

Accordingly, we hold, as did the Supreme Court in Seattle Times, that a protective order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny. Seattle Times, 467 U.S. at 33, 104 S.Ct. at 2208. As stated by the Seattle Times Court, the scope of discoverable information is broad and there is a resultant potential for abuse in the discovery process. Thus, we wholly embrace the conclusion of the Supreme Court of the United States that “the trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.” Seattle Times, 467 U.S. at 36, 104 S.Ct. at 2209. In the case at bar, because the distinguished trial judge had good cause to fashion the protective order, because the order drawn is limited to the context of pretrial discovery, and because the order does not restrict the Morning Call from gaining the same information from other sources, we find that the protective order was not a violation of The Morning Call's First Amendment rights.

II. COMMON LAW

The Morning Call also argues that it has a common law right of access to the discovery documents at bar. The Morning Call denominates this discovery information “judicial records.” Brief for appellant at 9. We find that the discovery documents at issue are not judicial records, and that The Morning Call has no common law right of access to inspect this information.

There is a long-standing presumption in the common law that the public may inspect and copy judicial records and public documents. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Bank of America National Trust v. Hotel Rittenhouse, 800 F.2d 339 (3d Cir.1986); see also Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987). The public has a presumptive right of access to trial transcripts and transcripts of sidebar or chambers conferences. Unit ed States v. Smith, 787 F.2d 111 (3d Cir.1986). The presumption extends to documents which have been filed with the court, such as pleadings, arrest warrant affidavits, and settlement agreements, and which are considered public records. See Fenstermaker, 515 Pa. at 513-514, 530 A.2d 414, Bank of America National Trust, 800 F.2d at 342-343; In re Alexander Grant and Company Litigation, 820 F.2d 352 (11th Cir.1987).

However, private documents collected during discovery are not judicial records. In re Alexander Grant and Company, 820 F.2d at 355; Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir.1986); see also Seattle Times v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). For the reasons articulated in the constitutional section of this opinion, discovery is essentially a private process. As stated by the Supreme Court in Seattle Times, “pretrial depositions and interrogatories are not public components of a civil trial.” Seattle Times, 467 U.S. at 33, 104 S.Ct. at 2207. Thus, wrote the Court, “such proceedings were not open to the public at common law.” Id. Justice Burger wrote separately in another Supreme Court opinion that “it has never occurred to anyone, so far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants.” Gannett Company v. DePasquale, 443 U.S. 368, 396, 99 S.Ct. 2898, 2914, 61 L.Ed.2d 608, 632 (1979). Accordingly, in the case at bar, The Morning Call does not have a common law right of access to discovered information.

Furthermore, we believe, as did the learned trial judge, that if a common law right of access is found here, and discovery information were to be readily available to the public, the detrimental consequences to the discovery process would be grievous. As a result, the entire litigation procedure would suffer. The trial court incisively and cogently stated:

[w]e believe that nonparty access to discovery materials may have a chilling éffect upon potential litigants. Human nature dictates that an individual will be reluctant to pursue his legal rights once he is aware that doing so will result in the exposure of his private life. This intrusion into a litigant’s private affairs at the discovery or pretrial stage could be a deterrent to the utilization of the court system ... Further, as is evident in the present matter, nonparty access in controversial cases threatens the right of the litigants to a fair trial. It is essential that the court ensure this right by preventing an unfair presentation, prior to trial, of the facts and issues underlying a controversy.

Trial Court Opinion at 12. Not only would voluntary discovery be chilled, but whatever discovery that did take place would be almost exclusively oral. This is obviously undesirable because oral discovery would foster misunderstanding and a lack of clarity for the litigants and for the trial court.

Accordingly, after a consideration of the merits of The Morning Call’s appeal, we find that The Morning Call was not entitled to the relief which it requested and, thus, the trial court did not abuse its discretion in denying the petition for intervention. Under the reasoning of Frey’s Estate, 237 Pa. 269, 85 A. 147 (1912), and its progeny, we quash the appeal.

APPEAL QUASHED.

WIEAND, J., dissents.

WIEAND, Justice,

dissenting:

I respectfully dissent from the decision of the majority to quash this appeal. In my best judgment, it would be more realistic to affirm the order of the trial court.

In this action to recover damages for the alleged contraction of Acquired Immune Deficiency Syndrome (AIDS) by blood transfusion, the trial court directed that discovery proceedings should be closed to the press and public. The Morning Call, an Allentown newspaper, filed a petition to intervene in the action for the purpose of challenging its exclusion from pre-trial discovery proceedings. The trial court, after due consideration, denied the petition to intervene. In my judgment, the decision of the trial court was correct. The Morning Call did not have an absolute right of access to the pre-trial discovery proceedings. See: Seattle Times Company v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Moreover, its common law right to inspect court records was subject to the supervisory powers of the trial court, which could exclude the public and the media from pre-trial discovery proceedings to protect the private rights of the parties. Cf. Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986), appeal denied, 515 Pa. 581, 527 A.2d 542 (1987). Therefore, I would affirm the order of the trial court.

In Frey’s Estate, 237 Pa. 269, 85 A. 147 (1912), the Supreme Court said:

While, as a rule, an appeal will not lie from an order refusing leave to intervene, because such an order is not a final one, cases may arise where a denial of a petition to intervene would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way; and in such cases the refusal to permit an intervention is a final order or decree as to the petitioner.

Id., 237 Pa. at 271, 85 A. at 148 (citations omitted). The majority, in reliance upon Frey’s Estate, examines the merits of the petition to intervene, determines that The Morning Call was not entitled to the relief sought, and holds, therefore, that an appeal will not lie from the order of the trial court which denied intervention. This reasoning is circuitous. Nevertheless, it has been followed by the Superior Court in the following cases: Inryco, Inc. v. Helmark Steel, Inc., 305 Pa.Super. 239, 451 A.2d 511 (1982); Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 446 A.2d 614 (1982); Richard Held Builders, Inc. v. A.G. Allebach, Inc., 266 Pa.Super. 101, 403 A.2d 113 (1979); Taub v. Merriam, 251 Pa.Super. 572, 380 A.2d 1245 (1977). As we shall see, however, the Supreme Court has itself cast doubt on the continuing validity of this rule by dictum in Capital Cities Media, Inc. v. Toole, 506 Pa. 12, 483 A.2d 1339 (1984). In my best judgment, this old rule is unrealistic and can serve only to confound. It has been widely criticized and was disapproved and rejected by the Third Circuit Court of Appeals in Commonwealth v. Rizzo, 530 F.2d 501 (3d Cir.1976), cert. denied, Fire Officers Union v. Pennsylvania, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976). After discussing the old rule, identical to that stated in Frey’s Estate, supra, which had theretofore been followed by the Third Circuit, the Court said:

We do not follow the older rule which made appealability turn on whether the appellant had, in fact, a right to intervene. “Since [such a rule] makes appealability turn on the merits, it is not a very effective or useful limitation of appellate jurisdiction; the propriety of the denial by the district judge must be examined before the appellate court knows whether it has jurisdiction, and the only consequence of the restriction on appealability is that on finding the district judge was right, it will dismiss the appeal rather than affirm.” Levin v. Ruby Trading Corp., 333 F.2d 592, 594 (2d Cir.1964) (Friendly, J.) (quoted in 7A C. Wright & A. Miller, Federal Practice and Procedure § 1923, at 627 (1972)). It is sufficient that intervention of right was sought and denied to render the denial appealable.

Commonwealth v. Rizzo, supra at 504. See also: 3B Moore’s Federal Practice 24.15, at 564-565 (2d ed. 1976); Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 748-751 (1968), cited in Boise Cascade Corporation v. East Stroudsburg Savings Association, supra 300 Pa.Super. at 282 n. 1, 446 A.2d at 615 n. 1.

Generally, an appeal will lie only from a final order, i.e., one that ends the litigation or disposes of the entire case, unless an appeal is otherwise permitted by statute. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-545 (1978). See also: Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974). In Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), however, the Supreme Court of the United States carved out an exception to the final judgment rule for situations in which postponement of an appeal until after entry of final judgment might result in the irreparable loss of the right asserted. This exception has been adopted and followed in Pennsylvania. See: Pugar v. Greco, supra; Gray v. State Farm Insurance Co., 328 Pa.Super. 532, 477 A.2d 868 (1984); Veno v. Meredith, 295 Pa.Super. 419, 441 A.2d 1302 (1982). Under Cohen, an appeal will lie from an order that will not terminate the litigation where three requirements are met: (1) the order appealed is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) if review of the question presented is postponed until final judgment, the claimed right will be irreparably lost. Cohen v. Beneficial Industrial Loan Corporation, supra 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 1536.

The instant case involves a newspaper’s right to intervene in an action to challenge a court order closing judicial proceedings to the press and public. The order is clearly separate from and collateral to the principal cause of action. It also involves a right too important to be denied review, for it pertains to the right of the news media to be accorded access to pre-trial discovery proceedings in a civil action charging a major medical center with negligence in allowing the AIDS virus to be communicated by blood transfusion. Cf. Capital Cities Media, Inc. v. Toole, supra 506 Pa. at 22, 483 A.2d at 1344 (“We recognize the legitimacy and importance of the interest of the news media in judicial proceedings.”). Finally, because of the ephemeral nature of the news media’s alleged right to publish, our courts have been sensitive to the need to allow expeditious appeals. Id. Indeed, in the instant case, a later appeal, after the entire case has been resolved, will be of little practical value to appellant. I would hold, therefore, that the order denying intervention in the instant case is immediately appealable.

The Pennsylvania Supreme Court has specifically directed the procedure to be used by the media in situations such as this. In Capital Cities Media, Inc. v. Toole, supra, a newspaper had petitioned for a writ of prohibition which would have had the effect of barring enforcement of a court order restraining the media from printing or announcing names or addresses of jurors and from taping, sketching or photographing jurors in a criminal case. In upholding the trial court’s denial of the writ on procedural grounds, the Court said:

The first step in this procedure would have been for the applicants to petition the trial court to intervene for the purpose of challenging the legality of the pre-trial orders. See, e.g., Commonwealth v. Hayes, [489 Pa. 419, 414 A.2d 318, cert. denied, 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980) ]. Such an action is in accordance with our well-established and strongly held view that it is essential to meaningful judicial review that objections should be addressed to the court of first instance to permit that court to evaluate such claims and to have the opportunity to correct its own errors. This practice creates a record from which the grounds of the lower court’s determination may be readily discerned in the event review by an appellate court becomes necessary. An order denying leave to intervene in these sensitive circumstances is immediately appealable. See Frey’s Estate, 237 Pa. 269, 85 A. 147 (1912); see generally Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975).

Id. 506 Pa. at 22-23, 483 A.2d at 1344 (emphasis added) (citations omitted). Thus, the Supreme Court has not only defined the procedure to be followed by the media, but has declared that a denial of a right to intervene is immediately appealable.

The procedure followed by The Morning Call in the instant case adhered to that prescribed by the Supreme Court in the Capital Cities Media case. When the trial court denied the petition for intervention, its order, I would hold, was immediately appealable under the Cohen collateral order rule. See: Capital Cities Media, Inc. v. Toole, supra; Katz v. Katz, supra. Therefore, I would not quash this appeal. Instead, I would affirm the order of the trial court. The access of the media to pre-trial discovery proceedings in a civil action, as the majority has discerned, is subject to reasonable control by the court in which the action is pending.

      . Rule 4012 of the Pennsylvania Rules of Civil Procedure provides the grounds upon which a trial court can implement a protective order. In relevant part, that rule provides:

        (а) Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following: ...
      (2) that discovery or deposition shall be only on specified terms and conditions ...; ...
      (б) that discovery or deposition shall be conducted with no one present except persons designated by the court;
      (7) that a deposition shall be sealed and shall be opened only by order of the court;
      Pa.RXiv.P. 4012.

      . In Smith, the Third Circuit Court of Appeals held that a trial court can limit the public’s access to a civil trial by showing that the denial serves an important governmental interest, and there is no less restrictive way to serve the government interest. Smith, 776 F.2d at 1109 (emphasis added). Clearly, this standard is less onerous than the overriding governmental interest standard necessary for denial of public access to criminal trials.

      . Federal Circuit courts have utilized the analysis of the Seattle Times Court and have held that a newspaper does not have an unconditional constitutional right of access to information generated through pretrial discovery. See In re Alexander Grant and Company, 820 F.2d 352 (11th Cir.1987); Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir.1986); Oklahoma Hospital Association v. Oklahoma Publishing Company, 748 F.2d 1421 (10th Cir.1985). These courts, and others, have adopted the standards articulated by Seattle Times for determining whether pretrial protective orders are violative of the First Amendment. See Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 368 S.E.2d 253 (1988).


author: JOHNSON, Judge: DEL SOLE, Judge,

text:
    554 A.2d 964
    Kathleen Carter KERSHNER v. PRUDENTIAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 20, 1988.
    Filed March 3, 1989.

      Charles W. Craven, Philadelphia, for appellant.
    Richard S. Wasserbly, Doylestown, for appellee.
    Before CIRILLO, President Judge, and BROSKY, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

In this appeal we are asked to decide whether the trial court committed error in granting a directed verdict. Finding the directed verdict to have been granted upon grounds outside the boundaries of the controversy as defined by the parties’ stipulations, we reverse and remand.

Kathleen Carter Kershner, appellant, brought an action against her no-fault automobile insurer, the Prudential Insurance Company, for medical expenses and lost wages alleged to be due her under the personal injury protection provisions of her policy. Kershner had carried auto insurance with Prudential since 1976. Subsequently she added and subtracted vehicles and changed her coverage in several respects to minimize cost. In 1981 she allegedly added a collateral benefits option to her policy designating the Prudential coverage as excess over other insurance held, and for this she received a reduction in her premium to reflect Prudential’s decreased risk. Her primary health coverage consisted of comprehensive medical insurance policies with Massachusetts Mutual Insurance Company and Postmaster’s Health Insurance. Kershner had no disability coverage.

On September 25, 1982 Kershner was seriously injured in an automobile accident and was unable to work for several months. Because she had no disability insurance, the board of directors of her employer of sixteen years, the Delaware Valley Mental Health Foundation, voted to give Kershner a sum equal to the salary she would have earned during this period. Kershner’s medical insurance covered her medical bills. When Kershner sought to recover medical expenses and wage loss from her auto policy, Prudential denied her claim on the basis of the collateral benefits clause. Kershner initiated an action against Prudential, alleging that she never added a collateral benefits clause to her policy.

At commencement of the jury trial the parties agreed to a number of stipulations and presented them to the court. The court in turn furnished them to the jury with the explanation that these were to be considered as true and agreed upon facts and conclusions. The parties agreed that Kershner was injured in the automobile accident, that Prudential was her automobile insurer, that the medical and related bills totaled $29,976.19, that these were fair and reasonable charges, and that Prudential had already paid $5,137.00 of this amount. The parties agreed that if the collateral benefits clause was not in the contract, then Prudential would pay Kershner the balance of this sum and would also pay Kershner’s lost wages of $2,958.00 plus 18% interest. The thirteenth and fourteenth stipulations read:

13: If [Kershner’s] policy did contain a coordination of benefits clause at the time of the accident then the only issue for the jury is whether the payments of money by Delaware Valley Mental Health Foundation to plaintiff for the period from September, 25, 1982 to January 1, 1983 is a benefit that precludes [Kershner’s] claim for those monies.
14: That the balance of the medical bills not paid by Prudential Insurance Company, balance being $24,839.34, has been paid by collateral sources including Massachusetts Mutual Health Insurance.

N.T., 9-18-86, p. 65.

Thus, the stipulations defined the primary issue, whether Kershner’s policy did, in fact, contain a collateral benefits clause. Kershner, her own main witness, testified that she never received the endorsement booklet containing the clause. Upon cross-examination, she revealed less certainty on this point. Prudential’s witnesses testified that an endorsement booklet is always sent out with the body of the policy. A claims administrator testified to and documented the reduction in premium on Kershner’s policy reflecting Prudential’s decreased liability. In preparation for a finding that the clause was indeed part of the policy, Kershner’s employer testified that the payment made by the board of directors of the Delaware Valley Mental Health Foundation for the period during which Kershner was disabled was a gratuitous act and was not made pursuant to a pre-arranged plan.

Following the close of testimony, the court extracted the factual issue it would submit to the jury, framing the question in terms of the evidence given: Did Kershner prove by a preponderance of the evidence that she did not receive the endorsement booklet? Once the jury resolved this fact question, it would be left to the court to interpret the clause. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). Both counsel agreed upon the form and appropriateness of this question. On September 22, 1986 the jury returned a verdict of “no” to the question, thereby finding that Kershner did, in fact, receive the endorsement booklet. From this verdict the court concluded as a matter of law that the clause was a part of the insurance contract at the time of the accident. Therefore, by stipulation, the only remaining issue was whether the sum granted by Kershner’s employer barred her recovery for lost wages from Prudential.

However, at this point Kershner asked the court for a directed verdict, which was granted. The court explained that because Prudential had not met its burden of producing evidence of the primary insurance contracts, it could not prevail. This issue had not been in the case until raised at this point by the court. The court denied Kershner’s request for attorney’s fees. Following the filing and denial of post-trial motions, both parties appealed, Prudential from the directed verdict and Kershner from the trial court’s denial of her request to be awarded attorney’s fees.

On June 15, 1988 a panel of this Court affirmed the trial court on both issues. One panel member concurred on the issue of attorney’s fees but dissented from the affirmance of the granting of the directed verdict because, on the basis of the stipulation, the existence of and the status of the collateral insurance was not at issue. On July 20, 1988, Prudential filed a petition for reargument on the issue of whether the trial court’s granting of the directed verdict should be reversed. By order of October 24, 1988 this Court granted reargument en banc limited solely to Prudential’s appeal, No. 600 Philadelphia 1987, the issue of whether the directed verdict was proper. The order severed Kershner’s appeal from the trial court’s denial of attorney’s fees, No. 863 Philadelphia 1987, and ordered the judgment on that issue reinstated.

We now address the sole issue before the Court en banc: whether the trial court’s grant of the directed verdict was proper. Key to the resolution of this issue is the role of the stipulations in this trial. It is well-settled that parties may bind themselves by stipulation on matters relating to individual rights and obligations, as long as their stipulations do not affect the court’s jurisdiction or due order of business. Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985). Moreover, stipulations are binding upon the court as well as on the parties agreeing to them. Park v. Greater Delaware Valley Savings & Loan Association, 362 Pa.Super. 54, 523 A.2d 771 (1987). The stipulations discussed above were submitted in writing to the trial court at the beginning of the trial, accepted by both parties and read to the jury by the court with the instructions that they were deemed true.

The parties’ stipulations limited the issue in this case to whether or not a coordination of benefits clause was in Kershner’s insurance contract. This, in turn, hinged upon the factual question of whether or not Kershner received the endorsement booklet. The jury decided that she had. The court then properly determined, applying the principle of insurance contract interpretation articulated in Standard Venetian Blind, supra, that if the clause was in the contract, Kershner was presumed to know its meaning. This application of law was not contested. The The No-Fault Motor Vehicle Insurance Act supplied the meaning of the clause:

(b) The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim ... allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary.

40 P.S. § 1009.203(b) (repealed). Had Kershner been found not to elect a coordination of benefits clause, she could have recovered twice for medical charges; Hauck v. Ohio Casualty Group of Insurance Companies, 361 Pa.Super. 370, 522 A.2d 628; alloc. denied, 516 Pa. 641, 533 A.2d 712 (1987); Steppling v. Pennsylvania Manufacturers Association Insurance Co., 328 Pa.Super. 419, 477 A.2d 515 (1984); and twice for work-loss benefits. See Antanovich v. Allstate Insurance Company, 507 Pa. 68, 488 A.2d 571 (1985).

The parties agreed that if the clause were found to be in the contract, then the sole remaining issue would be whether Kershner was due wage loss benefits. However, the court disregarded the stipulation and injected into the case the issue of the existence of and status of the other insurance and the question of who had the burden of proving these facts. The court decided that the clause was an exclusion, that Prudential thus had the burden of producing evidence of the primary insurance, and, because Prudential did not produce this at trial, the court granted a directed verdict in favor of Kershner. This was improper. The status of the clause was never at issue.

Nor was the existence of the other contracts at issue. The parties specifically stipulated that “the balance of the medical bills had been paid by collateral sources including Massachusetts Mutual Health Insurance.” The obvious inference to be drawn from this stipulation was that the parties agreed that Kershner held health insurance covering her medical expenses. The trial court erred in ruling that evidence of these health insurance policies was not before the court. Further, Prudential would have been justified in relying on the stipulation as evidence of the collateral insurance. The trial court could not properly rule, after the opportunity to present evidence had ceased to exist, and given the stipulations, that Prudential’s failure to put the contracts into evidence warranted a directed verdict in Kershner’s favor. See Lynch v. Metropolitan Life Insurance Company, 427 Pa. 418, 235 A.2d 406 (1967).

Prudential argues on appeal that the clause was not an exclusion but rather was an option that, once chosen, converted the entire insurance contract into one for excess insurance only. In light of our determination that this issue is irrelevant to the resolution of this case, we do not address it.

In accordance with the stipulations, the decision remaining for the trial court was whether Prudential is obligated to pay work loss benefits. The trial court decided, and we agree, that Prudential must pay Kershner work loss benefits. The uncontradicted testimony was that Kershner selected a coordination of benefits clause on October 27, 1981, and that the accident occurred on September 25, 1982. Because Kershner could not work for several months following the accident and because she did not have disability coverage, her employer’s Board of Directors voted in early October of 1982 to assist this valued, long-time employee by giving her a lump sum grant. The Board made the decision after the accident. It is impossible for Kershner to have designated this grant as primary work loss coverage at the time that she added the coordination of benefits clause to her policy, as the statute requires. See 40 P.S. § 1009.-203(b), supra.

The dispositive fact, that the Board voted to grant Kershner a sum of money after the accident occurred, was not in dispute under any possible construction of the testimony. It was thus the court’s province to apply the No-Fault Act to determine whether Kershner could have chosen this grant from her employer as primary coverage at the time that she adopted the coordination of benefits clause. Common sense supports the court’s conclusion that Kershner could not possibly have chosen an alternative not in existence at the time of her election. The trial court then assigned the value of the work loss benefits in accordance with the stipulated facts. These were that work loss benefits, if due Kershner, amounted to $2,958.00 plus 18% interest from January 1, 1983. The interest sum complies with the directive in the No-Fault statute that overdue payments shall bear interest at the rate of 18%. 40 P.S. § 1009.-106(a)(2). Kershner is entitled to work loss benefits in this amount.

We reiterate that the stipulations defining the issues in this case were binding upon the trial court. These stipulations precluded the court from addressing the issues upon which it based its grant of a directed verdict for Kershner. Following the finding that the coordination of benefits clause was part of the contract, all that was left for the court was to decide the work loss benefits issue. The court’s conclusion that Kershner was entitled to work loss benefits from Prudential is independent of its error and thus can stand.

Hence, for the aforementioned reasons, we reverse the order of the trial court granting the directed verdict. We remand to allow the court to enter judgment in favor of Kershner for work loss benefits in the amount of $2,958.00 plus 18% interest from January 1, 1988.

Order reversed. Case remanded. Jurisdiction relinquished.

DEL SOLE, J., joins and files a concurring statement, which is joined by McEWEN, J.

DEL SOLE, Judge,

concurring:

I join the decision of the Majority as expressed in the Opinion by my distinguished colleague, Judge Justin Johnson. I write separately only to point out that the issue before this Court did not include the question of the failure of the trial court to award counsel fees. I believe that counsel fees should have been awarded to the Appellant on that portion of the claim involving the wage loss benefits. The Majority Opinion clearly points out that the Appellant received payment from her employer based upon a decision made by her employer after the accident. It is inconceivable that the carrier could have construed this to be a coordination of benefits matter. Therefore, I believe that the carrier’s refusal to pay work loss benefits was unreasonable and counsel fees related to that recovery should have been awarded.

McEWEN, J. joins concurring statement by DEL SOLE, J.

      . 40 P.S. §§ 1009.101 to 1009.701, Repealed. 1984, Feb. 12, P.L. 26, No. 11, § 8(a), effective October 1, 1984.


author: WIEAND, Judge:

text:
    554 A.2d 968
    Shirley BOONE, in her own right and as parent and natural guardian of Tira Boone, a minor, Appellant, v. STONEWALL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1988.
    Filed March 6, 1989.

      Daniel J. Siegel, Philadelphia, for appellant.
    Michael F. DeMarco, Philadelphia, for appellee.
    Before GIRILLO, President Judge, and WIEAND and McEWEN, JJ.
   WIEAND, Judge:

The issue in this appeal is whether an insurance company which has issued a policy of automobile insurance in accordance with the laws of the state in which the vehicle is registered must pay medical benefits to passengers of the vehicle who have been injured as a result of an accident in Pennsylvania even though the policy does not provide medical benefits. The trial court held that the insurance company was not liable for benefits for which coverage had not been provided and, therefore, sustained preliminary objections in the nature of a demurrer to a complaint making a claim for first party benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq. We affirm.

Shirley Boone and her daughter, Tira, are residents of Pennsylvania. They were injured in an automobile accident which occurred in Pennsylvania while they were riding as passengers in a vehicle owned and operated by Todd Boone. The vehicle was registered in Virginia and insured, pursuant to the laws of Virginia, by Stonewall Insurance Company. The laws of Virginia did not require that a policy of insurance issued for a vehicle registered in that state provide coverage for first party medical benefits, and the policy issued by Stonewall Insurance Company did not contain such coverage. Neither Shirley Boone nor her daughter was covered by any other policy of insurance. A claim was made against Stonewall Insurance Company for Shirley Boone’s medical expenses in the amount of $3,328.00 and for Tira Boone’s medical expenses in the amount of $2,315.00. The claim was denied, and this action was commenced to recover the same from the insurer. From the order sustaining preliminary objections in the nature of a demurrer and dismissing the complaint, the plaintiffs appealed.

The Pennsylvania Motor Vehicle Financial Responsibility Law, at 75 Pa.C.S. § 1711, requires security for benefits as follows:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor-driven cycles or motorized pedalcycles or like type vehicles, registered and operated in this Commonwealth, shall include coverage providing a medical benefit in the amount of $10,000, an income loss benefit up to a monthly maximum of $1,000 up to a maximum benefit of $5,000 and a funeral benefit in the amount of $1,500, as defined in section 1712 (relating to availability of benefits), with respect to injury arising out of the maintenance or use of a motor vehicle. The income loss benefit provided under this section may be expressly waived by the named insured provided the named insured has no expectation of actual income loss due to age, disability or lack of employment history, (emphasis added)

The requirement of coverage for medical benefits, according to the terms of the statute, is applicable only to motor vehicles “registered and operated in this Commonwealth.” See: Pugh v. Government Employees Insurance Company, 380 Pa.Super. 606, 552 A.2d 708 (1989).

The Pennsylvania statute, at 75 Pa.C.S. § 1782(b), provides as to vehicles not registered in Pennsylvania as follows:

(b) Nonresident. — The nonresident owner of a motor vehicle not registered in this Commonwealth may give proof of financial responsibility by filing with the department [of transportation] a written certificate or certificates of an insurance company authorized to transact business in the state in which the motor vehicle or motor vehicles described in the certificate are registered or, if the nonresident does not own a motor vehicle, then evidence satisfactory to the department that the person does not own a motor vehicle. The department shall accept the certificate upon condition that the insurance company complies with the following provisions with respect to the policies so certified:
(2) The insurance company shall agree in writing that the policies shall be deemed to conform with the laws of this Commonwealth relating to the terms of motor vehicle liability policies issued in this Commonwealth. (emphasis added)

Appellants contend that these provisions require coverages for vehicles not registered in Pennsylvania which conform with the laws of Pennsylvania. This provision, however, refers only to “liability” coverage.

A non-resident motorist is required to give proof of “financial responsibility.” This is defined in 75 Pa.C.S. § 1702 as follows:

The ability to respond in damages for liability on account of accidents arising out of the maintenance or use of a motor vehicle in the amount of $15,000 because of injury to one person in any one accident, in the amount of $80,000 because of injury to two or more persons in any one accident and in the amount of $5,000 because of damage to property of others in any one accident. Our review of the statute discloses no provision which

requires that a vehicle registered outside the Commonwealth of Pennsylvania carry insurance providing first party medical benefits. Such coverage is required only for vehicles “registered” in Pennsylvania. Pugh v. Government Employees Insurance Company, supra. The language of section 1782(b)(2) does not alter the requirement of section 1711. Section 1782(b)(2) requires only that nonresident owners of vehicles registered outside of Pennsylvania give proof of financial responsibility in the form of liability coverage in the minimum amounts required by section 1702 for vehicles registered in Pennsylvania. The policy issued by the appellee-insurer in the instant case complied with this requirement.

The policy did not further provide coverage for first party benefits. Because the policy issued by Stonewall Insurance Company did not provide coverage for such benefits, the trial court correctly determined that plaintiffs could not recover the additional benefits sought in this action.

The order granting appellee’s preliminary objections in the nature of a demurrer to the complaint is affirmed.

      . The claimants were paid policy limits under the liability coverage provided by the policy.


author: MELINSON, Judge:

text:
    554 A.2d 970
    Albert OVERLY and Ellen Mae Overly, his wife, v. Suzanne L. KASS and David M. Kass, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1988.
    Filed March 1, 1989.

      William F. Caruthers, Greensburg, for appellants.
    Francis R. Murrman, Meadville, for appellees.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   MELINSON, Judge:

Appellants, Suzanne L. and David M. Kass [hereinafter “Kasses”], appeal from the Order of the Court of Common Pleas of Westmoreland County, Pennsylvania, granting Appellees’, Albert and Ellen Mae Overly [hereinafter “Overlys”], Motion for Summary Judgment.

In determining whether the trial court erred in granting or denying a motion for summary judgment, this court must determine whether the “pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. Rule 1035(b); Driscoll v. Carpenters Dis trict Counsel of Western Pennsylvania, 870 Pa.Super. 295, 536 A.2d 412 (1988); Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 174-75, 507 A.2d 323, 331 (1986); Langan v. Harleysville Ins. Co., 376 Pa.Super. 372, 374, 546 A.2d 75, 76 (1988); Helinek v. Helinek, 337 Pa.Super. 497, 487 A.2d 869 (1985); Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). “However, summary judgment may only be entered in those cases which are clear and free from doubt.” Consumer Party of Pennsylvania, 510 Pa. 158, 174-75, 507 A.2d 323, 331; Langan, 546 A.2d at 76; Weiss v. Keystone Mack Sales, 310 Pa.Super. 425, 456 A.2d 1009 (1983); Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985). We must determine whether there exists any genuine issue of triable fact. Driscoll, 370 Pa.Super. 295, 536 A.2d 412. The moving party has the burden of proving that no genuine issue exists as to the material facts, and the record must be examined in the light most favorable to the non-moving party. Thompson v. Nason Hospital, 370 Pa.Super. 115, 535 A.2d 1177 (1988); Knecht v. Citizens and Northern Bank, 364 Pa.Super. 370, 528 A.2d 203 (1987).

In making this determination, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Thompson, 370 Pa.Super. 115, 535 A.2d 1177; Knecht, 364 Pa.Super. 370, 528 A.2d 203. Furthermore, we shall not disturb the trial court’s decision granting summary judgment unless there has been an error of law, or a manifest abuse of discretion. Dumé v. Elkcom Co., Inc., 368 Pa.Super. 280, 533 A.2d 1063 (1987).

Parties seeking to avoid the entry of summary judgment against them may not rest upon averments contained in their pleadings; rather, they are required to show, by depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial, and the court must ignore controverted facts contained in the pleadings and restrict its review to material filed in support of and in opposition to a motion for summary judgment and to those allegations in pleadings that are uncontroverted. Pa.R.C.P. Rule 1035(d); Washington Federal Savings & Loan v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986). “The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings.” Id. 357 Pa.Super. at 289, 515 A.2d at 981, citing Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973) and Younginger v. Heckler, 269 Pa.Super. 445, 410 A.2d 340 (1979).

A brief synopsis of the facts of this case is requisite for disposition of this issue. Those facts have been succinctly stated by the trial court as follows:

The [Overlys] agreed to sell their farm to ... Suzanne L. Kass. As a consideration of this sale, [Kass] made and delivered to the [Overlys] a purchase money mortgage, together with a mortgage [note], made in the sum of $175,000.00. Pleadings indicate that [Kass] has failed to deliver to the Overlys a payment of principal or interest since April, 1986.
As a result of the Kasses’ failure to honor the agreement, the [Overlys] notified the [Kasses] of their demand for payment and their intention to take action on the mortgage note. On March 6, 1987, the [Overlys] filed their Complaint and the [Kasses] Answered (sic) on April 6, 1987. On July 2, 1987, the Court determined that David M. Kass is not a real party in interest....... Suzanne L. Kass, in her New Matter and Counterclaim presents an affirmative defense that certain defects existed on the subject property that the [Overlys] intentionally withheld from the [KassesJ,] and other misrepresentations with respect to conditions of the property.

The Overlys filed a motion for summary judgment on September 1, 1987. By Order of the court, the Overlys motion was granted on November 30, 1987. Pursuant to that Order, The Kasses’ Counterclaim was severed, and, the Kasses were ordered to proceed in Assumpsit in the Westmoreland County Court of Common Pleas. It is from the Order of the Court granting summary judgment in favor of the Overlys that the Kasses appeal.

The Kasses argue that there was a set-off arising from an oral agreement made as either part of, or supplemental to, the mortgage. They further argue that such a set-off is allowable against a judgment on a bond secured by a purchase money mortgage. Thus, the Kasses assert that an issue of fact exists as to whether they are entitled to a set-off against the amount due. Therefore, the Kasses’ argument concludes, the trial court erred in granting the Overlys’ motion for summary judgment and ordering the Kasses’ Counterclaim severed and directing the Kasses to proceed in Assumpsit.

The Kasses allege that numerous representations were made by the Overlys with regard to the mortgaged premises; that the Overlys have never followed through on any of these representations; that the Kasses have expended and will continue to expend substantial sums of money to put the property in the condition as represented to them by the Overlys; and, that some of the value of the property as promised by the Overlys will never be realized by the Kasses. The Kasses further contend that these representations formed part of the consideration for the contract of sale, thereby orally modifying the written agreement, and that the representations made by the Overlys and agreed to by the Kasses clearly formed an agreement related to and supplemental to the mortgage.

The Overlys, on the other hand, contend that the pleaded facts set forth by the Kasses are so tenuous as not to be part of, or incident to, the creation of the mortgage, and thus, the Kasses’ counterclaim is impermissible pursuant to Rule 1148 of the Pennsylvania Rules of Civil Procedure. Thus, the trial court correctly entered summary judgment in their favor and severed the Kasses counterclaim. We agree.

This court, in Warden v. Zanella, 283 Pa.Super. 137, 423 A.2d 1026 (1980), stated:

Pa.R.C.P. 1148 provides that in an action of mortgage foreclosure
A defendant may plead a counterclaim which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose.

In Goodrich-Amram it is said:

It [Rule 1148] restricts every defendant to claims which arise from the same transaction or occurrence from which the plaintiffs cause of action arose____ No defendant may now set off a claim against the plaintiff simply because its nature is contractual or quasicontractual, as allowed in assumpsit actions.
The claim must now arise, in some manner, from the mortgage relationship. A counterclaim could be filed, for example, for damages for breach of warrant of title to the mortgaged premises. [Cf. Wacker v. Straub, 88 Pa. 32 (1879).] ...

3 Goodrich-Amram 2d, § 1148:1, p. 488.

Id., 283 Pa.Super. at 143-44, 423 A.2d at 1029-30. Thus, our task is to determine whether the facts alleged in the Kasses’ counterclaim are “part of, or incident to, the creation of” the mortgage itself.

The Kasses allege, inter alia, that the Overlys made numerous misrepresentations regarding the condition of the premises prior to sale. Now, the Kasses wish to receive a set-off against the mortgage obligation by setting forth allegations of oral representations. More specifically, the representations include that a rusted trailer, a rusted and inoperable truck and a dilapidated lean-to would be removed from the property by the Overlys; that the Kasses would be entitled to about $14,000.00 in consideration of the continued use of their property by the Peoples Natural Gas Company; and that certain crop subsidies would be immediately available to them from the government for growing certain types of crops. These alleged representations concern the agreement of sale, however, and are not part of, or incident to, the creation of the mortgage.

The mortgage is an interest in the mortgaged property created by a written agreement providing security for the payment of a debt or an obligation. None of the facts alleged by the Kasses deMs even remotely with the creation of that security interest; rather, they deal with the agreement between the buyers and the sellers of the property. Accordingly, the Kasses’ counterclaim does not arise as part of, or incident to, the creation of the mortgage.

The courts power to sever the Kasses’ counterclaim is premised on Rule 213 of the Pennsylvania Rules of Civil Procedure. The decision whether to sever a cause of action lies within the discretion of the trial court. Rule 213 of the Pennsylvania Rules of Civil Procedure provides in pertinent part:

RULE 213. CONSOLIDATION, SEVERANCE AND TRANSFER OF ACTIONS AND ISSUES. ACTIONS FOR WRONGFUL DEATH AND SURVIVAL ACTIONS.
(b) The court, in furtherance of convenience or to avoid prejudice, may on its own motion or on motion of any party, order a separate trial of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or of any separate issue, or of any number of causes of action, claims, countersuits, set-offs, cross-suits, or issues.

42 Pa. Cons.Stat.Ann. Pa.R.C.P. Rule 213(b) (Purdon 1987 Supp.) (emphasis added). See Kaiser v. Meinzer, 272 Pa.Super. 207, 414 A.2d 1080 (1979), appeal dismissed 498 Pa. 136, 445 A.2d 104 (1982) (Judge invested with responsibilities of trial may on his own motion order a separate trial on any claim or issue if resolution of that claim or issue will expedite adjudication of other claims).

After reviewing the briefs of counsel and carefully considering the Opinion of the trial court, we find the trial court did not err in concluding that the allegations set forth by the Kasses in their counterclaim are too tenuous in that they were not part of, or incident to, the creation of the mortgage itself. Therefore, we find that the trial court did not abuse its discretion by ordering that the Kasses’ counterclaim be severed and that it proceed as an action in assumpsit. Since we find that the counterclaim did not arise as part of, nor incident to, the creation of the mortgage itself, there is no genuine issue of triable fact; therefore, the trial court properly entered summary judgment in favor of the Overlys.

The Order of the Court of Common Pleas is affirmed.

      . Pa.R.C.P. Rule 1148 provides:
      RULE 1148. COUNTERCLAIM
      A defendant may plead a counterclaim which arises from the same transaction or occurrence or series or transactions or occurrences from which the plaintiffs cause of action arose.

      . A lean-to is a wing or extension of a building, or a shelter or rough shed, having a roof with only one slope or pitch. Webster’s Ninth New College Dictionary, p. 680 (1987).