Tiburzi v. Adience, Inc.

[Cite as Tiburzi v. Adience, Inc., 2012-Ohio-803.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96591
SILVANO TIBURZI, AS ADMINISTRATOR
OF THE ESTATE OF MARLENE TIBURZI, ETC.
PLAINTIFFS-APPELLANTS
vs.
ADIENCE, INC., F.K.A. BMI, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-685548
BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 1, 2012
ATTORNEYS FOR APPELLANTS
Charles J. McLeigh
Diana Nickerson Jacobs
Goldberg, Persky & White, P.C.
1030 Fifth Avenue, 3rd Floor
Pittsburgh, PA 15219
John J. Duffy
John J. Duffy & Associates
Brendan Place
23823 Lorain Road, Suite 270
North Olmsted, OH 44070
ATTORNEYS FOR APPELLEE JNO J. DISCH COMPANY
Richard J. Disantis
Jeffrey W. Ruple
Buckley King, LPA
1400 Fifth Third Center
600 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEES A.W. CHESTERTON COMPANY, AMERICAN
OPTICAL CORPORATION, AND PNEUMO ABEX, LLC
John P. Patterson
Jeffrey A. Healy
Karen E. Ross
Scott J. Wilcov
Christopher J. Caryl
Tucker Ellis & West, LLP
1150 Huntington Building
925 Euclid Avenue
Cleveland, OH 44115
ATTORNEY FOR APPELLEE AHLSTROM PUMPS, LLC
Barbara J. Arison
Frantz Ward, LLP
2500 Key Center
127 Public Square
Cleveland, OH 44114
ATTORNEY FOR APPELLEE ALLIED GLOVE CORPORATION
Stephen R. Mlinac
Swartz Campbell, LLC
4750 U.S. Steel Tower
600 Grant Street
Pittsburgh, PA 15219
ATTORNEY FOR APPELLEES ANCHOR PACKING COMPANY, GARLOCK
SEALING TECHNOLOGIES, LLC, AND GREENE TWEED & COMPANY, INC.
Matthew C. O’Connell
Sutter, O’Connell & Farchione
3600 Erieview Tower
1301 E. 9th Street
Cleveland, OH 44114
ATTORNEYS FOR APPELLEES ARGO PACKING COMPANY, INC.,
ADIENCE, INC., BEAZER EAST, INC., GENTEX CORPORATION, GOULDS
PUMPS, INC., IMO INDUSTRIES, INC., INGERSOLL RAND CORPORATION,
AND THIEM CORPORATION
Mark A. Greer
Daniel J. Michalec
Holly M. Olarczuk-Smith
Eric H. Mann
Gallagher Sharp
Bulkley Building - Sixth Floor
1501 Euclid Avenue
Cleveland, OH 44115
ATTORNEY FOR APPELLEES CBS CORPORATION, FAIRMONT SUPPLY
COMPANY, GENERAL ELECTRIC COMPANY, MALLINCKRODT GROUP,
INC., AND OSRAM SYLVANIA, INC.
Reginald S. Kramer
Oldham Kramer
195 South Main Street, Suite 300
Akron, OH 44308
ATTORNEYS FOR APPELLEES CLARK INDUSTRIAL INSULATION,
COMPANY, GUARD LINE, INC., HEDMAN RESOURCES, LTD., AND
WHEELER PROTECTIVE APPAREL, INC.
John A. Kristan
Matthew Reber
Robert N. Spinelli
Kelley Jasons McGowan Spinelli & Hanna, LLP
Two Liberty Place, Suite 1900
50 South 16th Street
Philadelphia, PA 19102
ATTORNEY FOR APPELLEE CRANE COMPANY
Nicholas P. Vari
K & L Gates, LLP
Henry W. Oliver Building
535 Smithfield Street
Pittsburgh, PA 15222
ATTORNEY FOR APPELLEE DEZURIK, INC.
Michael D. Eagon
Dinsmore & Shohl, LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, OH 45202
ATTORNEY FOR APPELLEE EATON CORPORATION
Harry T. Quick
Brzytwa Quick & McCrystal, LLC
900 Skylight Office Tower
1660 West 2nd Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES EICHLEAY CORPORATION, INSUL
COMPANY, INC., AND NITRO INDUSTRIAL COVERINGS
Daniel Krauth
Joni M.Mangino
Zimmer Kunz
3300 U.S. Steel Tower
600 Grant Street
Pittsburgh, PA 15219
ATTORNEY FOR APPELLEE F.B. WRIGHT COMPANY OF PITTSBURGH
Leo G. Daly
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
Pittsburgh, PA 15222
ATTORNEY FOR APPELLEES GEORGE V. HAMILTON, INC. AND J.H.
FRANCE REFRACTORIES, INC.
Joseph D. Silvaggio
Willman & Silvaggio, LLP
One Corporate Center
5500 Corporate Drive, Suite 150
Pittsburgh, PA 15237
ATTORNEYS FOR APPELLEES THE GOODYEAR TIRE & RUBBER
COMPANY, DANA COMPANIES, LLC, FABRI-VALVE, FOSE COMPANY,
INC., TRANE US, INC., AND TRECO CONSTRUCTION SERVICES, INC.
Jonathan P. Corwin
Robert J. Krummen
Nina I. Webb-Lawton
Richard D. Schuster
Vorys, Sater, Seymour & Pease, LLP
52 East Gay Street
P.O. Box 1008
Columbus, OH 43216-1008
ATTORNEY FOR APPELLEES GUARD LINE, INC. AND WHEELER
PROTECTIVE APPAREL, INC.
Robert W. Wilkinson
Dogan & Wilkinson, PLLC
726 Delmas Avenue
P.O. Box 1618
Pascagoula, MS 39568
ATTORNEYS FOR APPELLEES HERSH PACKING & RUBBER COMPANY
AND MVS COMPANY
William D. Bonezzi
Kevin O. Kadlec
Bonezzi, Switzer, Murphy, Polito & Hupp Co., LPA
1300 East Ninth Street, Suite 1950
Cleveland, OH 44114
ATTORNEY FOR APPELLEE I.U. NORTH AMERICA, INC.
Edward D. Papp
Baker & Hostetler, LLP
3200 National City Center
1900 East Ninth Street
Cleveland, OH 44114
ATTORNEYS FOR APPELLEES INDUSTRIAL FURNACE COMPANY AND
SAGER CORPORATION
Keith R. Huntzinger
Richard C. Polley
Piero P. Cozza
Dickie McCamey & Chilcote, PC
Two PPG Place, Suite 400
Pittsburgh, PA 15222
ATTORNEY FOR APPELLEE JOHN CRANE, INC.
Stephen H. Daniels
McMahon Degulis, LLP
812 Huron Road, East, Suite 650
Cleveland, OH 44115
ATTORNEY FOR APPELLEE NL INDUSTRIES, INC.
Timothy M. Fox
Ulmer & Berne, LLP
88 East Broad Street, Suite 1600
Columbus, OH 43215
ATTORNEY FOR APPELLEE OGLEBAY NORTON COMPANY, INC.
Stephen H. Daniels
McMahon DeGulis, LLP
812 Huron Road, East, Suite 650
Cleveland, OH 44115
ATTORNEY FOR APPELLEE OHIO PIPE & SUPPLY COMPANY, INC
Thomas R. Wolf
Reminger Co., LPA
200 Courtyard Square
80 South Summit Street
Akron, OH 44308
ATTORNEY FOR APPELLEE OHIO VALLEY INSULATING COMPANY
Bruce P. Mandel
Ulmer & Berne, LLP
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, OH 44113
ATTORNEY FOR APPELLEE OWENS-ILLINOIS, INC.
Barbara E. Machin
Bunda Stutz & Dewitt, PLL
3295 Levis Commons Blvd.
Perrysburg, OH 43551
ATTORNEYS FOR APPELLEE REUNION INDUSTRIES, INC.
Aaron M. Dorfzaun
Rawle & Henderson, LLP
The Henry W. Oliver Building
535 Smithfield Street, Suite 1000
Pittsburgh, PA 15222
Stephen M. Fowler
Pullin Fowler Flanagan, PLLC
The James Mark Building
901 Quarrier Street
Charleston, WV 25301
ATTORNEY FOR APPELLEE SAFETY FIRST, INC.
John A. Valenti
Kelley Jasons McGowan Spinelli Hanna and Reber, LLP
The Bradley Building, Suite 305
1220 West 6th Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE WILLIAM POWELL COMPANY
Claudia B. Diaz
Litchfield Cavo, LLP
303 W. Madison, Suite 300
Chicago, IL 60606
Michael E. Smith
Frantz Ward, LLP
2500 Key Center
127 Public Suare
Cleveland, OH 44114
MELODY J. STEWART, P.J.:
{¶1} Plaintiff-appellant Silvano Tiburzi, as administrator of the estate of Marlene
Tiburzi and in his own right, appeals from the trial court’s order granting
defendant-appellee’s Adience, Inc., f.k.a. BMI, et al., (“Adience”)1 motion to strike the
physician’s report and motion to administratively dismiss his case. Tiburzi claims that
the Asbestos Reform Act does not empower a defendant to depose a competent medical
authority for the purpose of challenging a plaintiff’s prima facie showing that asbestos
exposure was a substantial contributing factor to cancer. He complains that the striking
of the physician’s report and the administrative dismissal were inappropriate remedies
after the doctor who authored the report failed to appear for a deposition. For the
reasons that follow, we reverse and remand.
{¶2} On February 23, 2007, Marlene Tiburzi underwent a biopsy after Dr. Sushil
Mehrotra identified a mass on her lung. Four days later she was diagnosed with cancer,
and she died on April 26, 2007.
{¶3} Appellant filed his complaint on February 20, 2009, and claims that the
decedent, after working at various sites in and around Ohio, was exposed to
Defendant-appellee Adience, Incorporated, is one of 63 named defendants in this
1
asbestos-related case alleging personal injury, wrongful death, loss of consortium, and a survival
action.
asbestos-laden dust and fibers that allegedly caused her lung cancer, disability, and
eventual death. On April 8, 2010, Adience moved the trial court to administratively
dismiss the complaint for failure to submit the requisite prima facie evidence of physical
impairment. On June 17, 2010, Tiburzi filed a memorandum in opposition and
attached the report of Dr. Mehrotra, the decedent’s treating physician, along with a
laboratory report from 2007 stating that decedent’s final diagnosis was “infiltrating
poorly-differentiated carcinoma of lung.”
{¶4} Adience sought to depose Dr. Mehrotra, and when not able to do so, filed a
motion to strike and dismiss, which was granted by the trial court. This appeal followed.
{¶5} Tiburzi assigns two error for our review that will be discussed together. In
his first assignment of error, he complains that the trial court erred when it granted
Adience’s motion to strike the report of Marlene Tiburzi’s treating physician. He
contends that striking the report, after the doctor failed to appear for a deposition, was an
inappropriate sanction for a discovery violation when other options were available, and
that in any event, R.C. 2307.93 does not allow for the deposition of a competent medical
authority to challenge a plaintiff’s prima facie showing of physical impairment under
R.C. 2307.92. In his second assignment of error, Tiburzi argues that granting Adience’s
motion to administratively dismiss for failure to produce prima facie evidence of
impairment was error.
{¶6} In 2004, Ohio’s General Assembly enacted H.B. No. 292, codified at R.C.
2307.91 through 2307.98, to establish procedures and other criteria to expedite the
resolution of asbestos-related claims. Claimants alleging injury from exposure to
asbestos, in addition to a complaint, must file the written report of a physician along with
supporting test results pursuant to R.C. 2307.92(B), (C), or (D), to demonstrate prima
facie evidence of physical impairment. R.C. 2307.93(A)(1) makes mandatory the filing
of this evidence “within thirty days after filing the complaint.”2
{¶7} R.C. 2307.92 provides for an ancillary proceeding for asbestos-related claims,
and sets forth the minimum medical criteria that plaintiffs must demonstrate to make a
prima facie showing and thus avoid administrative dismissal pursuant to R.C. 2307.93.
Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶
18. The provisions contained in R.C. 2307.92 and 2307.93 “do not relate to the rights
and duties that give rise to [a] cause of action or otherwise make it more difficult for a
claimant to succeed on the merits of a claim. Rather, they pertain to the machinery for
carrying on a suit. They are therefore procedural in nature, not substantive.” Norfolk
S. Ry. Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio- 5248, 875 N.E.2d 919, ¶ 17. R.C.
2307.91 et seq. merely “establish[es] a procedural prioritization of the asbestos-related
cases on the court’s docket. Nothing more.” Id. at ¶ 16.
{¶8} R.C. 2307.93(A)(1) states that a defendant
While Tiburzi did not file his prima facie evidence within the mandated statutory time,
2
Adience did not move to have the complaint administratively dismissed until more than one year after
the expiration of the 30-day window for the plaintiff to file prima facie evidence. Nevertheless, it
appears that the case being kept on the active docket was of no consequence.
shall be afforded a reasonable opportunity, upon the defendant’s motion, to
challenge the adequacy of the proffered prima-facie evidence of the
physical impairment for failure to comply with the minimum requirements
specified in division (B), (C), or (D) of section 2307.92 of the Revised
Code. The defendant has one hundred twenty days from the date the
specified type of prima-facie evidence is proffered to challenge the
adequacy of that prima-facie evidence.
{¶9} The statute also provides that
[i]f the defendant in an action challenges the adequacy of the prima-facie
evidence of the exposed person’s physical impairment as provided in
division (A)(1) of this section, the court shall determine from all of the
evidence submitted whether the proffered prima-facie evidence meets the
minimum requirements specified in division (B), (C), or (D) of section
2307.92 of the Revised Code. The court shall resolve the issue of whether
the plaintiff has made the prima-facie showing required by division (B),
(C), or (D) of section 2307.92 of the Revised Code by applying the standard
for resolving a motion for summary judgment.” R.C. 2307.93(B). If the
court finds that a plaintiff fails to make a prima facie showing, then it must
“administratively dismiss the plaintiff’s claim.
R.C. 2307.93(C).
{¶10} When Adience moved the court to administratively dismiss this case for
failure to file prima facie evidence of impairment within the statutory time frame, the case
had been pending for over a year. In response to the motion to administratively dismiss,
Tiburzi submitted the report of Dr. Mehrotra as prima facie evidence.
{¶11} Although R.C. 2307.93(A)(1) specifies a 30-day window for a plaintiff to
file prima facie evidence after a complaint has been filed, this time requirement has not,
in every instance, been strictly construed. See Riedel v. Consol. Rail Corp., 125 Ohio
St.3d 358, 2010-Ohio-1926, 928 N.E.2d 448, ¶ 3, where, after the defendant moved for an
administrative dismissal for failure to make the preliminary prima facie showing required
by R.C. 2307.92(A)(1), the trial court ordered the plaintiff to make the required showing.
Only after finding the “evidence insufficient to establish a prima facie case,” did the
court grant the motion for administrative dismissal. Id.{¶12} Adience filed a motion to take the deposition, and to compel production of
documents, of non-party witness Dr. Mehrotra, a resident of West Virginia. In its
motion, Adience noted that Dr. Mehrotra had “executed an affidavit in this action which
purports to support [p]laintiff’s claims, [and also] possess[ed] medical records and other
documents which [were] necessary and material to the * * * case.” The trial court
granted the motion.
{¶13} In response, Tiburzi filed a motion to set aside the discovery motion and
requested a hearing concerning the same. As grounds for his motion, Tiburzi relied
upon a prior opinion, issued by the trial court in another case, stating that the statutory
procedure affiliated with asbestos-related claims “does not provide for the discovery
deposition of doctors who sign affidavits in compliance with the statute [and that] * * *
defendants can then depose the doctors who signed the affidavits at the appropriate time
per this court’s case management order.”
{¶14} A hearing was held where Tiburzi argued that the court’s scheduling order
does not permit Adience to depose the physician who wrote the report to determine the
adequacy of the plaintiff’s prima facie evidence. Conversely, Adience argued that the
case management order was in place and discovery had begun and was ongoing at that
particular stage of the litigation. Adience pointed out that the case had been grouped
with other cases for trial prior to Tiburzi’s filing of his prima facie evidence, and as a
result, the time periods for discovery and the 120-day window to challenge the adequacy
of the prima facie evidence were conflated. The court stated that the case “has been
proceeding, has been grouped, proceeding in discovery,” and issued an order granting the
commission to take Mehrotra’s deposition without limitations.
{¶15} Adience filed a notice to take deposition duces tecum of Dr. Mehrotra in
Wheeling, West Virginia, and set a date for the same. At first, Adience repeatedly
attempted to arrange with Tiburzi a convenient date to hold Dr. Mehrotra’s deposition,
but was unsuccessful in doing so. Adience then hand delivered a letter to Dr. Mehrotra
informing him of the scheduled date of the deposition, and invited him to contact Adience
to schedule a mutually convenient time if the proposed arrangements did not work for
him. Finally, Adience used an attorney licensed in West Virginia to issue a subpoena
commanding Mehrotra to appear for the deposition. On the date of the scheduled
deposition, Adience’s counsel and counsel for Tiburzi appeared, but Mehrotra did not.
{¶16} Adience filed a motion to strike the physician’s report and to preclude
Mehrotra’s testimony in the case, Tiburzi filed a memorandum in opposition to the
motion, and Adience filed a reply in support of the motion. The court heard oral
arguments and issued an order and final judgment entry granting defendant’s motion to
strike the physician’s report and also ordered that “[p]laintiff’s case is administratively
dismissed pursuant to R.C. 2307.92 and 2307.93.”
{¶17} The trial court’s grant of a motion to strike is within the sound discretion of
the court and will not be overturned unless the court abuses its discretion. Early v.
Toledo Blade, 130 Ohio App.3d 302, 318, 720 N.E.2d 107 (6th Dist.1998). An abuse of
discretion connotes more than an error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶18} Loc.R. 16.0(A) of the Cuyahoga County Common Pleas Court addresses
asbestos litigation special provisions and provides that “[i]n an action involving any
allegation for injury or death arising from exposure to asbestos, the rules of civil
procedure governing a civil action shall apply * * *.” “The discovery rules give the trial
court great latitude in crafting sanctions to fit discovery abuses.” Nakoff v. Fairview
Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996). “Civ.R. 37 authorizes the
court to make ‘just’ orders in response to violations of the discovery rules or court
orders.” Laubscher v. Branthoover, 68 Ohio App.3d 375, 381, 588 N.E.2d 290 (11th
Dist.1991).
{¶19} Adience moved the court to strike the physician’s report due to the failure of
a non-party witness, Dr. Mehrotra, to make himself available to be deposed. A
transcript made of the deposition attempt reveals that counsel for Adience contacted the
trial court by telephone and informed it that “we have [ten] people here * * * and we
would like to move actually to strike the physician’s report in this case because the doctor
refused to show.”
{¶20} There is no “rule under which a party may be sanctioned for failing to
produce a non-party witness for deposition, [presumably because] it is arbitrary and
unreasonable to require a party to provide a non-party witness for deposition [because]
the party has no control over another person.” Lowe v. Univ. Hosps. of Cleveland, 8th
Dist. No. 80341, 2002-Ohio-4084, 2002 WL 1823027, ¶ 23.
In the event a non-party witness fails to obey a subpoena and attend his
deposition, Civ.R. 45(E) provides that a court may find the non-party
witness in contempt of court, and additionally authorizes the court to order
the non-party witness, or his attorney if he frivolously resisted the
discovery, to pay the deposing party’s reasonable costs and attorney’s fees
incurred.
Ohio Civ. Rights Comm. v. Burch, 9th Dist. No. 22185, 2005-Ohio-259, 2005 WL
161173, ¶ 16.
{¶21} Furthermore,
“[i]f any * * * person designated * * * to testify on behalf of a party fails to
obey an order to provide or permit discovery * * * the court in which the
action is pending may make such orders in regard to the failure as are just,
[including] * * * [a]n order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party * * *.
Civ.R. 37(B)(2)(c). However, before sanctions can be imposed, a party requesting the
sanction must comply with the requirements contained in the civil rules.
{¶22} In Randle v. Gordon, 8th Dist. No. 52961, 1987 WL 19275 (Oct. 29, 1987),
a non-party witness failed to appear for a scheduled deposition. As a discovery sanction,
the trial court would not permit the witness to testify at trial. The appellant claimed
that the court erred in excluding the testimony because the appellee had not complied
with the proper discovery procedure to compel the attendence of the witness. This court
pointed out that the proper procedure to be followed is to first issue a subpoena. Then,
the appellee [is] * * * required to compel the attendance of the witness at a
deposition vis-a-vis a motion to compel pursuant to Civ.R. 37. The
imposition of sanctions pursuant to Civ.R. 37 [is] not available unless the
appellee specifically applie[s] to the court vis-a-vis a motion to compel.
The failure of the appellee to avail himself of the proper discovery
procedure to require [the non-party witness] to appear for deposition cannot
be used to invoke the sanctions imposed by the civil rules.
Id. at 3.
{¶23} In the instant case, the record reflects that, although Adience subpoenaed
Dr. Mehrotra, it did not petition the court, pursuant to Civ.R. 37(A), for an order
compelling his appearance to be deposed. The granting of a motion to strike as a
discovery sanction can only occur if a party or designated person is in default of an order
by the trial court. Civ.R. 37(B). And if a party or designated person is in default of
such an order, “the court in which the action is pending may make such orders in regard
to the failure as are just,” including taking designated facts to be established, prohibiting
the introduction of designated matters into evidence, striking out pleadings, default
judgment, and reasonable costs and attorney fees. Civ.R. 37(B)(2)(a),(b),(c), and (e).
While the trial court has wide latitude in fashioning appropriate sanctions when its
discovery orders are violated, striking the physician’s report was inappropriate to nullify a
prima facie procedural showing necessary to maintain an asbestos-related claim. We
find that the court abused its discretion in granting defendant’s motion to strike the
physician’s report.
{¶24} In addition to our finding that the trial court erred in striking the report and
administratively dismissing the complaint for this reason, the record reflects also that
Adience did not challenge the adequacy of Tiburzi’s prima facie evidence by motion.
Adience’s arguments at the hearing on the motion for issuance of commission to take
Mehrotra’s deposition are premised upon its need to gather evidence for the purpose of
challenging the adequacy of the proffered prima facie evidence. However, while
Adience is critical of the proffered evidence as being “boilerplate” and deficient in other
respects, it nevertheless failed to substantively challenge the adequacy of the evidence
and/or the trial court did not undertake such an analysis.
{¶25} The statutory language contained in R.C. 2307.93(A)(1) is unequivocal in its
requirement that a challenge to the adequacy of proffered prima facie evidence must
occur “upon the defendant’s motion.” Moreover, a court’s determination of whether
minimum statutory requirements are in fact met by the proffered prima facie evidence can
only occur “[i]f the defendant in an action challenges the adequacy of the prima-facie
evidence of the exposed person’s physical impairment as provided in division (A)(1) of
this section.” R.C. 2307.93(B).
{¶26} Tiburzi’s first and second assignments of error are sustained.
{¶27} This case is reversed and remanded for proceedings consistent with this
opinion.
It is ordered that appellants recover from appellees their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY