Opinion
A141121
12-15-2014
EVAN C. NELSON, Plaintiff and Respondent, v. TUCKER ELLIS, LLP, et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City & County of San Francisco Super. Ct. No. CGC-13-535453)
Defendant Tucker Ellis, LLP, appeals from an order denying its motion to compel arbitration. We affirm.
FACTS
A. Background
From November 2007 to November 2011, plaintiff Evan C. Nelson (Nelson) worked as an attorney at the San Francisco office of the law firm of Tucker Ellis, LLP, (Tucker Ellis), a Delaware limited liability partnership. In late 2009, Nelson was offered a promotion to the position of "non-capital partner." As a prerequisite to accepting the promotion, Nelson was required to sign the "Third Amended and Restated Partnership Agreement of Tucker Ellis & West LLP," and then a year later, the "Fourth Amended and Restated Partnership Agreement of Tucker Ellis & West LLP." Each agreement contained the following identical alternate dispute resolution (ADR) section requiring arbitration of any dispute that a partner had with the law firm.
9.6 Alternative Dispute ResolutionThe ADR section also provided, in pertinent part, that (1) "Formal 'discovery' procedures, as that term is generally understood, shall not be permitted," and (2) "The arbitrator shall have the authority to order awards of monetary damages, or to fashion such other just or equitable relief as may be appropriate, except that the arbitrator shall not have the authority to award damages in excess of actual damages, including, specifically, no authority to award any punitive or exemplary damages."
Any dispute, claim or controversy between the Firm and a current or former Partner or any person making a claim for or on behalf of or with respect to a current or former Partner which would, otherwise, be subject to adversary proceedings ("Dispute") will be resolved as follows:
(a) If a Partner has a dispute with the Firm, the Partner and the Firm will first attempt, in good faith, to settle the Dispute by negotiation within a reasonable time.
(b) If the Dispute cannot be resolved by negotiation or if either the Firm or the Partner declines to meet to discuss the Dispute, the Dispute will be submitted to mediation. . . . and conducted in accordance with the Center for Public Resources (the "Center") Model Procedures for the Resolution of Business Disputes. . . .
(c) If the Dispute has not been resolved within sixty (60) days after mediation has been initiated, or if either party declines to participate in mediation, the Dispute shall be settled by binding arbitration in Cleveland, Ohio, in accordance with the prevailing Rules of the Center for the Non-Administrated Arbitration of Business Disputes. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. § 1-16 and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction over the Dispute.
The Rules of the Center for the Non-Administrated Arbitration of Business Disputes, referenced in the ADR section, were promulgated by the International Institute for Conflict Prevention & Resolution (CPR rules). A copy of the then prevailing CPR rules were not attached to either of the partnership agreements signed by Nelson. The record contains a copy of the CPR rules effective November 1, 2007. The CPR discovery provision read: "The tribunal may require and facilitate such discovery as it shall determine is appropriate in the circumstances, taking into account the needs of the parties and the desirability of making discovery expeditious and cost effective. The Tribunal may issue orders to protect the confidentiality of propriety information, trade secrets and other sensitive information disclosed in discovery." The CPR cost provision read, in pertinent part: "Rule 17: Costs. [¶] . . . [¶] 17.2 The Tribunal shall fix the costs of arbitration in its award. The costs of arbitration include: [¶] a. The fees and expenses of members of the Tribunal; [¶] b. The costs of expert advice and other assistance engaged by the Tribunal; [¶] c. The travel and other expenses of witnesses to such extent as the Tribunal may deem appropriate; [¶] d. The costs for legal representation and assistance and experts incurred by a party to such extent as the Tribunal may deem appropriate; [¶] e. The charges and expenses of CPR with respect to the arbitration; ¶] f. The costs of a transcript; and [¶] g. The costs of meeting and hearing facilities. [¶] 17.3 Subject to any agreement between the parties to the contrary, the Tribunal may apportion the costs of arbitration between or among the parties in such manner as it deems reasonable, taking into account the circumstances of the case, the conduct of the parties during the proceeding, and the result of the arbitration. [¶] 17.4 The Tribunal may request each party to deposit an appropriate amount as an advance for the costs referred to in Rule 17.2, except those specified in subparagraph (d), and, during the course of the proceeding, it may request supplementary deposits from the parties. Any such funds shall be held and disbursed in such a manner as the Tribunal may deem appropriate. [¶] 17.5 If the requested deposits are not paid in full within 20 days after receipt of the request, the Tribunal shall so inform the parties in order that jointly or severally they may make the requested payment. If such payment is not made, the Tribunal may suspend or terminate the proceeding. [¶] 17.6 After the proceeding has been concluded, the Tribunal shall return any unexpended balance from deposits made to the parties as may be appropriate."
B. Trial Court Proceeding
On November 13, 2013, Nelson commenced this lawsuit by filing a complaint against Tucker Ellis, alleging negligence, negligent and intentional interference with contract, negligent and intentional inference with prospective economic advantage, intentional invasion of privacy through public disclosure of private information, and conversion, and sought compensatory and punitive damages, attorney fees, costs of suit, and interest as allowed by law. The gravamen of the lawsuit was Nelson's allegations that after he left Tucker Ellis, the law firm had released Nelson's privileged attorney work product to other counsel, knowing such disclosure would and did interfere with and disrupt Nelson's employment and his relationships with his clients and his ability to work with experts. It was further alleged that as a consequence of Tucker Ellis's disclosures, Nelson's work product had been widely disseminated on the Internet, he was terminated from his employment at a new law firm, and he had not be able to secure adequate replacement employment of a type and quality similar to his previous employment.
In lieu of an answer, Tucker Ellis moved to compel arbitration pursuant to the arbitration clause in the ADR section in the partnership agreements that were signed by Nelson. Tucker Ellis specifically argued the arbitration clause of the ADR section was neither procedurally nor substantively unconscionable. Nelson opposed the motion to compel, arguing that the arbitration clause of the ADR section was both procedurally and substantively unconscionable. The trial court denied the motion to compel arbitration, finding as follows: "The agreement is procedurally unconscionable because it was presented to plaintiff in a take-it-or-leave-it manner and defendant failed to provide a copy of the rules that govern the arbitration to plaintiff. The court further notes that the parties' agreement treats plaintiff as an employee. The agreement is substantively unconscionable and the requirements of Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 [(Armendariz)], apply to this case. Boghos v. Certain Underwriters at Lloyd's of London (2005) 36 Cal.4th 495 [(Boghos)], does not control because it was not an employment case and the instant plaintiffs claim for invasion of privacy is tethered to the California Constitution's right to privacy. The parties' agreement does not comply with [Armendariz] because: (1) Section 17.3 of the CPR rules allows the arbitrator to shift all fees/costs to plaintiff; (2) [partnership agreement's] [section] 9.6(c)(v) [no formal discovery] is cryptic and is unclear exactly what type of discovery plaintiff is entitled to. That clause ought to be construed against defendant drafter; and (3) the agreement impermissibly bars the recovery of punitive damages. The Court determines that severance is not appropriate given the number of unconscionable provisions." Tucker Ellis's appeal ensued.
Armendariz was abrogated in part on another ground in AT&T Mobility LLC. v. Concepcion (2011) 563 U.S. ___ [131 S. Ct. 1740, 1746] (Concepcion).)
DISCUSSION
Tucker Ellis argues the trial court erred as a matter of law in deciding that the arbitration clause of the ADR section was both procedurally and substantively unconscionable. Alternatively, Tucker Ellis argues the trial court abused its discretion in refusing to sever any unconscionable terms of the ADR section and allowing the matter to proceed to arbitration. We conclude Tucker Ellis's arguments are unavailing.
A. Applicable Law
Although our Supreme Court has "spoken of a 'strong public policy of this state in favor of resolving disputes by arbitration' [citation], Code of Civil Procedure section 1281 makes clear that an arbitration agreement is to be rescinded on the same ground as other contracts or contract terms. In this respect, arbitration agreements are neither favored nor disfavored, but simply placed on an equal footing with other contracts." (Armendariz, supra, 24 Cal.4th at pp. 126-127; see 9 U.S.C. § 2 [arbitration agreements governed by Federal Arbitration Act "shall be valid, irrevocable, and enforceable, save upon such grounds that exist at law or in equity for the revocation of any contract"].) In Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II), a Supreme Court majority noted that after the United States Supreme Court decision in Conception, "courts may continue to apply unconscionability doctrine to arbitration agreements. [Citations.] As the FAA contemplates in its savings clause (9 U.S.C. § 2), courts may examine the terms of adhesive arbitration agreements to determine whether they are unreasonably one-sided. What courts may not do, in applying the unconscionability doctrine, is to mandate procedural rules that are inconsistent with fundamental attributes of arbitration, even if such rules are 'desirable for unrelated reasons.' (Conception, supra, 563 U.S. at p. ____ .)" (Sonic II, supra, 57 Cal.4th at p. 1145.)
The question of unconscionability is considered by this court de novo (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1527 (Stirlen)), unless the validity of the agreement turns on a factual determination. In that circumstance, we review for substantial evidence, then decide, as a matter of law, whether the agreement is valid and enforceable. (Id. at p. 1527, fn. 2.) To invalidate a contract term, elements of both procedural and substantive unconscionability are required but not in the same degree. (Id. at p. 1533.) " 'Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.' [Citations.] In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." (Armendariz, supra, 24 Cal.4th at p. 114.)
B. Procedural Unconscionability
In challenging the trial court's finding of procedural unconscionability of the arbitration clause in the ADR section, Tucker Ellis argues its partnership agreements were not contracts of adhesion. However, we conclude the trial court's contrary finding is supported by both substantial evidence and is correct as a matter of law. It was not disputed that despite Nelson's promotion to title of non-capital partner he "had no realistic ability to modify the terms" of the partnership agreements. (Stirlen, supra, 51 Cal.App.4th at p. 1534.) Both parties agree that Nelson was presented with the partnership agreements on a "take-it-or-leave-it" basis in that he was required to sign the agreements as a condition of his promotion and he was not allowed to negotiate the terms. There is nothing in the record that supports Tucker Ellis's assertion that Nelson was in an equal bargaining position with the law firm because his "assent to the terms of the arbitration clause was not a pre-condition to his employment, but only to his promotion." (Underlining in original.) Thus, the trial court could accept as undisputed Nelson's assertion that his assent to the partnership agreements was mandated as a condition of his continued employment at the law firm. Given this factual scenario, we agree with the trial court's determination that the arbitration clause was part of adhesive partnership agreements. (See Stirlen, supra, at p. 1534 [employment contract was found to be one of adhesion because high-level executive lacked the opportunity to negotiate terms of " 'standard employment contract' "]; cf. Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 981, fn. 2 [employment contract found not to be one of adhesion where employee appeared to fall "into the category of 'sought-after employees,' who are positioned to reject offers of employment"].) The fact that Nelson was aware of the arbitration clause does not preclude a finding that the arbitration clause is nonetheless unenforceable. (Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 656.) The Sonic II majority "acknowledged that outside the context of an adhesive form contract," evidence that an arbitration clause "is part of a nonstandard contract freely negotiated by parties of comparable bargaining power, 'such as may exist between an employer and a highly compensated executive employee,' weighs against a finding of unconscionability." (Sonic II, supra, 57 Cal.4th at p. 1148; italics added.) However, here, we are not faced with nonstandard partnership agreements freely negotiated between Nelson and Tucker Ellis. Rather, we are concerned with adhesive partnership agreements containing a nonnegotiable arbitration clause that Nelson was required to agree to as a condition of his continued employment at the law firm.
In light of our determination, we need not address whether the failure to provide a copy of the CPR arbitration rules to Nelson rendered the arbitration clause procedurally unconscionable.
C. Substantive Unconscionability
We note the issue of the standard to be applied in determining whether a contract or contract term is substantively unconscionable is presently pending before our Supreme Court in Sanchez v. Valencia Holding Company (2011), review granted March 21, 2012, S199119. In that case, the Supreme Court has asked the parties to submit supplemental briefing addressing the following issues: "In formulating the standard for determining whether a contract or contract term is substantively unconscionable, this court has used a variety of terms, including 'unreasonably favorable' to one party (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145); 'so one-sided as to shock the conscience' (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246); 'unfairly one-sided' (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071-1072[(Little))]; 'overly harsh' (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114[)]; and 'unduly oppressive' (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925). Should the court use only one of these formulations in describing the test for substantive unconscionability and, if so, which one? Are there any terms the court should not use? Is there a formulation not included among those above that the court should use? What differences, if any, exist among these formulations either facially or as applied?"
In determining whether the arbitration clause of the ADR section is substantively unconscionable, we consider, as did the trial court, the Armendariz requirements that a mandatory arbitration agreement has to meet to avoid curtailing an employee's rights: (1) neutral arbitrator; (2) more than minimal discovery; (3) a written award; (4) availability of all types of relief that would be available in a court proceeding; and (5) requirement that the employer pay the unique expenses of arbitration. (Armendariz, supra, 24 Cal.4th at pp. 102-103 & fn. 8; see also Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 366, petn. for cert. pending, petn. filed Sept. 22, 2014, No. 14-341 ["Sonic II recognized that the FAA does not prevent states through legislative or judicial rules from addressing the problems of affordability and accessibility of arbitration"]; Little, supra, 29 Cal.4th at p. 1080 ["[n]othing in the FAA prevents states from controlling arbitration costs imposed by adhesive contracts so that the remedy of prosecuting the state statutory or common law public rights through arbitration is not rendered illusory"].) The trial court found, and we concur, that the arbitration clause was substantively unconscionable as it failed to satisfy two of the Armendariz requirements: (1) the CPR rules impermissibly allow for the shifting of costs and fees for arbitration to a partner; and (2) under the ADR section of the partnership agreement the arbitrator is impermissibly precluded from granting certain monetary damages. As we now discuss, we see no merit to Tucker Ellis's arguments to the contrary.
In light of our determination, we do not need to address whether other terms applicable to an arbitration are substantively unconscionable.
We find unpersuasive Tucker Ellis's argument that Nelson has alleged only common law claims, which are not subject to the Armendariz requirements. "In Armendariz, supra, 24 Cal.4th 83, the court's analysis of the requisite safeguards in arbitration . . . was grounded on the nature of the cause of action — an unwaivable statutory right. (See id. at pp. 99-113.) [¶] In Little, supra, 29 Cal.4th 1064, the court discussed the Armendariz requirements, stating: 'One . . . long-standing ground for refusing to enforce a contractual term is that it would force a party to forgo unwaivable public rights. . . . [¶] . . . [W]hile we recognize that a party compelled to arbitrate such rights does not waive them, but merely " 'submits to their resolution in an arbitral, rather than a judicial, forum' " . . . , arbitration cannot be misused to accomplish a de facto waiver of these rights. Accordingly, although the Armendariz requirements specifically concern arbitration agreements, they do not do so out of a generalized mistrust of arbitration per se . . . , but from a recognition that some arbitration agreements and proceedings may harbor terms, conditions and practices that undermine the vindication of unwaivable rights. The Armendariz requirements are therefore applications of general state law contract principles regarding the unwaivability of public rights to the unique context of arbitration . . . .' '[T]here is no reason under Armendariz's logic to distinguish between unwaivable statutory rights and unwaivable rights derived from common law.' (Little, at p. 1079, citations omitted, original italics.) [¶] And in Boghos, supra, 36 Cal.4th 495, where the court declined to extend the Armendariz requirements to an arbitration between a disabled plaintiff and his disability insurer, the court emphasized that the plaintiff had asserted common law claims as opposed to a claim based on an unwaivable statutory right or a claim tethered to a statutory or constitutional provision. (Boghos, at pp. 506-508.) Again, the nature of the cause of action determined whether Armendariz applied. (Boghos, at pp. 506-508.)" (D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 860-861 (D.C.).)
Despite Tucker Ellis's arguments to the contrary, we conclude the nature of the right Nelson seeks to vindicate by his lawsuit is "legally indistinguishable from the nature of the rights discussed in Armendariz and Little." (D.C., supra, 176 Cal.App.4th at p. 861.) The cause of action for an alleged intentional invasion of privacy through public disclosure of private information is tethered to both the constitutional right of privacy (Cal. Const., art I., § 1; see White v. Davis (1975) 13 Cal.3d 757, 775; Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 19; Semore v. Pool (1990) 217 Cal.App.3d 1087, 1093-1094), as recognized by the trial court, and the public policy articulated in Code of Civil Procedure sections 2018.020 and 2018.030, that writings, which reflect an attorney's impressions, conclusions, opinions, or legal research or theories, are not discoverable under any circumstances (see PSC Geothermal Services Co. v. Superior Court (1994) 25 Cal.App.4th 1697, 1710). Because Tucker Ellis could not ask Nelson to waive his attorney work product privilege as a condition of his employment, the law firm also "cannot impose on the arbitration of [his] claim[ ] such burdens or procedural shortcomings as to preclude [its] vindication." (Little, supra, 29 Cal.4th at p. 1077.)
We acknowledge that our Supreme Court has not yet ruled on the circumstances under which the constitutional right of privacy may support a cause of action for money damages. (Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 313, fn. 13, 315, fn. 16.) Nevertheless, the courts in this District have suggested that money damages are available in an action based on a violation of the constitutional right of privacy. (See Operating Engineers Local 3 v. Johnson (2003) 110 Cal.App.4th 180, 184 [court affirmed judgment awarding employee damages against her employer for invasion of constitutional right of privacy against a contention that the claim was barred by exclusivity provisions of Workers' Compensation Act]; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829, 832 [court overruled demurrer to cause of action seeking damages for violation of constitutional right of privacy, premised on " 'the improper use of information properly obtained for a special purpose,' but used 'for another purpose' " or disclosed to a third party].)
Code of Civil Procedure section 2018.020, reads: "It is the policy of this state to do both of the following: [¶] (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. [¶] (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts."
Code of Civil Procedure section 2018.030, reads: "(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. [¶] (b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice."
Accordingly, we reject Tucker Ellis's argument that any finding of substantive unconscionability based on the restriction of the arbitrator's right to award certain monetary damages "is a red herring" because Nelson has not alleged a cause of action subject to the Armendariz requirements.
We also are not persuaded by Tucker Ellis's argument that the CPR rules concerning the payment of costs and fees associated with an arbitration align with the Armendariz requirement because the nonprevailing party is not required to pay fees or costs. The Armendariz court ruled that "when an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court." (Armendariz, supra, 24 Cal.4th at pp. 110-111.) Here, the CPR rules do not limit the arbitrator to awarding costs and fees to a prevailing party under any applicable law as Tucker Ellis suggests. Instead, the CPR rules grant the arbitrator the unfettered discretion to allocate prearbitration costs and then reallocate certain costs and award attorney fees at the end of the arbitration regardless of which party has prevailed in the arbitration and even if a party would not have been found to be a prevailing party under any applicable law in a court proceeding. "Without clearly articulated guidelines," such prearbitration and postarbitration apportionment creates "a sense of risk and uncertainty among employees that could discourage the arbitration of meritorious claims." (Armendariz, supra, at p. 111.) We also see no significance to Tucker Ellis's argument that Nelson has grossly exaggerated the costs of arbitration. One of the reasons for imposing the forum costs of arbitration on the employer is that "a method by which the employee can be put in exactly the same position in arbitration, costwise, as he or she would be in litigation . . . refuse[s] to admit ready quantification. Turning a motion to compel arbitration into a mini-trial on the comparative costs and benefits of arbitration and litigation for a particular employee would not only be burdensome on the trial court and the parties, but would likely yield speculative answers. . . . [¶] . . . Unlike the employee, the employer is in a position to perform a cost/benefit calculus and decide whether arbitration is, overall, the most economical forum." (Id. at pp. 111-112.)
D. Severance of Unconscionable Terms
Lastly, Tucker Ellis argues in a conclusory fashion that if we conclude certain terms of the ADR section of the partnership agreements are unconscionable, then we should find the trial court abused its discretion in refusing to sever the offending terms and otherwise enforce the agreement to arbitrate. We disagree. In support of its argument, Tucker Ellis asks us to consider cases in which the courts have found that an arbitration clause that does not provide for a neutral arbitrator may be severed and the parties compelled to arbitration after arranging, through further agreement or court order, for the appointment of a neutral arbitrator. (See, e.g., Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 826-827, Lewis v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1986) 183 Cal.App.3d 1097, 1107; Richards v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1976) 64 Cal.App.3d 899, 906.) Here, however, we are concerned with more than one unlawful provision - impermissible cost and fee-shifting terms and an impermissible remedies term. "Such multiple defects indicate a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer's advantage." (Armendariz, supra, 24 Cal.4th at p. 124.) Additionally, the trial court could reasonably find the ADR section establishes a unified procedure for handling all disputes, which should be treated as a whole and its various terms not severable. To remove the unconscionable taint, the trial court "would have to, in effect, reform the contract, not through severance or restriction, but by augmenting it with additional terms." (Id. at p. 125.). On this record, we conclude the trial court was not required to rewrite the parties' agreement to make it fair and equitable.
The parties ask us to consider several cases in which either (1) the opinion was not certified for publication (Corbin v. Specialized Bicycle Components, Inc. (H037212, July 17, 2013 [nonpub. opn.]), or (2) the opinion has been depublished because review has been granted by our Supreme Court (Leos v. Darden Restaurants, Inc. (2013) 217 Cal.App.4th 473, review granted September 11, 2013, S212511; Sabia v. Orange County Metro Realty, Inc. (2014) 227 Cal.App.4th 11, review granted September 24, 2014, S220237). The California Rules of Court preclude our consideration of these cases and we do not further address them. (Cal. Rules of Court, rule 8.1105(a), (e)(1).)
DISPOSITION
The order is affirmed. Plaintiff Evan C. Nelson is awarded costs on appeal.
We deny Nelson's motion for sanctions against Tucker Ellis for purportedly filing a frivolous appeal.
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/s/_________
Jenkins, J.
We concur: /s/_________
McGuiness, P. J.
/s/_________
Siggins, J.