Popovich v. Webster & Webster L.L.P.

[Cite as Popovich v. Webster & Webster L.L.P., 2014-Ohio-1825.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99785

STEPHEN F. POPOVICH, ET AL.
PLAINTIFFS-APPELLANTS

vs.

WEBSTER & WEBSTER L.L.P., ET AL.
DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-10-732418

BEFORE: Keough, P.J., Kilbane, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: May 1, 2014
ATTORNEYS FOR APPELLANTS

Joseph T. George
Law Offices of Joseph T. George
2450 One Cleveland Center
1375 East 9th Street
Cleveland, Ohio 44114

Jan A. Yoss
Younesi & Yoss, L.L.P.
11355 W. Olympic Blvd., Suite 200
Los Angeles, California 90064

ATTORNEYS FOR APPELLEES

John G. Farnan
J. Quinn Dorgan
Melanie R. Shaerban
Weston Hurd L.L.P.
The Tower at Erieview
1301 East 9th Street, Suite 1900
Cleveland, Ohio 44114

Beth A. Brandon-Webster
Webster & Webster
1220 West Sixth Street
Suite 600
Cleveland, Ohio 44113

Timothy J. Weyls, Jr.
Weyls Peters, L.L.C.
6505 Rockside Road
Suite 300
Independence, Ohio 44131
KATHLEEN ANN KEOUGH, P.J.:

{¶1} Plaintiffs-appellants, Stephen F. Popovich and Dominic Lemmo, co-personal

representatives for the estate of Stephen C. Popovich (“Popovich”) appeal various rulings

made by the trial court during the pendency of this legal malpractice action. For the

reasons that follow, we affirm.

I. Factual Background

{¶2} In 1962, Cleveland-born Stephen C. Popovich began working in the music

industry by stocking warehouse shelves for CBS/Columbia Records. He eventually

became vice-president of CBS. In the late 1970s, Popovich left CBS to start his own

business, Cleveland Entertainment Company, Inc., (sometimes referred to as “CEC” or

“Cleveland”). One of the trade names he used under that entity was “Cleveland

International Records” (sometimes referred to as “CIR”).

{¶3} Cleveland Entertainment Company had three shareholders — Popovich

owned 51 percent, Samuel Lederman owned 29 percent, and Stanford Snyder owned 20

percent. Their company signed a contract with CBS n.k.a. Sony Entertainment Company

(“Sony”) in 1977 in which Cleveland was to deliver to CBS master recordings, featuring

music artists under contract with Cleveland. Cleveland discovered and signed several

artists who later became famous, including the artist Meat Loaf. In exchange for

royalties paid to Cleveland, CBS had the right to manufacture, distribute, and sell records

and tapes derived from those master recordings throughout the world. Meat Loaf’s

album “Bat Out of Hell” was one of the best selling albums of all time; the royalty rights
became Cleveland’s most significant asset.

{¶4} In the early 1980s, Popovich and his partners had a “business divorce” and

went their separate ways, although Cleveland was never formally dissolved. The state of

New York later administratively deemed the corporation dissolved due to a failure to pay

certain taxes or fees. Popovich stayed in the music production business and continued to

use “Cleveland International Records” as his own label in subsequent music contracts.

{¶5} In 1995, Popovich formed Popovich Music Group, Ltd. (“PMG”) and was its

sole owner. This company registered the trade name “Cleveland International Records.”

At trial, Cliff Drobnik, Popovich’s financial advisor, explained that “Cleveland

International Records” was Popovich’s “calling card.”

{¶6} In 1995, Cleveland sued Sony to collect unpaid royalties on the Meat Loaf

records pursuant to the 1977 contract (hereinafter the “Royalty Litigation”). Included in

the litigation were Lederman and Snyder. Sony agreed to settle the Royalty Litigation

claims in 1998 by paying the company $6.7 million. As part of the settlement, Popovich

also wanted Sony to put the Cleveland International Records logo on all Meat Loaf album

packaging. While this aspect of the settlement was not important to Lederman and

Snyder, Popovich was adamant about the inclusion of the logo placement term in the

settlement. Sony ultimately agreed, and the logo term was added to the Royalty

Litigation settlement agreement. Popovich signed the settlement agreement in his

capacity as “President of Cleveland Entertainment Company, Inc.” and in his personal

capacity.
 {¶7} Sony breached the logo placement term of the settlement agreement almost

immediately by failing to put the Cleveland International Records logo on the packaging

of Meat Loaf’s records and tapes. When Popovich discovered the breach, he sought

legal representation. After unsuccessfully trying to retain legal counsel on a contingency

fee basis to represent him in a lawsuit against Sony, he retained David and Beth Brandon

Webster’s law firm, Webster & Webster, L.L.P. (“Websters”) in 2002, which agreed to

take the case on a contingency basis. David Webster was the lead attorney in the case.

{¶8} The Websters filed suit against Sony in the U.S. District Court for the

Northern District of Ohio in Popovich’s individual capacity, and asserted a variety of

claims, including breach of contract in relation to the placement of the Cleveland

International Records logo (hereinafter the “Logo Litigation”). Lederman and Snyder

were not made a part of the litigation, even though they were made aware of the case.

{¶9} The Logo Litigation spanned over three years. Sony initally moved to

dismiss the case, contending that Popovich lacked standing to bring the action in his

individual capacity. In response, an amended complaint was filed naming PMG, which

had registered the Cleveland International Records trade name, as an additional plaintiff.

The court denied Sony’s motion to dismiss. Sony again raised the issue of standing in its

motion for summary judgment. Again, the motion was denied. After years of litigation,

Sony successfully defeated all claims raised against it by Popovich, except whether it

breached the 1998 Royalty Litigation settlement agreement regarding the placement of

the logo on the Meat Loaf music recordings.
 {¶10} In May 2005 and following a jury trial, the jury awarded Popovich over $5

million in damages. Following an unsuccessful appeal by Sony, the U.S. Court of

Appeals for the Sixth Circuit affirmed the judgment, which resulted in an additional

award of more than $700,000 in prejudgment interest.

{¶11} After learning of the verdict for Popovich, Lederman and Snyder sued

Popovich in 2006, claiming they were entitled to their respective shares of Popovich’s

recovery in the Logo Litigation (hereinafter the “Lederman Litigation”). Popovich

disputed their claim because he believed he owned the Cleveland International Records

logo, and he was harmed by Sony’s breach of the 1998 Royalty Litigation settlement

agreement. Popovich again retained the Websters to represent him in this matter.

However, the Websters withdrew in the fall of 2008 because of a fee dispute with

Popovich.

{¶12} Through new counsel, Popovich defended his position that he was the sole

owner of the logo placement provision in the 1998 Royalty Litigation settlement

agreement, and the Lederman Litigation went to trial. The issue on trial was whether the

logo placement rights in the 1998 Royalty Litigation settlement agreement with Sony

belonged exclusively to Popovich or to the long-defunct Cleveland Entertainment

Company. In 2009, the Lederman Litigation jury determined the logo belonged to the

defunct company, not Popovich exclusively. As a result, the jury determined that the

three owners were each entitled to their respective ownership shares in the Logo

Litigation judgment, less Popovich’s expenses in obtaining the judgment. After the
verdict, Popovich settled with Lederman and Snyder for an amount less than what the jury

awarded.

II. Procedural Background

{¶13} As a result of the Lederman Litigation, Popovich sued the Websters for legal

malpractice. On July 16, 2009, Popovich filed his complaint against the Websters’ law

firm and Beth Brandon Webster, in her capacity as the representative of David Webster’s

Estate.1 Six days later, on July 22, 2009, Popovich voluntarily dismissed his complaint.

On July 22, 2010, Popovich refiled his complaint against the original defendants, but also

named additional defendants — other members of the Webster law firm and Beth

Brandon Webster, in her individual capacity.

{¶14} In 2011, while this matter was pending, Popovich passed away suddenly.

An amended complaint was filed on December 30, 2011. His son, Stephen F. Popovich,

and brother-in-law, Dominic Lemmo, co-executors of his estate, were substituted as

plaintiffs, and the case proceeded accordingly.

{¶15} In June 2012, Beth Brandon Webster, in her individual capacity, moved for

summary judgment contending that the lawsuit was not filed against her within the

one-year statute of limitations for legal malpractice. The trial court summarily granted

her motion in December 2012.

{¶16} Following extensive discovery and pretrial conferencing, the matter

David Webster passed away weeks after being diagnosed with cancer in
1

2009.
proceeded to a jury trial. After days of litigation, the jury found in favor of the Websters,

specifically determining “that the defendants did not commit legal malpractice.”

{¶17} Popovich appeals, raising four assignments of error for our review, which

will be addressed together where appropriate.

III. Theory of the Case

{¶18} Popovich presented two theories of legal malpractice before the trial court

— (1) that the Logo Litigation was not brought by the proper plaintiff and (2) that the

Websters failed to advise him of any potential liability he might have to Lederman and

Snyder based on the Logo Litigation. The first three assignments of error raised by

Popovich involve evidentiary rulings and jury instructions regarding whether he was

prevented from arguing his first theory of the case.

A. Sustained Objections

{¶19} In his first assignment of error, Popovich contends that the trial court erred

in sustaining objections to the presentation of evidence regarding standing in the

underlying Logo Litigation.

{¶20} A thorough reading of the transcript reveals that Popovich was not

precluded from presenting evidence on issues concerning standing in the underlying

litigation. Rather, the trial transcript is replete with testimony and evidence regarding

Popovich’s standing to bring the Logo Litigation and whether Webster committed

malpractice in failing to advise him that Lederman and Snyder might have a right to a

share in any recovery against Sony. In fact, one of the juror questions directed towards
Popovich’s own expert, John Christie, inquired as to who he believed had standing to

bring the Logo Litigation. (Tr. 768.) The question allowed for four possibilities of who

had standing — Popovich, PMG, CEC, and CIR. Christie responded that only CEC had

standing to bring the Logo Litigation lawsuit. This was just one instance where a

witness was questioned about standing relating to the Logo Litigation. Accordingly, we

find no merit to Popovich’s first assignment of error.

B. Barred by Estoppel

{¶21} In his second assignment of error, Popovich contends that the trial court

erred in determining that “plaintiff’s standing to bring the underlying litigation was

determined on the merits in that case and that the judgment was a matter of collateral

estoppel and/or judicial estoppel of the issue of whether the case was brought by the

proper plaintiff.”

{¶22} Citing to only page 649 of the transcript, Popovich contends that the trial

court was incorrect in ruling that he was collaterally estopped from raising the standing

argument. Contrary to Popovich’s argument on appeal, the trial court did not make this

determination at this point during the trial. Rather, the record shows that while the

Websters’ counsel objected based on “collateral estoppel” to the answer given by

Popovich’s expert, and the trial court sustained the objection, the trial court actually

found that the expert’s answer was an opinion not contained in the expert report filed.

Specifically, the trial court opined that Popovich’s expert stated that the Websters

committed a fraud on the District Court and to that jury. All parties, including Popovich,
agreed that Christie’s expert report did not contain that opinion. As a result, the trial

court struck the answer given by John Christie, and gave an instruction to the jury that

they were to disregard any inference that the Websters committed a fraud on the court or

the jury.

{¶23} In the Logo Litigation, the Websters initially filed the lawsuit against Sony

in the name of Popovich as “successor in interest to the recording label Cleveland

Entertainment Co, Inc., a/k/a Cleveland International Records.” After Sony moved to

dismiss the case based on lack of standing, the Websters moved the district court to allow

it to amend its complaint to include “Popovich Music Group” as an additional plaintiff.

Sony then moved for summary judgment based on Popovich’s lack of personal standing.

The district court denied Sony’s motion, ruling that there was a genuine issue of material

fact regarding the rights and benefits accruing from the CIR logo. The court stated,

“[w]hile it is an undisputed fact that PMG registered the CIR name and logo, it does not

necessary follow that Popovich has no right to benefit from the 1998 agreement.”

Accordingly, the Logo Litigation went forward and Popovich received a favorable jury

verdict against Sony.

{¶24} Popovich contends in this appeal that the district court did not actually

determine that he in fact had personal standing to bring the Logo Litigation against Sony.

We agree, but we also find the opposite to be equally true — the district court did not

determine that Popovich did not have personal standing. The affirmative defense of lack

of standing was ultimately abandoned by Sony. However, whether or not Popovich had
personal standing is moot considering that Popovich won the case against Sony. If

Popovich did not have standing to bring the Logo Litigation, then the judgment Popovich

received in the Logo Litigation was void — presumably a result that neither of the parties

in this case would want.

{¶25} In fact, the issues of standing and collateral estoppel were clarified

by the trial court below.

MS. YOSS: No. But what it means was the theory was different. Mr.
Orille talked about the Cleveland, Mr. Popovich had the rights to Cleveland
International Records and that’s what was litigated in logo. This goes to
the whole issue of collateral estoppel as some people have been calling the
res judicata, there was never a decision made in the determination logo case
about entertainment.

THE COURT: I want to touch on that a little bit. Because I said to you
that there was res judicata and collateral estoppel on not standing in a
universal way, but malpractice as to the litigation. So —

MS. YOSS: As to damages from the malpractice and the litigation.

THE COURT: Yeah. There was no malpractice —

MS. YOSS: Not in –

THE COURT: — in the case. He won the case.

MS. YOSS: I get that. I understand your Honor’s point.

THE COURT: So I wanted to clarify. I was thinking about that after we
finished yesterday. I didn’t want to be misunderstood. Then I further said
to you, yes, I understand that there were these other consequences about
standing and about who had interest that you want to pursue. I’ve let you
do that. So I just want the — make that argument.

(Tr. 428.)

{¶26} Accordingly, while the trial court may have been mistaken that the issue of
standing was determined on the merits in the Logo Litigation, the court did not err

because any defect in standing was cured by the favorable verdict and Sony’s

abandonment of the affirmative defense.

{¶27} Popovich’s second assignment of error is therefore overruled.

C. Jury Instruction

{¶28} Popovich contends in his third assignment of error that the trial court erred
in instructing the jury that it could not consider whether the underlying litigation was filed
in the name of the wrong plaintiff and whether the defendants committed malpractice by
filing the complaint in the name of the wrong plaintiff. The Websters contend that
Popovich is barred from making these arguments on appeal because this theory of the
case was abandoned during trial; or in the alternative, that this assignment of error should
be reviewed only for plain error.

{¶29} In considering the appropriateness of a jury instruction, a reviewing court

must view the instructions as a whole. Atkinson v. Internatl. Technegroup, Inc., 106

Ohio App.3d 349, 365, 666 N.E.2d 257 (1st Dist.1995). The decision to give

instructions is reviewed for an abuse of discretion under the facts and circumstances of

the case. Berardi’s Fresh Roast, Inc. v. PMD Ents., Inc., 8th Dist. Cuyahoga No. 93920,

2010-Ohio-5124, ¶ 12. A trial court has discretion whether to give a requested jury

instruction based on the dispositive issues presented during trial. Renfro v. Black, 52

Ohio St.3d 27, 30, 556 N.E.2d 150 (1990). In order to preserve the right to appeal the

giving or failure to give an instruction, a party must object to the instruction before the

jury begins deliberating. Civ.R. 51(A). We therefore cannot sustain any assigned error

relating to jury instructions unless the party raises the objection to the trial court.

{¶30} The trial court gave the jury the following instruction, without objection:
 There is no allegation and the jury may not find or consider that there was
any malpractice committed by David Webster or his law firm in bringing
the logo litigation only in Stephen C. Popovich’s name. As to any claims
and potential malpractice related to standing, such were cured or obviated
by the successful verdict returned by the jury in favor of Stephen C.
Popovich.

(Tr. 1059.)

{¶31} Notwithstanding that Popovich did not object to the instruction, a review of

the record demonstrates that Popovich abandoned this “standing” or “proper plaintiff”

theory of his case.

THE COURT: Well, you had two theories, I guess, with regard to how this
could have been mitigated. One theory was bring the lawsuit in the name
of Cleveland Entertainment, Inc., and let Lederman and Snyder in from the
beginning; yes?

MS. YOSS: That’s one of the things our expert said.

THE COURT: Well, are you abandoning that?

MS. YOSS: That’s not the theory that we have pursued under because what
Mr. Christie opined was there were two things that could have been done
and that was one of the things that could have been done.

However, we believe that where the malpractice comes in is —

THE COURT: You are abandoning that? You don’t think that the jurors
should consider that?

MS. YOSS: That’s not what I’m going to ask the jury to consider, no.

THE COURT: So the only thing you want the jury to consider is the
intrinsic value — not intrinsic value, but the value that Lederman and
Snyder would have imputed or attributed to the logo.

MS. YOSS: Right. If Mr. Popovich had been adequately apprised as to the

ownership interest of Cleveland Entertainment in the logo and the logo
 provision, under the royalty agreement, he would have then been provided

with the opportunity to resolve this issue pre-litigation for a value of

[$]539,000 or less. But the failure to have identified that and then

throughout the litigation, including as is evidenced by the only writing by

Mr. Webster and as we know, it’s more incumbent on a lawyer to identify a

CYA, to identify here’s what I told you could happen. Here’s what I told

you the circumstance is and you want to go forward with this.

(Tr. 827-830.)

{¶32} The abandonment of this theory was a reasonable, tactical decision because

Popovich’s own expert witness admitted at one point in his testimony that Popovich had

personal standing to bring a breach of contract case claim against Sony under the 1998

Royalty Litigation settlement agreement. See Tr. 725.

{¶33} This court has consistently held that “the deliberate abandonment of any

argument at trial precludes subsequently raising the abandoned claim for the first time on

appeal.” State v. Azzano, 8th Dist. Cuyahoga Nos. 68477 and 68479, 1996 Ohio App.

LEXIS 1412, *14, (Apr. 4, 1996). Lake Tomahawk Prop. Owners Assn. v. Smith, 7th

Dist. Columbiana No. 00 CO 37, 2001-Ohio-3970, *5. Because Popovich abandoned the

theory at trial that Webster brought the Logo Litigation in the name of the wrong plaintiff,

he is precluded from raising this issue on appeal.

{¶34} Accordingly, Popovich’s third assignment of error is overruled.

IV. Motion for Summary Judgment
 {¶35} In his fourth assignment of error, Popovich contends that the trial court

erred in granting Beth Brandon Webster’s motion for summary judgment because the

statute of limitations did not commence until “Popovich discovered that she had been

working on the case.” The Websters argue that this assignment of error is rendered moot

because of the defense verdict.

{¶36} Civ.R. 56(C) provides that summary judgment is appropriate when (1) there

is no genuine issue of material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) after construing the evidence most favorably for the party against

whom the motion is made, reasonable minds can only reach a conclusion that is adverse

to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367,

369-370, 1998-Ohio-389, 696 N.E.2d 201; Temple v. Wean United, Inc., 50 Ohio St.2d

317, 327, 364 N.E.2d 267 (1977). We review the trial court’s judgment de novo, using

the same standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Accordingly, we stand in

the shoes of the trial court and conduct an independent review of the record.

{¶37} In this case, Popovich’s claim against Beth Brandon Webster is one for legal

malpractice. Under R.C. 2305.11(A), an action for legal malpractice accrues and the

one-year statute of limitations begins to run

when there is a cognizable event whereby the client discovers or should
have discovered that his injury was related to his attorney’s act or non-act
and the client is put on notice of a need to pursue his possible remedies
against the attorney or when the attorney-client relationship for that
particular transaction or undertaking terminates, whichever occurs later.
Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 58, 538 N.E.2d 398 (1989),

syllabus, citing Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St.3d 385, 528 N.E.2d 941

(1988).

For the purposes of determining the accrual date of R.C. 2305.11(A) in a
legal malpractice action, the trial court must explore the particular facts of
the action and make the following determinations: when the injured party
became aware, or should have become aware, of the extent and seriousness
of his or her alleged legal problem; whether the injured party was aware, or
should have been aware, that the damage or injury alleged was related to a
specific legal transaction or undertaking previously rendered to him or her;
and whether such damage or injury would put a reasonable person on notice
of the need for further inquiry as to the cause of such damage or injury.

Omni at paragraph two of the syllabus.

{¶38} Beth Brandon Webster, in her individual capacity, moved for summary

judgment contending that the lawsuit was not filed against her within the one-year statute

of limitations for legal malpractice. Specifically, she claimed that because the

attorney-client relationship was terminated on September 8, 2008, and Popovich did not

file his complaint against her personally until July 22, 2010, she was entitled to judgment

as a matter of law. Popovich argued in opposition that his complaint was timely because

under the discovery rule, he did not discover Beth Brandon Webster’s involvement in the

Logo Litigation until May 16, 2011.

{¶39} In his brief in opposition to summary judgment, Popovich states that he

“could not have discovered that Defendant Beth Webster committed legal malpractice

until he discovered the extent of her involvement in the Logo Litigation,” which

according to Popovich was not until May 16, 2011 when he received the itemized billing
in discovery. The “internal document” evidenced that Beth Brandon Webster spent 584

hours working on the Logo Litigation. He contends that her “prominent role” in the

Logo Litigation was concealed from him and his advisor Clifford Drobnick.

{¶40} However, Popovich’s amended complaint and his brief in opposition to

summary judgment prove otherwise. The amended complaint states,

8. At all times relevant hereto, Beth Webster and David Webster were
partners, agents and servants of the Webster law firm acting in the course
and scope of their partnership, agency and service.

***

64. * * * In fact, when the Lederman Lawsuit was filed, Defendant Beth
Brandon Webster informed Popovich “[d]o not worry about it [the
Lederman Lawsuit], the statute of limitations has run out.” This statement
was false.

{¶41} The Lederman Litigation was initially filed in 2006. Therefore, as early as

2006, Popovich should have known that Beth Webster was involved in the representation

of Popovich because she was giving her legal opinion to Popovich about the statute of

limitations.

{¶42} Moreover, Popovich stated in his brief in opposition to summary judgment

that

Beginning in approximately 2001 through July 2008 and thereafter, David
Webster, Beth Brandon Webster and/or other attorneys acting in the course
and scope of their agency, service and/or employment of the other
Defendants provided legal counsel and advice and otherwise represented
Plaintiff with regard to (i) various claims brought by Plaintiff against Sony
Music Entertainment, Inc. and its affiliates * * * , and (ii) the Lederman
Lawsuit.

{¶43} Additionally, the record shows that Beth Brandon Webster was listed as
counsel on the October 26, 2004 “Plaintiff’s Brief in Opposition to Defendant’s June 30,

2004 Motion for Summary Judgment.”

{¶44} Finally, it is interesting that Popovich refiled his complaint in July 2010 and

added Beth Brandon Webster, individually, as a defendant, yet he contends that his action

against her is not barred by the one-year statute of limitations because he did not discover

her involvement with the Logo Litigation until May 2011. Clearly, something must have

triggered Popovich to include Beth Brandon Webster as a defendant when he refiled his

complaint. Although he argues that he anticipated an action against her, Popovich has

not identified any independent action taken by Beth Brandon Webster, in her individual

capacity, during the Logo Litigation that would fall outside the general allegation of legal

malpractice against the Webster law firm. Popovich only asserts in his brief in

opposition, that “the primary act of legal malpractice by the Defendants, including Beth

Webster, involves the misidentification of the proper plaintiff in the Logo Litigation.”

{¶45} Accordingly, Popovich has failed to demonstrate the existence of a genuine

issue of material fact that would defeat Beth Brandon Webster’s motion for summary

judgment.

{¶46} Moreover, even if the trial court erred in granting Beth Brandon Webster’s

summary judgment, the decision would have been rendered moot by the defense jury

verdict because the allegation of legal malpractice against Beth Brandon Webster was

identical to that against the other defendants.

{¶47} Accordingly, Popovich’s fourth assignment of error is overruled.
 {¶48} Judgment affirmed.

It is ordered that appellees recover from appellant 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.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR