Michael Morse v. Employees Retirement System of the City of Providence

Supreme Court

No. 2013-252-M.P.

Michael Morse :

v. :

Employees Retirement System of the City :
of Providence.

NOTICE: This opinion is subject to formal revision before publication in the
Rhode Island Reporter. Readers are requested to notify the Opinion Analyst,
Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island
02903, at Tel. 222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
 Supreme Court

No. 2013-252-M.P.

Michael Morse :

v. :

Employees Retirement System of the City :
of Providence.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Flaherty, for the Court. This case came before the Supreme Court for oral

argument on March 30, 2016, pursuant to a petition for a writ of certiorari filed by the petitioner,

Michael Morse. In his petition, Morse sought review by this Court of a decision of the

Retirement Board of the Employees Retirement System of the City of Providence (the board)

dated July 24, 2013. In its decision, the board denied Morse’s application for an accidental

disability pension. Morse argues that the decision should be quashed because it was based solely

on the fact that Morse did not satisfy the board’s self-imposed “unanimity rule,” requiring that all

three physicians who examined Morse agree that the applicant was permanently disabled as a

result of a work-related injury. For the reasons stated herein, we quash the decision of the board,

and remand the case for further factfinding.

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 1

Facts and Travel

The petitioner is a long serving fire-rescue captain on the Providence Fire Department,

who has been employed by the city since August 5, 1991. On October 11, 2012, petitioner

submitted an application for accidental disability retirement, claiming that he was disabled by a

work-related injury that occurred on August 10, 2012, when, after responding to an EMS call, he

injured his back lifting a patient at Rhode Island Hospital. It is significant that petitioner’s

medical records reveal that, during the course of his career, he suffered from three separate

work-related injuries; the first incident occurred on September 21, 2009, and the second incident

on October 14, 2011. Each of these injuries occurred while petitioner was working, involved

injuries to his lower back, and resulted in petitioner being placed on “injured on duty” (IOD)

status for some period of time.

After the second reported injury, petitioner’s treating physician recommended that he

cease heavy lifting at work, but he was nonetheless released to work. After the third injury, a

physician at Rhode Island Hospital advised that he not return to work until he was feeling better

and recommended that he see a spine specialist for a cortisone injection. The petitioner

presented to Dr. Katherine Williams, at the Brain and Spine Neurosurgical Institute. She

determined that petitioner was not able to return to work and that he could not perform the duties

of a firefighter. Since his most recent injury, petitioner has not returned to work and has

remained on IOD status for a period approaching four years.

Pursuant to the Providence Code of Ordinances, petitioner was evaluated by three

independent medical examiners (IMEs), Mary L. Lussier, M.D., Norman M. Gordon, M.D., and

Thomas F. Morgan, M.D. Doctor Lussier examined petitioner in early 2013 and reviewed his

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medical records. She rendered a diagnosis of “[c]hronic low back pain with past brief radicular

symptoms in both legs, with degenerative disc disease in the [lumbosacral] spine most

pronounced at L4/5.” In Dr. Lussier’s opinion, petitioner was permanently partially medically

disabled, and his disability was causally related to the most recent work-related injury, which

occurred on August 10, 2012. She further opined that, although he had experienced other work-

related injuries in the past, the last injury “made the most definitive change in his work status.”

Due to his work-related injury, “[h]e can perform tasks that do not include bending and lifting

and that do allow for him to frequently change position,” but he was unable to return to his

previous duties.

Doctor Gordon examined petitioner in March 2013. He also reviewed the medical

records and conducted a physical exam, finding that “[h]e has limited range of motion of the

back, particularly in flexion, which causes him a lot of pain. * * * Straight leg raising was

accompanied by discomfort in the back, but he was able to go through at least 45 degrees.” It

was Dr. Gordon’s opinion that

“this gentleman is disabled from his current duties as a fire rescue
captain and although I cannot point to a single injury or accident
that has been responsible for this, it clearly is an accumulation of
the multiple back injuries that he has had, documented at least
since 2009, and probably before that as well.”

He concluded that “[u]nfortunately, these injuries and persistent back pain impact fully on what

he can do as a result of the performance of his very strenuous, heavy activities as part of a

firefighting rescue captain. I do not believe that there is any light work available in this category

* * *.”

The third examiner, Dr. Morgan, came to a different conclusion. Although he diagnosed

petitioner with multilevel degenerative disc disease and facet joint arthritis of the lumbar spine, it

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was his opinion that petitioner’s chronic low back pain showed no signs of permanent injury

from the lifting incidents on or before August 10, 2012. He further opined that petitioner “does

not qualify for a work injury impairment to be considered for accidental disability” and that

“[t]he prognosis for his chronic back pain is good and based on today’s examination, there are no

restrictions or limitations that should prevent him from returning to work.”

The petitioner attended a hearing on June 26, 2013, before the board’s medical

subcommittee, at which his attorney was permitted to argue on his behalf. The subcommittee

chair informed petitioner about the procedure of the subcommittee, explaining that they were

going to “hear from the doctor, if you have any questions you can question the doctor through

me and then we may have some questions and then we’ll discuss it among ourselves.” Doctor

Guy Geffroy, medical adviser to the board, said that he had reviewed petitioner’s medical

records and the IME reports, but said that he was not a member of the board. Dr. Geffroy

advised the subcommittee that they should not grant petitioner accidental disability benefits

because only one of the IMEs concluded that petitioner was disabled as the result of a work-

related injury. He explained that Dr. Gordon found that his disability was the result of multiple

injuries, and “he interprets proximate result of an accident as including multiple back injuries,

which our Ordinance does not. So, I have to conclude that if you analyze, carefully analyze what

he did really think, he also is not in favor of this meeting the criteria of an accidental disability

retirement.”

Relying on this Court’s decision in Pierce v. Providence Retirement Board, 15 A.3d 957

(R.I. 2011), the Senior Assistant City Solicitor then informed the subcommittee that a work-

related disability indeed could be proximately caused by several on-the-job incidents. The

solicitor then asked Dr. Geffroy if that would change his recommendation. He responded, “No,

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it doesn’t. It’s beside the point because one of the consultants considers him not to be disabled.

So, we don’t have unanimity regardless.” After further discussion between the subcommittee

members and the attorneys on the impact of the Pierce decision on petitioner’s claim,

Dr. Geffroy said, “It’s [a] moot point because one of the consultants doesn’t find him to be

disabled.”

The city solicitor then addressed petitioner’s argument that, in view of the fact that

Dr. Morgan’s evaluation was so different from the other two IMEs, he should be granted the

opportunity to be examined by another physician. The city solicitor advised the subcommittee

that it had granted such a request in the past, saying “[I]t’s not unprecedented that we’ve actually

disqualified an IME or sought the advice of another physician.” The petitioner’s attorney then

argued that the subcommittee should either grant petitioner a new examination or reconsider its

adherence to the unanimity rule. Although petitioner’s counsel conceded that the board had been

applying the rule for several years, he argued that it was not set forth in § 17-189(6) of the

ordinance that addresses accidental disability pension status.

With respect to the unanimity rule, the city solicitor advised the subcommittee that the

issue had come up several years before and the board decided that, even though the unanimity

rule was not explicitly required by the ordinance, the city council, in 1998, had removed

language requiring a mere majority of the IMEs to agree on accidental disability, thus implicitly

approving the board’s employment of the unanimity rule. The subcommittee chairman, seeking

clarification, then had the following exchange with the city solicitor:

“[Chairman]: Okay. Just quickly, this board can vote with two
doctors and one against, is that correct? We don’t need, there’s no
requirement that we have unanimity, that[’s] our policy and that’s
what we’ve done.

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 “[City Solicitor]: This board has adopted the unanimity policy and
clearly if we want to change that or go in a different direction it’s –

“[Chairman]: If we have the votes to pass this it wouldn’t be illegal
would it?

“[City Solicitor]: No, no. But I –

“[Chairman]: So, I think his argument that says that we – that – I
think that his argument falls short to a certain extent when he says
that this board requires it, although we may require it as a policy
we don’t – we can vote –

“[City Solicitor]: I can tell you –

“[Chairman]: – different.

“[City Solicitor]: – being on the board since probably, since 1998,
there have been instances where there’s been two out of three and
the board’s granted it –

“[Chairman]: Right.

“[City Solicitor]: – and discounted the IME of a doctor that said
the individual wasn’t totally, permanently disabled.

“[Chairman]: Right. So, his argument, although I understand his
argument, is not – it assumes that we can’t do it, which I believe
we can do it.

“[City Solicitor]: Right. I mean, our position is that you need all
three doctors to be consistent that the individual fulfills these
requirements. There have been instances, off the top of my head I
don’t know, but the board has discounted a doctor who denied and
found a basis for it.”

The subcommittee then, without any further discussion, voted to recommend to the board that the

application for accidental disability retirement be denied.

When the full board met, the chairman of the subcommittee moved to deny petitioner’s

application “based on not unanimity [sic] of doctors.” The petitioner’s attorney was permitted to

restate his argument against the unanimity rule to the full board. He argued that the longstanding

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interpretation by the board, that the ordinance suggests that a unanimity finding is required, was

erroneous. He averred that the unanimity rule was not only contrary to the language of the

ordinance, but that, by adopting the rule, the board had, in essence, “delegate[d] its authority and

power to one physician.” The petitioner’s counsel urged the board to consider the consequences

of their rule:

“Stop and think about that. Every time someone comes before you
no matter how clear cut two of the three doctors are and no matter
how much of the overwhelming evidence that may be before the
Board, because one physician fails to make one check mark in that
checklist of things that he’s provided is denied. And this Board
doesn’t even consider any of the evidence, it simply says one of
the doctors failed to satisfy one of the requirements[,] end of game.
That’s abdicating your responsibility of the Board, with all due
respect, you have the responsibility to take into consideration all of
the evidence.”

When petitioner’s attorney had concluded, the medical subcommittee chairman responded that

“the Sub-Committee did hear from [petitioner’s attorney], we looked at all the facts and made the

recommendation.” Without further discussion, the board voted to deny petitioner’s application.

There were no dissenting votes.

The board issued a two-and-a-half page written decision, dated July 24, 2013, including

the following pertinent findings of fact:

“6. In connection with his Application, Morse was examined by
Dr. Mary L. Lussier (‘Dr. Lussier’), who diagnosed Morse as
unable to perform the duties of his job and noted that he is
permanently and partially medically disabled. Dr. Lussier noted
that Morse’s incapacity to work was a result of multiple accounts
of work-related injuries, and that the disability was causally related
to the work-related injury of August 10, 2012 with the last one
making the most definitive change to his medical status. On
March 30, 2013, Dr. Lussier expressed in a follow-up report that
her medical opinion of Morse’s condition did not change.

“7. In connection with his Application, Morse was examined by
Dr. Thomas Morgan (‘Dr. Morgan’), who notes that Morse shows

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 no sign of permanent injury as a result of the August 10, 2012
lifting incident. Based upon his examinations, Dr. Morgan stated
that there are no restrictions or limitations that should prevent
Morse from returning to work. After a March 18, 2013 follow-up,
Dr. Morgan’s medical opinion of Morse’s condition did not
change.

“8. In connection with his Application, Morse was examined by
Dr. Norman M. Gordon (‘Dr. Gordon’), who states that Morse is
disabled as to his current duties as a fire rescue captain and that
Morse’s disability is a result of an accumulation of multiple back
injuries that have occurred since 2009 and probably before such
date as well.”

The decision contained the following conclusion:

“when awarding an accidental disability retirement, the Board
requires unanimity of decision of three (3) independent medical
examiners stating that the applicant is totally and permanently
disabled as a result of the alleged disability. In this instance, only
two (2) of the three (3) independent medical examiners opine[d]
that Morse is totally and permanently disabled. Dr. Morgan
determined that Morse is able to perform his stated duties. The
evidence provided does not establish that Morse is incapacitated
for the performance of duty and ought to be retired pursuant to said
ordinance.

“The independent physician reports and other evidentiary
material provided to the Subcommittee and full Board do not
support granting an accidental disability retirement pursuant to the
Providence Code of Ordinances addressed above. * * * For all the
foregoing reasons, it is the decision of this Board to deny Morse’s
Application.”

The petitioner then sought this Court’s review by filing a petition for a writ of certiorari,

which we granted on February 10, 2014.

2

Standard of Review

Decisions of the board are reviewed by this Court via a writ of certiorari. See, e.g.,

Article I, Rule 13(a) of the Supreme Court Rules of Appellate Procedure; Pierce, 15 A.3d at 961.

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“When reviewing a case before this Court on a writ of certiorari, we ‘scour the record to discern

whether any legally competent evidence supports the lower tribunal’s decision and whether the

decision[-]maker committed any reversible errors of law in the matter under review.’” Cullen v.

Town Council of Lincoln, 850 A.2d 900, 903 (R.I. 2004) (quoting Kent County Water Authority

v. State (Department of Health), 723 A.2d 1132, 1134 (R.I. 1999)). “When we review for the

existence of ‘legally competent evidence’ we look for ‘some or any evidence supporting the

agency’s findings.’” Pierce, 15 A.3d at 961 (quoting Auto Body Association of Rhode Island v.

State Department of Business Regulation, 996 A.2d 91, 95 (R.I. 2010)). We review questions of

law de novo. Id. (citing Lynch v. Rhode Island Department of Environmental Management, 994

A.2d 64, 70 (R.I. 2010)). “If an error of law is found, it must ‘so infect[] the validity of the

proceedings as to warrant reversal.’” Id. (quoting Cullen, 850 A.2d at 903).

“When interpreting an ordinance, we employ the same rules of construction that we apply

when interpreting statutes.” Murphy v. Zoning Board of Review of South Kingstown, 959 A.2d

535, 541 (R.I. 2008) (quoting Ruggiero v. City of Providence, 893 A.2d 235, 237 (R.I. 2006)).

“If the statute is clear and unambiguous, we must enforce it as written by giving the words of the

[ordinance] their plain and ordinary meaning.” Id. (quoting Ruggiero, 893 A.2d at 237).

However, if the language “is unclear and ambiguous, we must ‘establish[] and effectuate[] the

legislative intent behind the enactment.’” Pawtucket Transfer Operations, LLC v. City of

Pawtucket, 944 A.2d 855, 859 (R.I. 2008) (quoting State v. Fritz, 801 A.2d 679, 682 (R.I.

2002)). “We are also mindful, however, that ‘under no circumstances will this Court construe a

statute to reach an absurd result.’” Berman v. Sitrin, 991 A.2d 1038, 1043 (R.I. 2010) (quoting

Smiler v. Napolitano, 911 A.2d 1035, 1041 (R.I. 2006)).

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 3

Analysis

The petitioner argues that the board’s decision should be quashed because the board

committed an error of law by interpreting the Providence Code of Ordinances § 17-189(6) to

require unanimity of the three IMEs in determining that petitioner is totally and permanently

disabled as the result of a work-related injury before it will grant petitioner accidental disability

benefits. The petitioner asserts that adopting such a rule is contrary to the plain language of the

ordinance and that the effect of such a determination is that the board has abdicated all discretion

and responsibility to consider applications for an accidental disability pension under the

ordinance by deferring to the opinion of a single disagreeing physician.

The board argues that this Court should affirm its decision because the unanimity rule is

required by the plain language of the ordinance and by legislative history. The board suggests

that it lacks discretion to deviate from the unanimity rule and proposes that it is vested with

discretion only in situations where the three IMEs recommend the disability. In those instances,

the board can choose to deny an application as the result of an additional investigation.

There are three avenues for a city employee to receive retirement benefits under the

Providence Code: service retirement, ordinary disability retirement, and accidental disability

retirement. This Court has addressed the Providence Retirement Board’s interpretation of the

Retirement System Ordinance on more than one occasion, most recently in 2011 in Pierce, 15

A.3d at 962. We have said that “entitlement to accidental-disability retirement’s greater benefits

requires a member to meet criteria that are more discriminating than the other two retirement

options.” Id. However, we have never addressed the discrete issue that confronts us in this case;

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whether the board is entitled to impose a unanimity rule on applicants seeking accidental

disability benefits. 1

The pertinent language of § 17-189(6) is as follows:

“Accidental disability retirement: * * * If a medical
examination conducted by three (3) physicians certified in the field
reasonably related to the member’s alleged injury engaged by the
director of personnel and such investigation as the director of
personnel may desire to make shall show that said member is
physically or mentally incapacitated for the performance of service
any [sic] as a natural and proximate result of an accident, while in
the performance of duty, and that such disability is not the result of
willful negligence or misconduct on the part of said member and is
not the result of age or length of service, and that such member
should be retired, and the physicians who conducted the
examination shall so certify to the retirement board stating the
time, place and conditions of such service performed by said
member resulting in such disability, the retirement board shall
retire the said member for accidental disability.”

The board urges that, despite the fact that the ordinance does not “literally contain the word

‘unanimous,’” unanimity “is clearly required by the plain and unambiguous language” of the

phrase “and the physicians who conducted the examination shall so certify to the retirement

board stating the time, place and conditions of such service * * * resulting in such disability.” In

our opinion, however, the ordinance is not well drafted and is certainly not clear and

unambiguous.

To the contrary, it is our opinion that the ordinance is subject to a variety of constructions

and is therefore, by definition, ambiguous. Black’s Law Dictionary 97 (10th ed. 2014); see also

State v. Hazard, 68 A.3d 479, 485 (R.I. 2013) (“[a]mbiguity exists * * * when a word or phrase

1
The board points to a footnote in Pierce v. Providence Retirement Board, 15 A.3d 957, 962 n.8
(R.I. 2011), to support its argument that the plain language of the ordinance supports the
unanimity rule. Although we recognize that this Court referred to the requirement that three
physicians must certify that the applicant is disabled, that reference specifically identified that as
a requirement for ordinary disability retirement, which was not an issue in Pierce. In our
opinion, it has no impact on this case.

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in a statute is susceptible of more than one reasonable meaning”). In construing the intent of the

drafters, we first look to the legislative history.

The Board contends that the General Assembly amended the Retirement System Act 2 in

1975 by P.L. 1975, ch. 158, § 9 to say:

“If a medical examination conducted by three physicians engaged
by the retirement board and such investigation as the retirement
board may desire to make shall show that said member is
physically or mentally incapacitated * * * and that such member
should be retired, in the event a majority of the physicians who
conducted the examination shall so certify to the retirement board
stating the time, place and condition of such service performed by
said member resulting in such disability and the retirement board
shall retire the said member for accidental disability.” (Emphasis
added.)

The city council then amended the ordinance in 1998 and removed the phrase “in the event of a

majority of” from the provision. The board asserts that, by removing that majority language, the

city council intended to provide for the unanimity rule in the ordinance.

The board argues, especially in view of the legislative history, that the city council, when

it amended the ordinance, intended to impose a unanimity rule on all applicants for accidental

disability retirement. Nevertheless, we are not persuaded that such a rule should be read into the

ordinance. First, if that was indeed the city council’s explicit intention, it surely had the

opportunity and ability to specifically include the unanimity rule. Rather than simply removing

2
The Providence Retirement System was enacted by a special statute by the Legislature, P.L.
1923, ch. 489, entitled “The Providence Retirement Act,” which “established a comprehensive
system of contributions, benefits, and regulations relating to pensions to be paid to firefighters,
police officers, and civilian employees of the city.” Betz v. Paolino, 605 A.2d 837, 838 (R.I.
1992). The Retirement System Act has “become part of the local ordinances of the city of
Providence by reason of the adoption of a home-rule charter in 1980, which became effective
subsequent to ratification by the General Assembly and by a referendum vote of the citizens of
Providence on January 3, 1983.” Id. Therefore, since 1983, the Providence City Council has
had exclusive legislative power over the Providence Retirement System. Id. at 840.

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the majority language, it could also have added language requiring that all three physicians be

unanimous in their determinations.

Second, we read the phrase—“and such investigation as the director of personnel may

desire to make”—as an explicit grant of discretionary power that cannot be reconciled with the

board’s interpretation that it has no discretion to deviate from the unanimity rule. Furthermore,

we find the operative language in this provision to be the following:

“If a medical examination conducted by three (3) physicians
certified in the field reasonably related to the member’s alleged
injury engaged by the director of personnel and such investigation
as the director of personnel may desire to make shall show that
said member is physically or mentally incapacitated * * *, the
retirement board shall retire the said member for accidental
disability.” (Emphases added.)

That phrase, “shall show,” directs the board to review and interpret all the evidence. If the

evidence before the board “shall show” that the applicant is disabled as a result of a job-related

injury, then the board “shall retire the said member.” The determination of whether the evidence

shows incapacity is within the discretion of the board. If two independent medical examiners,

plus the member’s treating physicians, opine that the member is disabled, and one physician

disagrees, it is certainly reasonable to conclude that the evidence is that the member is disabled.

Of course, the board has the authority, indeed the obligation, to review the opinions of each of

those physicians and determine why there is a disagreement. The board certainly has the ability

to determine that the one dissenting physician is more persuasive than the others, but that

decision must be based on a reasoned analysis of the evidence before the board.

However, once the board determines that the evidence shows that the applicant is

disabled, then the board “shall retire the said member.” “We have held that the use of the word

‘shall’ contemplates something mandatory or the ‘imposition of a duty.’” Castelli v. Carcieri,

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961 A.2d 277, 284 (R.I. 2008). “The use of the word ‘shall’ is readily distinguishable from the

use of the word ‘may,’ which implies an allowance of discretion.” Id. The construction that the

board urges on us would leave much of the wording of the provision a nullity and diminish the

board to performing a ministerial function. That simply cannot be what the city council

intended.

Finally, we hold that the board’s interpretation that the ordinance requires unanimity of

the evaluating physicians would lead to an absurd result. Our review of the board’s

interpretation of the ordinance is bolstered by the reasoning of the Appellate Court of Illinois, for

the Third District, in a remarkably similar case. In Coyne v. Milan Police Pension Bd. ex rel.

Jones, 807 N.E.2d 1276 (Ill. App. Ct. 2004), a majority of the court determined that the pension

board could not reasonably interpret its pension code as requiring unanimity of the examining

physicians on the basis of the following reasoning:

“We believe the Board’s interpretation of section 3–115
yields a result that is both absurd and unconstitutional. * * * The
opinion of a lone minority dissenter like Doctor Harris (five
contrary opinions notwithstanding) would ipso facto defeat a
pension claim, thus rendering section 3–115 a virtual summary
dismissal provision. A pension board would have no use for an
evidentiary hearing in such cases because, regardless of the weight
of the claimant’s evidence, and regardless of any credibility issues
pertaining to the lone dissenting physician, the outcome of the case
would be predetermined by the mere existence of a disagreement
between witnesses. We cannot believe the legislature would
establish the adjudicatory process outlined in the Pension Code
expecting that the process would be so easily precluded.” Coyne,
807 N.E. 2d at 1288-89.

We embrace that reasoning and conclude that the Providence City Council could not possibly

have intended the retirement board’s proceedings to be curtailed by the opinion of one physician.

Therefore, we are of the opinion that the retirement roard impermissibly wrote a

unanimity requirement into the ordinance. The duty of the board is to review each member’s

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application for accidental disability retirement fairly, to cautiously review the medical evidence,

to make factual findings on the record, and to articulate its reasons for either granting or denying

a member’s application pursuant to those factual findings. The board’s adoption of the

unanimity rule effectively abandoned its authority to a single disagreeing physician. Because the

board failed to make any factual findings with regard to the petitioner’s application, this matter

must be remanded to the board for reconsideration. In so doing, the board must consider all of

the evidence before it, indicating explicitly the reasons for finding the evaluation of one doctor to

be more persuasive than the evaluations of the other two independent evaluations and those of

the petitioner’s several treating physicians, and articulate its reasoning for either granting or

denying the petitioner’s application.

4

Conclusion

For the reasons elucidated in this opinion, we hold that the board misconstrued the

ordinance when it based its decision to deny the petitioner’s application for accidental disability

retirement on a self-imposed unanimity rule. Accordingly, we quash the board’s decision to

deny the petition for an accidental disability pension. The case is remanded to the retirement

board with directions to reconsider the application in conformity with this opinion.

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 RHODE ISLAND SUPREME COURT CLERK’S
OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Michael Morse v. Employees Retirement System of the City of
Providence.

CASE NO: No. 2013-252-M.P.

COURT: Supreme Court

DATE OPINION FILED: June 6, 2016

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY: Associate Justice Francis X. Flaherty

SOURCE OF APPEAL: Retirement Board of the Employee Retirement System of the City

of Providence

JUDGE FROM LOWER COURT:

N/A

ATTORNEYS ON APPEAL:

For Petitioner: Joseph F. Penza, Jr. , Esq.
John D. Meara, Esq.

For Respondent: Kenneth B. Chiavarini, Esq.