dissenting:
I respectfully dissent from the majority opinion because plaintiffs’ voluntary dismissal in Hudson I does not preclude plaintiffs from reinstating their willful and wanton claim. When a plaintiff voluntarily dismisses a claim or a lawsuit without prejudice, the plaintiff may refile the claim without being barred by res judicata or the rule against claim-splitting.
In Rein, this court held that the plaintiffs’ common law claims that were voluntarily dismissed without prejudice in an earlier lawsuit were barred under the doctrine of res judicata because the plaintiffs were splitting their claims to appeal the involuntary dismissal of their rescission claims. In Rein, this court devoted much of its analysis to the rule against claim-splitting and relied on the rule to support its holding that res judicata barred the plaintiffs from refiling their common law claims. In Rein, this court did not confine its ruling to cases involving claim-splitting.
I believe Rein reached the right result under the circumstances, but for the wrong reasons. I believe this court should now take the opportunity to limit or overrule Rein. Rein has proven unworkable, particularly in cases not involving any improper claim-splitting. This court’s decision in Rein was based largely on public policy concerns and not upon sound legal principles. Once the faulty underpinnings of Rein are understood, the foundation of Rein’s rationale crumbles.
In Rein, this court misconstrued the relationship between section 2 — 1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1009 (West 2002)), section 13— 217 of the Code (735 ILCS 5/13 — 217 (West 2002)), and Supreme Court Rule 273 (134 Ill. 2d R. 273), and then misapplied the doctrine of res judicata and the rule against claim-splitting.
“The doctrine of res judicata provides that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.” Nowak v. St. Rita High School, 197 Ill. 2d 381, 389 (2001). Res judicata applies to bar issues that were actually decided in the first action, as well as matters that could have been decided. La Salle National Bank v. County Board of School Trustees, 61 Ill. 2d 524, 529 (1975). Three requirements must be satisfied for the doctrine of res judicata to apply: (1) a final judgment on the merits rendered by a court of competent jurisdiction, (2) an identity of cause of action, and (3) identity of the parties or their privies. Nowak, 197 Ill. 2d at 390.
The res judicata analysis in Rein was faulty because it misconstrued Supreme Court Rule 273 in concluding that there was a final judgment on the merits. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 336 (1996). Rule 273 provides that under certain circumstances, an involuntary dismissal “operates as an adjudication upon the merits.” 134 Ill. 2d R. 273. Rule 273 does not, however, provide that an adjudication on the merits is a “final” judgment on the merits, as required for res judicata to apply.
A final judgment is “a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” Flores v. Dugan, 91 Ill. 2d 108, 112 (1982). In Flores, this court held that a dismissal for want of prosecution is not a final and appealable order because the plaintiffs had the absolute right to refile their cause of action pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), the predecessor to section 13 — 217. Flores, 91 Ill. 2d at 111-12. The court reasoned that “since the plaintiffs had an absolute right to refile the action within the statutory limits, the order of dismissal could not terminate the litigation.” Flores, 91 Ill. 2d at 114. The court further noted that the order of dismissal itself stated that it was entered without prejudice, clearly manifesting the intent of the circuit court that the dismissal order not be considered final and appealable. Flores, 91 Ill. 2d at 114.
The involuntary dismissal of the plaintiffs’ rescission counts in Rein I on statute of limitation grounds was clearly an adjudication on the merits under Rule 273. It was not, however, a “final” judgment in the lawsuit as defined by this court. Thus, in Rein, this court misapplied Rule 273.
Rein also erroneously relied on Downing v. Chicago Transit Authority, 162 Ill. 2d 70 (1994), to support its conclusion that an involuntary dismissal operates as a final judgment on the merits for purposes of res judicata. In Downing, this court examined whether a summary judgment was a prior adjudication on the merits for res judicata purposes. Downing, 162 Ill. 2d at 73-75. Downing noted that, under Rule 273, involuntary dismissals operate as judgments on the merits. Downing, 162 Ill. 2d at 75. However, Downing found Rule 273 inapplicable because a summary judgment is not an involuntary dismissal. Downing, 162 Ill. 2d at 75. The court then determined that a summary judgment on statute of limitation grounds was not an adjudication on the merits because the merits of the action were never examined, and res judicata was inapplicable. Downing, 162 Ill. 2d at 77. The court commented:
“To label such an order as an adjudication on the merits would be the quintessential act of exalting form over substance.
Courts cannot ignore the basis on which the summary-judgment was granted. If *** that basis bears no relationship to the actual merits of the case, it would be inappropriate to apply the doctrine of res judicata ***.” Downing, 162 Ill. 2d at 77.
Downing stated that an involuntary dismissal operates as a judgment on the merits. Downing, 162 Ill. 2d at 75. Downing did not, however, determine that an involuntary dismissal operates as a “final” judgment on the merits. Accordingly, Rein inappropriately relied on Downing in concluding that the involuntary dismissal of the plaintiffs’ rescission counts operated as a final judgment on the merits.
I believe the appellate court in Rein I erroneously assumed that it had jurisdiction to hear the initial appeal when there was no final and appealable judgment in the lawsuit. Rule 273 only applies to “involuntary” dismissals. See Downing, 162 Ill. 2d at 75 (“Rule 273 applies only to an involuntary dismissal of an action, such as when a motion to dismiss under section 2 — 615 or section 2 — 619 of the Code of Civil Procedure is granted”). The plaintiffs’ voluntary dismissal, without prejudice, of their common law claims in Rein I was clearly not an adjudication on the merits under Rule 273, nor was it a final judgment. Unfortunately, this court has not examined whether the appeal in Rein I was proper. It is clear that, under our supreme court rules, a voluntary dismissal is not a final, appealable order.
The Illinois Constitution vests this court with the authority to make rules governing appeals. Ill. Const. 1970, art. VI, §§6, 16. Appeals from final judgments of the circuit court are as a matter of right to the appellate court and the supreme court may provide by rule for appeals to the appellate court from other than final judgments of the circuit courts. Ill. Const. 1970, art. VI, §6. Supreme Court Rule 301 (155 Ill. 2d R. 301) provides that “[ejvery final judgment of a circuit court in a civil case is appealable as of right.” Supreme Court Rule 304 (210 Ill. 2d R. 304) provides for appeals from final judgments as to fewer than all the parties or claims. Supreme Court Rules 306, 307, and 308 (155 Ill. 2d Rs. 306, 307, 308) provide for appeals from certain specified interlocutory orders of the court. Voluntary dismissals without prejudice are not final appealable orders under the provisions of our supreme court rules. See Flores, 91 Ill. 2d at 114 (order stating cause is dismissed “without prejudice” is not a final and appealable order).
Applying our supreme court rules to Rein I, there can be no question that the plaintiffs’ voluntary dismissal of their common law claims did not convert the involuntary dismissal of the rescission counts into a final and appealable order because the plaintiffs had the option to refile their voluntarily dismissed claims under section 2 — 1009(a) of the Code. Section 2 — 1009(a) provides that “[tjhe plaintiff may, at any time before trial or hearing begins, *** dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.” (Emphasis added.) 735 ILCS 5/2 — 1009(a) (West 2002). Since a dismissal under section 2 — 1009(a) is without prejudice, section 2 — 1009(a) protects a plaintiffs right to refile the voluntarily dismissed action.
Rein’s conclusion that the plaintiffs’ voluntary dismissal of their common law claims made the involuntary dismissal of the rescission claims final and appeal-able is in direct conflict with other decisions of this court. Prior to Rein, this court consistently held that entry of a dismissal order cannot be considered final and appeal-able by a plaintiff during the time when the refiling option is available under section 13 — 217 because a plaintiff has an absolute right to refile the action under section 13 — 217. See Flores, 91 Ill. 2d 108; Wold v. Bull Valley Management Co., 96 Ill. 2d 110 (1983); Kahle v. John Deere Co., 104 Ill. 2d 302 (1984).
In Flores, this court held that a dismissal for want of prosecution is not a final and appealable order under Rule 301, in light of a plaintiffs absolute right to refile the suit. Flores, 91 Ill. 2d at 111-14. Following Flores, this court held in Wold that an order of dismissal for want of prosecution is not a final and appealable order since plaintiffs had the absolute right to refile the action. Wold, 96 Ill. 2d at 112. This court extended Flores and Wold to voluntary dismissals in Kahle, 104 Ill. 2d 302.
In Kahle, this court recognized that a plaintiff cannot appeal from an order voluntarily dismissing a claim without prejudice because section 13 — 217 gives the plaintiff the absolute right to refile the case, thereby protecting plaintiffs from prejudice. Kahle, 104 Ill. 2d at 305-06. Kahle did, however, hold that an order granting a plaintiffs voluntary dismissal after trial has begun is final and appealable by a defendant. Kahle, 104 Ill. 2d at 307. Kahle’s rationale was based on prejudice to the defendant, when no court would be able to determine defendant’s contentions of error because plaintiffs refiled case was a new case that constituted a separate cause of action. Kahle, 104 Ill. 2d at 306. “Kahle did not go so far as to make voluntary dismissals the jurisdictional basis from which nonappealable judgments could be appealed. Rather, the court made it abundantly clear that the only proper subject on appeal was the propriety of granting a voluntary dismissal” after trial had begun. Saddle Signs, Inc. v. Adrian, 272 Ill. App. 3d 132, 136 (1995).
Thus, in Rein, this court incorrectly assumed that the plaintiffs’ appeal in Rein I was proper. This incorrect assumption was further perpetuated in Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496 (1997), when this court held that the plaintiffs’ voluntary dismissal made all prior orders entered in the action final and appealable. Although I agree with the result in Dubina, that the defendants were permitted to appeal because they were prejudiced by the plaintiffs voluntary dismissal, Dubina should have relied on Kahle for its rationale, rather than on Rein since Rein did not examine the appealability of the issues. Under Kahle, an order granting a plaintiffs voluntary dismissal is considered final and appealable solely by the defendant on the limited question of whether the trial court erred in granting a voluntary dismissal after commencing trial.
Further, Dubina relied on a string of appellate court cases in concluding that “[i]t is well settled that final orders entered in a case become appealable following a voluntary dismissal.” Dubina, 178 Ill. 2d at 503, citing Maggini v. OSF Healthcare System, 256 Ill. App. 3d 551, 552-53 (1994); Dubina also cited to Rein v. David A. Noyes & Co., 230 Ill. App. 3d 12, 15 (1992), Howard v. Druckenmiller, 238 Ill. App. 3d 937, 940-41 (1992), and Reagan v. Baird, 140 Ill. App. 3d 58, 62-63 (1985). However, all of these cases were based on a misinterpretation of existing precedent and a misreading of Kahle. The appellate court’s confusion is understandable because this court’s precedent on appeals following a voluntary dismissal has been less than clear. For example, Swisher v. Duffy, 117 Ill. 2d 376, 379 (1987), filed just three years after Kahle, cited Kahle as holding “that a voluntary dismissal is a final and appealable order.” Clearly, as explained earlier, Kahle was limited to allowing defendants to appeal from a plaintiff’s voluntary dismissal after trial had begun, and its holding was not as broad as suggested in Swisher. Then, in Dubina, this court allowed a defendant to appeal from the dismissal of its contribution claims following the plaintiffs voluntary-dismissal. Dubina reasoned that the defendant was not appealing from the voluntary dismissal order itself but, rather, the defendant sought to appeal from the order dismissing its contribution claims. It is not surprising that our decisions have led to inconsistent and unpredictable results in the appellate court.
This court should clarify that a plaintiffs voluntary dismissal is not the jurisdictional basis for an appeal. Rather, the rule created in Flores, Wold, and Kahle prohibits plaintiffs from taking an appeal from a voluntary dismissal, but permits defendants to take an appeal from a plaintiffs voluntary dismissal upon a showing of prejudice.
This court has also been less than clear in determining whether a plaintiffs refiled complaint constitutes a new action or a continuation of a voluntarily dismissed action. In Dubina, this court noted that “the refiled action is an entirely new and separate action, not a reinstatement of the old action.” Dubina, 178 Ill. 2d at 504. Dubina, in turn, relied on Swisher, 117 Ill. 2d at 379, Kahle, 104 Ill. 2d at 306, Neuman v. Burstein, 230 Ill. App. 3d 33, 36 (1992), Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649, 656 (1987), and section 13 — 217 of the Code (735 ILCS 5/13 — 217 (West 2004)) for its conclusion that the original and refiled actions are completely distinct. Swisher, however, cited no authority for its conclusion. Likewise, Kahle cited no authority for its conclusion, but simply noted that the circuit judge in the refiled case has no jurisdiction to review the propriety of the dismissal of the earlier case by another circuit judge. Kahle, 104 Ill. 2d at 306. Neuman and Lyon relied on the “new action” language of section 13 — 217 of the Code. None of these cases examined whether a refiled action, although a “new action” for purposes of section 13 — 217, was actually a continuation of a plaintiffs former voluntarily dismissed action.
Obviously, the refiled action is assigned a new case number in the circuit court, but equally as obvious, the trial court is required to take judicial notice of rulings in the prior proceedings. See People v. Davis, 65 Ill. 2d 157, 161 (1976) (noting that “In McCormick on Evidence, section 330, at 766 (2d ed. 1972), it is said to be ‘settled, of course, that the courts, trial and appellate, take notice of their own respective records in the present litigation, both as to matters occurring in the immediate trial, and in previous trials or hearings’ ”). If a refiled action were not to be considered a continuation of the voluntarily dismissed action, it would make no sense to consider a plaintiffs lack of diligence in the prior action when ruling on a motion to dismiss a case for violating Supreme Court Rule 103(b). See Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207 (2007). Thus, it is not as if plaintiffs’ prior cause of action never existed. Rather, from a procedural standpoint, the refiled action is a new and distinct suit treated as a continuation of the former suit, and there can be no doubt that all prior rulings are binding in the second action. In fact, an action refiled pursuant to section 13 — 217 is premised on the preexisting action. Without the predicate case, there could be no refiling under section 13 — 217. Thus, it cannot logically be viewed as a completely new cause of action.
In Korzinski v. Jackson, 326 F. Supp. 2d 704, 706 (E.D.N.C. 2004), the federal court recognized that although the plain language of Rule 41, the federal counterpart to our section 13 — 217, indicates that an action commenced after a voluntary dismissal is a “new action,” the refiled action is a continuation of the original action. The court in Korzinski relying on a North Carolina Supreme Court case (Goodson v. Lehmon, 225 N.C. 514, 518, 35 S.E.2d 623, 625 (1945)) interpreting the statutory precursor to Rule 41, reasoned:
“[B]y its nature, a ‘new action’ commenced pursuant to Rule 41 must be, in all practical respects, precisely the same action that was brought prior to the voluntary dismissal. The action, which is only nominally a ‘new action,’ must have the ‘strictest factual identity,’ with the original proceeding and must ‘involv[e] the same parties, the same cause of action and the same right, and this must appear from the record in the case.’ ” Korzinski, 326 F. Supp. 2d at 706.
In sum, plaintiffs are not prejudiced by taking a voluntary dismissal because of the option to refile pursuant to section 13 — 217. A plaintiff may not, therefore, appeal determinations in the first lawsuit until either the time expires for refiling the suit, or a judgment on the merits is issued in the refiled action.
This procedural viewpoint is distinguishable from those circumstances when a plaintiff voluntarily dismisses some but not all of its claims, and then proceeds to trial on the remaining claims. Obviously, plaintiffs would be precluded from refiling their voluntarily dismissed claims under these circumstances because a trial resulting in a final judgment on the merits would trigger the doctrine of res judicata.
Accordingly, I would hold that in Rein I, the plaintiffs improperly appealed the involuntary dismissal of their rescission counts following the voluntary dismissal of their common law counts, and the appellate court erroneously determined it had jurisdiction to decide the appeal in the first action. I would not, therefore, rely on Rein’s res judicata analysis since the appeal in Rein I was improper. The situation presented on appeal to this court in Rein was a procedural morass. Consequently, the plaintiffs inappropriately took an appeal from their voluntary dismissal and the appellate court erroneously considered the plaintiffs’ appeal on its merits while the plaintiffs’ voluntarily dismissed common law claims remained subject to refiling.
Equally important, in Rein, this court failed to recognize that when a plaintiff elects to dismiss voluntarily a lawsuit without prejudice, the voluntary dismissal is not a final adjudication on the merits and res judicata is simply inapplicable. See Restatement (Second) of Judgments §20(b), Comment a (1982) (res judicata is not applicable when the plaintiff elects to dismiss voluntarily without prejudice, and “the plaintiff remains entirely free to prosecute all or any part of his claim”). Comment f to section 20 explains that, “[a]t common law[,] the plaintiff is permitted to submit to a nonsuit, which does not operate as a bar to another action on the same claim ***.” Restatement (Second) of Judgments §20, Comment f (1982). Rein therefore erroneously applied the doctrine of res judicata because res judicata is simply inapplicable to voluntarily dismissed claims.
Moreover, this court’s claim-splitting analysis in Rein is not in accord with section 26(1) of the Restatement (Second) of Judgments. In Rein, this court specifically adopted section 26(1) of the Restatement (Second) of Judgments (Restatement (Second) of Judgments §26(1) (1982)), setting forth examples of situations when it would be inequitable to apply the rule against claim-splitting: Airtite v. DPR Ltd. Partnership, 265 Ill. App. 3d 214, 219 (1994); Thorleif v. Larson & Son, Inc. v. PPG Industries, Inc., 177 Ill. App. 3d 656, 661-62 (1988).
“This section provides that the rule against claim-splitting does not apply to bar an independent claim of part of the same cause of action if: (1) the parties have agreed in terms or in effect that plaintiff may split his claim or the defendant has acquiesced therein; (2) the court in the first action expressly reserved the plaintiff’s right to maintain the second action-, (3) the plaintiff was unable to obtain relief on his claim because of a restriction on the subject-matter jurisdiction of the court in the first action; (4) the judgment in the first action was plainly inconsistent with the equitable implementation of a statutory scheme; (5) the case involves a continuing or recurrent wrong; or (6) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason.” (Emphasis added.) Rein, 172 Ill. 2d at 341, citing Restatement (Second) of Judgments §26(1) (1982).
After acknowledging these exceptions to the rule against claim-splitting, this court then held in Rein that the exceptions should not be interpreted as immunizing plaintiffs against res judicata. In coming to this conclusion, Rein overlooked that a voluntary dismissal is not subject to res judicata, and that a voluntary dismissal without prejudice is an exception to the rule against claim-splitting. Rein also overlooked comment b to section 26(b). Comment b provides an illustration to express reservation by the court in the first action of the plaintiffs right to maintain a second action:
“A determination by the court that its judgment is ‘without prejudice’ (or words to that effect) to a second action *** should ordinarily be given effect in the second action.” (Emphasis added.) Restatement (Second) of Judgments §26, Comment b (1982).
Res judicata is not applicable to a voluntary dismissal, and a voluntary dismissal without prejudice is a recognized exception to the rule against claim-splitting precisely because a voluntary dismissal without prejudice is not a final judgment on the merits. Rein’s failure to apply the recognized exception has created untenable consequences. In my view, Rein rests on extremely unsound legal grounds. This court should recognize the error of its way and overrule Rein.
Since the court’s decision in Rein, other courts have struggled to distinguish Rein and interpreted Rein’s holding as limited to its unique facts to avoid unfair results. In Piagentini v. Ford Motor Co., the court stated that Rein stands only “for the proposition that ‘a plaintiff seeking to split his claims and appeal in a piecemeal manner may be barred by res judicata.’ ” Piagentini v. Ford Motor Co., 366 Ill. App. 3d 395, 401 (2006), quoting Dubina, 178 Ill. 2d at 507. See also Gann v. William Timblin Transit, Inc., No. 07 C 3252 (N.D. Ill. November 20, 2007) (“the context in which \Reiri\ found that the plaintiff was precluded from later filing his claims was that it was doing so for the purpose of splitting his claim in order to appeal an earlier ruling”).
The untenable consequences created in the wake of Rein are made abundantly clear by this court’s attempt to apply Rein to this case. Plaintiffs’ negligence claim in Hudson I was involuntarily dismissed based on statutory immunity. The involuntary dismissal operated as an adjudication on the merits under Rule 273, but not a final appealable judgment.
At the time plaintiffs’ negligence claim was involuntarily dismissed plaintiffs’ willful and wanton claim was still pending. Plaintiffs continued to litigate their willful and wanton claim for the next three years until plaintiffs’ counsel passed away and the case was voluntarily dismissed on the day it was called for trial (presumably because substitute counsel, who appears to have been the deceased attorney’s daughter, was not prepared for trial). The order entered clearly stated the cause was voluntarily dismissed “without prejudice.” Plaintiffs, therefore, had the absolute right to refile the action under section 13 — 217. Accordingly, the order granting plaintiffs’ motion for voluntary dismissal without prejudice was not a final, appealable order.
The majority, however, relying on the faulty analysis employed in Rein and Dubina, concludes that once the voluntary dismissal was entered in Hudson I, the litigation was terminated in its entirety and all final orders became immediately appealable. 228 Ill. 2d at 468. The majority fails to acknowledge that plaintiffs’ voluntary dismissal was without prejudice, and that res judicata is not applicable to voluntarily dismissed claims under section 20 of the Restatement (Second) of Judgments. The majority also overlooks the fact that the voluntary dismissal without prejudice in this case presents an exception to the rule against claim-splitting, as recognized by section 26 of the Restatement (Second) of Judgments, and adopted in Rein.
Additionally, this court has overlooked section 20(c) of the Restatement (Second) of Judgments. Section 20(c) provides that res judicata does not bar another action by the plaintiff on the same claim “when by statute or rule of court the judgment does not operate as a bar to another action on the same claim.” The General Assembly, in the exercise of its constitutional powers, has granted plaintiffs an absolute right to refile voluntarily dismissed complaints “within one year [from the date of dismissal] or within the remaining period of limitation, whichever is greater.” 735 ILCS 5/13 — 217 (West 2002). See Aranda v. Hobart Manufacturing Corp., 66 Ill. 2d 616, 621 (1977) (Dooley, J, specially concurring). This court has repeatedly recognized that the express language of section 13 — 217 clearly “grants a plaintiff the absolute right to refile a dismissed complaint” and “[w]e may not infringe upon this statutory right to refile.” (Emphasis added.) Case, 227 Ill. 2d at 215. See also Timberlake v. Illini Hospital, 175 Ill. 2d 159, 163 (1997) (“Section 13— 217 provides plaintiffs with the absolute right to refile their complaint within one year or within the remaining period of limitations, whichever is greater” (emphasis added)); Gendek v. Jehangir, 119 Ill. 2d 338, 340 (1988) (“section [13 — 217] provides plaintiffs with the absolute right to refile their complaint *** for the reasons specified therein”). “Section 13 — 217 operates as a savings statute, with the purpose of facilitating the disposition of litigation on the merits and avoiding its frustration upon grounds unrelated to the merits.” Case, 227 Ill. 2d at 215, citing S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 497 (1998). Applying section 20(c) of the Restatement (Second) of Judgments to this case, plaintiffs’ refiling of their willful and wanton claim was permitted under section 13 — 217, and res judicata does not bar the refiled action.
In my view, the doctrine of res judicata and the rule against claim-splitting should be employed with judicial restraint and not as tools to dispose of litigation. Here, there was no adjudication on the merits of plaintiffs’ willful and wanton claim. To label a voluntary dismissal without prejudice as a final judgment on the merits mischaracterizes the true nature of the disposition. Plaintiffs’ negligence claim was dismissed on grounds of immunity and plaintiffs did not appeal that determination or engage in any improper claim-splitting. Under these circumstances, res judicata and the rule against claim-splitting should not be applied mechanically to infringe on plaintiffs’ legislatively created right to refile their voluntarily dismissed claim, based on grounds totally divorced from the merits of plaintiffs’ claim.
I would therefore reverse the judgment of the appellate and circuit courts and remand for further proceedings. For the foregoing reasons, I respectfully dissent.
JUSTICE FITZGERALD joins in this dissent.
Dissent Upon Denial of Rehearing