Enterprise Financial Services Group v. WCAB (Kunkle) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Enterprise Financial Services Group, :
Petitioner :
:
v. : No. 371 C.D. 2015
: Submitted: August 28, 2015
Workers’ Compensation :
Appeal Board (Kunkle), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: January 8, 2016
Enterprise Financial Services Group (Employer) petitions this Court
for review of an order of the Workers’ Compensation Appeal Board (Board). The
Board affirmed an order of Workers’ Compensation Judge Ada Guyton (WCJ),
which awarded workers’ compensation benefits to Prudence Kunkle (Claimant).
For the reasons discussed below, we affirm.
The following facts are undisputed. Claimant was employed as a
property manager for Employer. While showing a house to prospective clients on
April 24, 2011, Claimant injured her knee when she attempted to step over a
broken step. She immediately reported the injury to Tracy Colgan, Employer’s
department coordinator, and resumed her regular job duties that same day. About a
week later, Claimant developed pain in her hips, thighs, and lower back. Claimant
went to the emergency room and then followed-up with Michael Pollock, M.D.
Dr. Pollock ordered an MRI and referred Claimant to a pain clinic, where she
received four injections in her lumbar spine for pain management. Dr. Pollock also
prescribed anti-inflammatories for Claimant. Claimant recovered from her knee
injury but continued to receive treatment for her back. Following her injury and
throughout the course of her treatment, Claimant continued to perform her
pre-injury job without modification.
On November 10, 2011, Claimant met with Douglas Lockard,
Employer’s Executive Vice President, Darlene Hoy, Claimant’s supervisor, and
Mary Keller, Employer’s Human Resources Director. They informed Claimant
that Employer was terminating her employment because her conduct demonstrated
a pattern of behavior with co-workers, tenants, customers, clients, and municipal
officers that was not acceptable and not in line with Employer’s goals and
intentions of customer service. Claimant’s injury and workers’ compensation case
were not mentioned or discussed.
Claimant filed a claim petition on December 2, 2011, alleging an
upper back injury, L4-5 herniation, aggravation of pre-existing condition, and right
knee injury from the April 24, 2011 injury. Claimant sought total disability
benefits as of the date of her discharge, as well as payment of medical bills and
counsel fees. Claimant alleged that Employer fired her because of her refusal to
cooperate with a workers’ compensation nurse case manager and because of
Employer’s fears that her lack of cooperation would cause its insurance rates to
rise. Employer alleged that Claimant was fired for cause, namely her hostile
attitude and unsatisfactory interactions with vendors, clients, and co-workers,
which reflected poorly on Employer. As a result, she was ineligible for benefits.
2
At the hearing before the WCJ, Employer presented the testimony of
Mr. Lockard, Ms. Hoy, and Ms. Keller, who all testified about the various
complaints made against Claimant and that Claimant’s poor behavior was the
reason for her termination.
Ms. Hoy testified that on June 30, 2011, one of Claimant’s
co-workers, Ms. Ooten, made a complaint alleging that Claimant was difficult to
work with, made her life miserable, and had touched her. Employer conducted an
investigation into Ms. Ooten’s allegations. As part of that investigation, Claimant
met with Ms. Hoy and Mr. Lockard, who counseled her on her workplace
behavior. On July 14, 2011, Ms. Hoy issued a written reprimand, summarizing the
June 30, 2011 meeting. She stated that Claimant displayed a pattern of personality
conflicts with tenants, clients, and co-workers, was disrespectful of others’ work
styles, and had made derogatory comments when unsatisfied with others’ work.
Ms. Hoy reminded Claimant that she was not a supervisor and could not demand
performance from her co-workers, directed her to turn over any controversial
disagreements, be courteous and professional in her emails, and attend a mandatory
education seminar on “Managing Emotions Under Pressure.” Claimant was
advised that she was being placed on probationary status for 90 days and that
“[f]ailure on your part to correct these deficiencies may result in further action on
the part of management.” (Reproduced Record (R.R.) 287a.)
Ms. Hoy also testified about an incident on September 2, 2011, in
which Brenda Cameron, an administrative assistant with Indiana Borough, emailed
Ms. Hoy about a complaint she received from one of Employer’s clients.
Ms. Cameron stated that the client was disgusted with the service and attitude from
Claimant, and that Ms. Cameron would no longer recommend or use Employer in
3
the future. Ms. Hoy talked to Claimant about the complaint but did not document
the discussion.
Lastly, Ms. Hoy testified about an incident involving Claimant’s
workers’ compensation nurse case manager. On September 22, 2011, Ms. Hoy
received a call from Ms. Hayes, the workers’ compensation nurse case manager
assigned to Claimant by Employer’s insurance carrier, informing Ms. Hoy that
Claimant was no longer responding to Ms. Hayes’ efforts to communicate with
her. Ms. Hoy asked Claimant about her refusal to speak with Ms. Hayes, and
Ms. Hoy was unsatisfied with Claimant’s one-word answers. Ms. Hoy placed a
written reprimand in Claimant’s personnel file stating, in pertinent part:
Your response was inappropriate and disrespectful at best. If
you think this was an acceptable manner to respond to an
inquiry from your supervisor, I can only imagine how you have
behaved toward Ms. Hayes . . . . As stated in my email “from
the organization’s viewpoint, I would recommend you
cooperate with her so the matter can be handled appropriately.”
Your prior conduct toward the insurance company
representatives reflects poorly on [Employer] and could have a
direct effect on the company’s review for coverage renewal.
With the issues and discussions that have occurred during the
past few months relating to your interactions with owners,
co-workers, vendors, and others, this a formal notice that if any
member of management is advised of any further complaints
relative to your cooperation from the workers’ compensation
insurance carrier or any of their representatives, it may be cause
for your immediate termination.
(R.R. 293-94a.)
Mr. Lockard testified that he received a complaint in September 2011
from Craig Davis, a client and vendor who performed property maintenance work
for Employer. Mr. Davis complained that Claimant had treated him rudely and
4
unprofessionally. Mr. Lockard did not document the complaint or address the
complaint with Claimant.
Mr. Lockard also testified that in October or November 2011, he
received a complaint from a client, Ms. Springer, who complained that Claimant
had told her she needed to use the online form to put in a work order, but
Ms. Springer did not own a computer and Claimant did not return her calls.
Ms. Hoy testified that she had to take Ms. Springer’s complaint from Claimant and
handle it herself, and also had to take over several customer calls that Claimant
was handling unsatisfactorily during this time period, but she did not document the
complaint or calls in Claimant’s file.
Ms. Keller testified that in November 2011, Jackie Schall, a
co-worker of Claimant, resigned her employment, alleging that Claimant created
an unfavorable work environment by torturing Ms. Schall and being rude, nasty,
and belittling. No one conducted an investigation into Ms. Schall’s allegations
about Claimant. Additionally, Ms. Keller testified that she received an email from
Employer’s Chairman of the Board, Charles Leyh, stating that if he received any
further information from the insurance company that indicated Claimant was not
cooperating with its efforts to assist her, Claimant’s employment would be
terminated immediately.
In response, Claimant testified that she stopped speaking with
Ms. Hayes on the advice of counsel and because she did not trust the case manager.
She acknowledged that she had been placed on a 90-day probation period
following the July 14, 2011 reprimand. She also admitted receiving a phone call
from Ms. Springer, but Claimant testified that asking clients to submit a work order
online was standard protocol. Furthermore, she was not Ms. Springer’s property
5
manager, and it was not her responsibility to return Ms. Springer’s calls. Claimant
further testified that she never had any serious problems with Mr. Davis and was
never informed about any complaint made by him. Lastly, Claimant testified that
the only person she had a personality conflict with was Ms. Ooten, and that she
believed she was fired because she had a workers’ compensation claim and refused
to cooperate with the workers’ compensation nurse case manager.
Claimant also presented the uncontested testimony of Gregory Lauro,
M.D. Dr. Lauro diagnosed Claimant with a right knee sprain and an acute
exacerbation of stenosis and herniation. Dr. Lauro recommended that Claimant
avoid bending, stooping, and heavy lifting and limit walking. Dr. Lauro opined
that Claimant’s pre-injury job fell within those guidelines.
The WCJ found that Employer failed to establish that Claimant’s
behavior warranted her dismissal: “[Employer] failed to provide sufficient
information as to what [Claimant’s] actual actions were. In addition, [Employer’s]
inconsistent actions indicated that [Claimant] was not dismissed solely for her
behavior, but, at least in part, for her refusal to continue working with the workers’
compensation nurse case manager.” (WCJ Op. at 7.) The WCJ noted that
although Employer’s witnesses testified about the various complaints received
about Claimant, the only complaint documented in Claimant’s personnel file was
the July 14, 2011 memo. Furthermore, the WCJ noted that, with the exceptions of
Ms. Springer’s complaint and the July 14, 2011 memo, Employer’s witnesses did
not document or testify about Claimant’s specific behavior or comments. On the
other hand, Employer “clearly expressed its displeasure at [Claimant’s] decision
not to continue working with the workers’ compensation nurse case manager.”
(WCJ Op. at 9.) The WCJ, therefore,
6
did not find [Employer’s] witnesses’ testimony credible
and persuasive that [Claimant’s] decision not to follow
up with the workers’ compensation nurse case manager
was not a factor in [Employer’s] decision to fire
[Claimant]. The witnesses contended that the decision to
fire was based on incidents which did not specifically
describe [Claimant’s] behavior and on complaints that
were not documented in her personnel file or investigated
appropriately. But, the incident, which [Employer]
contended was not considered in her termination—her
refusal to remain in contact with the workers’
compensation nurse case manager—had been quickly
documented and placed in her personnel file. It, also,
brought stern warnings that [Employer] would terminate
her employment if she was not cooperating with the
insurance company.
(WCJ Op. at 10.)
The WCJ concluded that Claimant had sustained a work-related
injury, that Claimant was able to continue working in her pre-injury job because it
fell within her physical restrictions relating to the work injury, and that her
pre-injury job was no longer available because she was fired. The WCJ further
concluded that Claimant’s “termination was based on her refusing to cooperate
with the workers’ compensation nurse case manager,” that Employer “failed to
establish that [Claimant’s] employment was terminated for conduct that would
preclude her from receiving partial disability benefits,” and that Claimant’s
“pre-injury job was no longer available through no fault of [Claimant] since she
was terminated for her failure to cooperate with the workers’ compensation nurse
case manager.” (WCJ Op. at 12.) Thus, the WCJ granted the claim petition.
Employer appealed to the Board, arguing that the WCJ’s findings of
fact were not supported by substantial evidence and that the WCJ made errors of
law. The Board affirmed, noting that the WCJ credited Claimant’s and Dr. Lauro’s
testimony, but the WCJ did not find credible Employer’s witnesses’ testimony
7
about the reason for Claimant’s termination. The Board noted that the WCJ is
empowered to resolve conflicts in the evidence and make credibility
determinations, and that the WCJ’s findings of fact were based upon substantial
evidence. Furthermore, because the WCJ found that Employer failed to establish
that Claimant was fired for cause, the WCJ did not commit any errors of law in
granting Claimant’s petition.
On appeal to this Court,1 Employer argues that the findings of fact are
not supported by substantial evidence, that the WCJ applied an improper analysis
to the facts of the case in determining that Claimant’s termination was attributable
to her work-related injury, and that the WCJ erred in awarding benefits to Claimant
because she was working her pre-injury job without modification at the time she
was fired. Claimant asserts that Employer’s arguments are nothing more than an
invitation to reassess witness credibility and reweigh evidence. Claimant,
therefore, requests that counsel fees be awarded to her pursuant to Pennsylvania
Rule of Appellate Procedure 2744 on the basis that Employer’s appeal to this court
is frivolous.
The WCJ is the ultimate fact finder in workers’ compensation cases,
and we are bound by the WCJ’s findings of fact if they are supported by substantial
evidence. Gen. Elec. Co. v. Workmen’s Comp. Appeal Bd. (Valsamaki), 593 A.2d
921, 924 (Pa. Cmwlth.), appeal denied, 600 A.2d 541 (Pa. 1991). It does not
matter that there is evidence of record which could support a finding contrary to
1
This Court’s standard of review is limited to determining whether substantial evidence
supports the WCJ’s necessary findings of fact, whether the Board violated its procedures, and
whether any constitutional rights were violated or any error of law was committed. Mackey v.
Workers’ Comp. Appeal Bd. (Maxim Healthcare Servs.), 989 A.2d 404, 406 n.2 (Pa. Cmwlth.),
appeal denied, 997 A.2d 1180 (Pa. 2010).
8
that made by the WCJ, the only inquiry is whether there is evidence of record
which supports the WCJ’s finding. Hoffmaster v. Workers’ Comp. Appeal Bd.
(Senco Prods. Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). “[T]he WCJ is the
sole arbiter of the credibility and the weight of testimony and other evidence, and
he or she is free to reject or accept the testimony of any witness in whole or in
part.” O’Donnell v. Workers’ Comp. Appeal Bd. (United Parcel Serv.), 831 A.2d
784, 789 (Pa. Cmwlth. 2003).
Here, Employer argues that the WCJ “erred in her assessment of the
evidence” and “misinterpreted the evidence” presented by Employer regarding the
complaints made about Claimant. This is plainly an attack on the WCJ’s weight of
the evidence and credibility determinations. Employer is essentially arguing that it
presented so much evidence that the WCJ could not possibly have believed
Claimant’s contention that she was fired for refusing to cooperate with her
workers’ compensation nurse case manager. There is no indication that the WCJ
ignored Employer’s testimony; in fact, the WCJ’s findings of fact clearly note each
complaint and/or incident testified to by Employer’s witnesses. Unfortunately for
Employer, the WCJ did not find their testimony credible. As the ultimate fact
finder, the WCJ is free to believe all, none, or part of the testimony, and this Court
will not disturb those determinations on appeal. See O’Donnell, 831 A.2d at 789.
“The facts that [Employer] produced a greater number of witnesses, and that [it]
assert[s] [its] witnesses were more credible, are not paramount.” Bethenergy
Mines, Inc. v. Workmen’s Comp. Appeal Bd. (Skirpan), 612 A.2d 434, 437 (Pa.
1992). Furthermore, our review of the record reveals that there is substantial
evidence of record to support the WCJ’s findings, so the fact that there is evidence
of record which would support a contrary finding is immaterial. See Hoffmaster,
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721 A.2d at 1155. Because the WCJ’s findings of fact are supported by substantial
evidence, this Court is bound by them and may not disturb them on appeal.
Using the facts as found by the WCJ, this Court now considers
whether the WCJ erred in determining that Claimant’s termination was attributable
to her work-related injury. In an initial claim proceeding, the claimant bears the
burden of establishing a right to compensation. Inglis House v. Workmen’s Comp.
Appeal Bd. (Reedy), 634 A.2d 592, 595 (Pa. 1993). Thus, under the Workers’
Compensation Act (Act),2
a claimant seeking disability benefits must prove that she
has suffered a disability and that the disability was
caused by a work-related injury. To prove a disability,
the claimant must show not merely physical impairment,
but loss of earning power. For the purposes of receiving
work[ers’] compensation, ‘disability’ means loss of
earning power, and thus although a claimant may suffer a
work-related physical disability, it is only if that physical
disability occasions a loss of earnings that a worker will
be ‘disabled’ under the meaning of the Act and will be
entitled to receive compensation.
Where the claimant’s loss of earnings is a result of
a termination for misconduct unrelated to the injury, the
requirement of causal connection to the work-related
injury cannot be satisfied and claimant is not entitled to
disability benefits for that loss. For a termination to bar
disability benefits, the employer must show that the
termination was for conduct that amounts to bad faith or
a lack of good faith on the part of the claimant.
If the employer has provided work within the
claimant’s physical limitations at no loss of pay and has
shown that the claimant was terminated for conduct
evidencing bad faith or a lack of good faith, disability
benefits must be denied, regardless of whether the
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.4, 2501–2708.
10
claimant has a physical disability caused by the
work-related injury. Under such circumstances, the
claimant is not entitled to workers’ compensation
disability benefits because his loss of earnings
subsequent to the discharge was caused by his own
action, not by the work injury.
BJ’s Wholesale Club v. Workers’ Comp. Appeal Bd. (Pearson), 43 A.3d 559,
562-63 (Pa. Cmwlth. 2012) (citations omitted) (quotation marks omitted).
Thus, we must determine if Claimant met her burden of proof to
succeed on a claim petition. Here, it is undisputed that Claimant suffered a
work-related injury. Moreover, the WCJ found credible Dr. Lauro’s testimony that
Claimant’s ability to work is subject to limitations, namely that Claimant “avoid
bending, stooping, and lifting over 20 pounds.” (WCJ Op. at 2.) With regard to
whether she suffered a loss of earning power as a result of her work injury, such
that she is disabled, the WCJ found that Employer terminated Claimant’s
employment due to her refusal to cooperate with the workers’ compensation case
manager and Employer’s concern that its workers’ compensation premiums would
increase as a result of Claimant’s lack of cooperation. Claimant has, therefore,
carried her burden to prove that she suffered a work related injury, that the injury
resulted in physical impairment, and that she has experienced a loss of earning
power as a result of her injury.
In order to prevent Claimant from receiving disability benefits,
Employer had to establish that Claimant’s termination was for conduct that
amounts to bad faith or a lack of good faith on her part. See BJ’s Wholesale Club,
43 A.3d at 563. “The WCJ, as fact finder, determines whether a claimant was
discharged for conduct evidencing lack of good faith.” Coyne v. Workers’ Comp.
Appeal Bd. (Villanova Univ.), 942 A.2d 939, 946 (Pa. Cmwlth.), appeal denied,
960 A.2d 457 (Pa. 2008). In this case, the WCJ found that Employer “failed to
11
provide sufficient information as to what [Claimant’s] actual actions were. In
addition, [Employer’s] inconsistent actions indicated that [Claimant] was not
dismissed solely for her behavior, but, at least in part, for her refusal to continue
working with the workers’ compensation nurse case manager.” (WCJ Op. at 7.) In
fact, the WCJ concluded that “[t]he evidence taken as a whole established that
[Claimant’s] termination was based on her refusing to cooperate with the workers’
compensation nurse case manager.” (WCJ Op. at 12.) Thus, the WCJ concluded
that Employer “failed to establish that [Claimant’s] employment was terminated
for conduct that would preclude her from receiving partial disability benefits.”
(WCJ Op. at 12.) Because the WCJ found that Claimant was disabled within the
meaning of the Act and also found that Employer failed to prove that Claimant was
discharged for conduct evidencing lack of good faith, the WCJ did not misapply
the law to the facts of this case.
Employer, relying on this Court’s unpublished decision in Medina v.
Workers’ Compensation Appeal Board (Giorgi Mushrooms) (Pa. Cmwlth.,
No. 1017 C.D. 2009, filed November 5, 2009), argues that because the WCJ found
that Claimant’s termination was attributable “at least in part” to both Claimant’s
behavior and her injury, Employer has met its burden to preclude Claimant from
receiving benefits.3 In Medina, the WCJ found that
[the claimant] was discharged from work for [the
employer] through her own fault. Specifically, the
evidence shows [the employer] fired [the claimant] for
attitude, conduct, substandard work, work rule violation,
3
Pursuant to Commonwealth Court Internal Operating Procedure § 414(a), relating to the
citing of judicial opinions, an unreported opinion of the Court may only be cited “for its
persuasive value, but not as binding precedent.”
12
and insubordination. Part of the reason given for [the
claimant’s] discharge was her demeanor at work
including talking both to her co-workers and on the
phone as well as tardiness. While one can argue [the
claimant] could not meet the production quota due to her
injury, and she was fired for lack of production, this
[WCJ] concludes [the claimant’s] production was not the
only reason for her discharge.
Medina, slip op. at 3-4 (second to last alteration in the original). In that case, the
WCJ concluded that “the primary behavior” for which the claimant was terminated
was not related to her injury and, therefore, denied the claimant benefits. Medina,
slip op. at 6. Here, however, the opposite occurred. The WCJ found that the
primary reason for Claimant’s termination was related to her injury and, therefore,
awarded benefits. Because Medina is inapposite, it does not compel a different
result in this case.
Lastly, Employer argues that the WCJ erred in awarding benefits to
Claimant because she was working her pre-injury job without modification at the
time she was fired. Employer relies heavily on this Court’s case law relating to
reinstatement petitions and asserts that Claimant is not entitled to a presumption
that her work injury is the cause of her disability. Employer’s reasoning is flawed.
Claimant has not presented a reinstatement petition; rather, Claimant has filed a
workers’ compensation claim petition for the first time. Because this was an initial
claim proceeding, Claimant bore the burden of proving all the elements necessary
to receive benefits, including causation. As discussed above, the WCJ found that
Claimant carried her burden and that Employer failed to prove that she was
terminated for conduct evidencing a lack of good faith. This was Employer’s
burden to prove in order to prevent Claimant from receiving benefits, and
Employer failed. The WCJ, therefore, did not err in awarding benefits despite
13
Claimant’s ability to work her pre-injury job without modification prior to her
termination.
Finally, Claimant argues that Employer’s appeal is frivolous and
requests that counsel fees be awarded to her pursuant to Pennsylvania Rule of
Appellate Procedure 2744. That Rule provides, in pertinent part, that an appellate
court may award a reasonable counsel fee “if it determines that an appeal is
frivolous or taken solely for delay or that the conduct of the participant against
whom costs are to be imposed is dilatory, obdurate or vexatious.”
Pa. R.A.P. 2744. 4 A frivolous appeal is one that has no basis in fact or law, but is
distinguishable from an appeal that simply lacks merit. Commonwealth v. Chmiel,
30 A.3d 1111, 1190 (Pa. 2011). “A ‘frivolous’ appeal implies that no justiciable
question has been presented and that the appeal is readily recognizable as devoid of
merit in that there is little prospect of success.” Elliot Co. v. Workers’ Comp.
Appeal Bd. (Shipley), 795 A.2d 480, 488 (Pa. Cmwlth.), appeal denied, 805 A.2d
526 (Pa. 2002). An appeal is not frivolous, however, merely because it lacks merit.
Smith v. Pa. Bd. of Prob. & Parole, 574 A.2d 558, 562 (Pa. 1990).
Claimant argues that under this Court’s precedent in Elliot Company,
Employer’s appeal is frivolous because it “would merely require this Honorable
Court to reassess credibility determinations of the [WCJ] and is thereby frivolous.”
(Claimant’s Br. at 26.) In Elliot Company, this Court held that the employer’s
appeal was frivolous because it consisted solely of a challenge to the WCJ’s
4
There is no indication that Employer filed its petition for review solely for the purpose
of delay. Nor do we perceive any dilatory, obdurate, or vexatious conduct on the part of
Employer. Thus, the only possible grounds upon which we could impose such fees would be if
we concluded the appeal was frivolous, as argued by Claimant.
14
credibility and weight of the evidence determinations, issues beyond the Court’s
scope of review. Elliot Co., 795 A.2d at 489. This Court has also held, however,
that counsel fees are not appropriate in every case in which an employer challenges
the WCJ’s credibility or weight of evidence determinations. See, e.g., Frankford
Hosp. v. Workers’ Comp. Appeal Bd. (Walsh), 906 A.2d 651, 657 (Pa. Cmwlth.
2006) (declining to award attorney fees despite employer’s challenge to credibility
and weight of evidence because appeal “was not so obviously devoid of merit as to
be frivolous”).
Claimant’s argument mischaracterizes Employer’s appeal. It is true
that Employer’s challenge to the findings of fact attacked the WCJ’s credibility
and weight of the evidence determinations, but Employer also argued that the WCJ
made several errors of law. Although Employer’s appeal was ultimately
unsuccessful, it presented several justiciable issues and was, therefore, not so
obviously devoid of merit as to be frivolous. See Elliot Co., 795 A.2d at 488.
For the reasons discussed above, the order of the Board is affirmed
and Claimant’s request for counsel fees is denied.
P. KEVIN BROBSON, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Enterprise Financial Services Group, :
Petitioner :
:
v. : No. 371 C.D. 2015
:
Workers’ Compensation :
Appeal Board (Kunkle), :
Respondent :
ORDER
AND NOW, this 8th day of January, 2016, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED, and Respondent’s request for
counsel fees under Pa. R.A.P. 2744 is DENIED.
P. KEVIN BROBSON, Judge