Indiana University of PA, State System of Higher Education v. UCBR , 202 A.3d 195 ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Indiana University of Pennsylvania, :
State System of Higher Education, :
Petitioner :
:
v. : No. 814 C.D. 2018
: Submitted: December 13, 2018
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: January 9, 2019
Petitioner Indiana University of Pennsylvania, State System of Higher
Education (Employer) petitions for review of an order of the Unemployment
Compensation Board of Review (Board). The Board reversed an Unemployment
Compensation Referee’s decision, which denied Jeannie M. Broskey (Claimant)
unemployment compensation benefits pursuant to Section 402(b) of the
Unemployment Compensation Law (Law),1 relating to voluntary separation without
cause of a necessitous and compelling nature. For the reasons set forth below, we
now affirm the Board’s order.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
Claimant worked for Employer as an Associate Registrar for Student
Records. (Reproduced Record (R.R.) at 2a.) Claimant voluntarily separated from
Employer on September 29, 2017. (Certified Record (C.R.), Item No. 2 at 2.) On
October 22, 2017, Claimant filed for unemployment compensation benefits. (Id.
at 1.) The Duquesne Unemployment Compensation Service Center (Service Center)
issued a determination, finding Claimant ineligible for benefits due to her inability
to prove that she had a necessitous and compelling reason for separating from her
employment. (C.R., Item No. 4.)
Claimant then appealed the Service Center’s decision, and a Referee
conducted an evidentiary hearing. (C.R., Item No. 9.) At the hearing, Claimant
testified on her own behalf, and Employer presented the testimony of two witnesses.
(Id.)
Claimant testified that she voluntarily left her job, but she did so
because Employer forced her into early retirement. (R.R. at 11a.) During Claimant’s
employment, she consistently received “exceeds expectations” performance
reviews. (Id. at 12a.) Employer hired a new Registrar, Jennifer Fedele. (Id.) On
August 23, 2017, Ms. Fedele accused Claimant of “not stepping up to the plate, not
being flexible for the needs of the office, withholding information from her, and not
acting like her Associate Registrar.” (Id. at 13a.) Ms. Fedele allegedly told Claimant
that “there were going to be a lot of changes [and], that if [Claimant] wasn’t able to
adjust, [Claimant] was going to have to think about—.”2 (Id.) Ms. Fedele also
suggested that Claimant meet with Craig Bickley, Employer’s Vice President for
Human Resources. (Id.) Claimant met with Mr. Bickley and subsequently sent
2
Claimant testified that Ms. Fedele’s statement was an “unfinished sentence.” (R.R.
at 13a.)
2
Ms. Fedele a memo asking for specific examples and dates to support Ms. Fedele’s
accusations against Claimant. (Id.) Claimant did not receive a response from Ms.
Fedele. (Id.)
Claimant testified that, on September 8, 2017, she met with Mr. Bickley
and Ms. Fedele. (Id.) In this meeting, Mr. Bickley stated that “there was a new bus
driver . . . [and i]f [Claimant] couldn’t get on the bus he was going to leave without
her.” (Id.) During the same meeting, Claimant asked Ms. Fedele what Ms. Fedele’s
job expectations were for Claimant. (Id.) Ms. Fedele stated that she could not
answer that question. (Id.) On September 15, 2017, Mr. Bickley handed Claimant
a letter informing her that she was the subject of an investigation for persistent
professional misconduct. (Id.) Employer ordered her to leave campus and did not
allow her to take anything with her. (Id.) Mr. Bickley then informed Claimant that
the investigation was serious and could result in her termination. (Id.) Mr. Bickley
also informed Claimant that she would be interviewed as part of the investigation.
(Id.) Further, Mr. Bickley stated that, after the investigation, Claimant would be
required to meet with Employer’s President and Employer’s Provost to be informed
of the results of the investigation. (Id.) Claimant asked if she could have her
attorney with her at the meeting with the Provost and President, but Mr. Bickley
informed her that she could not. (Id. at 14a.) After Employer opened the
investigation, Employer revoked Claimant’s computer and e-mail access. (Id.
at 13a.) During the week of September 18, 2017, Claimant was out of the office for
a pre-scheduled vacation. (Id. at 14a.)
Claimant further testified that Employer subsequently removed
Claimant from her office and placed her in a vacant wing of another building on
Employer’s property. (Id.) Employer did not provide her with the tools required to
3
do her job effectively in her new office and tasked her with assignments she had not
previously done. (Id. at 14a.) Employer did not permit Claimant to retrieve work
materials from her previous office without an escort. (Id.) Employer did not give
Claimant an opportunity to be interviewed concerning the investigation prior to her
retirement. (Id. at 12a.) After Claimant left employment, Mr. Bickley scheduled a
meeting with Claimant for October 6, 2017. (Id. at 15a.) On the advice of counsel,
Claimant informed Mr. Bickley that she was unavailable for that day but would be
available for a meeting with her attorney present. (Id.) In response to Claimant’s
request to reschedule the meeting and attend with her attorney, Mr. Bickley informed
Claimant that he no longer needed to meet with Claimant and would send her a letter
instead. (Id.) Throughout the investigatory process, Employer did not provide
Claimant with information concerning the originator of the complaint, specifics of
the complaint, or the findings of the investigation. (Id. at 12a-15a.)
Claimant testified that she decided to leave her employment on
September 28, 2017. (Id. at 15a.) Claimant’s decision to leave her employment was
triggered by Employer’s refusal to provide Claimant with any information
concerning the allegations and Employer’s unwillingness to grant her the
opportunity to be interviewed. (Id. at 14a-15a.) Claimant was concerned that
Employer meant to terminate her employment, because “Pennsylvania is an
employment-at-will state.” (Id. at 15a.) Claimant, therefore, contends she was
forced into early retirement, because, had Employer terminated her employment, she
would have lost her accumulated sick leave and possibly jeopardized her ability to
receive pension benefits. (Id.) Furthermore, due to the remoteness of Claimant’s
new office location, Claimant also feared that Ms. Fedele, Mr. Bickley, or another
individual would confront her in her office. (Id.)
4
Employer presented the testimony of Mr. Bickley, who testified
concerning Employer’s investigation and pre-disciplinary procedures. (Id. at 18a.)
His testimony on this matter is brief:
. . . . So, when we receive a complaint we do an
investigation . . . . Sometimes we may put somebody on
administrative leave while we conduct an investigation.
We don’t always do that. In this case, we did not. It just
also so happened she was on vacation the following week
while the investigation was taking place. In terms of the
notice of the investigation, we communicate that it is a
confidential investigation so that there shouldn’t be any
conversation with anybody that might be a witness. We
did explain who those witnesses might be. We also
explained that there can be no retaliation against any
complainant or anybody that might be talked to as a
witness and that if that were to take place, that might result
in separate discipline process. So, the investigation then
is commenced. We talk to whoever we need to talk to.
We do the research that we need to do, and I’ll get into the
specifics of this case in a minute, but in general, we
conduct the investigation. If there are findings, and
sometimes there are not, if there are findings like this case
being on the academic side, my report would go to the
Provost, who was the person who wrote the letter notifying
of the complaint. My report will go to the Provost. The
Provost and the President would meet and confer, talk to
me. They would make a decision as to whether or not
discipline were warranted and if they wanted to proceed
down that path. Then we go into a pre-disciplinary
conference with the individual before any decision on the
matters going forward. If there’s a decision to move
forward with the pre-disciplinary hearing, it’s at that point
the investigatory materials are released to the respondent,
because they need the opportunity to review those
documents in order to present their case for the pre-
disciplinary conference. Unless there is a decision to
move forward, we do not release the investigatory
materials simply because we just think that if there’s no
finding, throwing that out there is just going to fuel the fire
that we don’t feel is necessary to do. So, that process—in
5
fact, in this particular case, that process was explained to
[Claimant] on the 15th by myself when I met with her and
gave her that letter.
(Id. at 18a-19a.)
Mr. Bickley also testified regarding the chronology of events leading
up to Claimant’s separation from employment. (Id. at 19a.) Between January 2017,
when the previous Registrar left Employer’s service, and June 2017, when Ms.
Fedele arrived, Employer hired a consultant to do an audit report on the Registrar’s
Office. (Id. at 20a.) According to Mr. Bickley, the audit report showed that the
Registrar’s Office had a dysfunctional senior leadership and needed attention. (Id.)
Mr. Bickley mentioned the audit report at the September 8, 2017 meeting between
Claimant, Ms. Fedele, and Mr. Bickley. (Id.) Mr. Bickley believed that the initial
dispute was between Claimant and her co-worker, Marcy Rearick, and not between
Claimant and Ms. Fedele. (Id.) Mr. Bickley confirmed this belief with Claimant
and allegedly offered to meet with Claimant and Ms. Rearick to resolve their issues.
(Id.) Ms. Fedele, instead, agreed to meet with Mr. Bickley and Ms. Rearick. (Id.)
At the meeting between Ms. Fedele, Ms. Rearick, and Mr. Bickley, Ms. Rearick
alleged that Claimant committed records fraud to keep Claimant’s son on the Dean’s
List. (Id.) Ms. Rearick made other allegations of improper conduct between
Claimant and other employees within the Registrar’s Office. (Id.) Based on these
allegations, Employer had no choice but to investigate. (Id.)
Mr. Bickley testified that, during the course of the investigation,
Employer revoked Claimant’s network and computer access. (Id. at 21a.) Mr.
Bickley interviewed all current employees and some past employees from the
Registrar’s office. (Id.) Mr. Bickley conducted the interviews during the week that
Claimant was on vacation. (Id.) Mr. Bickley confirmed that Employer moved
6
Claimant to another office, but did so to protect both Claimant and other employees
from allegations of retaliatory conduct. (Id.) Claimant decided to retire only
three-and-a-half days after returning from her vacation and working in her relocated
office. (Id. at 22a.)
In response to Claimant’s allegations that she received no information
concerning the gravamen of the investigation, Mr. Bickley testified that he did not
provide her with this information because the investigation was ongoing and no final
decision was yet made. (Id.) Further, for fear of retaliatory actions, Employer does
not release the statements collected during an investigation to the subject of the
investigation even after the investigation is concluded. (Id.) Lastly, Employer took
no disciplinary action against Claimant and did not give Claimant an ultimatum.
(Id.)
The Referee issued a decision, finding Claimant ineligible for
unemployment compensation benefits due to Claimant’s lack of a necessitous and
compelling reason for separating from her employment. (C.R., Item No. 10.)
Claimant then appealed to the Board, which reversed the Referee’s decision and
issued its own findings of fact. (C.R., Item No. 12.) The Board concluded that
Claimant was eligible for benefits pursuant to Section 402(b) of the Law. (Id.) In
so doing, the Board issued the following findings of fact:
1. Indiana University of Pennsylvania employed the
claimant beginning September 13, 2004, finally as
associate registrar for student records.
2. The claimant consistently received exceptional
performance reviews.
3. In June 2017, the employer hired a new registrar to
become the claimant’s supervisor.
4. On August 23, 2017, [Ms. Fedele] accused the
claimant of “not stepping up to the plate, not being
7
flexible for the needs of the office, withholding
information from her, and not acting like her
Associate Registrar,” instructed her to go to the
human resources department, and advised [“]there
were going to be a lot of changes” and if she “wasn’t
able to adjust, [she] was going to have to think
about,” without finishing the sentence.
5. The claimant met with [Mr. Bickley] and requested
specific examples and dates of the accusations
against her.
6. On September 8, 2017, the claimant, [Mr. Bickley],
and [Ms. Fedele] met, and [Mr. Bickley] said, “there
was a new bus driver. If the claimant couldn’t get
on the bus, he was going to leave without [her].”
7. When the claimant asked [Ms. Fedele] exactly what
was expected of her, she was not given clear
instruction.
8. On September 15, 2017, [Mr. Bickley] notified the
claimant she was being investigated for “persistent
professional misconduct,” directed to leave the
campus without taking anything with her, and
warned to not retaliate against any coworkers.
9. The claimant was locked from her computer and
e-mail.
10. The claimant asked if she could see the specifics of
the investigation and the accuser.
11. [Mr. Bickley] told the claimant she would be
interviewed during the investigation and would be
told of the consequences of the investigation after
its conclusion in a meeting during which she could
not have counsel present.
12. The claimant was humiliated that she was publicly
escorted from her office and her coworkers were
advised of the investigation.
13. The claimant took a scheduled one-week vacation
and returned to work on September 25, 2017, but
was not permitted to return to her office.
14. [Mr. Bickley] advised the claimant the investigation
was almost complete and had not substantiated the
8
accusations, but the employer was investigating
whether she changed her child’s grades when he
was a student seven years before.
15. Because the claimant was not permitted to return to
her office, she was placed in an abandoned wing of
another building with no access to a phone,
computer, printer, mail, copier, or scanner.
16. The claimant was given a list of eight tasks to
complete, including three she had never performed
before.
17. Because the claimant lacked access to various
methods of communication, she had difficulty
requesting assistance and could not return to her
office without an escort.
18. Frustrated that she was not told of the accusations
against her or interviewed after over five weeks of
an investigation and fearing that further escalation
of accusations would jeopardize her pension and
receipt of accumulated sick leave, the claimant
e-mailed her resignation on September 28, 2017.
(Id.)
The Board, in reaching its decision, reasoned:
The claimant resigned because she was frustrated that she
was not told of the accusations against her or interviewed
after over five weeks of an investigation and feared that
further escalation of accusations would jeopardize her
pension and receipt of accumulated sick leave. An unjust
accusation without opportunity to respond may create a
necessitous and compelling reason to quit.
Here, the claimant was accused of unknown impropriety
and not given an opportunity to respond, despite
requesting the opportunity to do so. Although the
employer asserted the accusation against the claimant was
baseless, it did not prevent the employer from humiliating
and ostracizing her. Specifically, the employer removed
the claimant from her workspace and her ability to
communicate with coworkers, asked her to perform tasks
that she did not have the experience or tools to perform,
9
and implied threats regarding her employment. Under
these circumstances, the Board concludes that the claimant
had a necessitous and compelling reason to quit.
(Id.) Employer now petitions this Court for review.
On appeal,3 Employer argues that substantial evidence does not exist to
support the Board’s “finding”4 that Employer failed to provide Claimant with an
opportunity to respond to the allegations against her. Employer also argues that the
Board committed an error of law by concluding that Claimant had cause of a
necessitous and compelling nature to leave her employment.
We will first address Employer’s substantial evidence argument.
Substantial evidence is defined as relevant evidence upon which a reasonable mind
could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review,
502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial
evidence to support the Board’s findings, this Court must examine the testimony in
the light most favorable to the prevailing party, giving that party the benefit of any
inferences that can logically and reasonably be drawn from the evidence. Id. A
determination as to whether substantial evidence exists to support a finding of fact
can only be made upon examination of the record as a whole. Taylor v.
Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s
findings of fact are conclusive on appeal only so long as the record, taken as a whole,
contains substantial evidence to support them. Penflex, Inc. v. Bryson,
3
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
4
The Board did not issue a specific finding that Employer failed to provide Claimant with
an opportunity to respond to the allegations. Rather, it appeared to make such a finding as part of
its reasoning for its decision.
10
485 A.2d 359, 365 (Pa. 1984). “The fact that [a party] may have produced witnesses
who gave a different version of the events, or that [the party] might view the
testimony differently than the Board is not grounds for reversal if substantial
evidence supports the Board’s findings.” Tapco Inc. v. Unemployment Comp. Bd.
of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence
exists in the record that could support a contrary conclusion, it does not follow that
the findings of fact are not supported by substantial evidence. Johnson v.
Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Employer argues that substantial evidence does not exist to support the
Board’s finding that Employer did not provide Claimant an opportunity to respond
to allegations against her. At the hearing before the Referee, Claimant testified that
she asked to be interviewed concerning the investigation, but Employer did not
provide the opportunity until she had already retired. (R.R. at 15a.) Specifically,
Claimant testified regarding an incident that occurred on August 23, 2017, between
Claimant and Ms. Fedele, during which Ms. Fedele criticized Claimant’s work
performance. (Id. at 13a.) Claimant requested specific examples of poor work
performance so she could respond, but Ms. Fedele did not provide any. (Id.) Several
weeks later, on September 15, 2017, Mr. Bickley presented Claimant with a letter,
notifying her that Employer was investigating her. (Id. at 13a.) At that time, Mr.
Bickley informed Claimant that, as part of the investigation, she would be
interviewed. (Id.) She had already been scheduled for vacation the following week,
so she returned to work ten days later on September 25, 2017. (Id.) Upon her return,
Mr. Bickley informed her that the investigation was almost complete and so far he
had not found anything substantive, but he was still investigating whether she had
changed her son’s grade seven years ago. (Id. at 14a.) Mr. Bickley testified that he
11
met with every current employee and some past employees in the Registrar’s Office
as part of the investigation and interview process, but he did so during the week that
Claimant was on vacation. (Id. at 14a.) Further, Mr. Bickley stated that he presented
Claimant with the opportunity to be interviewed after she had retired. (Id. at 15a.)
In other words, while Claimant was out of the office on vacation, Employer
interviewed every current employee of the Registrar’s office. Further, Employer
consistently denied and ignored Claimant’s requests for an opportunity to address
the allegations of poor work performance and misconduct until after she retired. The
record, therefore, contains substantial evidence to support a finding that Employer
did not afford Claimant an opportunity to respond to the allegations levelled against
her.
We will now address Employer’s argument that the Board erred in
concluding that Claimant had cause of a necessitous and compelling nature to leave
her employment. Employer essentially argues that unjust accusations do not create
such cause, particularly given that Claimant did not face an imminent threat of
discharge.
Section 402(b) of the Law, pertaining to voluntary termination without
cause of a necessitous and compelling nature, provides, in part, that an employee
shall be ineligible for compensation for any week “[i]n which his unemployment is
due to voluntarily leaving work without cause of a necessitous and compelling
nature.” Where a claimant voluntarily separates from employment, the claimant
bears the burden of proving that the basis of the decision to separate from
employment was a necessitous and compelling one. Pa. Gaming Control Bd. v.
Unemployment Comp. Bd. of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth.), appeal
denied sub nom. Wyatte v. Unemployment Comp. Bd. of
12
Review, 62 A.3d 381 (Pa. 2012). This burden may be met by showing that the
circumstances at the time of the decision produced both a real and substantial
pressure to leave the employment and that a reasonable person would have been
similarly compelled under the same circumstances.5 Taylor v. Unemployment
Comp. Bd. of Review, 378 A.2d 829, 832-33 (Pa. 1977); Beachem v. Unemployment
Comp. Bd. of Review, 760 A.2d 68, 71 (Pa. Cmwlth. 2000). “Personality conflicts,
absent an intolerable work atmosphere, do not amount to a necessitous and
compelling cause for leaving one’s employment.” Wert v. Unemployment Comp.
Bd. of Review, 41 A.3d 937, 940 (Pa. Cmwlth. 2012). We have also stated, however,
that “a single accusation, if the circumstances surrounding the incident warrant, may
produce sufficient pressure to terminate employment that would compel a reasonable
person to act.” Sol Neft Sports v. Unemployment Comp. Bd. of Review,
610 A.2d 539, 541 (Pa. Cmwlth. 1992) (emphasis in original). This Court has
addressed a few situations in which accusations and changes in working conditions
may create an untenable work environment, such that a claimant may be compelled
to leave his or her employment. See, e.g., Arufo v. Unemployment Comp. Bd. of
Review, 391 A.2d 43 (Pa. Cmwlth. 1978); Sol Neft Sports, 610 A.2d 539-41.
In Arufo, this Court considered whether a supervisor’s remarks to a
claimant may constitute a necessitous and compelling reason for the claimant to
separate from employment. The claimant in Arufo was a bookkeeper whose work
became the subject of an audit. After the audit showed that the claimant did nothing
wrong, the claimant’s supervisor remained unconvinced and accused the claimant of
being “guilty until proven otherwise.” Arufo, 391 A.2d at 44. We concluded that
5
Whether a claimant has cause of a necessitous and compelling nature to voluntarily leave
employment is a question of law subject to this Court’s review. Pa. Gaming Control Bd., 47 A.3d
at 1265.
13
the employer’s conduct compelled the claimant to leave her position. Our rationale
behind this conclusion was the nature of the claimant’s employment. The employer
“entrusted [the claimant] with important duties and responsibilities relating to her
employer’s business affairs” due to her role as a bookkeeper. Id. at 45. The
accusation of theft was, therefore, a “personal affront to [the] claimant’s character
and integrity.” Id. We opined that there was “nothing more the claimant could do
to overcome the suspicions and restore the confidence in her work” after such an
accusation. Id. Due to the fact that the accusations and suspicions continued, we
concluded that the situation was untenable and the Board erred in determining the
claimant ineligible for benefits.
Similarly, in Sol Neft Sports we were presented with the issue of
whether the claimant had a necessitous and compelling reason for leaving her
employment where the employer changed the claimant’s working conditions and
accused the claimant of wrong-doing. The claimant in Sol Neft Sports was a
secretary for the business, when one of the owners of the business was charged with
mail fraud and bribery. At the criminal trial concerning these charges, the claimant
testified against the owner. The owner, in his testimony, accused the claimant of
falsifying the orders underlying the criminal charge. Further, when the claimant
returned to work, the owner’s brother—also an owner—made a similar accusation
and removed the claimant from her secretarial position. Instead of the secretarial
position, the employer assigned the claimant to pricing merchandise. The claimant’s
employer also changed the claimant’s lunch hour and mandated that she eat her lunch
with the owners of the business, so that she could no longer eat lunch with her
co-workers. The Board concluded—and we agreed—that the accusations, combined
with the employer’s act of removing the claimant from her secretarial position and
14
placing limitations on where she could take her lunch break, created fears and
concerns that would compel a reasonable person under the same circumstances to
separate from employment.
Here, we agree with the Board that Claimant had a necessitous and
compelling reason to quit. Contrary to Employer’s arguments, the possibility of
imminent discharge is not a requirement for establishing cause of a necessitous and
compelling nature to leave employment. Further, the case law surrounding this
situation is not so rigid as to hold that unjust accusations may not provide cause of a
necessitous and compelling nature to separate from employment. As Associate
Registrar, Employer entrusted Claimant with certain duties and responsibilities. The
subsequent investigation and the manner in which Employer handled the
investigation created suspicions that would reflect poorly on Claimant’s character
and integrity. Employer interviewed all of Claimant’s co-workers concerning the
allegations levelled against Claimant but failed to give Claimant any information
concerning the allegations aside from the fact that the allegations were serious.
Further, Employer removed Claimant from her office and relocated her to a building
where she had no contact with her co-workers and did not have all the equipment
necessary to fulfill her work duties. Employer compounded the removal by not
permitting Claimant to re-enter her office unless she had an escort. All of these
circumstances created an image of suspicion that would call Claimant’s integrity
into question. Just as in Arufo and Sol Neft Sports, the accusations levelled against
Claimant combined with Employer’s actions in response to the allegations created
an untenable situation compelling Claimant to leave her employment. We, therefore,
conclude that the Board did not err in holding that Claimant had cause of a
necessitous and compelling nature to separate from her employment.
15
For these reasons, we affirm the order of the Board.
P. KEVIN BROBSON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Indiana University of Pennsylvania, :
State System of Higher Education, :
Petitioner :
:
v. : No. 814 C.D. 2018
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 9th day of January, 2019, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.
P. KEVIN BROBSON, Judge