          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Thomas,                    :
                   Appellant       :
                                   :
            v.                     :   No. 1139 C.D. 2017
                                   :   Submitted: January 12, 2018
John E. Wetzel, Health Care        :
Services, Tabb Bickell, James      :
Eckard, and Shawn Kephart          :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: May 18, 2018

            Gregory Thomas, pro se, appeals an order of the Court of Common
Pleas of Huntingdon County (trial court) dismissing his civil rights complaint. In
doing so, the trial court sustained the preliminary objections of the Secretary of
Corrections, John E. Wetzel; three Department of Corrections (Department)
employees, Tabb Bickell, James Eckard, and Shawn Kephart (together, Department
Officials); and the Department’s Bureau of Health Care Services (Bureau). Upon
review, we affirm in part and reverse in part, and remand for further proceedings.
                                   Background

            Thomas is incarcerated at the State Correctional Institution (SCI) at
Huntingdon. At issue are his requests to purchase an electric razor and a laptop
computer and for surgery to restore his dental bridge, which were denied. After his
administrative grievances were denied, he filed a Section 19831 complaint against
Department Officials and the Bureau, alleging violations of his rights under the First
and Eighth Amendments to the United States Constitution and under the Religious
Land Use and Institutionalized Persons Act (RLUIPA).2
                 Thomas’ complaint raises three discrete claims. First, the complaint
states that the denial of an electric razor prevents Thomas from practicing his Muslim
faith. Second, the complaint asserts that the denial of dental surgery violates
Thomas’ rights under the Eighth Amendment to the United States Constitution.
Third, the complaint asserts that the denial of Thomas’ request to purchase a
computer violates his rights of free speech and free exercise of religion. The facts
relevant to each claim follow.
                 The complaint alleges that Thomas’ Islamic religion requires him “to
shave his private parts and other parts of his body.” Complaint, ¶20; Certified
Record (C.R.), Item No. 2 at 4.                    Accordingly, he requested a religious
accommodation to purchase an electric razor. In denying that request, Department
Officials directed him to contact the “medical [department] to see if there is a

1
    Section 1983 provides, in pertinent part:
         Every person who, under color of any statute, ordinance, regulation, custom, or
         usage, of any State or Territory or the District of Columbia, subjects, or causes to
         be subjected, any citizen of the United States or other person within the jurisdiction
         thereof to the deprivation of any rights, privileges, or immunities secured by the
         Constitution and laws, shall be liable to the party injured in an action at law....
42 U.S.C. §1983. To hold a state actor liable under Section 1983 “a plaintiff must prove a
deprivation of a right guaranteed by the Constitution or the laws of the United States by a defendant
acting under color of law.” Pettit v. Namie, 931 A.2d 790, 801 (Pa. Cmwlth. 2007). “A Section
1983 action may be brought in state court.” Jae v. Good, 946 A.2d 802, 809 (Pa. Cmwlth. 2008).
“Section 1983 does not create substantive rights but, rather, is the vehicle for vindicating rights
conferred in the United States Constitution or in federal statutes.” Id.
2
  42 U.S.C. §§2000cc–2000cc–5.


                                                   2
medical basis for him to use an electric razor[.]” Complaint, ¶28; C.R., Item No. 2
at 5. Thomas informed the medical department that “his religion prohibit[s] him
from using straight razors”; he has pain in his hands; and he has developed skin
keloids from using commissary razors. Complaint, ¶¶12-13; C.R., Item No. 2 at 3.
When the medical department denied his request, Thomas filed grievances, which
were denied. The complaint asserts that Department Officials and the Bureau have
violated RLUIPA by imposing a substantial burden on Thomas’ practice of his
religion.3
               The complaint alleges that Thomas is 56 years old and “can[not] eat
and chew [his] food without pain”; this leads to stomachaches. Complaint, ¶39;
C.R., Item No. 2 at 6. Dr. Zoak4 has advised Thomas that he needs surgery to restore
his lower bridge. By denying this surgery, Department Officials and the Bureau
have “knowingly [put Thomas’] health in danger to save money.” Complaint, ¶¶52,
55; C.R., Item No. 2 at 7. The complaint further alleges that the Bureau routinely
deprives elderly inmates necessary dental care at SCI-Huntingdon. Complaint, ¶58;
C. R., Item No. 2 at 7. The complaint asserts that this deliberate indifference to
Thomas’ medical needs constitutes cruel and unusual punishment under the Eighth
Amendment to the U.S. Constitution.
               The complaint challenges the denial of Thomas’ request to purchase a
laptop computer and a desktop printer, which he needs to advance his religious


3
  The complaint also averred that Department Officials’ refusal to grant Thomas’ request for an
electric razor violated the equal protection clause of the Fourteenth Amendment to the United
States Constitution, and their deliberate indifference to Thomas’ skin condition violated the Eighth
Amendment’s prohibition against cruel and unusual punishment. The complaint further raised a
claim of intentional infliction of emotional distress. Because Thomas does not appeal the trial
court’s dismissal of those claims, we do not address them on appeal.
4
  The complaint does not identify Dr. Zoak’s position or medical specialty.
                                                 3
studies and to communicate with his family. The complaint specifically targets
Secretary Wetzel for discrimination; for impeding Thomas’ efforts at rehabilitation;
and for creating a “digital divide” between Thomas and his friends and family.
Complaint, ¶¶87-89; C.R., Item No. 2 at 11. The complaint asserts that Secretary
Wetzel has violated RLUIPA and violated Thomas’ right to freedom of speech under
the First Amendment to the U.S. Constitution.5
                                 Preliminary Objections

              Department Officials and the Bureau filed preliminary objections
asserting that the complaint failed to state a claim upon which relief may be granted.
They also asserted that the Bureau is not a “person” subject to a suit under 42 U.S.C.
§1983 and, thus, must be dismissed as a defendant. Preliminary Objections, ¶42;
C.R., Item No. 19 at 11. Finally, the preliminary objections asserted that Thomas
did not exhaust his administrative remedies with respect to the denial of his request
to purchase an electric razor. Attached to the preliminary objections is a “true and
correct copy of the complete documentation[,]” which demonstrates that Thomas’
grievances were untimely filed. Preliminary Objections, ¶7; C.R., Item No. 19 at 2.
                                   Trial Court Decision
              On December 12, 2016, the trial court dismissed Thomas’ complaint.
After Thomas appealed, the trial court directed Thomas to file a statement of errors
complained of on appeal. See PA. R.A.P. 1925(b).6 The trial court issued an opinion



5
  The complaint further averred that Secretary Wetzel violated the Department’s regulation at 37
Pa. Code §93.4 by disallowing Thomas’ family to purchase approved items for him from outside
sources. Because Thomas does not appeal the trial court’s dismissal of that claim, we do not
address it here.
6
  It states in pertinent part:


                                               4
pursuant to PA. R.A.P. 1925(a)(1).7 It explained that the complaint did not state an
Eighth Amendment claim because it did not allege deliberate indifference to
Thomas’ dental needs. Further, the complaint did not state a RLUIPA claim because
he did not plead that the lack of an electric razor had substantially burdened the
practice of his religious faith. Finally, the trial court rejected the RLUIPA and First
Amendment claims arising from the denial of a laptop computer for the stated reason
that the challenge was no more than a challenge to “prison policy.” Trial Court op.
at 5; C.R., Item No. 30 at 5. Because the trial court sustained the demurrer, it did
not address Department Officials’ argument that Thomas had failed to exhaust his
administrative remedies before raising his religious accommodation claim.




        If the judge entering the order giving rise to the notice of appeal (“judge”) desires
        clarification of the errors complained of on appeal, the judge may enter an order
        directing the appellant to file of record in the trial court and serve on the judge a
        concise statement of the errors complained of on appeal (“Statement”).
PA. R.A.P. 1925(b).
7
  Rule 1925(a)(1) states, in relevant part, as follows:
       [U]pon receipt of the notice of appeal, the judge who entered the order giving rise
       to the notice of appeal, if the reasons for the order do not already appear of record,
       shall forthwith file of record at least a brief opinion of the reasons for the order, or
       for the rulings or other errors complained of, or shall specify in writing the place in
       the record where such reasons may be found.
PA. R.A.P. 1925(a)(1).


                                                  5
                                            Appeal
               On appeal,8 Thomas raises six issues, which we combine into three for
clarity.9 First, Thomas argues that the trial court erred in rejecting his claim that the
denial of his requests to purchase an electric razor and laptop computer violated
RLUIPA. Second, Thomas argues that the trial court erred in dismissing his claim
that Secretary Wetzel violated his right to free speech under the First Amendment
by impeding his communication with his family and friends. Third, Thomas argues
that the trial court erred in dismissing his Eighth Amendment claim arising from
Department Officials’ alleged deprivation of necessary dental care.
                                            Analysis

               We begin with the question of whether the Bureau is a proper
defendant. To state a claim under 42 U.S.C. §1983, a plaintiff “must establish that
[he was] deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.” American
Manufacturers Mutual Insurance Company v. Sullivan, 526 U.S. 40, 49-50 (1999).


8
  Appellate review of a trial court’s order sustaining preliminary objections and dismissing a
complaint is limited to determining whether the trial court committed an error of law or an abuse
of discretion. Podolak v. Tobyhanna Township Board of Supervisors, 37 A.3d 1283, 1286-87 (Pa.
Cmwlth. 2012). When considering preliminary objections, this Court must consider as true all
well-pleaded material facts set forth in the complaint and all reasonable inferences that may be
drawn from those facts. Mulholland v. Pittsburgh National Bank, 174 A.2d 861, 863 (Pa. 1961).
Preliminary objections should be sustained only in cases where it is clear and free from doubt that
the facts pleaded are legally insufficient to establish a right to relief. Werner v. Zazyczny, 681
A.2d 1331, 1335 (Pa. 1996). As such review raises a question of law, our scope of review is
plenary. Podolak, 37 A.3d at 1287.
9
  On appeal, Thomas argues that he “belongs to protected class as a [h]andicap,” and Department
Officials violated Title II of the Americans with Disabilities Act, 42 U.S.C. §§12131-12165, and
Section 504 of the Rehabilitation Act, 29 U.S.C. §794, by discriminating against him. Thomas
Brief at 18. Because Thomas did not raise this claim in the complaint, it is not preserved for our
review on appeal.
                                                6
Neither states nor state governmental entities are “persons” subject to suit under 42
U.S.C. §1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989).
Thus, the Bureau is not subject to suit here, and we affirm the trial court’s order to
the extent it dismissed any claim the complaint raised under 42 U.S.C. §1983 against
the Bureau. We next turn to the substantive claims Thomas has raised against
Department Officials.

            I. Religious Land Use and Institutionalized Persons Act

             Thomas argues that the trial court erred by dismissing his claims under
RLUIPA. Department Officials respond that the complaint did not plead facts to
show that the denial of Thomas’ requests to purchase an electric razor and computer
substantially burdened the practice of his religion.
             RLUIPA was enacted by Congress in 2000 to extend the protections of
the federal Religious Freedom Restoration Act, 42 U.S.C. §§2000bb--2000bb-4, to
individuals who reside in state and local institutions that receive federal financial
assistance. Section 3(a) of RLUIPA provides, in relevant part:

             No government shall impose a substantial burden on the religious
             exercise of a person residing in or confined to an institution …
             even if the burden results from a rule of general applicability,
             unless the government demonstrates that imposition of the
             burden on that person --
                    (1) is in furtherance of a compelling governmental
                    interest; and
                    (2) is the least restrictive means of furthering that
                    compelling governmental interest.

42 U.S.C. §2000cc-1(a). RLUIPA protects any exercise of religion, but “a prisoner’s
request for an accommodation must be sincerely based on a religious belief and not
some other motivation.” Holt v. Hobbs, __U.S. __, 135 S.Ct. 853, 862 (2015). Once
                                          7
the prisoner makes the prima facie showing that his religious exercise has been
substantially burdened, the burden shifts to the government to show that its refusal
to grant the prisoner’s request for a religious accommodation is the least restrictive
means of furthering a compelling governmental interest. Thomas v. Corbett, 90 A.3d
789, 794-95 (Pa. Cmwlth. 2014).
             In their preliminary objections, Department Officials did not dispute
the sincerity of Thomas’ Islamic faith; rather, they argued that Thomas’ inability to
shave with an electric razor did not substantially burden the practice of his religion.
A governmental action creates a substantial burden on religious exercise if “it truly
pressures the offender to significantly modify his religious behavior and greatly
violates his religious beliefs.” Mobley v. Coleman, 65 A.3d 1048, 1053 (Pa. Cmwlth.
2013). Specifically:

             [T]he effect of a government action or regulation is significant
             when it either (1) influences the adherent to act in a way that
             violates his religious beliefs, or (2) forces the adherent to choose
             between, on the one hand, enjoying some generally available,
             nontrivial benefit, and, on the other hand, following his religious
             beliefs. On the opposite end of the spectrum, however, [a]
             government action or regulation does not rise to a level of a
             substantial burden on religious exercise if it merely prevents the
             adherent from enjoying some benefit that is not otherwise
             generally available or acting in a way that is not otherwise
             generally allowed.

Id. at 1053-54 (quoting Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004), cert.
denied, 545 U.S. 1104 (2005)).
             Thomas’ complaint asserts that the Islamic religion requires him to
shave, and the commissary razor caused him to develop keloids on his skin.
Department Officials denied Thomas’ request to purchase an electric razor as not
medically necessary. However, according to the complaint, “[o]ther inmates are

                                          8
allowed to shave in the manner that suit[s] them for personal reasons[, and they]
have electric trimmers to shave with.” Complaint, ¶32; C.R., Item No. 2 at 5. The
complaint further alleges that Department Officials denied Thomas’ grievances
because “they want to dictate their personal opinions of [his] religious request.”
Complaint, ¶30; C.R., Item No. 2 at 5. These averments, if true, demonstrate a
substantial burden on Thomas’ religious exercise.
            Department Officials counter that they denied the request to purchase
an electric razor because of safety and security concerns. These concerns lack any
basis in the pleading.   As this Court held in Mobley, 65 A.3d at 1053, the
Department’s claims of valid penological interest cannot be advanced at the
preliminary objections phase of the proceeding.
            Because Thomas’ complaint has made the prima facie showing that his
religious exercise was substantially burdened, Department Officials must show that
their refusal to allow the purchase of an electric razor was “the least restrictive
means” of furthering a compelling governmental interest. Thomas, 90 A.3d at 794-
95. This requires evidence.
            Department Officials also argue that because Thomas’ grievance
regarding the electric razor was untimely filed, he failed to exhaust his
administrative remedies with respect to his religious accommodation claim.
Preliminary Objections, ¶7; C.R., Item No. 19 at 2. In support, Department Officials
attached an “Amended Final Appeal Decision” to the preliminary objections, which
states that Thomas’ grievance “was not submitted within fifteen (15) working days
after the events upon which claims are based.” Preliminary Objections, Exhibit A,
at 1; C.R., Item No. 19 at 24. The grievance attached to that decision shows that
Thomas’ request to purchase an electric razor was denied on July 13, 2015, and he


                                         9
filed the grievance on July 14, 2015. Preliminary Objections, Exhibit A, at 2; C.R.,
Item No. 19 at 25. The grievance Thomas attached to his complaint shows that his
request for a religious accommodation to purchase an electric razor was denied on
June 25, 2015, and that he filed a grievance on July 3, 2015. Complaint, Razor
Exhibit; C.R., Item No. 2 at 44. Because there is a factual dispute about when the
grievance was filed, an evidentiary record is needed.
             In ruling upon a demurrer, we accept as true all well-pleaded allegations
of material fact and all inferences reasonably deducible from them. Mulholland, 174
A.2d at 863. Because it is not “clear and free from doubt the law will not permit
recovery under the alleged facts[,] any doubt must be resolved by a refusal to sustain
the demurrer.” Lawrence v. Pennsylvania Department of Corrections, 941 A.2d 70,
72-72 (Pa. Cmwlth. 2007). For these reasons, we conclude that the trial court erred
by dismissing Thomas’ RLUIPA claim with respect to the denial of his request to
purchase the electric razor.
             As to Thomas’ RLUIPA claim that the lack of a computer and printer
has substantially burdened his ability to practice his religion, we conclude the
complaint does not allege facts sufficient to show a burden. The complaint alleges
that Thomas wants to store religious study files on a computer, but it does not allege
that he cannot study religion without a computer or that he has been denied access
to any texts or religious items associated with his religion. Accordingly, we affirm
the trial court’s dismissal of Thomas’ RLUIPA claim with respect to the denial of a
computer and printer.




                                         10
                               II. First Amendment Claim

               Thomas argues that he has a First Amendment right to communicate
with family and friends, which was violated by Secretary Wetzel’s denial of his
access to digital communication.10 Thomas Brief at 18. The trial court dismissed
that claim for the stated reason that Thomas was asking “the Court to provide him
with an exception outside of the prison policy.” Trial Court op. at 5; C.R., Item No.
30 at 5.
               Whether a complaint pleads a constitutional violation requires a two-
step analysis. First, the complaint must identify the inmate’s constitutional right at
issue. Second, the complaint must show an infringement on that right that “rises to
the level of a constitutional violation, given the specialized standard of review
applied to prison regulations and practices.” Brown v. Department of Corrections,
932 A.2d 316, 318 (Pa. Cmwlth. 2007) (quotation omitted).
               In support of his free speech claim, Thomas cites a decision of the Third
Circuit Court of Appeals that “prisoners maintain a First Amendment right to
communicate with family and friends, and that e-mail can be a means of exercising
this right.” Solan v. Zickefoose, 530 F. App’x 109, 110 (3d Cir. 2013) (internal


10
    In his complaint and on appeal, Thomas stated, in passing, that Secretary Wetzel, by not
permitting him to purchase a computer and printer, discriminated against him because of his mental
illness. Complaint, ¶90; Thomas Brief at 15. The trial court dismissed Thomas’ complaint without
addressing that claim. To the extent that Thomas raised an equal protection claim under the
Fourteenth Amendment to the U.S. Constitution, we find it meritless. To state an equal protection
claim, Thomas must allege that he received treatment different from other similarly situated
individuals based upon his membership in a particular class. Myers v. Ridge, 712 A.2d 791, 799
(Pa. Cmwlth. 1998). Here, Thomas did not allege that Secretary Wetzel allowed any similarly
situated inmate to purchase a computer or printer. A fair reading of his complaint reveals that
inmates are not allowed to possess computers or printers, although they are allowed to exchange
MP3 players for computer tablets. Accordingly, the trial court properly sustained Department
Officials’ demurrer to Thomas’ equal protection claim.
                                               11
quotation omitted). At issue in Solan was a federal prison program designed to make
e-mail available in all Federal Bureau of Prisons facilities. When an inmate was
precluded from using that system, he brought a civil rights action against the warden.
By contrast, here, Thomas’ complaint does not allege that he lacks access to a prison
computer system to send and receive e-mails in the prison. Accordingly, we
conclude that the trial court properly dismissed Thomas’ First Amendment claim.

                          III. Eighth Amendment Claim

             Finally, Thomas argues that the trial court erred in dismissing his
Eighth Amendment claim with respect to his need for dental surgery. He argues that
Department Officials have chosen to disregard the pain he experiences from his
inadequate bridge. Thomas asserts that the denture adjustment he received was not
a reasonable treatment because he no longer has “a bridge to sit a denture on[.]”
Thomas Brief at 22. Department Officials respond that the mere fact that Thomas
disagreed with the course of treatment offered by them does not demonstrate
deliberate indifference to Thomas’ medical needs.
             In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the U.S. Supreme Court
held that “deliberate indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain,’ … proscribed by the Eighth
Amendment.” (internal citation omitted). However, claims of negligent diagnosis
or treatment or disagreement with the course of treatment do not rise to the level of
a constitutional violation merely because the patient is a prisoner. Id. at 106. Rather,
“[i]n order to state a cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Id.



                                          12
             Whether the medical need of an inmate is sufficiently serious is an
objective inquiry. Id. at 106-07; Tindell v. Department of Corrections, 87 A.3d
1029, 1038 (Pa. Cmwlth. 2014). In making that inquiry, this Court considers the
following factors: (i) whether the medical need “has been diagnosed by a physician
as requiring treatment;” (ii) whether the need is “so obvious that a lay person would
easily recognize the necessity for a doctor’s attention;” (iii) whether the “denial or
delay of treatment causes an inmate to suffer a life-long handicap or permanent loss;”
(iv) whether the “denial or delay of treatment results in unnecessary and wanton
infliction of pain;” (v) whether the need “significantly affects an individual’s daily
activities; or” (vi) whether the medical need “causes chronic and substantial pain.”
Tindell, 87 A.3d at 1038-39.
             Next, the prisoner must allege acts or omissions that demonstrate
deliberate indifference on the part of prison officials, which requires the
demonstration of a state of mind akin to criminal recklessness. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (a prison official cannot be found liable under
the Eighth Amendment unless the official knows of and disregards an excessive risk
to inmate health or safety). Prison officials who respond reasonably to an alleged
risk do not violate the Eighth Amendment, even where the measures taken failed to
abate the substantial risk. Id. at 844. Examples of deliberate indifference include
circumstances where the prison official: “(i) kn[ew] of a prisoner’s need for medical
treatment but intentionally refuse[d] to provide it; (ii) delay[ed] necessary medical
treatment [for] a non-medical reason; (iii) prevente[d] a prisoner from receiving
needed or recommended medical treatment; or (iv) persist[ed] in a particular course
of treatment in the face of resultant pain and risk of permanent injury.” Tindell, 87
A.3d at 1040.


                                         13
             The question before this Court is whether Thomas has pleaded facts
that, if proven, will state a cognizable Eighth Amendment claim. Department
Officials do not assert that Thomas’ claim about his dental problem is not
sufficiently serious. The trial court dismissed this claim because it concluded that
Thomas did not plead “deliberate indifference” on the part of Department Officials.
Trial Court op. at 3; C.R., Item No. 30 at 3. We disagree. The complaint alleges
that Department Officials are aware that Dr. Zoak has recommended surgery but
they approved only denture adjustments, which “they know to be inadequate[.]”
Complaint, ¶58; C.R., Item No. 2 at 7. These averments reflect more than a
disagreement over the treatment plan and, if proven, satisfy the intent necessary to
meet the requirement of the deliberate indifference standard.
             In reviewing an order sustaining preliminary objections, we are mindful
that “it must appear with certainty that the law will not permit recovery, and, where
any doubt exists as to whether the preliminary objections should be sustained, the
doubt must be resolved in favor of overruling the preliminary objections.”
Pennsylvania State Lodge, Fraternal Order of Police v. Commonwealth of
Pennsylvania, Department of Conservation and Natural Resources, 909 A.2d 413,
416 (Pa. Cmwlth. 2006). Thus, we are constrained to conclude that the trial court
erred in sustaining Department Officials’ preliminary objections to Thomas’ Eighth
Amendment claim.
                                    Conclusion

             For the foregoing reasons, the trial court’s decision is reversed and
remanded insofar as it (1) dismissed Thomas’ RLUIPA claim against Department
Officials related to his request for a religious accommodation to purchase an electric
razor and (2) dismissed Thomas’ Eighth Amendment claim against Department

                                         14
Officials with respect to inadequate dental care. Department Officials must answer
those claims. The trial court’s order is otherwise affirmed.

                                   ______________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                         15
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Thomas,                    :
                   Appellant       :
                                   :
            v.                     :     No. 1139 C.D. 2017
                                   :
John E. Wetzel, Health Care        :
Services, Tabb Bickell, James      :
Eckard, and Shawn Kephart          :

                                   ORDER

            AND NOW, this 18th day of May, 2018, it is hereby ORDERED that
the order of the Court of Common Pleas of Huntingdon County, dated December 12,
2016, sustaining the preliminary objections filed in the above-captioned case, is
hereby AFFIRMED in part and REVERSED in part, and this matter is REMANDED
in accordance with the attached opinion.

            Jurisdiction relinquished.


                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
