[Cite as Tiburzi v. Adience, Inc., 2012-Ohio-803.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96591


          SILVANO TIBURZI, AS ADMINISTRATOR
        OF THE ESTATE OF MARLENE TIBURZI, ETC.

                                                           PLAINTIFFS-APPELLANTS

                                                     vs.

                    ADIENCE, INC., F.K.A. BMI, ET AL.
                                                           DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-685548

        BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                          March 1, 2012
ATTORNEYS FOR APPELLANTS

Charles J. McLeigh
Diana Nickerson Jacobs
Goldberg, Persky & White, P.C.
1030 Fifth Avenue, 3rd Floor
Pittsburgh, PA 15219

John J. Duffy
John J. Duffy & Associates
Brendan Place
23823 Lorain Road, Suite 270
North Olmsted, OH 44070

ATTORNEYS FOR APPELLEE JNO J. DISCH COMPANY

Richard J. Disantis
Jeffrey W. Ruple
Buckley King, LPA
1400 Fifth Third Center
600 Superior Avenue
Cleveland, OH 44114

ATTORNEYS FOR APPELLEES A.W. CHESTERTON COMPANY, AMERICAN
OPTICAL CORPORATION, AND PNEUMO ABEX, LLC

John P. Patterson
Jeffrey A. Healy
Karen E. Ross
Scott J. Wilcov
Christopher J. Caryl
Tucker Ellis & West, LLP
1150 Huntington Building
925 Euclid Avenue
Cleveland, OH 44115
ATTORNEY FOR APPELLEE AHLSTROM PUMPS, LLC

Barbara J. Arison
Frantz Ward, LLP
2500 Key Center
127 Public Square
Cleveland, OH 44114

ATTORNEY FOR APPELLEE ALLIED GLOVE CORPORATION

Stephen R. Mlinac
Swartz Campbell, LLC
4750 U.S. Steel Tower
600 Grant Street
Pittsburgh, PA 15219

ATTORNEY FOR APPELLEES ANCHOR PACKING COMPANY, GARLOCK
SEALING TECHNOLOGIES, LLC, AND GREENE TWEED & COMPANY, INC.

Matthew C. O’Connell
Sutter, O’Connell & Farchione
3600 Erieview Tower
1301 E. 9th Street
Cleveland, OH 44114

ATTORNEYS FOR APPELLEES ARGO PACKING COMPANY, INC.,
ADIENCE, INC., BEAZER EAST, INC., GENTEX CORPORATION, GOULDS
PUMPS, INC., IMO INDUSTRIES, INC., INGERSOLL RAND CORPORATION,
AND THIEM CORPORATION

Mark A. Greer
Daniel J. Michalec
Holly M. Olarczuk-Smith
Eric H. Mann
Gallagher Sharp
Bulkley Building - Sixth Floor
1501 Euclid Avenue
Cleveland, OH 44115
ATTORNEY FOR APPELLEES CBS CORPORATION, FAIRMONT SUPPLY
COMPANY, GENERAL ELECTRIC COMPANY, MALLINCKRODT GROUP,
INC., AND OSRAM SYLVANIA, INC.

Reginald S. Kramer
Oldham Kramer
195 South Main Street, Suite 300
Akron, OH 44308

ATTORNEYS FOR APPELLEES CLARK INDUSTRIAL INSULATION,
COMPANY, GUARD LINE, INC., HEDMAN RESOURCES, LTD., AND
WHEELER PROTECTIVE APPAREL, INC.

John A. Kristan
Matthew Reber
Robert N. Spinelli
Kelley Jasons McGowan Spinelli & Hanna, LLP
Two Liberty Place, Suite 1900
50 South 16th Street
Philadelphia, PA 19102

ATTORNEY FOR APPELLEE CRANE COMPANY

Nicholas P. Vari
K & L Gates, LLP
Henry W. Oliver Building
535 Smithfield Street
Pittsburgh, PA 15222

ATTORNEY FOR APPELLEE DEZURIK, INC.

Michael D. Eagon
Dinsmore & Shohl, LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, OH 45202
ATTORNEY FOR APPELLEE EATON CORPORATION

Harry T. Quick
Brzytwa Quick & McCrystal, LLC
900 Skylight Office Tower
1660 West 2nd Street
Cleveland, OH 44113

ATTORNEYS FOR APPELLEES EICHLEAY CORPORATION,        INSUL
COMPANY, INC., AND NITRO INDUSTRIAL COVERINGS

Daniel Krauth
Joni M.Mangino
Zimmer Kunz
3300 U.S. Steel Tower
600 Grant Street
Pittsburgh, PA 15219

ATTORNEY FOR APPELLEE F.B. WRIGHT COMPANY OF PITTSBURGH

Leo G. Daly
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
Pittsburgh, PA 15222

ATTORNEY FOR APPELLEES GEORGE V. HAMILTON, INC. AND J.H.
FRANCE REFRACTORIES, INC.

Joseph D. Silvaggio
Willman & Silvaggio, LLP
One Corporate Center
5500 Corporate Drive, Suite 150
Pittsburgh, PA 15237
ATTORNEYS FOR APPELLEES THE GOODYEAR TIRE & RUBBER
COMPANY, DANA COMPANIES, LLC, FABRI-VALVE, FOSE COMPANY,
INC., TRANE US, INC., AND TRECO CONSTRUCTION SERVICES, INC.

Jonathan P. Corwin
Robert J. Krummen
Nina I. Webb-Lawton
Richard D. Schuster
Vorys, Sater, Seymour & Pease, LLP
52 East Gay Street
P.O. Box 1008
Columbus, OH 43216-1008

ATTORNEY FOR APPELLEES GUARD LINE, INC. AND WHEELER
PROTECTIVE APPAREL, INC.

Robert W. Wilkinson
Dogan & Wilkinson, PLLC
726 Delmas Avenue
P.O. Box 1618
Pascagoula, MS 39568

ATTORNEYS FOR APPELLEES HERSH PACKING & RUBBER COMPANY
AND MVS COMPANY

William D. Bonezzi
Kevin O. Kadlec
Bonezzi, Switzer, Murphy, Polito & Hupp Co., LPA
1300 East Ninth Street, Suite 1950
Cleveland, OH 44114

ATTORNEY FOR APPELLEE I.U. NORTH AMERICA, INC.

Edward D. Papp
Baker & Hostetler, LLP
3200 National City Center
1900 East Ninth Street
Cleveland, OH 44114
ATTORNEYS FOR APPELLEES INDUSTRIAL FURNACE COMPANY AND
SAGER CORPORATION

Keith R. Huntzinger
Richard C. Polley
Piero P. Cozza
Dickie McCamey & Chilcote, PC
Two PPG Place, Suite 400
Pittsburgh, PA 15222

ATTORNEY FOR APPELLEE JOHN CRANE, INC.

Stephen H. Daniels
McMahon Degulis, LLP
812 Huron Road, East, Suite 650
Cleveland, OH 44115

ATTORNEY FOR APPELLEE NL INDUSTRIES, INC.

Timothy M. Fox
Ulmer & Berne, LLP
88 East Broad Street, Suite 1600
Columbus, OH 43215

ATTORNEY FOR APPELLEE OGLEBAY NORTON COMPANY, INC.

Stephen H. Daniels
McMahon DeGulis, LLP
812 Huron Road, East, Suite 650
Cleveland, OH 44115

ATTORNEY FOR APPELLEE OHIO PIPE & SUPPLY COMPANY, INC

Thomas R. Wolf
Reminger Co., LPA
200 Courtyard Square
80 South Summit Street
Akron, OH 44308
ATTORNEY FOR APPELLEE OHIO VALLEY INSULATING COMPANY

Bruce P. Mandel
Ulmer & Berne, LLP
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, OH 44113

ATTORNEY FOR APPELLEE OWENS-ILLINOIS, INC.

Barbara E. Machin
Bunda Stutz & Dewitt, PLL
3295 Levis Commons Blvd.
Perrysburg, OH 43551

ATTORNEYS FOR APPELLEE REUNION INDUSTRIES, INC.

Aaron M. Dorfzaun
Rawle & Henderson, LLP
The Henry W. Oliver Building
535 Smithfield Street, Suite 1000
Pittsburgh, PA 15222

Stephen M. Fowler
Pullin Fowler Flanagan, PLLC
The James Mark Building
901 Quarrier Street
Charleston, WV 25301

ATTORNEY FOR APPELLEE SAFETY FIRST, INC.

John A. Valenti
Kelley Jasons McGowan Spinelli Hanna and Reber, LLP
The Bradley Building, Suite 305
1220 West 6th Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE WILLIAM POWELL COMPANY

Claudia B. Diaz
Litchfield Cavo, LLP
303 W. Madison, Suite 300
Chicago, IL 60606

Michael E. Smith
Frantz Ward, LLP
2500 Key Center
127 Public Suare
Cleveland, OH 44114
MELODY J. STEWART, P.J.:

       {¶1} Plaintiff-appellant Silvano Tiburzi, as administrator of the estate of Marlene

Tiburzi and in his own right, appeals from the trial court’s order granting

defendant-appellee’s Adience, Inc., f.k.a. BMI, et al., (“Adience”)1 motion to strike the

physician’s report and motion to administratively dismiss his case. Tiburzi claims that

the Asbestos Reform Act does not empower a defendant to depose a competent medical

authority for the purpose of challenging a plaintiff’s prima facie showing that asbestos

exposure was a substantial contributing factor to cancer.       He complains that the striking

of the physician’s report and the administrative dismissal were inappropriate remedies

after the doctor who authored the report failed to appear for a deposition.              For the

reasons that follow, we reverse and remand.

       {¶2} On February 23, 2007, Marlene Tiburzi underwent a biopsy after Dr. Sushil

Mehrotra identified a mass on her lung.       Four days later she was diagnosed with cancer,

and she died on April 26, 2007.

       {¶3} Appellant filed his complaint on February 20, 2009, and claims that the

decedent, after working at various sites in and around Ohio, was exposed to



         Defendant-appellee Adience, Incorporated, is one of 63 named defendants in this
       1


asbestos-related case alleging personal injury, wrongful death, loss of consortium, and a survival
action.
asbestos-laden dust and fibers that allegedly caused her lung cancer, disability, and

eventual death.   On April 8, 2010, Adience moved the trial court to administratively

dismiss the complaint for failure to submit the requisite prima facie evidence of physical

impairment.    On June 17, 2010, Tiburzi        filed a memorandum in opposition and

attached the report of Dr. Mehrotra, the decedent’s treating physician, along with a

laboratory report from 2007 stating that decedent’s final diagnosis was “infiltrating

poorly-differentiated carcinoma of lung.”

       {¶4} Adience sought to depose Dr. Mehrotra, and when not able to do so, filed a

motion to strike and dismiss, which was granted by the trial court. This appeal followed.

       {¶5} Tiburzi assigns two error for our review that will be discussed together.     In

his first assignment of error, he complains that the trial court erred when it granted

Adience’s motion to strike the report of Marlene Tiburzi’s treating physician.           He

contends that striking the report, after the doctor failed to appear for a deposition, was an

inappropriate sanction for a discovery violation when other options were available, and

that in any event, R.C. 2307.93 does not allow for the deposition of a competent medical

authority to challenge a plaintiff’s prima facie showing of physical impairment under

R.C. 2307.92. In his second assignment of error, Tiburzi argues that granting Adience’s

motion to administratively dismiss for failure to produce prima facie evidence of

impairment was error.

       {¶6} In 2004, Ohio’s General Assembly enacted H.B. No. 292, codified at R.C.

2307.91 through 2307.98, to establish procedures and other criteria to expedite the
resolution of asbestos-related claims. Claimants alleging injury from exposure to

asbestos, in addition to a complaint, must file the written report of a physician along with

supporting test results pursuant to R.C. 2307.92(B), (C), or (D), to demonstrate prima

facie evidence of physical impairment.        R.C. 2307.93(A)(1) makes mandatory the filing

of this evidence “within thirty days after filing the complaint.”2

       {¶7} R.C. 2307.92 provides for an ancillary proceeding for asbestos-related claims,

and sets forth the minimum medical criteria that plaintiffs must demonstrate to make a

prima facie showing and thus avoid administrative dismissal pursuant to R.C. 2307.93.

Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶

18. The provisions contained in R.C. 2307.92 and 2307.93 “do not relate to the rights

and duties that give rise to [a] cause of action or otherwise make it more difficult for a

claimant to succeed on the merits of a claim. Rather, they pertain to the machinery for

carrying on a suit.    They are therefore procedural in nature, not substantive.” Norfolk

S. Ry. Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio- 5248, 875 N.E.2d 919, ¶ 17. R.C.

2307.91 et seq. merely “establish[es] a procedural prioritization of the asbestos-related

cases on the court’s docket.     Nothing more.” Id. at ¶ 16.

       {¶8} R.C. 2307.93(A)(1) states that a defendant




        While Tiburzi did not file his prima facie evidence within the mandated statutory time,
       2


Adience did not move to have the complaint administratively dismissed until more than one year after
the expiration of the 30-day window for the plaintiff to file prima facie evidence. Nevertheless, it
appears that the case being kept on the active docket was of no consequence.
       shall be afforded a reasonable opportunity, upon the defendant’s motion, to
       challenge the adequacy of the proffered prima-facie evidence of the
       physical impairment for failure to comply with the minimum requirements
       specified in division (B), (C), or (D) of section 2307.92 of the Revised
       Code. The defendant has one hundred twenty days from the date the
       specified type of prima-facie evidence is proffered to challenge the
       adequacy of that prima-facie evidence.
       {¶9} The statute also provides that

       [i]f the defendant in an action challenges the adequacy of the prima-facie
       evidence of the exposed person’s physical impairment as provided in
       division (A)(1) of this section, the court shall determine from all of the
       evidence submitted whether the proffered prima-facie evidence meets the
       minimum requirements specified in division (B), (C), or (D) of section
       2307.92 of the Revised Code. The court shall resolve the issue of whether
       the plaintiff has made the prima-facie showing required by division (B),
       (C), or (D) of section 2307.92 of the Revised Code by applying the standard
       for resolving a motion for summary judgment.” R.C. 2307.93(B). If the
       court finds that a plaintiff fails to make a prima facie showing, then it must
       “administratively dismiss the plaintiff’s claim.

R.C. 2307.93(C).

       {¶10} When Adience moved the court to administratively dismiss this case for

failure to file prima facie evidence of impairment within the statutory time frame, the case

had been pending for over a year. In response to the motion to administratively dismiss,

Tiburzi submitted the report of Dr. Mehrotra as prima facie evidence.

       {¶11} Although R.C. 2307.93(A)(1) specifies a 30-day window for a plaintiff to

file prima facie evidence after a complaint has been filed, this time requirement has not,

in every instance, been strictly construed. See Riedel v. Consol. Rail Corp., 125 Ohio

St.3d 358, 2010-Ohio-1926, 928 N.E.2d 448, ¶ 3, where, after the defendant moved for an

administrative dismissal for failure to make the preliminary prima facie showing required
by R.C. 2307.92(A)(1), the trial court ordered the plaintiff to make the required showing.

 Only after finding the “evidence insufficient to establish a prima facie case,” did the

court grant the motion for administrative dismissal. Id.

       {¶12} Adience filed a motion to take the deposition, and to compel production of

documents, of non-party witness Dr. Mehrotra, a resident of West Virginia.           In its

motion, Adience noted that Dr. Mehrotra had “executed an affidavit in this action which

purports to support [p]laintiff’s claims, [and also] possess[ed] medical records and other

documents which [were] necessary and material to the * * * case.”          The trial court

granted the motion.

       {¶13} In response, Tiburzi filed a motion to set aside the discovery motion and

requested a hearing concerning the same.       As grounds for his motion, Tiburzi relied

upon a prior opinion, issued by the trial court in another case, stating that the statutory

procedure affiliated with asbestos-related claims “does not provide for the discovery

deposition of doctors who sign affidavits in compliance with the statute [and that] * * *

defendants can then depose the doctors who signed the affidavits at the appropriate time

per this court’s case management order.”

       {¶14} A hearing was held where Tiburzi argued that the court’s scheduling order

does not permit Adience to depose the physician who wrote the report to determine the

adequacy of the plaintiff’s prima facie evidence.    Conversely, Adience argued that the

case management order was in place and discovery had begun and was ongoing at that

particular stage of the litigation.   Adience pointed out that the case had been grouped
with other cases for trial prior to Tiburzi’s filing of his prima facie evidence, and as a

result, the time periods for discovery and the 120-day window to challenge the adequacy

of the prima facie evidence were conflated.     The court stated that the case “has been

proceeding, has been grouped, proceeding in discovery,” and issued an order granting the

commission to take Mehrotra’s deposition without limitations.

       {¶15} Adience filed a notice to take deposition duces tecum of Dr. Mehrotra in

Wheeling, West Virginia, and set a date for the same.      At first, Adience    repeatedly

attempted to arrange with Tiburzi a convenient date to hold Dr. Mehrotra’s deposition,

but was unsuccessful in doing so.   Adience then hand delivered a letter to Dr. Mehrotra

informing him of the scheduled date of the deposition, and invited him to contact Adience

to schedule a mutually convenient time if the proposed arrangements did not work for

him.   Finally, Adience used an attorney licensed in West Virginia to issue a subpoena

commanding Mehrotra to appear for the deposition.         On the date of the scheduled

deposition, Adience’s counsel and counsel for Tiburzi appeared, but Mehrotra did not.

       {¶16} Adience filed a motion to strike the physician’s report and to preclude

Mehrotra’s testimony in the case, Tiburzi filed a memorandum in opposition to the

motion, and Adience filed a reply in support of the motion. The court heard oral

arguments and issued an order and final judgment entry granting defendant’s motion to

strike the physician’s report and also ordered that “[p]laintiff’s case is administratively

dismissed pursuant to R.C. 2307.92 and 2307.93.”
       {¶17} The trial court’s grant of a motion to strike is within the sound discretion of

the court and will not be overturned unless the court abuses its discretion.       Early v.

Toledo Blade, 130 Ohio App.3d 302, 318, 720 N.E.2d 107 (6th Dist.1998).        An abuse of

discretion connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶18} Loc.R. 16.0(A) of the Cuyahoga County Common Pleas Court addresses

asbestos litigation special provisions and provides that “[i]n an action involving any

allegation for injury or death arising from exposure to asbestos, the rules of civil

procedure governing a civil action shall apply * * *.”   “The discovery rules give the trial

court great latitude in crafting sanctions to fit discovery abuses.” Nakoff v. Fairview

Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996). “Civ.R. 37 authorizes the

court to make ‘just’ orders in response to violations of the discovery rules or court

orders.”   Laubscher v. Branthoover, 68 Ohio App.3d 375, 381, 588 N.E.2d 290 (11th

Dist.1991).

       {¶19} Adience moved the court to strike the physician’s report due to the failure of

a non-party witness, Dr. Mehrotra, to make himself available to be deposed.               A

transcript made of the deposition attempt reveals that counsel for Adience contacted the

trial court by telephone and informed it that “we have [ten] people here * * * and we

would like to move actually to strike the physician’s report in this case because the doctor

refused to show.”
       {¶20} There is no “rule under which a party may be sanctioned for failing to

produce a non-party witness for deposition, [presumably because] it is arbitrary and

unreasonable to require a party to provide a non-party witness for deposition [because]

the party has no control over another person.” Lowe v. Univ. Hosps. of Cleveland, 8th

Dist. No. 80341, 2002-Ohio-4084, 2002 WL 1823027, ¶ 23.

       In the event a non-party witness fails to obey a subpoena and attend his
       deposition, Civ.R. 45(E) provides that a court may find the non-party
       witness in contempt of court, and additionally authorizes the court to order
       the non-party witness, or his attorney if he frivolously resisted the
       discovery, to pay the deposing party’s reasonable costs and attorney’s fees
       incurred.

Ohio Civ. Rights Comm. v. Burch, 9th Dist. No. 22185, 2005-Ohio-259, 2005 WL

161173, ¶ 16.

       {¶21} Furthermore,

       “[i]f any * * * person designated * * * to testify on behalf of a party fails to
       obey an order to provide or permit discovery * * * the court in which the
       action is pending may make such orders in regard to the failure as are just,
       [including] * * * [a]n order striking out pleadings or parts thereof, or
       staying further proceedings until the order is obeyed, or dismissing the
       action or proceeding or any part thereof, or rendering a judgment by default
       against the disobedient party * * *.

Civ.R. 37(B)(2)(c).   However, before sanctions can be imposed, a party requesting the

sanction must comply with the requirements contained in the civil rules.

       {¶22} In Randle v. Gordon, 8th Dist. No. 52961, 1987 WL 19275 (Oct. 29, 1987),

a non-party witness failed to appear for a scheduled deposition.    As a discovery sanction,

 the trial court would not permit the witness to testify at trial. The appellant claimed
that the court erred in excluding the testimony because the appellee had not complied

with the proper discovery procedure to compel the attendence of the witness.         This court

pointed out that the proper procedure to be followed is to first issue a subpoena.     Then,

       the appellee [is] * * * required to compel the attendance of the witness at a
       deposition vis-a-vis a motion to compel pursuant to Civ.R. 37. The
       imposition of sanctions pursuant to Civ.R. 37 [is] not available unless the
       appellee specifically applie[s] to the court vis-a-vis a motion to compel.
       The failure of the appellee to avail himself of the proper discovery
       procedure to require [the non-party witness] to appear for deposition cannot
       be used to invoke the sanctions imposed by the civil rules.

Id. at 3.
        {¶23} In the instant case, the record reflects that, although Adience subpoenaed

Dr. Mehrotra, it did not petition the court, pursuant to Civ.R. 37(A), for an order

compelling his appearance to be deposed.        The granting of a motion to strike as a

discovery sanction can only occur if a party or designated person is in default of an order

by the trial court. Civ.R. 37(B). And if a party or designated person is in default of

such an order, “the court in which the action is pending may make such orders in regard

to the failure as are just,” including taking designated facts to be established, prohibiting

the introduction of designated matters into evidence, striking out pleadings, default

judgment, and reasonable costs and attorney fees.       Civ.R. 37(B)(2)(a),(b),(c), and (e).

While the trial court has wide latitude in fashioning appropriate sanctions when its

discovery orders are violated, striking the physician’s report was inappropriate to nullify a

prima facie procedural showing necessary to maintain an asbestos-related claim. We
find that the court abused its discretion in granting defendant’s motion to strike the

physician’s report.

       {¶24} In addition to our finding that the trial court erred in striking the report and

administratively dismissing the complaint for this reason, the record reflects also that

Adience did not challenge the adequacy of Tiburzi’s prima facie evidence by motion.

Adience’s arguments at the hearing on the motion for issuance of commission to take

Mehrotra’s deposition are premised upon its need to gather evidence for the purpose of

challenging the adequacy of the proffered prima facie evidence.            However, while

Adience is critical of the proffered evidence as being “boilerplate” and deficient in other

respects, it nevertheless failed to substantively challenge the adequacy of the evidence

and/or the trial court did not undertake such an analysis.

       {¶25} The statutory language contained in R.C. 2307.93(A)(1) is unequivocal in its

requirement that a challenge to the adequacy of proffered prima facie evidence must

occur “upon the defendant’s motion.”       Moreover, a court’s determination of whether

minimum statutory requirements are in fact met by the proffered prima facie evidence can

only occur “[i]f the defendant in an action challenges the adequacy of the prima-facie

evidence of the exposed person’s physical impairment as provided in division (A)(1) of

this section.” R.C. 2307.93(B).

       {¶26}   Tiburzi’s first and second assignments of error are sustained.

       {¶27} This case is reversed and remanded for proceedings consistent with this

opinion.
      It is ordered that appellants recover from appellees their costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY
