         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Manufacturers’                    :
Association Insurance Company,                 :
                  Petitioner                   :
                                               :
              v.                               : No. 330 M.D. 2015
                                               : Argued: December 12, 2016
Johnson Matthey, Inc. and                      :
Pennsylvania Department of                     :
Environmental Protection,                      :
                  Respondents                  :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY
SENIOR JUDGE COLINS                                                FILED: April 21, 2017

              This case is a petition for review filed by Pennsylvania
Manufacturers’ Association Insurance Company (Insurer) against Johnson Matthey
Inc. (JMI) and the Pennsylvania Department of Environmental Protection (DEP)
seeking a declaratory judgment that it has no obligation to defend or indemnify
JMI with respect to a lawsuit filed by DEP against JMI seeking recovery of costs
for cleanup of environmental contamination. Before this Court is Insurer’s motion
for summary relief.1 For the reasons set forth below, we deny Insurer’s motion.

1
  Insurer denominated its motion a “Motion for Summary Judgment.” Because this action was
brought in this Court’s original jurisdiction by petition for review under Pa. R.A.P. 1501(a)(3),
Insurer’s motion is properly characterized as a motion for summary relief under Pa. R.A.P.
1532(b), rather than a motion for summary judgment under the Rules of Civil Procedure and the
Court will treat it as having been filed pursuant to Rule 1532(b). Summit School, Inc. v.
Department of Education, 108 A.3d 192, 193 n.1 (Pa. Cmwlth. 2015). The standards that we
apply to a motion for summary relief are, as is discussed below, the same as for a motion for
summary judgment. Id.
            Insurer issued comprehensive general liability (CGL) policies insuring
JMI’s predecessor companies that were in effect from at least April 1, 1969 to
April 1, 1979. (Insurer’s Amended Petition for Review ¶¶12, 14 & Exs. A, B; JMI
Answer to Amended Petition for Review ¶12, JMI Counterclaims ¶8 & Ex. B.)
JMI alleges that Insurer also insured its predecessor companies between 1955 or
1957 and April 1, 1969, but the existence of coverage for periods before April 1,
1969 is disputed. (Insurer’s Amended Petition for Review ¶15; JMI Answer to
Amended Petition for Review ¶¶12, 15, JMI Counterclaims ¶6 & Ex. A; Insurer’s
Answer to Counterclaims ¶6.)      Insurer did not insure JMI or its predecessor
companies after April 1, 1979. (Insurer’s Amended Petition for Review ¶20; JMI
Answer to Amended Petition for Review ¶¶12, 20; Insurer’s Motion for Summary
Judgment ¶24; JMI Answer to Insurer’s Motion for Summary Judgment ¶24.) The
aggregate property damage limits of liability of the CGL policies covering the
period from April 1, 1971 to April 1, 1979 have been exhausted. (Insurer’s
Amended Petition for Review ¶13; JMI Answer to Amended Petition for Review
¶13.) The property damage limits of the April 1, 1969 to April 1, 1970 and April
1, 1970 to April 1, 1971 policies are not exhausted. (Insurer’s Amended Petition
for Review ¶14; JMI Answer to Amended Petition for Review ¶14.)
            On May 12, 2010, DEP named JMI as a defendant in a civil action
captioned Commonwealth of Pennsylvania Department of Environmental
Protection v. Whittaker Corporation and Johnson Matthey Inc., filed in the Eastern
District of Pennsylvania, Civil Action No. 08-6010 (the Underlying Action). In the
Underlying Action, DEP alleges that from 1951 through April 1, 1969, a JMI
predecessor company owned the Bishop Tube Site (the Site), a property in East
Whiteland Township, Chester County, Pennsylvania, and manufactured and
                                  2
processed metal alloy tubes and associated equipment at the Site. (Underlying
Action Amended Complaint ¶¶1, 7.)                DEP alleges that the JMI predecessor
companies and a corporation unaffiliated with JMI that owned the Site from 1969
to 1974 “used hazardous substances, including trichloroethylene (‘TCE’)” in their
operations at the Site.         (Id. ¶9.)   DEP further alleges that “[a]s a result of
Defendants operations, hazardous substances, including TCE, were disposed into
the environment, including the Site’s soils and groundwater,” and that
“[s]ubsurface migration of contaminated groundwater from the Site has
contaminated the aquifer beneath the Site and beneath off-Site properties.” (Id.
¶¶10-11.) Based on these allegations, DEP asserts that JMI and the later owner of
the Site are liable to DEP under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA)2 and the Hazardous Sites
Cleanup Act3 for costs incurred in remediating the environmental damage caused
by the release of hazardous substances at the Site. (Underlying Action Amended
Complaint ¶¶27-29, 33-34.)
                Insurer on June 2, 2010 agreed to defend JMI with respect to the
Underlying Action subject to a reservation of rights. (JMI Counterclaims ¶20;
Insurer’s Answer to JMI Counterclaims ¶20.) On September 27, 2010, Insurer
advised JMI that it “continues to reserve its right to assert the following defenses:
lost policies, exhaustion, owned property, voluntary payments and pre-tender costs,
allocation, and other insurance,” but that it “is no longer asserting the following
defenses in this matter: late notice, failure to cooperate, pollution exclusion (in the

2
    42 U.S.C. §§ 9601-9675.
3
    Act of October 18, 1988, P.L. 756, as amended, 35 P.S. §§ 6020.101-6020.1305.

                                                3
4/1/70-4/1/71 policy), trigger-of-coverage, and the definition of occurrence” with
respect to coverage of the Underlying Action. (9/27/10 Letter from Insurer’s
Counsel to JMI Counsel, JMI Answer to Insurer’s Motion for Summary Judgment
Hagan Aff. Ex. 3.) Insurer defended JMI in the Underlying Action from 2010 until
2015. (JMI Counterclaims ¶¶20-24; Insurer’s Answer to JMI Counterclaims ¶¶20-
24.)
              In 2015, Insurer notified JMI that it would no longer defend JMI in
the Underlying Action and filed the instant petition for review seeking a
declaratory judgment that it has no duty to defend or indemnify JMI in the
Underlying Action.4 In its petition for review, Insurer asserts that the Underlying
Action is not within the coverage provided by the April 1, 1969 to April 1, 1970
and April 1, 1970 to April 1, 1971 policies or any earlier policies because the
contamination at the Site was not detected during the period that those policies
were in effect. (Insurer’s Amended Petition for Review ¶¶21, 23-25.) JMI filed an
answer to the petition for review disputing Insurer’s contention that the policies do
not provide coverage and asserting counterclaims for a declaratory judgment that
Insurer is required to defend and indemnify it with respect to the Underlying
Action and for breach of contract.
              Insurer has now moved for summary relief granting the declaratory
judgment sought in its petition for review.             Insurer bases its motion on the
contentions that as a matter of law liability insurance coverage for environmental
property damage claims is triggered only at the time the property damage is first

4
  Insurer does not seek relief against DEP and named DEP as a respondent solely because its
interests as the plaintiff in the Underlying Action would be affected by the denial of coverage.
See Vale Chemical Co. v. Hartford Accident & Indemnity Co., 516 A.2d 684, 686-88 (Pa. 1986).

                                               4
manifested and that the first environmental testing that detected TCE was in 1988.
JMI and DEP oppose the motion both on the law and on the grounds that summary
disposition is not proper because there are disputed issues of fact and discovery is
not complete.
             Rule 1532(b) of the Rules of Appellate Procedure provides that “[a]t
any time after the filing of a petition for review in an appellate or original
jurisdiction matter the court may on application enter judgment if the right of the
applicant thereto is clear.” Pa. R.A.P. 1532(b). A motion for summary relief is
evaluated according to the same standards as a summary judgment motion. Myers
v. Commonwealth, 128 A.3d 846, 849 (Pa. Cmwlth. 2015); Summit School, Inc. v.
Department of Education, 108 A.3d 192, 193 n.1 (Pa. Cmwlth. 2015); see also Pa.
R.A.P. 1532 Note (stating that Pa. R.A.P. 1532(b) “authorizes immediate
disposition of a petition for review, similar to the type of relief envisioned by the
Pennsylvania Rules of Civil Procedure regarding judgment on the pleadings and
peremptory and summary judgment”). Summary relief may be granted only if
there are no genuine disputes of material fact and, viewing the evidence in the
light most favorable to the nonmoving party, the movant’s right to judgment in its
favor is clear as a matter of law.       Hospital & Healthsystem Association of
Pennsylvania v. Commonwealth, 77 A.3d 587, 602 (Pa. 2013); Leach v.
Commonwealth, 118 A.3d 1271, 1277 n.5 (Pa. Cmwlth. 2015) (en banc), aff’d, 141
A.3d 426 (Pa. 2016).
             The central issue raised by Insurer’s motion is what event must take
place within the policy period to trigger coverage under Insurer’s CGL policies.
Identifying the appropriate trigger of coverage under an insurance policy turns
upon the language of the policy.         Pennsylvania National Mutual Casualty
                                          5
Insurance Co. v. St. John, 106 A.3d 1, 14 (Pa. 2014); Warrantech Consumer
Products Services, Inc. v. Reliance Insurance Co. in Liquidation, 96 A.3d 346, 357
(Pa. 2014).

              The goal in construing and applying the language of an
              insurance contract is to effectuate the intent of the parties as
              manifested by the language of the specific policy. When the
              language of an insurance policy is plain and unambiguous, a
              court is bound by that language. Alternatively, if an insurance
              policy contains an ambiguous term, “the policy is to be
              construed in favor of the insured to further the contract’s
              prime purpose of indemnification and against the insurer, as
              the insurer drafts the policy, and controls coverage.” Contract
              language is ambiguous if it is reasonably susceptible to more
              than one construction and meaning. Finally, the language of
              the policy must be construed in its plain and ordinary sense,
              and the policy must be read in its entirety.
St. John, 106 A.3d at 14 (citations omitted, quoting 401 Fourth Street Inc. v.
Investors Insurance Group, 879 A.2d 166 (Pa. 2005)). The interpretation of the
language of an insurance policy is a question of law. Babcock & Wilcox Co. v.
American Nuclear Insurers, 131 A.3d 445, 456 (Pa. 2015); St. John, 106 A.3d at
14.
              Because Insurer seeks a declaratory judgment with respect to its duty
to defend, the Court must also consider the allegations of the complaint in the
Underlying Action to determine whether it alleges facts that could trigger coverage
under the policies. American and Foreign Insurance Co. v. Jerry’s Sport Center,
Inc., 2 A.3d 526, 541 (Pa. 2010); Kvaerner Metals Division of Kvaerner U.S., Inc.
v. Commercial Union Insurance Co., 908 A.2d 888, 896 (Pa. 2006); Consulting
Engineers, Inc. v. Insurance Co. of North America, 710 A.2d 82, 84 (Pa. Super.
1998), aff’d, 743 A.2d 911 (Pa. 2000). If a complaint against the insured pleads
                                          6
facts that are potentially within the scope of the policy’s coverage, the insurer has a
duty to defend the action until all covered claims are removed from the action.
Jerry’s Sport Center, Inc., 2 A.3d at 541-42; Penn-America Insurance Co. v.
Peccadillos, Inc., 27 A.3d 259, 265 (Pa. Super. 2011); Consulting Engineers, Inc.,
710 A.2d at 84.
             The determination of when coverage is triggered depends on whether
the insurance policy is an “occurrence” policy or a “claims made” policy. An
“occurrence” policy provides insurance coverage for liabilities arising while the
policy is in effect, whereas a “claims made” policy protects the insured with
respect to claims made against it during the policy period, regardless of when the
liability arose. St. John, 106 A.3d at 5 n.3; Kvaerner Metals Division of Kvaerner
U.S., Inc., 908 A.2d at 892 n.1; Consulting Engineers, Inc., 710 A.2d at 85. The
insurance policies here are “occurrence” policies, not “claims made” policies. The
April 1, 1969 to April 1, 1970 and April 1, 1970 to April 1, 1971 CGL policies
provide with respect to property damage coverage:

             The company [Insurer] will pay on behalf of the insured all
             sums which the insured shall become legally obligated to pay
             as damages because of
                    …
                    Coverage B. property damage
             to which this insurance applies, caused by an occurrence, and
             the company shall have the right and duty to defend any suit
             against the insured seeking damages on account of such
             bodily injury or property damage, even if any of the
             allegations of the suit are groundless, false or fraudulent, and
             may make such investigation and settlement of any claim or
             suit as it deems expedient, but the company shall not be
             obligated to pay any claim or judgment or to defend any suit


                                          7
            after the applicable limit of the company’s liability has been
            exhausted by payment of judgments or settlements.
(Insurer’s Amended Petition for Review ¶16 & Ex. C at 2 § I; JMI Counterclaims
¶8 & Ex. B at J8433 § I.) Both policies also provide that “[t]his insurance applies
only to bodily injury or property damage which occurs during the policy period
within the policy territory” and define “occurrence” as “an accident, including
injurious exposure to conditions, which results, during the policy period, in bodily
injury or property damage neither expected nor intended from the standpoint of the
insured.” (Insurer’s Amended Petition for Review ¶¶17-18 & Ex. C at 2 § IV, Ex.
D at 2; JMI Counterclaims ¶8 & Ex. B at J8434 § IV, J8447.)
            The trigger of coverage under an “occurrence” insurance policy is
ordinarily the first manifestation of the injury that is alleged to have been caused
by the insured. St. John, 106 A.3d at 15-23; Consulting Engineers, Inc., 710 A.2d
at 87-88; D’Auria v. Zurich Insurance Co., 507 A.2d 857, 861 (Pa. Super. 1986).
“Occurrence” policies covering periods after the first manifestation of the harm are
not triggered, even if the causal connection to the insured is not known until those
later policy periods or further consequences of the insured’s conduct occur in those
later policy periods. St. John, 106 A.3d at 3-4, 15-24 (denying coverage for
property damage claims under policies in effect from July 2004 to July 2006 where
the harm caused by insured’s negligence began to become apparent by April
2004); Consulting Engineers, Inc., 710 A.2d at 83, 87-88 (no coverage for
malicious prosecution for suit filed in 1989 under insurance policies in effect from
1990 to 1992 and later periods); D’Auria, 507 A.2d at 858, 861-62 (harm from
defendant’s medical malpractice that should have been diagnosed by 1963 when



                                         8
physician last treated plaintiff was not covered by “occurrence” policies in effect in
1970s and 1980s when injury worsened and suit was filed).
             This limitation of coverage to the policy in effect at the time of first
manifestation has been based on two grounds.            Where the policies contain
language that bodily injury and property damage in the policy period includes
“continuation, change or resumption of that ‘bodily injury’ or ‘property damage’
after the end of the policy period,” that language supports the conclusion that
additional harm after first manifestation is covered only under the policy in effect
at the time of first manifestation. St. John, 106 A.3d at 21. In addition, policy
considerations require denial of coverage under post-manifestation “occurrence”
policies because allowing coverage would permit the insured to obtain coverage
for a liability that is already in existence. Consulting Engineers, Inc., 710 A.2d at
88; D’Auria, 507 A.2d at 862.
             With respect to time periods before the first manifestation of injury,
our Supreme Court in J.H. France Refractories Co. v. Allstate Insurance Co., 626
A.2d 502 (Pa. 1993) expanded the trigger of coverage with respect to asbestos
bodily injury claims and held that all “occurrence” policies from the date of
exposure to the date of first manifestation are triggered. Id. at 506-07. The Court
concluded that because asbestos causes undetected injury at the time of exposure
and continues to cause undetected injury up to the time of manifestation of
recognizable disease, all periods from exposure to manifestation satisfy the
requirement that bodily injury occur during the policy period. Id. at 505-07. In St.
John, our Supreme Court held that J.H. France Refractories Co. is an exception to
the general rule that first manifestation of injury is the trigger of coverage and that
its multiple trigger of coverage did not apply to property damage claims where the
                                          9
harm became apparent within a short period of time after the insured’s tortious
acts. 106 A.3d at 22-23.
             Insurer argues that the St. John decision limits J.H. France
Refractories Co. to asbestos injury and similar bodily injury claims and that, under
that decision, only first manifestation can trigger coverage for the environmental
contamination claims in the Underlying Action. We do not agree. Contrary to
Insurer’s characterizations, neither the Supreme Court’s rejection of a multiple
trigger of coverage in St. John nor the Court’s reasoning in that opinion suggests
that J.H. France Refractories Co. is inapplicable to property damage coverage for
undetected environmental contamination.
             In St. John, the question decided by the Court was whether coverage
continued to be triggered under policies in effect after property damage was known
to have occurred, not whether coverage was triggered in the period between the
insured’s tortious act and the first manifestation of harm. The property damage for
which coverage was sought in that case consisted of harm to dairy cows from
water contamination that was caused by the insured’s installation of defective
plumbing. Three policy periods were at issue, July 1, 2003 to July 1, 2004, July 1,
2004 to July 1, 2005, and July 1, 2005 to July 1, 2006. 106 A.3d at 4. The
insured’s plumbing was first put in use in July 2003 and in April 2004, the cows
began to suffer illness and milk production dramatically decreased. Id. at 3-4, 17.
The Court held that, under these facts, only the July 1, 2003 to July 1, 2004 policy
period was triggered and not the post-manifestation July 1, 2004 to July 1, 2005
and July 1, 2005 to July 1, 2006 policies. The issue in this case, by contrast, is not
whether post-manifestation policies are triggered, but whether there is coverage


                                         10
under policies in effect while environmental contamination is in progress and
before any manifestation has occurred.
             Although the Court in St. John held that the multiple trigger of
coverage is an exception to the first manifestation rule and declined to adopt a rule
that a multiple trigger of coverage applies “to all cases involving ‘continuous,
progressive property damage over successive policy periods,’” 106 A.3d at 23, the
Court did not limit J.H. France Refractories Co. to asbestos or bodily injury
claims. Rather, the Court held that the justification for the multiple trigger of
coverage was not the peculiar nature of asbestos disease, but the long latency of the
claim for which coverage was sought. St. John, 106 A.3d at 22-23. The Court
explained,

             [t]he “multiple trigger” theory is applied in latent disease
             cases, like asbestosis or mesothelioma, because such injuries
             may not manifest themselves until a considerable time after
             the initial exposure causing injury occurs. The overriding
             concern in latent disease cases is that application of the
             D’Auria “first manifestation” rule would allow insurance
             companies to terminate coverage during the long latency
             period (of asbestosis); effectively shifting the burden of future
             claims away from the insurer to the insured (manufacturers of
             asbestos), even though the exposure causing injury occurred
             during periods of insurance coverage.
Id. (quoting Consulting Engineers, Inc.). The Court concluded that the J.H.
France Refractories Co. multiple trigger of coverage remains a proper
interpretation of “occurrence” policies where those long latency circumstances are
present, and held that the multiple trigger did not apply to the claims before it
because the property damage manifested within a year and did “not present the
problematic scenario where a risk averse insurer takes steps to limit or terminate

                                         11
coverage, in anticipation of future claims that have not yet materialized but can be
predicted with near certainty.” 106 A.3d at 23.
            Here, the damage alleged in the complaint in the Underlying Action is
soil and water contamination that occurred gradually at indefinite points in time as
a result of a JMI’s predecessor’s use of TCE and other hazardous substances at the
Site between 1951 and 1969. (Underlying Action Amended Complaint ¶¶7, 9-11.)
The first date that the complaint in Underlying Action alleges that there was any
awareness of possible property damage is 1980, when the United States
Department of Environmental Protection listed the Site as potentially
contaminated. (Id. ¶12.) In addition, Insurer contends that the TCE contamination
from the Site was first found in 1988. (Insurer’s Motion for Summary Judgment
¶13.) On the record before us, this case therefore presents the long latency of
continuing, undetected injury or damage that supports a trigger of insurance
coverage prior to manifestation under the Supreme Court’s decisions in J.H.
France Refractories Co. and St. John.
            Moreover, applying the rule that only first manifestation triggers
coverage in this case would be contrary to the policy language of Insurer’s CGL
policies. The policies provide coverage for “property damage which occurs during
the policy period” (Insurer’s Amended Petition for Review ¶17 & Ex. C at 2 § IV;
JMI Counterclaims ¶8 & Ex. B at J8434 § IV), not for property damage that is
discovered or manifested itself during the policy period. “Property damage” is in
turn defined as “injury to or destruction of tangible property” (Insurer’s Amended
Petition for Review ¶18 & Ex. D at 2; JMI Counterclaims ¶8 & Ex. B at J8444),
and is not limited to visible or detected harm to property. Contamination of
property is an injury to property. Therefore, if contamination occurs within a
                                     12
policy period, the coverage requirement of “property damage which occurs during
the policy period” is satisfied, regardless of whether the contamination is detected
or known at the time. See J.H. France Refractories Co., 626 A.2d at 505-07
(occurrence of undetected subclinical bodily injury during policy period satisfies
the requirement of bodily injury during the policy period).            The date of
manifestation, in contrast, does not necessarily correspond to the time that this
property damage occurred. Instead, the date of manifestation of the harm from
environmental contamination may merely be a result of when testing happens to be
done to determine whether any contamination exists.
             Finally, limiting coverage for environmental contamination claims to
policies in effect at the time that contamination is first detected would present the
“problematic scenario” of permitting insurers “to limit or terminate coverage, in
anticipation of future claims that have not yet materialized but can be predicted
with near certainty” that requires departure from the first manifestation rule. St.
John, 106 A.3d at 23. At the time that the contamination at the Site is alleged to
have begun, CGL insurance policies did not exclude coverage for pollution.
Couch on Insurance 3d § 127:3 (2016); Comment: The Pollution Exclusion Clause
in Pennsylvania, 56 U. Pitt. L. Rev. 885, 892-93 (Summer 1995).      At least one of
the policies at issue here contains no pollution exclusion. (9/27/10 Letter from
Insurer’s Counsel to JMI Counsel, JMI Answer to Insurer’s Motion for Summary
Judgment Hagan Aff. Ex. 3; 9/17/08 Letter from Insurer’s Counsel to JMI Counsel
at 3, Insurer’s Summary Judgment Reply Br. Kerns Aff. Ex. M.) A pollution
exclusion was developed by the insurance industry in 1970 that excluded some
environmental damage claims and this exclusion was added by insurers to standard
CGL insurance policies after regulatory approval was obtained.            Couch on
                                    13
Insurance 3d § 127:3; Comment: The Pollution Exclusion Clause in Pennsylvania,
56 U. Pitt. L. Rev. at 893-95. In the 1980s, following the enactment of CERCLA,
the insurance industry undertook further efforts to bar coverage for environmental
contamination claims by modifying the pollution exclusion in standard CGL
policies to exclude all claims arising out of any “actual, alleged or threatened
discharge, dispersal, seepage, migration, release or escape of pollutants at any
time.” Couch on Insurance 3d §§ 127:3, 127:13; see also Comment: The Pollution
Exclusion Clause in Pennsylvania, 56 U. Pitt. L. Rev. at 894 n.55.
              We therefore conclude that the environmental contamination claims at
issue here fall within the J.H. France Refractories Co. exception to the first
manifestation rule and that coverage under Insurer’s April 1, 1969 to April 1, 1970
and April 1, 1970 to April 1, 1971 policies is triggered if undetected environmental
contamination occurred during the policy period. Because the complaint against
JMI in the Underlying Action alleges gradual contamination that began before and
continued through the policy periods and Insurer has not shown that the
contamination did not occur in the policy periods or that it first manifested before
the policy periods, it is not entitled to a declaratory judgment that it has no duty to
defend or indemnify JMI.         Accordingly, the Court enters the following order
denying Insurer’s motion for summary relief.5


                                          ____________________________________
                                          JAMES GARDNER COLINS, Senior Judge


5
  Because we have rejected Insurer’s argument that the policies were not triggered, we do not
address JMI’s argument that Insurer waived the right to dispute trigger of coverage when it
withdrew its reservation of rights on that issue on September 27, 2010.

                                             14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Pennsylvania Manufacturers’            :
Association Insurance Company,         :
                  Petitioner           :
                                       :
            v.                         : No. 330 M.D. 2015
                                       :
Johnson Matthey, Inc. and              :
Pennsylvania Department of             :
Environmental Protection,              :
                  Respondents          :


                                  ORDER


            AND NOW, this 21st day of April, 2017, upon consideration of
Petitioner’s motion for summary relief (styled by Petitioner as a “Motion for
Summary Judgment”), Respondents’ answers thereto, the briefs of the parties with
respect thereto, and oral argument, it is hereby ORDERED that said motion for
summary relief is DENIED.


                                    ____________________________________
                                    JAMES GARDNER COLINS, Senior Judge
