Brockler v. Turner

2025 Ohio 2367

• Court: Ohio Court of Appeals
• Decided: July 3, 2025
• Docket: 114524
• Status: Published

Opinion

[Cite as Brockler v. Turner, 2025-Ohio-2367.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

AARON J. BROCKLER, :

Plaintiff-Appellant, : No. 114524 v. :

DEPUTY JEFFREY F. TURNER, JR., : ET AL.,

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 3, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-983354

Appearances:

Joseph F. Salzgeber, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brendan D. Healey and Regina A. Russo, Assistant Prosecuting Attorneys, for appellees.

KATHLEEN ANN KEOUGH, J.:

During his sentencing hearing in 2019, David Chislton (“Chislton”)

attacked his attorney, plaintiff-appellant Aaron J. Brockler (“Brockler”), by striking

him in the face with his handcuffed hands, causing injury. Brockler sued the sheriff deputies assigned to the courtroom during sentencing, contending that they

improperly handcuffed Chislton, which allowed the attack. The trial court granted

summary judgment in favor of the deputies, finding that they did not act wantonly

or recklessly and thus were statutorily immune from liability. Brockler now appeals,

challenging the trial court’s decision. For the following reasons, this court affirms

the trial court’s judgment.

I. Procedural History

In August 2023, Brockler refiled a complaint, alleging one count of

“reckless and willful misconduct” against defendants-appellees Sheriff Deputies

Raymond Moran (“Deputy Moran”) and Jeffrey F. Turner, Jr. (“Deputy Turner”)

(collectively “the deputies”), and one count of assault and battery against Chislton.

In their combined answer, the deputies generally denied the allegations in the

complaint and raised various affirmative defenses, including failure to state a claim

upon which relief could be granted and political-subdivision immunity.

The deputies moved for summary judgment, contending that they did

not breach a duty of care owned to Brockler and, even if they did, they were immune

from suit under the immunity provision for employees of political subdivisions in

R.C. Chapter 2744. Brockler opposed summary judgment, contending that the

deputies violated a Cuyahoga County Sheriff’s Department (“CCSD”) policy by

handcuffing Chislton’s hands in front of his body, permitting Chislton to remain

handcuffed in that manner, and failing to heed to warning signs that Chislton was

becoming agitated during sentencing. The trial court, in a written decision, granted summary judgment in

favor of the deputies, finding that they deputies were immune from liability because

“Chislton’s sucker punch was a surprise attack that neither deputy could have

reasonably foreseen, [and] under the circumstances the decision to handcuff

Chislton in front rather than in the back may have been negligent but it was not

reckless.”1

II. The Appeal

In his single assignment of error, Brockler contends that the trial

court erred in granting the deputies’ motion for summary judgment because

genuine issues of material fact exist regarding whether the deputies violated their

duty of care and acted recklessly when they disregarded CCSD policy by either

initially handcuffing Chislton’s hands in front of his body or by failing to reposition

the handcuffs behind Chislton’s back after observing him become agitated during

sentencing.

A. Standard of Review

Questions of immunity are matters of law, so they are particularly apt

for resolution by way of summary judgment. FirstEnergy Corp. v. Cleveland, 2008-

Ohio-5468, ¶ 7 (8th Dist.). We review a trial court’s decision on a motion for

summary judgment de novo. See, e.g., Corder v. Ohio Edison Co., 2024-Ohio-5432,

1Although irrelevant to the appeal, Brockler obtained a default judgment against

Chislton. The trial court award Brockler $50,000 in compensatory damages and $50,000 in punitive damages. ¶ 9. In a de novo review, this court affords no deference to the trial court’s decision,

and we independently review the record to determine whether summary judgment

is appropriate. Hollins v. Shaffer, 2009-Ohio-2136, ¶ 12 (8th Dist.). Summary

judgment is appropriate when, construing the evidence most strongly in favor of the

nonmoving party, (1) there is no genuine issue of material fact, (2) the moving party

is entitled to judgment as a matter of law, and (3) reasonable minds can come to but

one conclusion and that conclusion is adverse to the nonmoving party. Zivich v.

Mentor Soccer Club, 1998-Ohio-389, ¶ 7.

The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists for trial. Dresher v. Burt,

1996-Ohio-107, ¶ 17-18. The moving party has the initial responsibility of informing

the trial court of the basis for the motion and identifying those portions of the record

that demonstrate the absence of a genuine issue of material fact on the essential

elements of the nonmoving party’s claims. Id. To accomplish this, the movant must

be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court

is to consider in rendering summary judgment. The evidentiary materials include

“the pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence, and written stipulations of fact, if any.”

After the moving party has satisfied this initial burden, the

nonmoving party has a reciprocal duty to set forth specific facts by the means listed

in Civ.R. 56(C) showing that a genuine issue of material fact remains for trial. Id.

“Mere speculation and unsupported conclusory assertions are not sufficient” to meet the nonmovant’s reciprocal burden under Civ.R. 56(E) to withstand summary

judgment. Wilmington Trust N.A. v. Boydston, 2017-Ohio-5816, ¶ 31 (8th Dist.),

quoting Loveday v. Essential Heating Cooling & Refrigeration, Inc., 2008-Ohio-

4756, ¶ 9 (4th Dist.).

B. Factual Basis and Evidence for Review

In this case, the deputies supported their motion for summary

judgment with affidavits from (1) Deputy Turner, (2) Deputy Moran, (3) Chislton,

and (4) CCSD Sergeant Bryan Kaminski, with an authenticated Review of Incident

Report from CCSD attached, and deposition testimony, including exhibits, from (1)

Deputy Turner, (2) Deputy Moran, and (3) Brockler. In his opposition, Brockler

relied on the transcript of Chislton’s plea hearing and the deposition testimony and

exhibits relied upon by the deputies.2 Based on the foregoing evidence, we find the

following testimony and information pertinent to our review.

In April 2017, the State named Chislton in an 83-count indictment,

charging him in Cuyahoga C.P. No. CR-17-616383-A, with rape, arson, felonious

assault, gross sexual imposition, sexual battery, cruelty to animals, and other related

charges and specifications.

After Chislton’s second appointed counsel withdrew from the case,

the trial court appointed Brockler. According to Brockler’s deposition testimony,

2 Although Brockler’s appellate brief references information contained in his pretrial statement filed with the trial court, that information is not proper Civ.R. 56(C) material. This court will only consider proper, unobjected to evidentiary material provided in the parties’ respective summary-judgment motions. prior counsel withdrew after Chislton rejected the State’s two plea agreement

offers — (1) plead guilty to several offenses, including sex offenses, in exchange for

an agreed-recommended prison sentence of 18 to 25 years, or (2) plead guilty to

several non-sex offenses with no agreed recommended sentence, but with the

unspoken understanding that he would likely receive more than 25 years in prison.

During his representation, Brockler revived the plea negotiations.

Brockler stated that Chislton did not want to plead guilty to any sex offenses.

Although irrelevant to the disposition of this case, the facts are disputed regarding

what information Brockler relayed to Chislton about the potential sentence he faced

if he pleaded guilty.

According to Chislton, Brockler convinced him that if he accepted a

plea agreement, “he could get [him] a prison sentence of ten years.” According to

Brockler, he advised Chislton that the State would ask for the maximum sentence,

which could be more than 100 years, but he would ask the trial court to impose the

minimum sentence, which could be 13 years, and that the trial court would impose

a sentence somewhere “in the middle.” Brockler stated during deposition that he

advised Chislton to be prepared for a sentence between 40 and 50 years.

Chislton accepted a plea agreement with the State, pleading guilty to

multiple offenses, some with mandatory-prison specifications, including felonious

assault, arson, domestic violence, and cruelty to animals, but he did not plead guilty

to any sex offenses. During the plea colloquy, the trial court advised Chislton

regarding the mandatory prison terms for each offense and the maximum cumulative possible prison sentence of 194 years in prison. Additionally, the court

advised him about registering as an arson offender with the sheriff’s department.

Finally, Chislton confirmed that no promises were made to him about a particular

sentence.

In February 2019, Chislton appeared for sentencing. Although three

deputies were assigned to the 18th floor of the courthouse that day, Chislton’s trial

judge requested another deputy to assist with the sentencing because Deputy Moran

and the two other deputies were already working in other courtrooms. Deputy

Turner, who was working as a floater deputy on another floor, reported to the trial

judge’s courtroom. He stated that he did not receive any additional information,

including the defendant’s name, about his assignment, but only to report to the 18th

floor to assist with an arson sentencing.

When he arrived, Deputy Turner found Chislton uncuffed in a holding

cell. Prior to entering the courtroom, Deputy Turner handcuffed Chislton’s hands

in front of his body because he knew Chislton was being sentenced for arson-related

offenses and based on his experience, he would need to sign paperwork for the arson

registry. Deputy Turner explained that because he knew that Chislton would have

to sign paperwork, he felt it was safer to have Chislton’s hands handcuffed in the

front of his body, rather than have to uncuff Chislton completely for him to sign the

paperwork.

Both Brockler and Deputy Turner offered deposition testimony that

the arson registration paperwork could be signed in open court or in the holding cell. In this case, Chislton signed the paperwork in open court after the presentation of

victim-impact statements and Chislton’s allocution. Prior to signing, the trial judge

explained the registration requirements and inquired, “Would you like the cuffs to

be removed?” Deputy Turner responded, “He’s cuffed in the front already.” Deputy

Turner testified that he was the only deputy in the courtroom at the time when

Chislton signed the paperwork.

After signing the paperwork, the trial judge announced her sentence

on each individual count. Chislton stood to the right of Brockler at the podium.

After the trial judge announced “a total sentence of 45 years,” Chislton questioned,

“You gave me 45 years?”3 The trial judge did not respond, but continued, explaining

consecutive sentences.

According to Deputy Turner, as Chislton heard the length of the

sentence imposed, he asked Brockler, “Where are all these years coming from? We

did not talk about that. I should have taken this to trial.” He recalled Chislton

saying: “45 years, we did not talk about 45 years.” The sentencing transcript

revealed Chislton saying, “I should have gone to trial, man.”

According to Deputy Turner, Chislton appeared relatively calm and

spoke in a “low tone”; he observed no alarming movements from Chislton. He heard

Brockler tell Chislton to “calm down, we can file a motion later,” in response to

Chislton’s inquiry about the sentence. At deposition, Brockler agreed that he told

3 Chislton’s actual prison sentence was 47 years. Chislton to “calm down” and that he could file a motion, wanting Chislton to

understand that he was still there to help him. Brockler explained that he believed

he could ask the court to reconsider the sentence.

Deputy Moran joined Deputy Turner in the courtroom after

completing his assignment in another courtroom, toward the end of Chislton’s

sentencing. He stated that he also lacked any background information about

Chislton prior to reporting to the courtroom, including the charges or any potential

sentence. Deputy Moran explained that as a backup deputy, he was primarily

responsible for watching the individuals in the back of the courtroom. He stated

that when he entered the courtroom, he noticed Chislton was visibly upset and thus

he activated his body camera, which recorded the subsequent altercation.

As Brockler and Chislton stood at the podium, Chislton suddenly

swung his handcuffed hands at Brockler, striking Brockler in the face and knocking

him to the ground. Brockler described it in his subsequent statement to the sheriff’s

department as a “sucker punch.” Both deputies immediately responded, pulling

Chislton off Brockler and restraining Chislton on the floor. Additional deputies

arrived to assist with the affray. As a result of the attack, Brockler sustained injuries

to his face, hip, and shoulder.

In Chislton’s affidavit, he admitted he struck Brockler because he did

not expect to receive a 47-year prison sentence, believing that Brockler lied to him.

He further admitted that he would have attempted to harm Brockler, regardless of whether his hands were handcuffed in front or behind him, by either headbutting or

kicking him because he was so mad at Brockler.

The CCSD policy in effect at the time regarding the “Use of Restraints

in Courtrooms” instructed deputies that “[a]ll inmates brought from the Cuyahoga

County Jail into a courtroom shall be handcuffed behind their back except when in

trial.” The policy further directs when deputies should use leg shackles or belly

chains. According to Sergeant Kaminski, CCSD interpreted “trial” to mean all stages

of a trial proceeding, which included sentencing. Following an investigation, CCSD

determined that Deputy Turner did not violate CCSD policies by handcuffing

Chislton’s hands in front of his body.

Based on our de novo review and construing the evidence in favor of

Brockler, we find that the deputies are entitled to judgment as a matter of law

because no genuine issues of material fact remain for trial.

C. Chislton’s Attack was not Foreseeable to the Deputies

Brockler fails to establish any duty of care owed to him by Deputies

Turner and Moran. To establish negligence, the plaintiff must demonstrate a duty

owed, a breach of that duty, and that the breach was the proximate cause of an

injury. Cromer v. Children’s Hosp. Med. Ctr. of Akron, 2015-Ohio-229, ¶ 23. The

existence and scope of a person’s duty is “determined by the reasonably foreseeable,

general risk of harm that is involved.” Id. at ¶ 24. The test for foreseeability is

“whether a reasonably prudent person would have anticipated that an injury was

likely to result from the performance or nonperformance of an act.” Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75-77 (1984). Foreseeability of harm “usually

depends on the defendant’s knowledge.” Id. Furthermore, “only those

circumstances which they perceived, or should have perceived, at the time of their

respective actions should be considered,” in deciding whether defendants should

have recognized the risks involved. Id.

In this case, the deposition testimonies of the deputies and Brockler

demonstrate that Chislton’s attack on Brockler was entirely unforeseeable. Chislton

did not show any signs that he would assault Brockler or make any overt threats.

Neither deputy had any information about Chislton’s temperament, criminal

history, or the facts of Chislton’s case.

Brockler offered no testimony that he believed Chislton would attack

him during sentencing thus causing him to notify or warn Deputy Turner of this

possibility. According to Brockler’s deposition testimony, Chislton should not have

been surprised with the sentence imposed. He stated that he advised Chislton that

he should expect a sentence between 40 and 50 years. Nevertheless, even after

Chislton expressed confusion about his sentence, causing Brockler to tell him to

“calm down,” Brockler did not alert the deputies or express concern about Chislton’s

demeanor.

Finally, no one expressed any concern about how Chislton was

handcuffed. Even after the trial judge was advised that Chislton was cuffed in front

for purposes of signing the arson registry, no one expressed that he should be re-

handcuffed or restrained in any further manner. As the trial court noted in its decision, this was a “surprise attack” and no evidence was presented to demonstrate

that Chislton’s conduct was foreseeable, creating a duty of care.

Moreover, CCSD’s policy about “Use of Restraints in Courtrooms,”

did not create a duty of care by the deputies owed to Brockler. “A violation of an

internal policy does not establish a standard of care.” Marsh v. Heartland

Behavioral Health Ctr., 2010-Ohio-1380, ¶ 35 (10th Dist.). “A governmental

agency’s internal policies are not law and thus do not establish a duty.” Jianfeng Yu

v. Ohio State Univ. Med. Ctr., 2017-Ohio-8697, ¶ 18, citing Albright v. Univ. of

Toledo, 2001 Ohio App. LEXIS 4158, *26 (10th Dist. Sept. 18, 2001).

CCSD policy 1.1(I)(1) governs restraining inmates and provides that

“[a]ll inmates brought from the County Jail into a courtroom shall be handcuffed

behind their back except when in trial.” Sergeant Kaminski stated in his affidavit

that CCSD interprets this policy to include sentencing because it is part of the trial

process pursuant to Crim.R. 43. Accordingly, Sergeant Kaminski stated that after

an investigation, it was determined that Deputy Turner’s handcuffing of Chislton

did not violate CCSD’s policy. Although Brockler suggests that Crim.R. 43 does not

contemplate sentencing as part of “trial,” he has failed to present evidentiary support

refuting CCSD’s interpretation or that the policy created a duty of care.

Based on the foregoing, we find that Brockler has failed to satisfy his

reciprocal burden of demonstrating that genuine issues of material fact remain

regarding whether the deputies violated a duty of care or breached that duty of care when Chislton was handcuffed, remained handcuffed in front of his body, or ignored

any warning signs that Chislton was going to attack Brockler.

D. The Deputies Are Statutorily Immune

Finding no duty owed or breach of that duty, Deputies Turner and

Moran cannot be held liable, even if alleged to have acted wantonly or reckless. “If

a [plaintiff] cannot establish the existence of a duty, the political subdivision’s

employee is insulated from liability even in the face of allegations of wanton and

reckless conduct.” Estate of Graves v. Circleville, 2010-Ohio-168, ¶ 25. A court

must “first examine the duty of care required of [a political subdivision

employee] . . . before reaching the issue of whether [the employee’s] . . . conduct fell

into one of the categories described in R.C. 2744.03(A)(6).” Lewis v. Toledo, 2014-

Ohio-1672, ¶ 14 (6th Dist.). Even if this court found that the deputies breached a

duty of care owed to Brockler, i.e., acted negligently, the deputies are nevertheless

statutorily immune from liability.

The Ohio Political Subdivision Tort Immunity Act provides

employees of political subdivisions with statutory immunity from “damages for

injury, death, or loss to person or property allegedly caused by any act or omission

in connection with a governmental or proprietary function” unless a statutory

exception applies. R.C. 2744.03(A)(6); Elliott v. Cuyahoga Cty. Executive &

Council, 2018-Ohio-1088. Accordingly, the deputies are immune unless Brockler

demonstrates that one of the exceptions under R.C. 2744.03(A)(6) applies. Brockler contends the deputies’ immunity should be abrogated

pursuant to the exception provided in R.C. 2744.03(A)(6)(b) — “[t]he employee’s

acts or omissions were with malicious purpose, in bad faith, or in a wanton or

reckless manner.”

“Wanton misconduct is the failure to exercise any care toward those

to whom a duty of care is owed in circumstances in which there is great probability

that harm will result.” Anderson v. Massillon, 2012-Ohio-5711, paragraph three of

the syllabus, approving and following, Hawkins v. Ivy, 50 Ohio St.2d 114 (1977).

“Reckless conduct is characterized by the conscious disregard of or indifference to a

known or obvious risk of harm to another that is unreasonable under the

circumstances and is substantially greater than negligent conduct.” Id. at paragraph

four of the syllabus, adopting 2 Restatement of the Law 2d, Torts, § 500 (1965).

Therefore, R.C. 2744.03(A)(6)(b) ‘“necessarily requires something more than mere

negligence”’ and ‘“the actor must be conscious that his conduct will in all probability

result in injury.”’ O’Toole v. Denihan, 2008-Ohio-2574, ¶ 74, quoting Fabrey v.

McDonald Village Police Dept., 70 Ohio St.3d 351, 356 (1994). Accordingly, for the

deputies’ conduct to be deemed reckless, they must have displayed a “conscious

disregard of or indifference to the risk of physical harm,” which was “unreasonable

under the circumstances.”

Brockler contends that Deputy Turner violated CCSD’s policy of

handcuffing inmates’ hands behind their back and that his unilateral decision to

handcuff Chislton’s hands in front constituted wanton or reckless conduct. Further, Brockler contends that Deputy Turner acted recklessly or wantonly by keeping

Chislton handcuffed in front after Chislton signed the paperwork. Finally, Brockler

advances that genuine issues of material fact exist regarding whether the deputies

are immune from liability because they did not move closer to Chislton or further

restrain him despite observations, as evidenced by Deputy Moran’s decision to

activate his body camera, that Chislton was becoming more agitated. According to

Brockler, genuine issues of material fact remain regarding whether the deputies

failed to follow their departmental policy and heed warning signs, enabling

Chislton’s attack.

1. Deputy Moran Cannot be Held Liable for Turner’s Actions

At the outset, we note that Chislton’s handcuffing occurred prior to

Deputy Moran’s assignment inside the courtroom. Therefore, to the extent that

Brockler attempts to hold Deputy Moran liable for Deputy Turner’s decision to

handcuff Chislton’s hands in front of him, this imputation of liability does not

survive summary judgment. See White v. Cleveland, 2025-Ohio-739, ¶ 43 (8th

Dist.) (S. Gallagher, J., concurring), citing Morrison v. Horseshoe Casino, 2020-

Ohio-4131, ¶ 75 (8th Dist.), citing Estate of Graves, 2008-Ohio-6052, ¶ 29-35 (4th

Dist.) (“Each political subdivision employee’s conduct is separately analyzed when

determining whether immunity under R.C. 2744.03(A)(6)(b) applies.”).

2. Violation of Departmental Policy is Not Per Se Reckless

As previously discussed, CCSD’s policy regarding use of restraints did

not create a duty and thus is not per se reckless. “It is well established that the violation of a statute, ordinance, or departmental policy enacted for the safety of the

public is not per se willful, wanton, or reckless conduct[.]” Anderson, 2012-Ohio-

5711, at ¶ 37.

In discussing whether violations of various Ohio Administrative Code

sections or internal policies amount to recklessness, the Ohio Supreme Court has

stated,

Given our definition of “recklessness,” a violation of various policies does not rise to the level of reckless conduct unless a claimant can establish that the violator acted with a perverse disregard of the risk . . . Without evidence of an accompanying knowledge that the violations “will in all probability result in injury,” . . . evidence that policies have been violated demonstrates negligence at best.

O’Toole, 2008-Ohio-2574, at ¶ 92. See also Argabrite v. Neer, 2016-Ohio-8374,

¶ 25 (“Evidence of a violation of departmental policy does not create a genuine issue

of material fact as to whether the violator acted with malicious purpose, in bad faith

or in a wanton or reckless manner without evidence that the violator was aware that

his conduct [would] in all probability result in injury.”).

In this case, Brockler has not satisfied his reciprocal burden of

demonstrating that a genuine issue of material fact exists for trial as to whether

Deputy Turner violated CCSD’s policy and had the requisite knowledge that his

conduct would “in all probability” result in injury. As discussed below, Brockler has

offered no evidence that Deputy Turner knew of Chislton’s temperament or that the

47-year prison sentence would cause Chislton to respond by assaulting his attorney. Brockler, himself, stated that he advised Chislton to expect a sentence between 40

and 50 years.

3. No Evidence that the Deputies Acted Recklessly or Wantonly

The deputies established that neither had advanced knowledge that

Chislton would attack Brockler during sentencing. The deputies testified at

deposition that neither were aware of Chislton’s criminal history, the relationship

between Chislton and Brockler, or the circumstances surrounding the plea. Brockler

did not offer any evidence refuting the deputies’ testimony. In fact, Brockler

admitted that the attack was unexpected.

Moreover, Deputy Turner’s decision to handcuff Chislton’s hands in

front of him did not disregard a known risk or place Brockler in harm’s way. Deputy

Turner explained that he handcuffed Chislton in this manner because he was aware

that Chislton would sign paperwork during sentencing and felt it was safer than

momentarily uncuffing Chislton to execute the paperwork. He testified that during

this time, he was the only deputy in the courtroom. Brockler has not offered any

evidence to establish a genuine issue of material fact regarding whether Deputy

Turner’s decision to handcuff Chislton was made with conscious disregard of a

known risk because no evidence was offered that at any time prior to the assault did

Deputy Turner, or anyone for that matter, believe Chislton was a threat to anyone in

the courtroom.

Based on the foregoing, the deputies have satisfied their initial

burden to demonstrate with proper evidentiary support that they are statutorily immune from liability. Brockler, however, has failed to satisfy his reciprocal burden

to demonstrate with proper Civ.R. 56(C) support that the deputies acted with

“perverse disregard of a known risk” or failed to “exercise any care.” Because

Brockler has not established that genuine issues of material fact remain regarding

whether the deputies acted recklessly or wantonly, we find that the deputies are

immune under R.C. 2744.03.

III. Conclusion

Based on the foregoing, we find that no genuine issue of material fact

remains for trial because Chislton’s conduct was unforeseeable, which would create

a duty of care to Brockler, and that the deputies are otherwise immune from liability

pursuant to R.C. 2744.03. Accordingly, we find that the trial court did not err in

granting summary judgment in favor of the deputies.

Judgment affirmed.

It is ordered that appellees Deputies Jeffrey F. Turner, Jr., and Raymond

Moran recover from appellant 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.

KATHLEEN ANN KEOUGH, JUDGE

EILEEN A. GALLAGHER, A.J., and SEAN C. GALLAGHER, J., CONCUR