[Cite as King Painting & Wallpapering, Inc. v. Aswin Ganapathy Hospitality Assocs., L.L.C., 2014-Ohio-1372.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
KING PAINTING & WALLPAPERING, : OPINION INC., : Plaintiff-Appellee, : CASE NO. 2013-T-0076 - vs - : ASWIN GANAPATHY HOSPITALITY ASSOCIATES, LLC, et al., :
Defendant-Appellant. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2012 CV 355.
Judgment: Affirmed.
Frederick S. Coombs, III, Harrington, Hoppe & Mitchell, Ltd., 26 Market Street, #1200, P.O. Box 6077, Youngstown, OH 44501 (For Plaintiff-Appellee).
Thomas M. Lyden, 860 Boardman-Canfield Road, Suite 204, Youngstown, OH 44512 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Aswin Ganapathy Hospitality Associates, LLC (“Aswan”),
appeals the summary judgment entered by the Trumbull County Court of Common
Pleas in favor of appellee, King Painting & Wallpapering Inc. (“King”), on King’s claims
for breach of contract and foreclosure of a mechanic’s lien. We are asked to consider
whether genuine issues of material fact exist on King’s claims, precluding summary
judgment. For the reasons that follow, we affirm. {¶2} On February 15, 2012, King filed a complaint for breach of contract and to
foreclose a mechanic’s lien. King alleged that in March 2010, it entered into an oral
contract with Aswin, pursuant to which King performed certain painting, drywall repair,
and wallpaper installation services between March 31, 2010 and May 6, 2010 at the
Metroplex Motel, which is owned by Aswin and located in Liberty Township.
{¶3} King alleged that on April 12, 2010, it issued an invoice to Aswan for its
work in the amount of $21,510, and that Aswin failed to pay the invoice in breach of the
parties’ contract.
{¶4} Further, King alleged that on July 13, 2010, it filed an affidavit for
mechanic’s lien with the Trumbull County Recorder, and served a copy of same on
Aswin. Further, King alleged that Aswin has failed to discharge said lien.
{¶5} Aswin filed an answer denying the material allegations of the complaint.
{¶6} On April 16, 2012, King issued interrogatories, requests for admission,
and a request for production of documents to Aswin. Aswin failed to timely respond to
King’s discovery requests. Consequently, on May 30, 2012, King filed a notice with the
court stating that, due to Aswin’s failure to timely respond to King’s requests for
admission, pursuant to Civ.R. 36, they were deemed admitted.
{¶7} Thereafter, on May 31, 2012, Aswin filed a motion for leave to answer
King’s discovery requests, without distinguishing King’s requests for admission. On
June 6, 2012, the trial court granted Aswin’s request for leave.
{¶8} On June 11, 2012, Aswin sent its responses to King’s interrogatories and
requests for admission to King’s counsel.
{¶9} In response, on July 5, 2012, King filed a motion to compel Aswin to
respond to its request for production of documents and to provide more complete
2 answers to its interrogatories. In its motion King also objected to Aswin’s purported
answers to King’s requests for admission because they were not timely and also
because King had already filed a notice that the requests for admission were deemed
admitted.
{¶10} Aswin did not respond to King’s motion to compel. Instead, on July 16,
2012, Aswin simply filed a second motion for leave to answer King’s discovery requests,
again without distinguishing King’s requests for admission.
{¶11} On July 18, 2012, the trial court ruled on the parties’ discovery motions,
granting King’s motion to compel Aswin to respond to King’s interrogatories and request
for production and also granting Aswin’s motion for leave. The court specifically gave
Aswin leave to respond to King’s interrogatories and request for production of
documents by August 20, 2012, but did not give Aswin leave to respond to King’s
requests for admission.
{¶12} Thereafter, King filed a motion for summary judgment. In support, King
filed the affidavit of its vice-president, Reuben King. Mr. King stated that King is a
Pennsylvania corporation registered to do business in Ohio. He said that, during the
week of March 21, 2010, King was contacted about performing wallpaper hanging and
ceiling painting at the Metroplex Motel by the owner’s representative, who goes by the
name of “Dr. Sammy.”
{¶13} Mr. King stated that on March 31, 2010, he and two other workers from
King traveled from Pennsylvania to the motel to begin the work Dr. Sammy requested.
Upon their arrival, King’s employees were admitted into the motel and began work.
{¶14} Mr. King said that while the work was being performed, in April 2010,
Aswin’s representatives asked King to expand their work to include drywall repair and
3 painting the motel’s dividing walls. Due to this increase in the scope of the work, on
April 5, 2010, two additional workers from King joined the original work force.
{¶15} Mr. King stated that the dates and hours of work performed by King’s
employees are set forth in the work ledger attached to his affidavit. He said that on April
12, 2010, King issued an itemized invoice to the motel for the work performed in the
amount of $21,510.
{¶16} Mr. King said that on May 6, 2010, he returned to the motel to complete
work on the motel, spending seven hours to complete the painting and wallpaper work
pursuant to the parties’ contract. These additional hours are reflected in King’s ledger.
{¶17} Mr. King stated that Aswin has never complained or indicated in any way
that any part of the work was unsatisfactory. However, Aswin did not make any
payment for the work or materials provided by King at Aswin’s request.
{¶18} Further, King presented the affidavit of its counsel, Frederick Coombs, in
which Mr. Coombs stated that on July 13, 2010, he filed an affidavit for mechanic’s lien
in favor of King and against Aswin in the amount of $21,510 with the Trumbull County
Recorder. On the same date, he served a copy of the affidavit on Aswin by U.S. mail.
He also personally served a copy of the affidavit at the reception desk of the motel. He
asked for the motel manager, and the desk clerk told him the manager, who is a female
named Dr. Sammy, was not available.
{¶19} King also relied on the requests for admission it submitted to Aswin, which
were deemed admitted, as follows:
{¶20} No. 1: That [Aswin] did request that [King] perform certain services
between March 2010 and May 2010 in conjunction with painting,
drywall repair, and installing wallpaper coverings at [Aswin’s] place
4 of business, commonly known as the Metroplex Motel, located in
Liberty Township, Trumbull County, Ohio.
{¶21} No. 2: That [King] did perform the services as outlined in the invoice
attached to the Complaint as Exhibit A.
{¶22} No. 3: That [Aswin has] not paid [King] for the services rendered as
outlined in the invoice * * *.
{¶23} No. 4: That [Aswin has] not provided any notice to [King], prior to
the institution of this lawsuit that the materials or workmanship
provided by [King] to the Metroplex Motel were unsatisfactory.
{¶24} No. 5: That [Aswin] understood that [King] was not providing its
services and materials as outlined in the invoice * * * without
expectation of proper compensation therefor.
{¶25} Aswin filed a brief in opposition to King’s motion for summary judgment.
In support, it filed the affidavit of Thirulalam P. “Sammy” Indira. She said she is the
“managing owner” of Aswin, which owns the Metroplex Motel. She said she is
responsible for projects and construction decisions undertaken at the motel.
{¶26} Dr. Sammy said that the motel hosted a military ball on April 17, 2010, and
that any and all renovations performed by any contractor were completed before the
ball. However, Dr. Sammy did not dispute: (1) that she entered an oral contract with
King to perform the work; (2) that King performed the work; (3) that Aswin never
objected to any part of the work; (4) that King properly invoiced Aswin; and (5) that
Aswin has not made any payment for the work.
{¶27} After considering the briefs and evidentiary materials submitted by the
parties, the trial court granted King’s motion for summary judgment on King’s claim for
5 breach of contract in the amount of $21,510. The court also granted summary judgment
in favor of King on its claim for foreclosure of a mechanic’s lien, finding that King holds a
valid mechanic’s lien against the property to secure payment of $21,510 for the labor
and materials provided to the property.
{¶28} Aswin appeals the trial court’s judgment, asserting two assignments of
error. For its first assigned error, it alleges:
{¶29} “The trial court committed prejudicial error in granting plaintiff-appellee’s
motion for summary judgment on the breach of contract action.”
{¶30} Aswin asserts three issues under this assignment of error. First, it argues
that, because King did not indicate in the caption of its discovery requests that they
included requests for admission, the requests for admission should not have been
deemed admitted. We do not agree.
{¶31} In the regulation of discovery, the trial court has discretionary power, and
its decisions will not be overturned absent an abuse of that discretion. Mauzy v. Kelly
Servs., Inc., 75 Ohio St.3d 578, 592 (1996); State ex rel. Daggett v. Gessaman, 34 Ohio
St.2d 55, 57 (1973). An appellate court reviews a claimed error relating to a discovery
matter under an abuse-of-discretion standard. Lightbody v. Rust, 137 Ohio App.3d 658,
663 (8th Dist. 2000).
{¶32} Civ.R. 36(B) provides: “Any matter admitted under this Rule is
conclusively established unless the court on motion permits withdrawal or amendment
of the admission.” (Emphasis added.)
{¶33} Further, Civ.R. 36(C) provides:
{¶34} If a party includes a request for admission in a document containing
any other form of discovery, the party shall include a caption on the
6 document that indicates the document contains a request for
admission. A party is not required to respond to requests for
admission that are not made in compliance with this division.
{¶35} The caption of King’s April 16, 2012 discovery requests did not state they
included requests for admission. However, after King gave notice that the requests
were deemed admitted, Aswin never brought this claimed error to the attention of the
trial court by filing a motion to withdraw or to amend the admission, as required by
Civ.R. 36(B). In Mortgage Elec. Registration Sys. v. Petry, 11th Dist. Portage No. 2008-
P-0016, 2008-Ohio-5323, this court held:
{¶36} “The general rule is that ‘an appellate court will not consider any
error which counsel for a party complaining of the trial court’s
judgment could have called but did not call to the trial court’s
attention at a time when such error could have been avoided or
corrected by the trial court.’ * * *” Petry, supra, at ¶21, quoting
State v. Awan, 22 Ohio St.3d 120, 122-123 (1986).
{¶37} Here, King’s failure to indicate in the caption of its discovery requests that
they included requests for admission was apparent when King filed its notice on May
30, 2012, that the requests for admission were deemed admitted. Aswin was thus
aware of this flaw when it later filed its two motions for leave to answer King’s discovery
requests on May 31, 2012 and July 16, 2012. Yet, it did not raise the caption issue in
either motion or in any other motion. Further, between the date King filed its notice that
its requests for admission were deemed admitted (May 30, 2012), and the date the
court entered summary judgment (July 17, 2013), Aswin had more than one full year to
raise this issue in the trial court. By failing to do so, the issue is waived. Petry, supra.
7 {¶38} In any event, even if the issue was not waived, the argument would still
lack merit because Aswin was not prejudiced by King’s failure to indicate in the caption
of its discovery requests that they included requests for admission. The purpose of
notification in the caption is to prevent unfairness and surprise. Seecharan v. Macy, 8th
Dist. Cuyahoga No. 75130, 1999 Ohio App. LEXIS 5065, *18 (Oct. 28, 1999). On the
day after King issued its discovery requests to Aswin, i.e., on April 17, 2012, King
served Aswin with, and filed in the court, a “notice of service of interrogatories, requests
for admission, and request for production of documents directed to Defendant Aswin
Ganapathy Hospitality Associates, LLC.” (Emphasis added.) Thus, while the requests
for admission were not indicated in the caption of King’s discovery requests, King’s
contemporaneous notice of discovery provided notice to Aswin that King’s discovery
requests included requests for admission. As a result, Aswin was not prejudiced by the
failure of the caption of King’s discovery requests to indicate they included requests for
admission. Thus, the trial court did not abuse its discretion in deeming King’s requests
for admission as admitted for purposes of summary judgment.
{¶39} For its second argument under its first assigned error, Aswin contends
that, in light of the court’s general order allowing it leave to respond to King’s discovery
requests, it timely responded to King’s requests for admission and thus, the requests
should not have been deemed admitted. Again, we do not agree.
{¶40} In the trial court’s July 18, 2012 order granting Aswin leave to respond to
King’s discovery requests, the court only gave Aswin leave to respond to King’s
interrogatories and request for production of documents by August 20, 2012. The court
did not give Aswin leave to respond to King’s requests for admission. Based on this
ruling, we must presume that the court did not intend to provide relief to Aswin with
8 respect to King’s requests for admissions. Thus, contrary to Aswin’s argument, the trial
court did not give Aswin leave to file its belated denials to King’s requests for admission,
and Aswin’s responses to King’s requests for admission were untimely. As a result, the
trial court did not abuse its discretion in deeming the requests admitted.
{¶41} In any event, if the trial court had granted Aswin leave to file answers to
King’s requests for admission, King’s requests for admission would still have been
deemed admitted because Aswin failed to comply with the requirements of Civ.R. 36(A).
That rule provides in pertinent part:
{¶42} A denial shall fairly meet the substance of the requested admission,
and when good faith requires that a party qualify his or her answer,
or deny only a part of the matter of which an admission is
requested, the party shall specify so much of it as is true and
qualify or deny the remainder.
{¶43} The Eighth District in St. Paul Fire & Marine Ins. Co. v. Battle, 44 Ohio
App.2d 261 (8th Dist.1975), explained the foregoing provision, as follows:
{¶44} Civil Rule 36 requires that when requests for admission are filed by
a party, the opposing party must timely respond in appropriate
fashion either by objection or answer.
{¶45} * * *
{¶46} The responding party may answer by admitting the substance of
the request, thereby obviating the necessity of proof on that
subject, or he may answer by denying the request. If the
responding party does deny the request, he must do so in a
manner which fairly meets the substance of the requested
9 admission. A general denial is not sufficient and results in an
admission. (Emphasis added.) Id. at paragraph 3c of the syllabus.
{¶47} Further, the Eighth District in Battle, stated:
{¶48} Looking briefly to the obligations of the responding party, we note
that his failure to respond at all to requests for admission will result
in the requests becoming admissions against him[, and] that his
response in the form of a general objection or a general denial will
also result in admissions against him * * *.
{¶49} Conversely, if the responding party wishes to avoid an admission
he must state the reasons for his objection, or the reasons for his
denial * * *. (Emphasis added.) Battle, supra, at 271.
{¶50} This court explicitly followed the rule in Battle in Godale v. Chester Twp.
Bd. of Trs., 11th Dist. Geauga No. 2004-G-2571, 2005-Ohio-2521. In Godale, this court
held that a general objection or a general denial to a request for admission amounts to
an admission. Id. at ¶36, following Battle, supra.
{¶51} The rule in Battle, supra, and Godale, supra, that a general denial is
insufficient and results in an admission means that a general denial is insufficient when
good faith requires that a party qualify his answer or deny only a part of the matter. K.
Ronald Bailey & Assoc. Co., L.P.A. v. Matesick, 6th Dist. Erie No. E-92-40, 1993 Ohio
App. LEXIS 2886, *6, fn. 1 (June 11, 1993). Thus, when a request for admission
contains several assertions of fact, a general denial (i.e., “Denied”) results in an
admission of such a request. Id. This is because it does not meet the substance of the
request, i.e., it does not “specify so much of it as is true and qualify or deny the
remainder.” Civ.R. 36(A).
10 {¶52} Here, each of King’s requests for admission contained several assertions
of fact. Thus, Aswin’s general denial is an inadequate answer. Under these
circumstances, Civ.R. 36(A) required Aswin to qualify its denial to each, specifying
those facts which are true and denying the remainder. In failing to do so, Aswin failed
to comply with the mandate of Civ.R. 36(A) that it fairly meet the substance of the
requested admission by specifying so much of it as is true and qualify or deny the
remainder. For this additional reason, the trial court did not abuse its discretion in
deeming King’s requests for admission as admitted for purposes of summary judgment.
{¶53} For its third argument, Aswin argues the trial court erred in granting
summary judgment in favor of King. Once again, we do not agree.
{¶54} This court has held that summary judgment is proper when: (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, that party being entitled to have the evidence
construed most strongly in his favor. Civ.R. 56(C); Frano v. Red Robin International,
Inc., 181 Ohio App.3d 13, 2009-Ohio-685, ¶12 (11th Dist.).
{¶55} The party seeking summary judgment on the ground that the nonmoving
party cannot prove his case bears the initial burden of informing the trial court of the
basis for the motion and of 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 case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).
{¶56} The moving party must point to some evidence of the type listed in Civ.R.
56(C) that affirmatively demonstrates that the nonmoving party has no evidence to
support his case. Dresher, supra, at 293.
11 {¶57} If this initial burden is not met, the motion for summary judgment must be
denied. Id. However, if the moving party has satisfied his initial burden, the nonmoving
party then has a reciprocal burden, as outlined in Civ.R. 56(E), to set forth specific facts
showing that there is a genuine issue for trial and, if the nonmovant does not so
respond, summary judgment, if appropriate, shall be entered against him. Id.
{¶58} Since a trial court’s decision ruling on a motion for summary judgment
involves only questions of law, we conduct a de novo review of the trial court’s
judgment. DiSanto v. Safeco Ins. of Am., 168 Ohio App.3d 649, 2006-Ohio-4940, ¶41
(11th Dist.).
{¶59} In order to prevail on a claim for breach of contract, the plaintiff must
prove: (1) the existence of a contract; (2) performance by the plaintiff; (3) breach by the
defendant; and (4) damages. Huffman v. Kazak Bros., Inc., 11th Dist. Lake No. 2000-L-
152, 2002 Ohio App. LEXIS 1660, *11 (Apr. 12, 2002).
{¶60} First, Aswin argues that, because King’s requests for admission were not
properly deemed admitted, genuine issues of fact remain in this case. However, for the
reasons fully discussed above (waiver of caption issue, no prejudice, denials untimely,
and general denial), King’s requests for admission were properly deemed admitted.
Thus, based on King’s requests for admission, it has been established that: (1) Aswin
asked King to perform certain painting, drywall repair, and wallpaper installation work
between March and May 2010 at Aswin’s motel; (2) King performed the services as
outlined in the invoice attached to the complaint in the amount of $21,510; (3) Aswin
has not paid King for said services; (4) Aswin never notified King that any of the
materials or labor provided by King to the motel was unsatisfactory; and (5) Aswin
understood King was not providing its services and materials without expectation of
12 proper compensation. A request for admission deemed admitted is competent evidence
to support a motion for summary judgment. JP Morgan Chase & Co. v. Indus. Power
Generation, Ltd, 11th Dist. Trumbull No. 2007-T-0026, 2007-Ohio-6008, ¶34-35. As a
result, based on the requests for admission, as deemed admitted, there is no genuine
issue of material fact as to the existence of a contract; King’s performance; Aswin’s
failure to pay for said services; and King’s resultant damages.
{¶61} In any event, even if King’s requests for admission were not deemed
admitted, there were no genuine issues of material fact. Mr. King in his affidavit stated
that Dr. Sammy requested King to perform services at the motel; that King performed
the services; that Aswan did not object to any of the services; but that Aswan failed to
pay for King’s services. Moreover, Dr. Sammy in her affidavit did not dispute that she
requested King to perform the subject services; that King performed the services; that
its services were satisfactory; and that Aswin accepted these services and materials
without paying anything for them.
{¶62} Aswin also argues that certain deficiencies in the evidence precluded
summary judgment. For example, it argues there was a genuine issue as to whether a
contract existed because Mr. King initially referred in his affidavit to Dr. Sammy as a
male when in fact Dr. Sammy is a female. However, Aswin concedes that Mr. Coombs,
King’s representative, later corrected this inadvertent mistake by stating in his affidavit
that Dr. Sammy is a female. Because this mistake was corrected prior to the entry of
summary judgment, it is a non-issue.
{¶63} Next, Aswin argues that no one with the proper authority contacted King
about expanding the scope of the work. However, Mr. King testified that in April 2010,
representatives of Aswin contacted King, and requested that the work be expanded to
13 include drywall repair and painting the dividing walls. Moreover, Aswin failed to present
any evidence denying that its representatives contacted King requesting additional
work. Since King presented evidence that representatives of Aswin contacted King to
expand the scope of the work, Aswin had the reciprocal duty under Civ.R. 56(E) to
present countervailing evidence. However, it failed to do so.
{¶64} Next, Aswin argues that it denied ever entering a contract with King.
However, each of Aswin’s references to the record for this denial are to his amended
answer. A party opposing summary judgment may not rest on the mere allegations or
denials of his pleadings to create a genuine issue of fact. Civ.R. 56(E). Because Dr.
Sammy did not deny in her affidavit that Aswin entered a contract with King, Aswin
failed to create a genuine issue of fact on this issue.
{¶65} Next, Aswin argues the fact that King was unaware of the corporate name
of the motel’s owner when King issued its invoice shows that King did not contract with
an authorized agent of Aswin. However, Aswin fails to reference any authority for this
argument, in violation of App.R. 16(A)(7). In any event, Mr. King stated that Dr. Sammy
contracted with King on Aswin’s behalf. Since Dr. Sammy conceded that she is the
“managing owner” of Aswin and that Aswin owns the motel, she clearly had authority to
contract on behalf of Aswin.
{¶66} We therefore hold the trial court did not err in granting summary judgment
in favor of King.
{¶67} Aswin’s first assignment of error is overruled.
{¶68} For its second and final assigned error, Aswin alleges:
{¶69} “The trial court committed prejudicial error in granting plaintiff-appellee’s
motion for summary judgment on the mechanic’s lien action.”
14 {¶70} The only challenge Aswin asserts with respect to King’s foreclosure claim
is that, according to Aswin, King’s affidavit in support of its mechanic’s lien was not
timely filed with the Trumbull County Recorder.
{¶71} R.C. 1311.06(B)(3) provides that an affidavit for mechanic’s lien must be
filed within 75 days from the date on which the last of the labor or work was performed
or material was furnished by the person claiming the lien.
{¶72} Mr. King states in his affidavit that he last performed work at the motel on
May 6, 2010, when he spent seven hours completing the work under the parties’
contract. Since May 6, 2010 was the last day King worked at the motel, King had until
July 20, 2010 to file its affidavit. Because King’s affidavit was filed on July 13, 2010, it
was timely and enforceable.
{¶73} Aswin argues the work King performed on May 6, 2010 was “unrelated” to
the contract because there is no ledger in the record showing work was done on that
date. However, Aswin is incorrect because the record contains King’s ledger showing
King’s last day of work under the contract was May 6, 2012. Further, the fact that King’s
April 12, 2010 invoice shows the full amount owed is no evidence that King did not
complete the job on May 6, 2010; King simply did not bill Aswin for that additional time.
{¶74} Next, Aswin argues that, because the motel hosted a military ball on April
17, 2010, and any and all construction or projects were completed prior to the ball, this
proves King’s work was completed on April 17, 2010 and thus King’s affidavit for
mechanic’s lien had to be filed within 75 days of that date, i.e. by June 29, 2010.
{¶75} While a party may submit a supporting self-affidavit, it must be made on
personal knowledge and affirmatively show that the affiant is competent to testify to the
matters stated in the affidavit. Civ.R. 56(E). “A party’s self-serving assertions,
15 unsupported by personal knowledge and offered by way of affidavit, are not sufficient to
demonstrate material issues of fact.” Morantz v. Ortiz, 10th Dist. Franklin No. 07AP-
597, 2008-Ohio-1046, ¶16; Greaney v. Ohio Turnpike Comm., 11th Dist. Portage No.
2005-P-0012, 2005-Ohio-5284, ¶16. “Otherwise, a party could avoid summary
judgment by simply submitting such a self-serving affidavit containing nothing more than
bare contradictions of the evidence the moving party offered.” Morantz, supra;
Greaney, supra.
{¶76} Here, Dr. Sammy did not state in her affidavit that it was based on her
personal knowledge. For this reason alone, her affidavit is insufficient to avoid
summary judgment. Further, the assertions contained therein are general and did not
refer to the King contract or any work performed by King. She simply stated that any
and all work performed was completed sometime before a military ball hosted by the
motel on April 17, 2010. Her affidavit merely contradicts the evidence King offered
without providing any evidence as to when King completed its work. For this additional
reason, Dr. Sammy’s affidavit did not create a genuine issue of material fact.
{¶77} We therefore hold the trial court did not err in entering summary judgment
{¶78} Aswin’s second assignment of error is overruled.
{¶79} For the reasons stated in this opinion, the assignments of error are not
well taken and the same are overruled. It is the order and judgment of this court that
the judgment of the Trumbull County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.