[Cite as Schiff v. Dickson, 2011-Ohio-6079.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 96539 and 96541
MARVIN H. SCHIFF, ESQ. PLAINTIFF-APPELLEE
vs.
BLAKE A. DICKSON, ESQ., ET AL. DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-701734
BEFORE: Jones, J., Boyle, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: November 23, 2011 ATTORNEYS FOR APPELLANTS
Blake A. Dickson Mark D. Tolles, II The Dickson Firm, L.L.C. Enterprise Place, Suite 420 3401 Enterprise Parkway Beachwood, Ohio 44122
ATTORNEYS FOR APPELLEES
Thomas A. Barni Renee S. Pienta Dinn, Hochman & Potter, L.L.C. 5910 Landerbrook Drive Suite 200 Cleveland, Ohio 44124
LARRY A. JONES, J.:
{¶ 1} Defendants-appellants, Blake Dickson, Esq., and Dickson & Campbell,
L.L.C. (collectively “Dickson”), have filed three appeals from judgments of the trial
court rendered in Common Pleas Case No. CV-701734. On June 22, 2011, App. No.
96540, was dismissed. The other two appeals were consolidated for our review.
{¶ 2} The record before us demonstrates that Blake Dickson and plaintiff-appellee
Marvin Schiff are Ohio attorneys, who from 1998 through February 2005, partnered in the
law firm of Schiff & Dickson, L.L.C. During the course of the partnership, Schiff and
Dickson were 50/50 partners. The partnership ended on February 4, 2005, with Schiff’s departure from the firm.1
{¶ 3} In dissolving the firm, the parties, each represented by counsel, entered into
a “redemption agreement.” The agreement provided that the “lead attorney” (Dickson)
would calculate the percentage of the total fee that was earned on the pending
contingent-fee cases through February 4, 2005, and that amount would be equally shared.
The agreement provided that, in calculating the percentages, the lead attorney would use
“reasonable and good faith judgment” and consider the “totality of the circumstances.”
{¶ 4} The agreement also provided that if one of the parties questioned or disputed
the amount of payment made, the parties would first “make reasonable efforts to resolve
the dispute.” If those efforts failed, the parties would submit the dispute to non-binding
mediation, and if that exercise was not fruitful, then non-binding arbitration. If a party
was not satisfied with the arbitration award, a court action could be filed.
{¶ 5} Prior to Schiff’s departure, the firm was engaged as counsel in 13 cases in
which it represented various plaintiffs against ConAgra Foods, which manufactures
microwave popcorn and has a plant in Marion, Ohio.
{¶ 6} After the firm dissolved, the popcorn cases settled and Dickson paid Schiff
what it believed to be full and final payment on the cases. Schiff contends, however, that
the payments were only partial and that sums are still due and owing to him on those cases.
I
Dickson subsequently partnered with another attorney and the firm became Dickson & 1
Campbell. A. Schiff’s Complaint
{¶ 7} In 2009, Schiff filed a “complaint for monetary damages” against Dickson.
The complaint sought relief based on the following claims: Count 1, breach of contract
(redemption agreement); Count 2, breach of contract (Weisman, Kennedy & Berris fees);2
Count 3, unjust enrichment and quantum meruit; and Count 4, conversion. Count 5
sought a full accounting relative to the disputed cases.
B. Dickson’s Answer, Counterclaims, and Motions
{¶ 8} Dickson filed an answer and counterclaims. In its answer, Dickson claimed
that the complaint was barred by the following affirmative defenses: (1) time; (2) laches;
(3) non-entitlement to “any amount over and above what [ ] has already been paid”; and
(4) accord and satisfaction. Further, under “affirmative defenses,” Dickson alleged that
the complaint was “filed in direct and willful violation of Ohio Civil Rule 11. The case
should be dismissed and both Plaintiff Marvin Schiff and his counsel should be
sanctioned.”
{¶ 9} For its counterclaims, Dickson alleged: Count 1, intentional breach of
contract; Count 2, fraud; Count 3, abuse of process; Count 4, conversion; and Count 5,
extortion.
{¶ 10} Dickson filed a motion for summary judgment, seeking judgment in its favor
on all of Schiff’s claims; the trial court denied the motion. Dickson filed a motion for
reconsideration of its ruling, which the court also denied.
This count is not relevant to this appeal. 2 C. Schiff’s Motions
{¶ 11} Schiff filed a motion to compel discovery responses from Dickson. Schiff
also filed a motion to dismiss Dickson’s counterclaims, or alternatively, for summary
judgment on the accord and satisfaction affirmative defense and all the counterclaims.
{¶ 12} After conducting an in camera inspection of the disputed discovery, the trial
court granted Schiff’s motion to compel and ordered that Dickson provide Schiff with the
client files for the 13 disputed popcorn cases. Dickson appealed, but this court dismissed
it for lack of a final appealable order. Schiff v. Dickson (Sept 1, 2010), Cuyahoga App.
No. 95338, motion no. 437005.
{¶ 13} The trial court denied Schiff’s motion to dismiss, and granted in part and
denied in part the motion for summary judgment. Specifically, summary judgment was
granted as to the fraud, abuse of process, conversion, and extortion counterclaims, granted
as to the accord and satisfaction affirmative defense, but denied as to the breach of
contract claim.
II
{¶ 14} Dickson challenges the trial court’s rulings with the following assignments
of error:
“I. The trial court erred in refusing to apply the doctrine of accord and satisfaction, and in refusing to enforce the express terms of the redemption agreement, and therefore, improperly denied defendants’ motion for summary judgment.
“II. The trial court erred in granting summary judgment on defendants’ counterclaims for fraud, abuse of process, conversion, and extortion, as well as defendants’ affirmative defense of accord and satisfaction. “III. The trial court erred in ordering defendants to produce copies of complete files to plaintiff.”
“A. Lack of Jurisdiction to Consider Denial of Dickson’s Summary Judgment Motion
{¶ 15} We do not have jurisdiction to consider the first assignment of error
challenging the denial of Dickson’s summary judgment motion. It is well established that
the denial of a summary judgment motion is not a final appealable order. Balson v.
Dodds (1980), 62 Ohio St.2d 287, 289, 405 N.E.2d 293; Celebrezze v. Netzley (1990), 51
Ohio St.3d 89, 90, 554 N.E.2d 1292; R.C. 2505.02. The appeal from the judgment
denying Dickson’s summary judgment was dismissed by this court. Schiff v. Dickson
(June 22, 2011), Cuyahoga App. No. 96540, motion no. 445479. The first assignment of
error is therefore moot.
B. Judgment Partially Granting Schiff’s Summary Judgment Motion
{¶ 16} Under Civ.R. 56(C), the entry of summary judgment is proper if the evidence
shows that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. The moving party carries the burden to show that
no genuine issue of fact exists, and all reasonable inferences should be construed most
strongly in favor of the nonmoving party. Civ.R. 56(C); Dupler v. Mansfield Journal
Co., Inc. (1980), 64 Ohio St.2d 116, 120, 413 N.E.2d 1187. An appellate court reviews a
trial court’s ruling on a motion for summary judgment de novo. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241.
{¶ 17} The trial court granted Schiff’s motion as it related to Dickson’s counterclaims for fraud, abuse of process, conversion, and extortion. The court also
granted Schiff’s motion as it related to Dickson’s affirmative defense of accord and
satisfaction. We will consider each in turn.
1. Fraud
{¶ 18} Civ.R. 9(B) provides: “In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.” The
elements of a fraud claim are: “(1) a representation (or concealment of a fact when there is
a duty to disclose) (2) that is material to the transaction at hand, (3) made falsely, with
knowledge of its falsity or with such utter disregard and recklessness as to whether it is
true or false that knowledge may be inferred, and (4) with intent to mislead another into
relying upon it, (5) justifiable reliance, and (6) resulting injury proximately caused by the
reliance.” Volbers–Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494,
2010-Ohio-2057, 929 N.E.2d 434, at ¶27, citing Burr v. Stark Cty. Bd. of Commrs. (1986),
23 Ohio St.3d 69, 73, 491 N.E.2d 1101.
{¶ 19} In his fraud counterclaim, Dickson alleged that Schiff “made representations
of fact in [his] complaint, and to his attorney, and to his prior attorney, and to others,
which are false.” Dickson further alleged that Schiff’s complaint “constitutes fraud and
has been brought in extreme bad faith.”
{¶ 20} Dickson contests the facts as presented by Schiff, an occurrence in nearly all
litigation. The filing of a complaint does not constitute the “transaction at hand” for a
fraud claim. In other words, the fraud had to predate the filing of the complaint. Dickson cannot demonstrate that he justifiably relied on Schiff’s complaint to his
detriment; indeed he did not — he filed an answer with affirmative defenses and
counterclaims contesting Schiff’s complaint.
{¶ 21} Further, with the exception of the last paragraph of his fraud counterclaim,3
his claim relates to others, that is, Schiff’s present and former attorneys, the court, “other
attorneys,” and “other third parties.” Dickson did not have standing in this case to assert
claims on behalf of other third parties.
{¶ 22} In light of the above, the trial court did not err in granting Schiff summary
judgment on Dickson’s fraud counterclaim.
2. Abuse of Process
{¶ 23} In Ohio, the elements of the tort of abuse of process are “(1) that a legal
proceeding has been set in motion in proper form and with probable cause; (2) that the
proceeding has been perverted to attempt to accomplish an ulterior purpose for which it
was not designed; and (3) that direct damage has resulted from the wrongful use of
process.” Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. (1994), 68 Ohio St.3d 294,
626 N.E.2d 115, paragraph one of syllabus.
{¶ 24} “In an abuse of process case, ‘[t]he improper purpose usually takes the form
of coercion to obtain a collateral advantage, not properly involved in the proceeding itself,
such as the surrender of property or the payment of money, by the use of the process as a
threat or a club.’ Prosser & Keeton on Torts (5 Ed.1984) 898, Section 121. Simply, abuse
3 Counterclaim at ¶36. of process occurs where someone attempts to achieve through use of the court that which
the court is itself powerless to order.” Robb v. Chagrin Lagoons Yacht Club, Inc. (1996),
75 Ohio St.3d 264, 271, 662 N.E.2d 9.
{¶ 25} Dickson’s abuse of process counterclaim was based on the mere fact that
Schiff had filed an action against it: “Plaintiff Marvin H. Schiff has filed the complaint in
this case or caused the complaint to be filed in this case, by and through his lawyer, in an
attempt to induce the Defendants to pay him additional funds to which he is not entitled”;
“Plaintiff Marvin H. Schiff filed the complaint or caused the complaint to be filed in this
case for improper purposes.” Counterclaim, ¶41, 42.
{¶ 26} Abuse of process presumes that “a legal proceeding has been set in motion in
proper form and with probable cause.” (Emphasis added.) Yaklevich at id. Thus, the
mere filing of a complaint cannot constitute an abuse of process. “[T]he filing of a
lawsuit triggering the issuance of process by way of summons does not constitute abuse of
process * * *.” Beacon Journal Publishing Co. v. Zonak, Poulos & Cain (Sept. 25,
1979), Franklin App. No. 79AP-123.
{¶ 27} Dickson neither claimed nor presented evidence that Schiff “perverted” the
proceeding “to attempt to accomplish an ulterior purpose for which it was not designed.”
Yaklevich at id. The trial court therefore did not err in granting Schiff summary judgment
on Dickson’s abuse of process counterclaim.
3. Extortion
{¶ 28} Dickson’s extortion counterclaim alleged that the “complaint was filed in bad faith for the sole purpose of attempting to extort money from the Defendants.”
Counterclaim at ¶54. Extortion is a crime. See R.C. 2905.11. “A party must rely on a
separate civil cause of action, existent either in common law or through statute, to bring a
civil claim based on a criminal act.” Groves v. Groves, Franklin App. No. 09AP-1107,
2010-Ohio-4515, ¶25, citing McNichols v. Rennicker, Tuscarawas App. No. 2002 AP 04
0026, 2002-Ohio-7215, ¶17; Edwards v. Madison Twp. (Nov. 25, 1997), Franklin App.
No. 97AP-819. In Groves, the Tenth Appellate District held that “no civil cause of action
for extortion exists.” Id. at ¶26.
{¶ 29} In light of the above, the trial court properly granted Schiff summary
judgment on Dickson’s extortion counterclaim.
4. Conversion
{¶ 30} The elements of conversion are “‘(1) plaintiff’s ownership or right to
possession of the property at the time of conversion; (2) defendant’s conversion by a
wrongful act or disposition of plaintiff’s property rights; and (3) damages.’” Dream
Makers v. Marshek, Cuyahoga App. No. 81249, 2002-Ohio-7069, quoting Haul Transport
of Va., Inc. v. Morgan (June 2, 1995), Montgomery App. No. CA 14859. Conversion is
“any distinct act of dominion wrongfully exerted over one’s property in denial of his rights
or inconsistent with it.” City Loan & Sav. Co. v. Dickison (Dec. 2, 1916), 26 Ohio Dec.
593.
{¶ 31} In its counterclaim, Dickson alleged that it “own[s] all of the money that
Plaintiff Marvin H. Schiff is seeking to take improperly.” (Emphasis added.) Counterclaim at ¶47. Thus, Schiff did not have “dominion” over the disputed funds.
Dickson does not contend that Schiff is wrongfully exerting control over the amounts it
paid him; rather, its contention is that those funds are the total amount that Schiff is
entitled to. On this record, therefore, the trial court properly granted Schiff summary
judgment on Dickson’s conversion counterclaim.
5. R.C. 2323.51 Frivolous Conduct Claim
{¶ 32} In granting summary judgment to Schiff on the fraud, abuse of process, and
extortion claims, the trial court noted that Dickson’s contentions in those claims would be
more appropriate for a claim under R.C. 2323.51. We agree.
{¶ 33} R.C. 2323.51 governs the award of attorney’s fees as a sanction for frivolous
conduct. “Conduct” is defined, in part, as “[t]he filing of a civil action, [or] the assertion
of a claim * * * in connection with a civil action.” R.C. 2323.51(A)(1)(a). “Frivolous
conduct” includes that which “obviously serves merely to harass or maliciously injure
another party to the civil action or appeal or is for another improper purpose, including,
but not limited to, causing unnecessary delay or a needless increase in the cost of
litigation”; “is not warranted under existing law”; cannot be supported by a good faith
argument for an extension, modification, or reversal of existing law, or cannot be
supported by a good faith argument for the establishment of new law”; “consists of
allegations or other factual contentions that have no evidentiary support or, if specifically
so identified, are not likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery”; or “consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on
a lack of information or belief.” R.C. 2323.51(A)(2).
{¶ 34} The sum and substance of Dickson’s fraud, abuse of process, and extortion
counterclaims was that Schiff filed his action “in an attempt to compel the Defendants to
pay Plaintiff additional money to which he is not entitled [causing the defendants] the time
and expense of defending the within baseless complaint.” Counterclaim at ¶54. Such
an allegation is the very type that would lend itself to a claim under R.C. 2323.51.
6. Accord and Satisfaction Affirmative Defense
{¶ 35} Dickson also claims that the trial court erred in granting summary judgment
in favor of Schiff on his accord and satisfaction affirmative defense. We find
consideration of that portion of the trial court’s judgment premature, even with the trial
court’s “no just cause for delay” language.
{¶ 36} The appellate jurisdiction of this court is limited to review of final orders or
judgments of trial courts from which a timely notice of appeal is filed. Section 3, Article
IV, Ohio Constitution. If the order or judgment appealed from is not a final order, this
court lacks jurisdiction to review it. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44
Ohio St.3d 17, 20, 540 N.E.2d 266.
{¶ 37} A final order is a order: “that affects a substantial right in an action that in
effect determines the action and prevents a judgment”; “that affects a substantial right
made in a special proceeding or upon a summary application in an action after judgment”;
“that vacates or sets aside a judgment or grants a new trial”; “that grants or denies a provisional remedy * * *”; “that determines that an action may or may not be maintained
as a class action”; “determining the constitutionality of any changes to the Revised Code
made by Am. Sub. S.B. 281 of the 124th general assembly * * * or any changes made by
Sub. S.B. 80 of the 125th general assembly * * *”; “in an appropriation proceeding that
may be appealed pursuant to division (B)(3) of section 163.09 of the Revised Code.”
R.C. 2505.02(B).
{¶ 38} The only category that the portion of the trial court’s judgment granting
summary judgment in favor of Schiff on Dickson’s accord and satisfaction defense could
be placed would be as “[a]n order that affects a substantial right in an action that in effect
determines the action and prevents a judgment.” But, the order does not prevent a
judgment and, therefore, is not final.
{¶ 39} In light of the above, the trial court did not err in granting Schiff’s partial
motion for summary judgment and the second assignment of error is overruled.
C. Judgment Granting Schiff’s Motion to Compel
{¶ 40} The trial court granted Schiff’s motion to compel and ordered Dickson to
provide Schiff with the client files for the disputed popcorn cases. Dickson contends that
the court’s order is “irrelevant because the case can be resolved by the accord and
satisfaction doctrine.” It further contends that the trial court’s order violated: (1) the
redemption agreement; (2) the work-product doctrine; and (3) attorney-client privilege.
{¶ 41} Generally, the trial court is vested with broad discretion when it comes to
matters of discovery, and the “standard of review for a trial court’s discretion in a discovery matter is whether the court abused its discretion.” Mauzy v. Kelly Servs., Inc.
(1996), 75 Ohio St.3d 578, 592, 664 N.E.2d 1272. However, a discovery dispute that
involves the assertion of an alleged privilege is reviewed de novo. Ward v. Summa
Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶13.
1. Accord and Satisfaction
{¶ 42} Dickson first states that “[i]f this Court finds that the doctrine of accord and
satisfaction applies to this case, then none of the requests for production * * * are relevant
* * *.” For the reasons already discussed, we do not consider Dickson’s accord and
satisfaction affirmative defense. Accordingly, we will not address Dickson’s contention
that the discovery order was “irrelevant” because the case is resolved under the doctrine of
accord and satisfaction.
2. The Redemption Agreement
{¶ 43} Dickson next contends that the redemption agreement denies Schiff access to
client files. Dickson cites to language in the agreement that it had the right to retain the
case files. Dickson also contends that Schiff could have negotiated for access to the files,
but did not, and as such, “[t]his Court must not unilaterally rewrite the contract between
the parties.” We are not persuaded by either argument. Retaining files and having
access to them are distinct concepts. Moreover, there is no provision in the agreement
stating that Schiff may not obtain access to file information for the purpose of resolving
fee disputes.
{¶ 44} Under Civ.R. 26(B)(1), a party may request of another party information that either is “relevant to the subject matter involved in the pending action” or “appears
reasonably calculated to lead to the discovery of admissible evidence.” The files were
“relevant to the subject matter involved in the pending action” and, therefore, the trial
court did not abuse its discretion in ordering their production.
3. Work-Product Privilege
{¶ 45} We are also not persuaded by Dickson’s argument that the trial court’s order
violated Dickson’s work-product privilege. “Work product consists of ‘documents and
tangible things prepared in anticipation of litigation or for trial by or for another party or
by or for that other party’s representative’ and may be discovered only upon a showing of
good cause. This rule is often referred to as the ‘work-product doctrine.’ The purpose
of the work-product doctrine is ‘to prevent an attorney from taking undue advantage of his
adversary’s industry or efforts.’” (Emphasis added.) Boone v. Vanliner Ins. Co., 91 Ohio
St.3d 209, 2001-Ohio-27, 744 N.E.2d 154, fn. 2, quoting Civ.R. 26; see, also, Sutton v.
Stevens Painton Corp., 193 Ohio App.3d 68, 2011-Ohio-841, 951 N.E.2d 91, ¶25.
{¶ 46} The underlying actions at issue in this case were concluded when Schiff
made his discovery request. Schiff’s request for documents did not include Dickson’s
mental impressions or work for this case. Rather, it sought evidence, which was in the
sole possession of Dickson, of the work done in the popcorn cases, the fees for which
Schiff was partially entitled to. Thus, it is clear that Schiff was not seeking the
information to take advantage of Dickson’s industry or efforts. Under these facts, the
work-product doctrine was not implicated in this case. 4. Attorney-Client Privilege
{¶ 47} In regard to Dickson’s claim of the attorney-client privilege, Dickson
contended that because of the privilege it had no obligation to produce any portion of the
client files. The attorney-client privilege exempts from discovery certain
communications between attorneys and their clients in the course of seeking or rendering
legal advice. Boone at id. The privilege is founded on the premise that confidences
shared in the attorney-client relationship are to remain confidential. Moskovitz v. Mt. Sinai
Med. Ctr. (1994), 69 Ohio St.3d 638, 660, 635 N.E.2d 331.
{¶ 48} The purpose of the privilege is “to encourage full and frank communication
between attorneys and their clients and thereby promote broader public interests in the
observance of law and administration of justice.” Upjohn v. United States (1981), 449
U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584. But the privilege is not absolute, and there
is no presumption of confidentiality of all communications made between an attorney and
client. Moskovitz at 660–661. The determination whether a communication should be
afforded the cloak of the privilege depends on the circumstances of each case, and the
privilege must yield when justice so requires. Lemley v. Kaiser (1983), 6 Ohio St.3d 258,
264, 452 N.E.2d 1304.
{¶ 49} The client files at issue here encompassed several general categories of
documents. First, there were medical records of the plaintiffs, but Schiff withdrew his
request for those documents. Next were documents created prior to February 4, 2005.
As the trial court found, and we agree, privilege does not apply to those documents because Schiff was an attorney for the clients until February 4, 2005.
{¶ 50} The third category of documents was ConAgra’s personnel files for each
plaintiff. We again agree with the trial court that the files were “not subject to the
attorney-client privilege since they are not confidential communications to counsel; in fact,
they appear to have been produced to opposing counsel in the personal injury case.”
Trial court’s order, p. 5.
{¶ 51} Another category of documents were the plaintiffs’ confidentiality
agreements. But the agreements allow disclosure if ordered by “a court of competent
jurisdiction.” Moreover, the releases provided that the plaintiffs “and their attorneys”
shall not disclose “the total amount of the settlement.” Dickson previously disclosed the
settlement amounts to Schiff; he cannot now try to claim that the agreements are not
discoverable because of that provision.
{¶ 52} The final category of documents were “miscellaneous” documents, including
authorizations to release medical records, invoices for copying records, and letters from
Dickson’s office requesting providers for records. The documents were not
attorney-client communications.
{¶ 53} In light of the above, the trial court did not err in granting Schiff’s motion to
compel and the third assignment of error is overruled.
III.
{¶ 54} In conclusion, the first assignment of error, relative to the denial of
Dickson’s summary judgment motion, is overruled as moot. {¶ 55} Upon review of the second assignment of error, relative to the trial court’s
judgment granting summary judgment in favor of Schiff on Dickson’s fraud, abuse of
process, conversion, and extortion counterclaims, the trial court did not err. As already
discussed, the allegations in those claims would lend themselves to a frivolous conduct
claim under R.C. 2323.51. The portion of the trial court’s judgment relative to the accord
and satisfaction affirmative defense is premature and we have not addressed it.
{¶ 56} Finally, the trial court neither abused its discretion nor erred in granting
Schiff’s motion to compel.
{¶ 57} Judgments affirmed consistent with this opinion; remanded for further
proceedings.
It is ordered that appellee recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas 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.
LARRY A. JONES, JUDGE
MARY J. BOYLE, P.J., and KENNETH A. ROCCO, J., CONCUR