Alacoque Colette KELLY, Plaintiff and Appellant, v. METHODIST HOSPITAL OF SOUTHERN CALIFORNIA, et al., Defendants and Respondents.
Under the rationale stated in Jennings v. Marralle (1994) 8 Cal.4th 121, 32 Cal.Rptr.2d 275, 876 P.2d 1074, we conclude that because no state statute or constitutional provision other than the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) 1 bars age discrimination, there presently exists no “fundamental” public policy in this state which precludes age discrimination in employment by a nonprofit religious corporation which is exempt from the FEHA.
We shall therefore affirm the summary judgment for the defendants.
Plaintiff Kelly worked as a nurse at defendant Methodist Hospital of Southern California, from January 1985 to January 1, 1991, when she was terminated for failing to return to work after the expiration of her medical leave. After having granted five extensions of her medical leave, the hospital refused to grant a sixth extension and discharged Kelly for exceeding the allotted four months of medical leave.
Plaintiff, who was 50 years old when discharged, contends she was wrongfully terminated due to age discrimination. She asserts that most of the hospital's nurses are under 40 years of age, and that older nurses either have been terminated or forced into early retirement by onerous, intolerable, and burdensome working conditions.
Plaintiff contends her own working environment began deteriorating in February or March 1989, more than a year before her medical leave. She allegedly was called to work at night on short notice, given 16–hour shifts, and reprimanded for things beyond her control (such as being tardy and wearing the wrong color uniform when called to work on short notice, and failing to use a new charting method on which she was not trained).
The record shows, however, that plaintiff was repeatedly criticized for poor charting, tardiness, excessive overtime, and wearing the wrong uniform prior to 1989, and as early as January 1986.
In 1990, the following events occurred: In May, plaintiff sustained a nonindustrial injury in a car accident and received medical care from a Dr. Vanis. On June 7, she received a written reprimand for excessive overtime and inappropriate charting. On June 14, she turned 50 years old. On June 20, a patient fell on her. On June 21, she received a written reprimand for failing to complete flow sheets, failing to check an apparatus, improperly documenting a glucose test, and not wearing a proper uniform. The June 21 reprimand also warned that any future reprimand would result in suspension or termination.
Shortly after being told that any future reprimand would be grounds for termination, plaintiff went on a medical leave of absence due to the flu and a nonindustrial back injury sustained in the May car accident. Her last day of work was June 24. On June 29, she submitted a leave of absence request form for June 24 to July 16.
The printed portion of the leave of absence request form stated in part that all leaves of absence are without pay, and that failure to return to work within three days following expiration of the leave is grounds for termination. In filling out that form on June 29, plaintiff did not ask for a workers' compensation disability leave based on an industrial injury. (It is undisputed that for industrial injuries, the hospital's policy is to extend the workers' compensation disability leave for the duration of the disability.) Instead, she asked for a medical leave, which she knew covered only non-industrial injuries. Medical leaves for non-industrial injuries are subject to a four-month limitation, absent a showing of extenuating circumstances. (Plaintiff never asked for an extension based on extenuating circumstances.)
Plaintiff received state disability payments from June 1990 to June 1991, which she knew were payable for non-industrial illnesses or injuries only. She never requested to discontinue her state disability payments.
On July 12, Dr. Vanis filled out a form, which the hospital received, indicating that plaintiff's injury was non-industrial and that plaintiff thought she had the flu.
On July 12, plaintiff asked for and received an extension of her medical leave to July 31.
On July 23, Dr. Vanis told plaintiff that the results of her latest medical test were consistent with the type of industrial injury she would have sustained on June 21 when a patient fell on her, rather than the non-industrial injury she had sustained in the May car accident.
On July 23 and 31, plaintiff orally notified the hospital that she had an industrial injury, and asked to be put on workers' compensation leave. Dr. Vanis also notified the hospital by telephone that plaintiff had an industrial injury. He allegedly was told, however, that the hospital would not change the status of plaintiff's medical leave to workers' compensation leave. It is undisputed that the hospital's mere knowledge of plaintiff's claim that she had an industrial injury was insufficient to effectuate a change in her leave status.
At plaintiff's request, the hospital extended her medical leave to August 22, and again to October 1. On October 15, plaintiff submitted another extension request which asked to extend to November 19 what she now called for the first time her “Workers' Comp[ensation]” leave. The hospital extended her medical leave, but did not switch her to workers' compensation leave.
On November 19, plaintiff requested to extend to December 19 what she reverted to calling her “Medical Leave.” (After she signed this request, someone else circled the words “Workers' Comp.” on the form.) The hospital did not switch plaintiff to workers' compensation leave status, and refused to extend her medical leave beyond December 19.
When plaintiff failed to return to work following the expiration of her medical leave, the hospital decided to terminate her effective January 1, 1991, and notified her by letter dated December 20. Plaintiff contends she did not receive the notice of termination until January 14, 1991. Thereafter, Dr. Vanis notified the hospital, for the first time in writing, that plaintiff had an industrial injury. Plaintiff's termination, however, had already occurred.
Although plaintiff was eligible for reinstatement, she never applied for reinstatement. She contends she fell into a severe depression as a result of her termination and, due to the depression, remained disabled as of April 8, 1994. (It is unclear whether she remains presently disabled.)
Plaintiff filed a lawsuit against the hospital and her nursing supervisor, Ellen Blackstock. The operative pleading, the third amended complaint, alleged causes of action for breach of implied in fact employment contract, breach of the covenant of good faith and fair dealing, wrongful termination in violation of public policy, and fraud and deceit.
The trial court granted the defendants' motion for summary judgment and entered summary judgment. This appeal followed.
FEHA'S NONPROFIT RELIGIOUS CORPORATION EXEMPTION
Plaintiff contends she has a common law cause of action for wrongful discharge in violation of the state's fundamental public policy against age discrimination as expressed in the FEHA.
In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330, the Supreme Court recognized an exception to the general rule that unless otherwise agreed by the parties, an employment is terminable at will. That exception applies when the termination is “for an unlawful reason or a purpose that contravenes fundamental public policy.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094, 4 Cal.Rptr.2d 874, 824 P.2d 680.)
Other than the FEHA, “no law of this state ․ proscribes discrimination on the basis of age.” (Jennings v. Marralle, supra, 8 Cal.4th at p. 132, 32 Cal.Rptr.2d 275, 876 P.2d 1074.) In order to allege a state common law claim for wrongful discharge in violation of public policy, plaintiff must, under Jennings, establish that the hospital is subject to the FEHA's ban against age discrimination. Jennings held that because the small employer in that case was exempt from the FEHA's ban on age discrimination (§ 12926, subd. (d) [exemption for employers of less than five persons] ), and because no other state laws proscribe age discrimination, the exempt small employer could not be held liable for wrongful discharge in violation of a public policy against age discrimination. (Jennings v. Marralle, supra, 8 Cal.4th at pp. 129–136, 32 Cal.Rptr.2d 275, 876 P.2d 1074.) 2
In this case, the hospital successfully moved for summary judgment on the ground that as a nonprofit religious corporation, it is not an employer covered by the FEHA's ban against age discrimination. Employers, as defined by the FEHA, do not include nonprofit religious associations or corporations (§ 12926, subd. (d)(1)). Title 2, California Code of Regulations, section 7286.5, subdivision (5) states that if an entity obtains tax-exempt status as a nonprofit religious association or corporation, there is a presumption that the entity is not an employer under the FEHA.
The hospital, a nonprofit, federal and state income tax-exempt corporation, was created, organized, and is governed (at least partially) by members of the United Methodist Church. Its articles of incorporation state that all of its assets are irrevocably dedicated to charitable and religious purposes. Upon dissolution, the hospital's assets will revert to the United Methodist Women.
The hospital's bylaws require that a majority of its board members belong to the United Methodist Church, and that at least one other board member must be a Methodist minister. By virtue of her office, the president of the United Methodist Women, California–Pacific Conference, automatically sits on the hospital's board. The Women's Society of Christian Service of the Southern California–Arizona Conference of the Methodist Church annually elects the hospital's directors. The board has a standing committee which oversees a chaplaincy program and doctor-clergy activities.
The hospital abides by the requirements of the Health and Welfare Ministry of the United Methodist Church and is accredited by the Certification Council of the United Methodist Church. A Methodist chaplain ministers to the hospital's patients, and the hospital broadcasts daily sermons to its patients' rooms.3
Plaintiff contends the above factors are insufficient to establish, as a matter of law, that the hospital is a nonprofit religious corporation. She points to several other factors which we mention below, but we conclude none is sufficient to create a triable issue of fact.4
She states that according to the hospital's articles of incorporation, the hospital was established for the purpose of building and maintaining a hospital, which is not a primarily religious purpose. She contends the hospital's main purpose is primarily charitable or humanitarian, making it akin to the various nonprofit social, fraternal, charitable, and educational associations which are subject to the FEHA. She also points out that the hospital's federal income tax exemption is based on its charitable, rather than religious, purpose, and, thus, the hospital should not be presumed exempt from the FEHA under the regulations.
We agree that the above factors mentioned by plaintiff were found to be relevant in a 1985 decision by the commission in a sex discrimination case against a hospital (“Hoag Memorial”) that had refused to allow a male nurse aide to work in the postpartum unit. (Dept. of Fair Employment and Housing Com. v. Hoag Memorial Hospital Presbyterian (1985) FEHC Dec. No. 85–10.) Hoag Memorial, which was affiliated with a church, claimed that it was a nonprofit religious organization and, thus, exempt from the FEHA. The commission disagreed, finding that Hoag Memorial's primary purpose was secular rather than religious, and that the nurse aide position had nothing to do with religion. Announcing a new test, the commission stated that the nonprofit religious organization exemption would only apply when such an organization claimed the exemption as to a specific job that was related to the organization's religion.
We are not persuaded, however, that the commission has correctly enunciated the test for applying the exemption. Assuming that the term “religious organization” is susceptible of more than one interpretation, at least where hospitals are involved, “the court will look to the legislative history of the FEHA [citation] and to administrative construction reasonably contemporaneous with the law's adoption in order to ascertain the intent of the Legislature in using the phrase. [Citations.]” (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 234, 5 Cal.Rptr.2d 782, 825 P.2d 767.)
As defendants point out, the Legislature considered, but rejected, a 1977 amendment to former Labor Code section 1413, subdivision (d), (presently codified at § 12926, subd. (d)), that would have limited the nonprofit religious organization exemption to jobs related to the organization's religious purposes. (Assem. Bill No. 1047 (1977–1978 Reg. Sess.) Mar. 22, 1977, § 1.) The legislative history materials supplied by defendants, whose request for judicial notice we granted, show that the proposed limitation was dropped from subsequent and final versions of the bill. (Sen. Amend. to Assem. Bill No. 1047 (1977–1978 Reg. Sess.) Aug. 24, 1977.) Instead, the Legislature retained the exemption which states that nonprofit religious corporations or associations are not employers covered by the FEHA. Significantly, in the same bill, the Legislature eliminated the exemption that had previously been afforded to social, fraternal, charitable and educational associations. Accordingly, we infer that the Legislature intended to retain the blanket exemption afforded to nonprofit religious organizations, without regard to the religious or secular nature of the particular job at issue in each case.
Where the Legislature considers and rejects certain statutory language, we may not adopt an interpretation that reads the rejected language back into the statute. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 88–89, 260 Cal.Rptr. 520, 776 P.2d 222; Central Delta Water Agency v. State Water Resources Control Board (1993) 17 Cal.App.4th 621, 632, 21 Cal.Rptr.2d 453.) The commission's 1985 adoption of the rejected language (Dept. of Fair Employment and Housing Com. v. Hoag Memorial Hospital Presbyterian, supra, FEHC Dec. No. 85–10), was not reasonably contemporaneous with the Legislature's 1977 amendment to former Labor Code section 1413, subdivision (d). Moreover, the commission's 1985 decision contradicts, rather than explains the intent of the Legislature in preserving the exemption for nonprofit religious organizations.
We also disagree with plaintiff's contention that Corporations Code sections 9111 and 9130 are relevant to this case. Those sections, which were added in 1978 as part of the Nonprofit Religious Corporation Law (“the Law”) and became operative on January 1, 1980, came well after the FEHA exemption at issue in this case was enacted in its original form,5 and after the hospital in this case was incorporated.
The FEHA's exemption, when enacted in 1959 as former Labor Code section 1413, subdivision (d), stated in relevant part that “ ‘Employer’ does not include a social club, fraternal, charitable, educational, or religious association or corporation not organized for private profit.” (Stats.1959, ch. 121, p. 2000, § 1.) It did not require the religious organization to have been organized primarily or exclusively for religious purposes, in contrast with Corporations Code sections 9111 and 9130; nor did it require the articles of incorporation to contain a statement to that effect, in contrast with Corporations Code section 9130, subdivision (b). Contrary to plaintiff's assertion, it bears no significance that the hospital's articles of incorporation failed to state that the hospital was being organized primarily or exclusively for religious purposes, given that the hospital was incorporated prior to the Law's enactment.
Moreover, it is far from clear that religiously affiliated hospitals serve a primarily secular purpose, as plaintiff contends. To many religious adherents, the healing of the sick is closely associated with faith in a divine being. Many hospitals, even those without an official religious affiliation, offer on-site chapels and chaplains for the spiritual comfort of their patients and their families. This hospital, in particular, broadcasts daily religious sermons to its patients' rooms. We are not prepared to hold, as a matter of law, that a religiously affiliated hospital may not define and carry out its mission of healing the sick as a primarily religious mission. In any event, it is unnecessary to decide that religious and philosophical question here.
We further note the cases cited by plaintiff that were decided under Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000(e) et seq.) do not help her position. Title VII's prohibition against employment discrimination on the basis of religion is inapplicable to religious organizations “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [an organization] of its activities” (42 U.S.C. § 2000e–1(a)). Title VII's exemption was broadened in 1972 “to cover non-religious activities by the same groups.” (Little v. Wuerl (3d Cir.1991) 929 F.2d 944, 949.) To the extent the various Title VII cases cited by the parties assumed that the employer was a religious organization and focused on the scope of Title VII's exemption with regard to specific types of employee conduct,6 they do not help us to determine whether the hospital in this case is a nonprofit religious organization under the FEHA.7
While two other Title VII cases cited by the parties focus on whether the employer is a religious organization (E.E.O.C. v. Townley Engineering & Mfg. Co. (D.Ariz.1987) 675 F.Supp. 566, affirmed in part & reversed in part, 859 F.2d 610 [Title VII's exemption inapplicable to a for-profit manufacturer of mining equipment whose only religious characteristic was the beliefs of its stockholders]; Feldstein v. Christian Science Monitor (D.Mass.1983) 555 F.Supp. 974 [newspaper, which was subsidized by the First Church of Christ, Scientist, was held to be a religious activity of a religious organization, and thus permitted under Title VII to reject employment applications of non-Christian Scientists] ), they offer no controlling authority for determining whether the hospital in this case is an exempt employer under the FEHA.8
In a contention raised for the first time in her reply brief, plaintiff alternatively contends that even if the hospital is an exempt employer under the FEHA, it is nevertheless subject to her common law cause of action for wrongful termination in violation of the federal government's public policy against age discrimination as expressed in the Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 et seq.) and Title VII. Plaintiff contends these federal statutes, neither of which is mentioned in her complaint, preempt the FEHA.
“We do not entertain issues raised for the first time in a reply brief, in the absence of a showing of good cause why such issues were not raised in the opening brief. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446[, 1453, 13 Cal.Rptr.2d 432] ․; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [265 Cal.Rptr. 788])” (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322, 44 Cal.Rptr.2d 902.) Plaintiff provides no such showing here.
Even if we were to reach this issue, we do not think it has merit. Neither the ADEA nor Title VII was mentioned in Jennings v. Marralle, supra, 8 Cal.4th 121, 32 Cal.Rptr.2d 275, 876 P.2d 1074. Nevertheless, the California Supreme Court conclusively ruled that due to the absence of other California statutes prohibiting age discrimination, the exempt employer in Jennings was immune from a state common law cause of action for wrongful termination in violation of a fundamental public policy under Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330, and its progeny. We believe the federal age discrimination statutes cannot supply the basis for a Tameny cause of action. (Cf. Leathem v. Research Found. of City Univ. (S.D.N.Y.1987) 658 F.Supp. 651, 654, which rejected the plaintiff's state common law claim, stating that the plaintiff's ADEA claim “is a federal claim based on a federal statute and cannot also serve as a basis to expand an employee's remedies under New York State common law of tort.”)
On this record, the hospital as the moving party presented sufficient evidence to show that plaintiff's Tameny cause of action lacks merit because the hospital is a nonprofit religious corporation that is not an employer covered by the FEHA. Plaintiff, to whom the burden of proof shifted (Code Civ. Proc., § 437c, subd. (o)(2)), has failed to establish a triable issue of fact on that point.
Because we conclude, as a matter of law, that the hospital is a nonprofit religious corporation that is not subject to the FEHA's ban on age discrimination, we hold that under the controlling authority of Jennings v. Marralle, supra, 8 Cal.4th at pages 129–136, 32 Cal.Rptr.2d 275, 876 P.2d 1074, plaintiff has no common law cause of action against either the hospital or her supervisor for wrongful discharge in violation of public policy based on the FEHA.
III & IV **
We affirm the summary judgment and award defendants costs on appeal.
1. All future statutory references are to the Government Code unless otherwise indicated.Section 12920 provides: “It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or age.“It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for such reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general.“Further, the practice of discrimination because of race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability in housing accommodations is declared to be against public policy.“It is the purpose of this part to provide effective remedies which will eliminate such discriminatory practices.“This part shall be deemed an exercise of the police power of the state for the protection of the welfare, health, and peace of the people of this state.”
2. The Jennings court stated that because, other than the FEHA, “no other statute or constitutional provision bars age discrimination, ․ there presently exists no ‘fundamental policy’ which precludes age discrimination by a small employer.” (Jennings v. Marralle, supra, 8 Cal.4th at p. 125, 32 Cal.Rptr.2d 275, 876 P.2d 1074.) As for all other employers, however, the Jennings court expressly declined to decide whether age discrimination in employment violates a “fundamental” public policy actionable in tort under Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330, and its progeny (Rojo v. Kliger (1990) 52 Cal.3d 65, 276 Cal.Rptr. 130, 801 P.2d 373; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373; Gantt v. Sentry Insurance, supra, 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 824 P.2d 680). (Jennings v. Marralle, supra, 8 Cal.4th at p. 130, 32 Cal.Rptr.2d 275, 876 P.2d 1074.)Although Division Five of this District held, in a 1983 decision that preceded Rojo v. Kliger, supra, 52 Cal.3d 65, 276 Cal.Rptr. 130, 801 P.2d 373, “that there is no ‘common law’ cause of action for alleged age discrimination [citation],” (Strauss v. A.L. Randall Co. (1983) 144 Cal.App.3d 514, 520, 194 Cal.Rptr. 520), the California Supreme Court has never expressly stated whether it agrees with Strauss' holding. The Supreme Court's discussion of Strauss in Rojo v. Kliger, supra, 52 Cal.3d at pp. 81–82, 276 Cal.Rptr. 130, 801 P.2d 373, was critical of Strauss' legislative intent analysis, but did not go so far as to overrule Strauss, choosing instead to distinguish Strauss on its facts because Rojo involved sex, not age, discrimination. (Rojo v. Kliger, supra, 52 Cal.3d at p. 82, fn. 10, 276 Cal.Rptr. 130, 801 P.2d 373.) When the California Supreme Court decided Jennings in 1994, it mentioned Strauss and Rojo, but again expressed no opinion as to whether the holding in Strauss is correct. (Jennings v. Marralle, supra, 8 Cal.4th at p. 133, 32 Cal.Rptr.2d 275, 876 P.2d 1074.)Recently, Division Three of this District called upon the California Supreme Court to decide whether there exists a fundamental public policy against age discrimination in employment which would serve as the basis of a Tameny action. (Stevenson v. Superior Court (1996) 42 Cal.App.4th 1243, 50 Cal.Rptr.2d 206.) Division Three held in Stevenson that despite the Jennings court's disclaimer that it was not deciding whether such a fundamental public policy exists, the Jennings court's sweeping language had flatly foreclosed any possibility of a Tameny cause of action being stated for wrongful termination based on age discrimination. Citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, Division Three concluded that it was compelled by Jennings to conclude that no such fundamental public policy exists in this state.
3. The hospital contends that in 1978, the Fair Employment Practice Commission (“commission”) (the predecessor to the Fair Employment and Housing Commission), determined that the hospital was not subject to the commission's jurisdiction due to its nonprofit religious corporation status. Plaintiff objects to this evidence on the ground that there is no competent evidence to show why the commission denied jurisdiction in 1978. We do not rely on this evidence.
4. Summary judgment is appropriate only where no material issue of fact exists or where the record establishes as a matter of law that a cause of action asserted against a party cannot prevail. After examining the facts before the trial judge on a summary judgment motion, an appellate court independently determines their effect as a matter of law. (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1664, 26 Cal.Rptr.2d 778.)
5. As stated in Rojo v. Kliger, supra, 52 Cal.3d at p. 72, 276 Cal.Rptr. 130, 801 P.2d 373, “The California Fair Employment Practices Act (FEPA) was enacted in 1959 (former Lab. Code, § 1410 et seq.) and recodified in 1980 in conjunction with the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq.) to form the FEHA. (Stats.1980, ch. 992, § 4, p. 3140 et seq.)”
6. See, e.g., Little v. Wuerl, supra, (3d Cir.1991) 929 F.2d 944 [decision assumed that employer, a private Catholic school, was a religious organization, and focused on whether the school's discrimination against a non-Catholic employee who failed to conform to Catholic mores was exempt from Title VII]; E.E.O.C. v. Presbyterian Ministries, Inc. (W.D.Wash.1992) 788 F.Supp. 1154 [decision stated that it could not seriously be disputed that a retirement home operated by a Christian denomination was created and operated for religious purposes, and focused on whether the home's discrimination against an employee who wore a Muslim headdress was exempt from Title VII].
7. Similarly, Speer v. Presbyterian Children's Home (Tex.1993) 847 S.W.2d 227, which was cited by the parties, is distinguishable because there, the judgment was vacated and the case dismissed as moot in an action filed under the Texas Commission on Human Rights Act.
8. Similarly, Arriaga v. Loma Linda University (1992) 10 Cal.App.4th 1556, 13 Cal.Rptr.2d 619, which was cited by the parties, is distinguishable because the University's status as a nonprofit religious organization was not at issue. The question in that case was whether the University's receipt of state funds had caused it to lose its status as an exempt employer under the FEHA.
FOOTNOTE. See footnote *, ante.
ORTEGA, Acting Presiding Justice.
MIRIAM A. VOGEL and MASTERSON, JJ., concur.