COMEGYS v. VALLEY FORGE MILITARY ACADEMY & COLLEGE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHANTELLE COMEGYS : CIVIL ACTION

Individually and as Parent and Natural :

Guardian of K.F., a Minor : NO. 21-3848

Plaintiff :

:

v. :

:

VALLEY FORGE MILITARY :

ACADEMY & COLLEGE :

Defendant :

NITZA I. QUIÑONES ALEJANDRO, J. AUGUST 10, 2022

MEMORANDUM OPINION

INTRODUCTION

This matter arises out of disciplinary action taken by Defendant Valley Forge Military

Academy and College (“Defendant” or “Valley Forge”)1 against Cadet K.F.,2 son of Plaintiff

Shantelle Comegys (“Comegys”), based on K.F.’s alleged involvement in an assault of another

cadet. In the complaint, Comegys, acting individually and as legal guardian of K.F., asserts civil

1 Defendant argues that Valley Forge Military Academy (“VFMA”) is a private high school for boys

and that Valley Forge Military College (“VFMC”) is a private junior college for men and women, and that

these institutions are two separate and distinct entities. Defendant further contends that K.F. is enrolled

only at VFMA. However, Comegys argues that Valley Forge holds itself out as one institution. At this

stage of the proceedings, this Court will treat these institutions as one entity based on the fact that the name

that appears on all communications with Comegys, attached as exhibits to the complaint, is “Valley Forge

Military Academy & College.” [See ECF 1]. Ultimately, as further discussed, whether Valley Forge is one

entity or two does not affect this Court’s present analysis.

2 In its motion to dismiss, Valley Forge requests that Comegys include the full name of K.F. in the

caption and body of the complaint because Federal Rule of Civil Procedure (“Rule”) 10(a) requires

plaintiffs to identify themselves and because Comegys has not provided a reason to maintain K.F.’s

anonymity. [ECF 5]. However, Valley Forge fails to recognize that Rule 5.2(a)(3) protects the privacy

interests of minors by requiring parties to identify minors by their initials in court filings. Fed. R. Civ. P.

5.2(a)(3); see also E.D. Pa. Civ. R. 5.1.3, 12(b) (“[N]ames of minor children should be modified or partially

redacted in all documents filed either in traditional paper form or electronically.”). As such, Valley Forge’s

request is denied, and this Court will refer to Comegys’ minor son by his initials.

rights claims (1) for violations of the Equal Protection and Due Process Clauses of the Fourteenth

Amendment to the U.S. Constitution, pursuant to 42 U.S.C. § 1983, and (2) for breach of contract

under state law.

Presently, before this Court is Valley Forge’s motion to dismiss on the grounds that: (1)

Valley Forge is not a state actor subject to liability under § 1983 and (2) this Court should exercise

its discretion to dismiss the state-law contract claims. Plaintiff opposes the motion. For the reasons

set forth herein, the motion to dismiss is granted, but this Court declines to exercise supplemental

jurisdiction over the state-law claims.

BACKGROUND

When considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6),

the court “must accept all of the complaint’s well-pleaded facts as true, but may disregard any

legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). Here, the

salient facts alleged in Comegys’ complaint are summarized as follows:

Comegys is the legal guardian of K.F., an African American cadet who was

enrolled at Valley Forge during the 2019–2020 academic school year. Valley Forge

is “a private college preparatory boarding school and military junior college” that

receives “federal financial assistance.” (Compl. ¶ 5).

Valley Forge’s 2019–20 Student Handbook provides:

Valley Forge Military College strictly prohibits any form of

discrimination and bias-related behaviors. VFMC is dedicated to

educating students of diverse racial and ethnic origins and to

fostering broad appreciation for cultural and ancestral diversity.

Discrimination against any person on the basis of race, disability,

age, gender, color, ethnicity, ancestry, creed, religion, sexual

orientation, or national origin is against the law and violates the

VFMC Community Standards.

(Id. ¶ 9). Notwithstanding this stated policy, Comegys contends that the non-Black

faculty at Valley Forge frequently referred to Black cadets, including K.F., as a

“gang,” (id. ¶ 10a); spoke openly about trying to get rid of the “gang” of Black

cadets, (id. ¶ 10b); and routinely referred to the “gang” as “troublemakers,” (id.

¶ 10c).

Comegys avers that altercations among cadets occurred frequently at Valley

Forge. When these altercations involved non-Black cadets, school leadership and

administrators did not involve the police, but when the altercations involved Black

cadets, “leadership and administrators routinely reported the incident to and sought

the involvement of local law enforcement.” (Id. ¶ 10d).

On October 30, 2020, a group of cadets assaulted a non-Black cadet who

had made a racist and derogatory post on social media. The non-Black cadet

previously had engaged in racist and discriminatory behavior, and although Valley

Forge was aware of this cadet’s previous actions, the school never took any

disciplinary action against him.

In response to the assault of the non-Black cadet, Valley Forge immediately

solicited the involvement of local police, who began to conduct interviews of

cadets, including K.F., without notifying their parents. Despite the fact that an

investigation of the incident was still ongoing, by letter dated November 2, 2020,

Valley Forge suspended K.F. until November 8, 2020, and advised Comegys that

K.F. would face a Commandant’s Disciplinary Board after he returned. However,

by letter dated November 6, 2020, Valley Forge dismissed K.F. for assault, conduct

unbecoming a Cadet, and conspiracy. Comegys’ appeal of the dismissal was

denied.

Comegys avers that Valley Forge has a history of discrimination against

Black cadets, including more severe disciplinary action against Black cadets than

non-Black cadets for comparable offenses. She cites, as examples, a non-Black

cadet who threatened to blow up the school and was merely suspended and still

allowed to remain on campus, and a non-Black cadet who spit in the face of a

faculty member during a class and was allowed to remain on campus.

LEGAL STANDARD

When considering a Rule 12(b)(6) motion to dismiss, courts must determine whether the

complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard

requires more than a “sheer possibility that a defendant has acted unlawfully.” Id. “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id. To survive a motion

to dismiss under Rule 12(b)(6), “a plaintiff must allege facts sufficient to ‘nudge [her] claims

across the line from conceivable to plausible.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234

(3d Cir. 2008) (quoting Twombly, 550 U.S. at 570).

At the motion to dismiss stage, courts “typically may not look outside the four corners of

the amended complaint.” W. Run Student Hous. Assocs., LLC v. Huntington Nat’l Bank, 712 F.3d

165, 173 (3d Cir. 2013). However, courts may consider “documents that are attached to or

submitted with the complaint, and any ‘matters incorporated by reference or integral to the claim,

items subject to judicial notice, matters of public record, orders, [and] items appearing in the record

of the case.’” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B

Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1357 (3d ed. 2004)).

DISCUSSION

As noted, Comegys asserts federal claims under § 1983 for violations of Comegys’ and

K.F.’s Fourteenth Amendment rights and state-law breach of contract claims. Valley Forge moves

to dismiss these claims. This Court will address each type of claim separately.

Comegys’ § 1983 Claims

At Counts I and II of her complaint, Comegys asserts claims based upon an alleged

deprivation of her and K.F.’s rights under the Fourteenth Amendment. To assert a viable claim

under § 1983, Comegys “must allege the violation of a right secured by the Constitution and laws

of the United States, and must show that the alleged deprivation was committed by a person acting

under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). “The color

of state law element is the threshold issue; there is no liability under § 1983 for those not acting

under color of law.” Groman v. Twp. of Malapan, 47 F.3d 628, 638 (3d Cir. 1995). Here, Valley

Forge moves to dismiss Comegys’ § 1983 claims on the basis that she has not alleged facts

sufficient to plausibly show that Valley Forge was a state actor.

This Court recently acknowledged that “whether a defendant is acting under color of state

law⎯i.e., whether the defendant is a state actor⎯depends on whether there is ‘such a close nexus

between the State and the challenged action that seemingly private behavior may be fairly treated

as that of the State itself.’” Chetty v. Sardella, 2022 WL 2048661, at *2 (E.D. Pa. June 7, 2022)

(quoting Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005)). In this undertaking, the United States

Court of Appeals for the Third Circuit (the “Third Circuit”) has “outlined three broad tests

generated by Supreme Court jurisprudence to determine whether state action exists: (1) whether

the private entity has exercised powers that are traditionally the exclusive prerogative of the state,”

(2) “whether the private party has acted with the help of or in concert with state officials,” and (3)

“whether the State has so far insinuated itself into a position of interdependence with the acting

party that it must be recognized as a joint participant in the challenged activity.” Kach v. Hose,

589 F.3d 626, 646 (3d Cir. 2009) (internal quotations and alteration omitted). Here, Valley Forge

does not qualify as a state actor under any of the tests.

The question under the first test “is whether the function performed has been traditionally

the exclusive prerogative of the State.” Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (internal

quotations omitted). This test imposes a “heavy burden” that is rarely met. Kach, 589 F.3d at 648;

see also Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 165 (3d Cir. 2001) (holding that the first

“test imposes a rigorous standard that is rarely satisfied”). Functions held to be the exclusive

prerogative of the state include administration of elections of public officials, Terry v. Adams, 345

U.S. 461, 468−70 (1953), operation of a company-owned town, Marsh v. Alabama, 326 U.S. 501,

505−09 (1946), “the forcible removal of children from their homes,” Est. of Adam Earp v. City of

Phila., 1997 WL 255506, at *2 (E.D. Pa. May 7, 1997), and “internal affairs investigations of

police officers,” Beu v. City of Vineland, 2020 WL 7418007, at *11 (D.N.J. Dec. 18, 2020).

The second test is “whether the private party has acted with the help of or in concert with

state officials.” Kach, 589 F.3d at 646. Under this test, “courts must ask first whether the claimed

constitutional deprivation resulted from the exercise of a right or privilege having its source in

state authority; and second, whether the private party charged with the deprivation could be

described in all fairness as a state actor.” Mark v. Borough of Hatboro, 51 F.3d 1137, 1143 (3d

Cir. 1995) (internal citation and quotations omitted). Examples of state action under this test

include an employee conspiring with a police officer to racially discriminate against a patron,

Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970), and a private party’s joint participation

with state officials to seize a disputed property, Lugar v. Edmondson Oil Co., 457 U.S. 922, 942

(1982).

The third test is “whether the State has so far insinuated itself into a position of

interdependence with the acting party that it must be recognized as a joint participant in the

challenged activity.” Kach, 589 F.3d at 646. In Burton v. Wilmington Parking Authority, the

United States Supreme Court found, under this test, that a restaurant that practiced racial

discrimination and was located within a public parking garage was a state actor because the state

had many “obligations and responsibilities” regarding the operation of the restaurant, “mutual

benefits” were conferred, and the restaurant operated “as an integral part of a public building

devoted to a public parking service.” 365 U.S. 714, 724 (1961). The Supreme Court later applied

the Burton test to a high school athletic association in Brentwood Academy v. Tennessee Secondary

School Athletic Association, 531 U.S. 288 (2001), finding state action because a “great majority of

the association’s member schools were public, representatives of the schools acting in their official

capacities selected members of the association’s governing bodies, [and] state officials also sat on

those bodies in an ex officio capacity.” Benn v. Universal Health Sys., Inc., 371 F.3d 165, 172−73

(3d Cir. 2004) (citing Brentwood, 531 U.S. at 298−300). Moreover, “the association was largely

financed by gate receipts from member-school tournaments, and association employees

participated in the state retirement system.” Id.

In her response to Valley Forge’s motion to dismiss, Comegys contends only that Valley

Forge meets all three tests because it participates in the Pennsylvania Educational Improvement

Tax Credit Program (the “EITC Program”) and receives federal funds.3 It is well-settled, however,

that “a private entity does not become a state actor for the purpose of § 1983 simply because it . . .

receives funding from the state.” Gross v. R.T. Reynolds, Inc., 487 F. App’x 711, 719 (3d Cir.

2012) (citing Rendell-Baker, 457 U.S. at 840); see also Richardson-Graves v. Empire Beauty Sch.,

2015 WL 1243412, at *7 (M.D. Pa. Mar. 18, 2015) (holding that “the receipt of federal funds is

not relevant to whether the defendants acted under color of state law”). In Rendell-Baker, the

Supreme Court held that a private school that educated special-needs students referred by public

schools was not a state actor even though most of its operating budget was funded by the state.

457 U.S. at 840. The Court held that even if “a private entity performs a function which serves

3 Comegys relies on a declaration with attached exhibits showing the financial aid available to Valley

Forge students, state guidelines for schools’ use of EITC Program funding, and the cost of attendance at

VFMC. [ECF 8-3]. However, the declaration does not fall under any of the categories of items a court can

consider at the motion to dismiss stage enumerated in Buck. See 452 F.3d at 260; see also Woods v. Harry,

2022 WL 493871, at *7 (M.D. Pa. Feb. 17, 2022) (declining to consider a declaration at the motion to

dismiss stage); Foster v. Crestwood Sch. Dist., 2017 WL 1078195, at *6 (M.D. Pa. Mar. 22, 2017) (same).

The Third Circuit “has stated that an affidavit filed in opposition to a pending motion to dismiss ‘clearly

comprised a matter outside the pleading.’” Steinagel v. Valley Oral Surgery, 2013 WL 5429269, at *5

(E.D. Pa. Sept. 30, 2013) (citing Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989). As in Steinagel,

Comegys’ declaration does not form the basis of her claims but merely provides supplemental facts in

support of her claims. “To the extent that the [d]eclaration seeks to add to the factual allegations contained

in the [complaint], such an effort is improper.” S.E. Pa. Transp. Auth. v. Orrstown Fin. Servs., Inc., 2016

WL 7117455, at *7 (M.D. Pa. Dec. 7, 2016) (citing Steinagel, 2013 WL 5429269, at *5). Thus, this Court

will not consider the declaration.

the public,” that alone does not make its acts state action under the first test. Id. at 842. Similarly,

in Black v. Indiana Area School District, the Third Circuit applied Rendell-Baker to a case in which

schoolchildren sued a bus driver and a private bus company under contract with the students’

public school, holding that while the bus company “and its employees were carrying out a state

program at state expense, they were not performing a function that has been ‘traditionally the

exclusive prerogative of the state . . . .’” 985 F.2d 707, 710–11 (3d Cir. 1993).

In her complaint, Comegys has not alleged any facts to support a conclusion that Valley

Forge—in its role as a private college preparatory boarding school and military junior college—

performs an exclusive state function. Comegys alleges only that Valley Forge receives federal

funding, which, under Rendell-Baker, does not transform the education provided by a private

school into an exclusive state function.4 See also Becker v. City Univ. of Seattle, 723 F. Supp. 2d

807, 811 (E.D. Pa. 2010) (“[The plaintiff] has failed to identify a single case in which higher

education has been deemed a traditional public function, and the Court’s own research has verified

4 Although Comegys’s sole argument in support of state action is based on federal funding, and not

Valley Forge’s military environment, this Court notes that in Mentavlos v. Anderson, the United States

Court of Appeals for the Fourth Circuit (the “Fourth Circuit”) held that “military-type training of non-

enlisted students” at the Citadel, a state-supported “senior military college,” was not an exclusive state

function. 249 F.3d 301, 316 (4th Cir. 2001). While the specific issue before the Fourth Circuit was whether

two upper-class cadets at The Citadel, and not The Citadel itself, were acting under color of state law, the

court noted that “the mission of The Citadel is to educate civilian students and produce community leaders,

which has never been held to be the exclusive prerogative of a State.” Id. at 314. The court distinguished

The Citadel from military service academies and instead analogized The Citadel’s military model to “what

many private secondary schools do: using a military model as a basis for instilling discipline and providing

leadership training.” Id. at 316.

Applying the Mentavlos reasoning to the facts of this case, Valley Forge—like The Citadel—

simply “purports to build ‘leaders of character.’” (Compl., ECF 1, ¶ 9). K.F. is a student at VFMA, Valley

Forge’s college preparatory school, which squarely fits the Mentavlos court’s description of what is not

state action: a private secondary school “using a military model as a basis for instilling discipline and

providing leadership training.” Mentavlos, 249 F.3d at 316. Even assuming that the college preparatory

school and junior college fall under one institution, the Mentavlos court held that “military-type training of

non-enlisted students” is not an exclusive state function. Id. Nothing in the complaint suggests that Valley

Forge students are enlisted in the military. In short, Valley Forge is a private school, and its military model

does not transform it into a state actor under the exclusive state function test.

that none exists.”). Thus, Comegys has not met the “heavy burden” of showing that Valley Forge

is a state actor under the first test. Kach, 589 F.3d at 648.

Notably, Comegys has not identified a single case in which a private school was considered

a state actor. Indeed, courts have overwhelmingly held that private schools and colleges are not

state actors, irrespective of whether they receive government funding. See, e.g., Stetson Sch., 256

F.3d at 165 (3d Cir. 2001) (“[I]t is clear that Stetson’s receipt of government funds did not make

it a state actor.”); Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988); Berrios v. Inter Am. Univ.,

535 F.2d 1330, 1332 (1st Cir. 1976) (“The district court properly refused to take into account

financial assistance from the federal government in considering the presence of state action.”);

Blouin v. Loyola Univ., 506 F.2d 20 (5th Cir. 1975); Grafton v. Brooklyn L. Sch., 478 F.2d 1137

(2d Cir. 1973); Becker, 723 F. Supp. at 811; Fisher v. Driscoll, 546 F. Supp. 861, 866 (E.D Pa.

1982) (“[T]he small amount of state funds received by Villanova do not make the University’s

conduct state action.”).

As for the second test, receipt of government funding is not sufficient to demonstrate that

Valley Forge acted in concert with the state in connection with its disciplinary action against K.F.

Comegys does not allege facts demonstrating that Valley Forge and the state jointly agreed to

suspend and/or dismiss K.F., or that any of these decisions “resulted from the exercise of a right

or privilege having its source in state authority.” Mark, 51 F.3d at 1143. Thus, Valley Forge does

not meet the definition of a state actor under the second test.

Finally, nothing in Comegys’ complaint suggests that the state has “insinuated itself into a

position of interdependence” with Valley Forge, as Kach’s third test requires. See 589 F.3d at 646.

Once again, Comegys’ sole argument under the third test is based on federal financial assistance.

Federal financial assistance, however, does not reach the degree of involvement and

interdependence present in Burton5 and Brentwood. Thus, even assuming that most of Valley

Forge’s operating budget is funded by the government, the government’s relationship with Valley

Forge is more closely analogous to the “relatively minimal interrelationship between the State and

the defendants in . . . Rendell-Baker” than to “the complete intermingling of state and private actors

found in Burton” and Brentwood. Krynicky v. Univ. of Pittsburgh, 742 F.2d 94, 101 (3d Cir. 1984).

“The logic of Rendell-Baker . . . is that state contributions to otherwise private entities, no matter

how great those contributions may be, will not of themselves transform a private actor into a state

actor.” Id. at 102. Thus, Comegys’ complaint does not show a substantial enough connection

between Valley Forge and the state to satisfy the definition of a state actor under the third Kach

test.

In sum, Comegys has failed to allege sufficient facts to establish that Valley Forge could

be considered a state actor for § 1983 purposes. Thus, the conduct being challenged here, as

pleaded, was not undertaken “under color of law.” Aside from Comegys’ allegation that Valley

Forge received federal financial assistance, the complaint lacks any factual allegations to support

the conclusion that Valley Forge is a state actor. Accordingly, Defendant’s motion to dismiss is

granted with respect to all of Comegys’ § 1983 claims.

Comegys’ Request for Limited Discovery

In her response, Comegys requests limited discovery centered on Valley Forge’s alleged

participation in the Pennsylvania EITC Program, the provision of financial assistance to students,

and the fact that Valley Forge holds itself out as one institution, not two separate entities,6 would

5 Moreover, in Crissman v. Dover Downs Entertainment, Inc., the Third Circuit held that Burton

“was crafted for the unique set of facts presented” and that the court would not “expand its reach beyond

facts that replicate what was before the Court in Burton.” 289 F.3d 231, 242 (3d Cir. 2002).

6 As noted, Valley Forge asserts that the college preparatory school and junior college are two

separate and distinct entities. It further asserts that cadets at the college preparatory school are not eligible

uncover facts relevant to the Kach test for state action. Comegys further contends that in light of

Pennsylvania’s guidelines on school’s spending of EITC Program funding, this discovery could

allow this Court to “find that defendant is a recipient of federal financial assistance for purposes

of Counts I and II.” (Pl.’s Resp., ECF 8-2, at p. 5). However, Comegys does not set forth any

allegations regarding the EITC Program in her complaint, and, on a more basic level, she is

mistaken that Valley Forge’s participation in a state tax credit program could in any way

demonstrate that Valley Forge is a recipient of federal financial assistance. Moreover, as discussed

above, no amount of government funding, state or federal, will convert Valley Forge—a private

school—into a state actor. As such, this Court denies Comegys’ request for limited discovery.

Leave to Amend

The Third Circuit has directed district courts to provide a civil rights plaintiff with an

opportunity to file an amended complaint when the operative complaint is subject to dismissal

under Rule 12(b)(6), “unless such an amendment would be inequitable or futile.” Phillips, 515

F.3d at 245. The facts set forth in Comegys’ complaint fail, as a matter of law, to establish that

Valley Forge is a state actor for § 1983 purposes. This Court cannot foresee any additional facts

that could convert Valley Forge, a private school, into a state actor. It is this Court’s view,

therefore, that any attempt to amend the complaint would be futile.

Comegys’ Breach of Contract Claim

Comegys also asserts a state-law claim for breach of contract. Supplemental jurisdiction

affords federal courts the power to decide state-law claims that derive from a common nucleus of

operative fact with claims that arise under federal law. United Mine Workers v. Gibbs, 383 U.S.

for federal or state student aid, grants, or loans. As discussed, this Court is treating Valley Forge as one

entity. Under the Kach state actor test, the amount of government funding, if any, is irrelevant to the

determination of state actor. Therefore, discovery as to whether Valley Forge holds itself out as one

institution or two would not affect this Court’s analysis.

715, 725 (1966). However, the court may decline to exercise supplemental jurisdiction over state-

law claims if the court has dismissed all claims over which it has original jurisdiction. 28 U.S.C.

§ 1367(c). Indeed, the Third Circuit has directed that district courts “‘must decline’ to exercise

supplemental jurisdiction in such circumstances ‘unless considerations of judicial economy,

convenience, and fairness to the parties provide an affirmative justification for doing so.’” Stone

v. Martin, 720 F. App’x 132, 135 (3d Cir. 2017) (quoting Hedges v. Musco, 204 F.3d 109, 123 (3d

Cir. 2000)) (emphasis in original).

For the reasons set forth, Valley Forge’s motion to dismiss Comegys’ federal claims—the

only claims over which this Court has original jurisdiction—is granted. Therefore, in accordance

with 28 U.S.C. § 1367(c)(3) and the Third Circuit’s directive, and because there is no affirmative

justification to do otherwise, this Court declines to exercise supplemental jurisdiction over the

remaining state-law claims.

CONCLUSION

For the reasons set forth above, Valley Forge’s motion to dismiss Comegys’ claims under

42 U.S.C. § 1983 is granted. Having dismissed Comegys’ federal claims, this Court declines to

exercise supplemental jurisdiction over the remaining state-law claims and will dismiss these

without prejudice. An Order consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, J.