State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn.

[This opinion has been published in Ohio Official Reports at 71 Ohio St.3d 26.]

THE STATE EX REL. CHAVIS ET AL., APPELLANTS, v. SYCAMORE CITY SCHOOL

DISTRICT BOARD OF EDUCATION, APPELLEE.

[Cite as State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn.,

1994-Ohio-24.]

Schools—Tutors employed under individual tutor contracts performing learning

disabled and English as a second language tutoring services—Mandamus

to compel board of education to pay tutors difference between their actual

pay as tutors and the pay set forth in collective bargaining agreements'

teachers' salary schedules—Court errs in denying writ, when.

(No. 94-557—Submitted September 20, 1994—Decided November 23, 1994.)

APPEAL from the Court of Appeals for Hamilton County, No. C-920906.

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{¶ 1} Relators-appellants are fourteen individuals employed as tutors by

respondent-appellee, Sycamore City School District (a.k.a. Sycamore Community

School District) Board of Education ("board"), at various times during the 1986-

1987 through 1990-1991 school years. Eleven of the appellants provided

supplemental instruction to learning disabled ("LD") students and the three

remaining appellants provided supplemental instruction in English as a second

language ("ESL"). All of the fourteen appellants held valid teaching certificates

when they performed tutorial duties for the board in the pertinent time period.

{¶ 2} Appellants were employed under individual "tutor" contracts in which

they agreed to perform LD and ESL "tutoring services" on an "as needed basis" at

an hourly rate of pay. The tutors' salary schedules set a flat hourly rate for school

years 1986-1987 through 1988-1989 and included increases in the hourly rates

based on years of service for school years 1989-1990 and 1990-1991. The tutors'

salary schedules did not provide for increments based upon training and were not

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filed with the Superintendent of Public Instruction pursuant to R.C. 3317.14.

During school years 1986-1987 through 1990-1991, the board made contributions

to the State Teachers Retirement System ("STRS") on behalf of each of the

appellants, based on wages paid to them as LD and ESL tutors. Funds under R.C.

Chapter 3317, the School Foundation Program, were paid to STRS by the Ohio

Department of Education on behalf of the board.

{¶ 3} During the same period in which appellants were employed under LD

and ESL "tutor" contracts, the board entered into several collective bargaining

agreements with the Sycamore Education Association, the exclusive collective

bargaining agent for all board employees with "teacher" contracts. The collective

bargaining agreements in effect during school years 1986-1987 through 1990-1991

covered all persons "employed as teachers by the Board *** excluding *** all

hourly paid employees[.]" As the parties all concede, since appellants were hourly

paid employees when they were employed under the LD and ESL "tutor" contracts,

they were not included within the bargaining unit, were not represented by the

union, and were not covered by the agreements. The teachers' salary schedules in

the collective bargaining agreements included increments based upon training and

years of service. Although the board does not know whether the teachers' salary

schedules were filed with the Superintendent of Public Instruction pursuant to R.C.

3317.14, it submitted the schedules to the Ohio Department of Education for school

years 1986-1987 through 1990-1991. The collective bargaining agreements also

contained a grievance and arbitration procedure.

{¶ 4} During school years 1986-1987 through 1990-1991, all appellants

were paid in accordance with the tutors' salary schedules for duties performed under

their "tutor" contracts and were not paid under either the teachers' salary schedules

incorporated in the collective bargaining agreements covering this period or the

R.C. 3317.13(C) minimum salary schedule for teachers for these duties. In some

of the school years in this period, appellants Jane Duncan, Noreen D. Eyre, Susan

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H. Ford, and Constance K. Weethee were also employed by the board as teachers

expressly covered under the collective bargaining agreements and were paid the

amounts set forth in the teachers' salary schedules. However, these appellants were

not given experience credit by the board on the teachers' salary schedules for past

years of tutor service, and the union eventually filed a grievance on their behalf.

{¶ 5} In the collective bargaining agreement effective beginning with the

1991-1992 school year, LD and ESL tutors, including appellants, were brought into

the bargaining unit and a separate salary schedule was incorporated into the

collective bargaining agreement, providing for lower annual salaries for tutors than

other instructors. Shortly following appellants' inclusion in the bargaining unit,

they became aware of recent court decisions concerning tutors, and in June 1992,

they demanded that the board properly compensate them for their tutoring for

school years 1986-1987 through 1990-1991. The board refused appellants'

demand.

{¶ 6} Appellants instituted a mandamus action in the Hamilton County

Court of Appeals, seeking to compel the board to pay them the difference between

their actual pay as tutors and the pay set forth in the collective bargaining

agreements' teachers' salary schedules for school years 1986-1987 through1990-

1991. Alternatively, appellants requested a writ compelling the board to pay the

difference between their pay as tutors and the amounts mandated in the R.C.

3317.13(C) teachers' minimum salary schedule. Appellants Duncan, Eyre, Ford,

and Weethee requested payment of the additional amounts they would have

received as classroom teachers if the board had credited their years of service as

tutors in computing their salaries.

{¶ 7} The parties submitted the matter to the court of appeals on motions

for summary judgment limited to the liability issues. On January 26, 1994, the

court of appeals granted the board's motion for summary judgment and denied

appellants' petition for a writ of mandamus.

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{¶ 8} The cause is now before this court upon an appeal as of right.

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Gary Moore Eby, for appellants.

Taft, Stettinius & Hollister and Robert J. Townsend, for appellee.

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Per Curiam.

{¶ 9} The court of appeals granted the board's motion for summary

judgment and denied the writ because it determined that the collective bargaining

agreements' exclusion of appellants from coverage prevailed over any provisions

of R.C. Chapters 3317 and 3319 containing more expansive definitions of the term

"teacher" or establishing conflicting salary requirements. The court of appeals

relied on R.C. 4117.10(A), which provides:

"An agreement between a public employer and an exclusive representative

entered into pursuant to this chapter governs the wages, hours, and terms and

conditions of public employment covered by the agreement. *** Where no

agreement exists or where an agreement makes no specification about a matter, the

public employer and public employees are subject to all applicable state or local

laws or ordinances pertaining to the wages, hours, and terms and conditions of

employment for public employees. *** [T]his chapter prevails over any and all

other conflicting laws, resolutions, provisions, present or future, except as

otherwise specified in this chapter or as otherwise specified by the general

assembly. ***" (Emphasis added.)

{¶ 10} R.C. 4117.10(A) was designed to free public employees from

conflicting laws which may interfere with their right to collectively bargain. State

ex rel. Rollins v. Cleveland Hts.-Univ. Hts. Bd. of Edn. (1988), 40 Ohio St.3d 123,

127, 532 N.E.2d 1289, 1293. "Except for laws specifically exempted, the

provisions of a collective bargaining agreement entered into pursuant to R.C.

Chapter 4117 prevail over conflicting laws." State ex rel. Parsons v. Fleming

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January Term, 1994

(1994), 68 Ohio St.3d 509, 513, 628 N.E.2d 1377, 1381; Streetsboro Edn. Assn. v.

Streetsboro City School Dist. Bd. of Edn. (1994), 68 Ohio St.3d 288, 626 N.E.2d

110. A collective bargaining agreement does not prevail over conflicting laws

where it either does not specifically cover certain matters, State ex rel. Clark v.

Greater Cleveland Regional Transit Auth. (1990), 48 Ohio St.3d 19, 22, 548 N.E.2d

940, 943, or no collective bargaining agreement is in force. State ex rel. Internatl.

Union of Operating Engineers v. Cleveland (1992), 62 Ohio St.3d 537, 584 N.E.2d

727.

{¶ 11} Appellants, when employed as LD and ESL tutors during the

pertinent school years, were excluded from the applicable collective bargaining

agreements because they were hourly paid employees. Appellants were not

members of the bargaining unit represented by the unions when the agreements

were negotiated, executed, or in effect. R.C. 4117.10(A) specifies that public

employment collective bargaining agreements govern only the wages, hours, and

terms and conditions "covered by the agreement." Since appellants were not

covered by the agreements, R.C. Chapters 3317 and 3319 governed appellants'

employment conditions. The court of appeals thus erred in concluding otherwise.

{¶ 12} Appellants contend that a tutor is a "teacher" under R.C. 3319.09(A),

a tutor is entitled to compensation according to the board's duly adopted pay

schedule under R.C. 3317.14, and a tutor may obtain back pay by way of

mandamus, citing State ex rel. Tavenner v. Indian Lake Local School Dist. Bd. of

Edn. (1991), 62 Ohio St.3d 88, 578 N.E.2d 464, and State ex rel. Brown v. Milton-

Union Exempted Village Bd. of Edn. (1988), 40 Ohio St.3d 21, 531 N.E.2d 1297.

The board asserts that tutors are not teachers for purposes of determining whether

they are entitled to be paid under the teachers' salary schedule specified in R.C.

3317.13 and 3317.14.

{¶ 13} In Brown and Tavenner, the court relied on the R.C. 3319.09(A)

definition of "teacher." R.C. 3319.09 provides:

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"As used in sections 3319.08 to 3319.18, inclusive, of the Revised Code:

"(A) 'Teacher' means all persons certified to teach and who are employed in

the public schools of this state as instructors, principals, supervisors,

superintendents, or in any other educational position for which the state board of

education requires certification including persons having a certificate issued

pursuant to sections 3319.22 to 3319.31, inclusive, of the Revised Code, and

employed in an educational position, as determined by the state board of education,

under programs provided for by federal acts or regulations and financed in whole

or in part from federal funds, but for which no certification requirements for the

position can be made under the provisions of such federal acts or regulations."

(Emphasis added.)

{¶ 14} Although Brown and Tavenner utilized the R.C. 3319.09(A)

definition of "teacher" for purposes of placement of tutors on the teachers' salary

schedule required by R.C. 3317.13 and 3317.14, this definition "is expressly

applicable only to teaching contracts and conditions of employment set forth in

[R.C.] 3319.08 to 3319.18," the Teacher Tenure Act. Buchter, Scriven & Sheeran,

Baldwin's Ohio School Law (1993) 145, Section 8.02. In that limited extent, we

hold that Brown and Tavenner applied the incorrect statutory provision in their

analyses. R.C. 3317.13 provides a minimum salary schedule for teachers and

contains its own definition of "teacher" in subsection (A)(2):

"'Teacher' means all teachers employed by school district boards of

education ***."

{¶ 15} While the R.C. 3317.13(A)(2) definition of "teacher" is somewhat

circular, see Buchter, Scriven & Sheeran, supra, at 190, Section 10.02, fn. 11, R.C.

3317.13 and 3317.14 use the word in its ordinary sense, not as a term of art. Wood

v. Trotwood Madison Bd. of Edn. (June 12, 1990), Montgomery App. No. CA

11836, unreported. Words used in a statute must be taken in their usual, normal or

customary meaning. R.C. 1.42; State ex rel. Cassels v. Dayton City School Dist.

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January Term, 1994

Bd. of Edn. (1994), 69 Ohio St.3d 217, 220, 631 N.E.2d 150, 153. A "teacher" is

"[o]ne who teaches or instructs," and a "tutor" is "[o]ne who teaches, usually a

private instructor." Black's Law Dictionary (6 Ed.1990) 1463 and 1518. The

evidence in the record is uncontroverted that appellants, when employed as LD and

ESL tutors, provided instruction to students and were employed by the board.

Therefore, appellants were teachers for purposes of the statutes relating to teacher

salaries, R.C. 3317.13 and 3317.14.

{¶ 16} Nevertheless, R.C. 3317.13(A)(2) must be read in conjunction with

R.C. 3319.30, which provides that "no person shall receive any compensation for

the performance of duties as teacher in any school supported wholly or in part by

the state or federal funds who has not obtained a certificate of qualification for the

position as provided for by section 3319.22 of the Revised Code and which

certificate shall further certify to the good moral character of the holder thereof.

***" The board admitted that thirteen of the fourteen appellants held valid teaching

certificates during the relevant school years.

{¶ 17} The board contends that Judith J. Pryor, an ESL tutor, is not entitled

to any back pay because her teaching certificate does not include certification for

teaching English to speakers of other languages. The board relies on Ohio Adm.

Code Section 3301-23-21, which states in pertinent part:

"*** [T]eaching validations may be approved for grade levels set forth in

rules 3301-23-01 to 3301-23-07 of the Administrative Code and for the following:

"***

"(F) Teaching English to speakers of other languages ***." (Emphasis

added.)

{¶ 18} However, R.C. 3319.30 requires only a "certificate of qualification

for the position as provided for by section 3319.22 of the Revised Code" and a

certification of the "good moral character of the holder" in order to avoid denial of

compensation. See, generally, Whitley v. Canton City School Dist. Bd. of Edn.

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(1988), 38 Ohio St.3d 300, 528 N.E.2d 167. R.C. 3319.22 provides that teachers'

certificates may be issued in several different types, including:

"(B) Elementary, valid for teaching in grades one to eight;

"(C) Middle grades, valid for teaching the subjects named in such certificate

in grades four to nine;

"(D) High school, valid for teaching the subjects named in such certificate

in grades seven to twelve[.]"

{¶ 19} While the board contended below that appellant Pryor never held

any valid teaching certificate for the 1989-1990 school year, it now concedes that

the evidence established that she did possess a teaching certificate. The

uncontroverted evidence shows that appellant Pryor held an elementary teaching

certificate, valid for teaching in grades one through eight during the relevant period.

The certificate contained the additional certification that she was of good moral

character and that she had satisfactorily completed the minimum requirements

prescribed by the State Board of Education.

{¶ 20} Since appellant Pryor was properly certified under R.C. 3319.22(B),

her elementary teaching certificate, unlike those for middle grades or high school

as specified in R.C. 3319.22(C) and (D), was valid for teaching in grades one

through eight without limitation as to subject matter. See, e.g., Fisler v. Mayfield

City School Dist. Bd. of Edn. (Oct. 31, 1985), Cuyahoga App. No. 49548,

unreported. The board did not present any competent factual evidence to rebut

appellants' evidence that Pryor was properly certified under R.C. 3319.22(B), e.g.,

there was no evidence that appellant Pryor taught in other grades besides one

through eight during the pertinent school year. Further, the board's summary

contention on appeal is limited to Ohio Adm. Code 3301-23-21(F)'s validation

procedure, and does not mention R.C. 3319.22(B)'s provision for elementary

certification, which allows the holder to teach in the stated grades without requiring

additional certification in specific subjects. Under these circumstances, appellant

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Pryor was properly certified in order to entitle her to be compensated as an ESL

tutor. Therefore, all appellants were "teachers" for purposes of R.C. 3317.13 and

3317.14 and were not barred by R.C. 3319.30 from compensation for their duties

as tutors.

{¶ 21} "Generally, an hourly rate [for tutors] which is agreed upon in

collective bargaining, and incorporated in the collective bargaining agreement, may

be less than the rate of compensation provided by the salary schedule. If, however,

there is no separate pay rate for tutors set forth in the agreement, or if the tutors in

question are not members of the bargaining unit, the tutors are subject to [Brown]

and must be paid 'in accordance with' the [board's duly adopted teachers' salary]

schedule." 1 Baker, Ohio School Law (1993) 334, Section 7.44.1; see, also, Brown

and Tavenner, supra. Since appellants were not members of the collective

bargaining unit nor covered by the agreements when they were employed as LD

and ESL tutors, they must be paid in accordance with the board's teachers' salary

schedules for the subject school years. The board asserts that since the teachers'

salary schedules were adopted as a result of collective bargaining rather than under

R.C. 3317.14, appellants are not entitled to the difference between what they would

have earned under the agreements and what they were paid as tutors, but are

entitled, at most, only to the difference between the R.C. 3317.13(C) minimum

teachers' salary schedule amounts and the sums they were paid.

{¶ 22} R.C. 3317.14 states:

"Any board of education participating in funds distributed under Chapter

3317. of the Revised Code shall annually adopt a teachers' salary schedule with

provision for increments based upon training and years of service. ***

"On the fifteenth day of October of each year the salary schedule in effect

on that date in each school district shall be filed with the superintendent of public

instruction. A copy of such schedule shall also annually be filed by the board of

education of each local school district with the county superintendent of schools,

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who thereupon shall certify to the treasurer of such local district the correct salary

to be paid to each teacher in accordance with the adopted schedule."

{¶ 23} The board participated in funds distributed under R.C. Chapter 3317,

the school foundation program, since it admitted that during the school years at

issue, R.C. Chapter 3317 funds were paid on its behalf by the Ohio Department of

Education to STRS. The teachers' salary schedules adopted by the board and

incorporated in the collective bargaining agreements were the only schedules

containing provisions for "increments based upon training and years of service" as

required by R.C. 3317.14. Although the board indicated it did not know if the

schedules were filed with the Superintendent of Public Instruction as also required

by R.C. 3317.14, they were filed with the Department of Education.

{¶ 24} The foregoing evidence establishes that the teachers' salary

schedules contained in the collective bargaining agreements were filed and adopted

in substantial compliance with R.C. 3317.14. Therefore, appellants possessed a

statutory right to be paid in accordance with those schedules during school years

1986-1987 through 1990-1991. The fact that the schedules were also contained in

the collective bargaining agreements from which appellants were excluded does not

vitiate this result, since appellants' claim is premised on R.C. 3317.14 rather than

the agreements. Appellants thus have a clear legal right to the difference between

the amounts they were paid as tutors and the amounts they should have been paid

under the board's duly adopted teachers' salary schedule. The board has a

corresponding legal duty to pay this compensation.

{¶ 25} The board contends that even if the court of appeals' rationale was

erroneous, its judgment denying appellants' complaint for a writ of mandamus was

proper because appellants had various adequate remedies at law. A writ of

mandamus will not be issued when there is a plain and adequate remedy in the

ordinary course of the law. R.C. 2731.05. In order for an alternate remedy to be

considered adequate, the remedy must be complete, beneficial, and speedy. See,

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January Term, 1994

e.g., State ex rel. Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div.

(1992), 65 Ohio St.3d 323, 328, 603 N.E.2d 1005, 1009. The board claims that

appellants had several adequate remedies, including a complaint to the

superintendent under R.C. 3317.13(B), declaratory judgment, a contest to their

exclusion from the bargaining unit, and the grievance and arbitration procedure set

forth in the collective bargaining agreements.

{¶ 26} R.C. 3317.13(B) provides in part:

"Upon written complaint to the superintendent of public instruction that the

board of education of a district has failed or refused to annually adopt a salary

schedule or to pay salaries in accordance with the salary schedule set forth in

division (C) of this section, the superintendent of public instruction shall cause to

be made an immediate investigation of such complaint. If the superintendent finds

that the conditions complained of exist, he shall order the board to correct such

conditions within ten days from the date of the finding. No moneys shall be

distributed to the district under this chapter until the superintendent has satisfactory

evidence of the board of education's full compliance with such order."

{¶ 27} In State ex rel. Tavenner v. Indian Lake Local School Dist. Bd. of

Edn. (May 16, 1990), Logan App. No. 8-90-3, unreported, affirmed in part and

reversed in part on other grounds in Tavenner, supra, 62 Ohio St.3d 88, 578 N.E.2d

464, the appellate court rejected a similar argument:

"In this regard, we note that R.C. 3317.13(B) provides only for an

investigation of either (1) a failure or refusal to adopt an annual salary schedule or

(2) a failure to pay salaries in accordance with the state minimum salary schedule.

However, the instant claim does not concern either subject contained in R.C.

3317.13(B). Instead, we are concerned with respondents' failure to pay relator in

accordance with the district's adopted Teachers' Salary Schedule. Therefore we do

not find the statute to provide a plain and adequate remedy at law. "

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{¶ 28} Similarly, neither declaratory judgment nor the right to contest the

bargaining unit is an adequate legal remedy. A declaratory judgment would not

provide back pay and would not be complete without a mandatory injunction. See,

e.g., State ex rel. Kmart Corp. v. Westlake Planning Comm. (1994), 68 Ohio St.3d

151, 158, 624 N.E.2d 714, 720; State ex rel. Fenske v. McGovern (1984), 11 Ohio

St.3d 129, 11 OBR 426, 464 N.E.2d 525, the bargaining unit would not have

necessarily resulted in "complete relief," since the tutors would not then have to be

compensated pursuant to the same salary schedule, and appellants' claims for relief

arose subsequent to the 1985 certification of the bargaining unit. It is well settled

that a claim by a public employee of entitlement to wages or benefits which are

granted by statute is actionable in mandamus. State ex rel. Madden v. Windham

Exempted Village School Dist. Bd. of Edn. (1989), 42 Ohio St.3d 86, 88, 537 N.E.2d

646, 647; State ex rel. Gingrich v. Fairfield City School Dist. Bd. of Edn. (1985),

18 Ohio St.3d 244, 245, 18 OBR 300, 301, 480 N.E.2d 485, 486.

{¶ 29} Appellants' complaint also contained a claim by appellants Duncan,

Eyre, Ford, and Weethee for payments of additional amounts they would have

received if the board had credited their years of service as tutors in computing their

salaries as teachers under the collective bargaining agreement. These appellants

were covered under the collective bargaining agreements and were paid amounts

provided in the teachers' salary schedules. They filed a grievance concerning the

matter and it was set for arbitration. The grievance and arbitration procedures were

complete, beneficial, and speedy as to this claim. "[A] reviewing court is not

authorized to reverse a correct judgment merely because erroneous reasons were

assigned as a basis thereof." Cassels, supra, 69 Ohio St.3d at 222, 631 N.E.2d at

154. Accordingly, the court of appeals did not err in granting the board's motion

for summary judgment and denying a writ of mandamus as to appellants Duncan,

Eyre, Ford, and Weethee's claims regarding their teachers' salaries.

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{¶ 30} Finally, the board asserts that the court of appeals properly denied

appellants' request for mandamus relief because of equitable estoppel, laches, and

waiver. Equitable estoppel prevents relief when one party induces another to

believe certain facts exist and the other party changes his position in reasonable

reliance on those facts to his detriment. Madden, supra, 42 Ohio St.3d at 90, 537

N.E.2d at 649. The doctrine of equitable estoppel generally requires actual or

constructive fraud. State ex rel. Richard v. Bd. of Trustees of Police & Firemen's

Disability & Pension Fund (1994), 69 Ohio St.3d 409, 414, 632 N.E.2d 1292, 1296.

Contrary to the argument of the board, there is no evidence that appellants, either

intentionally or through culpable negligence, misled the board by continuing to

accept tutors' compensation following this court's December 1988 decision in

Brown. Appellants' affidavits indicated that they were unaware of their rights under

Brown and Tavenner prior to their inclusion in the bargaining unit for the 1991-

1992 school year, and never made any misrepresentations to the board. The board's

estoppel defense lacks merit.

{¶ 31} "The elements of a laches defense are (1) unreasonable delay or lapse

of time in asserting a right, (2) absence of an excuse for such delay, (3) knowledge,

actual or constructive, of the injury or wrong, and (4) prejudice to the other party."

State ex rel. Cater v. N. Olmsted (1994), 69 Ohio St.3d 315, 325, 631 N.E.2d 1048,

1056. There is no evidence that the board's ability to defend against appellants'

mandamus suit was prejudiced by the delay. Prejudice will not be inferred from a

mere lapse of time. Madden, supra, 42 Ohio St.3d at 91, 537 N.E.2d at 650.

{¶ 32} The board's waiver argument is also meritless. Waiver is a voluntary

relinquishment of a known right. Id. at 89, 537 N.E.2d at 648. Brown rejected a

similar argument that acceptance and performance of a tutorial service limited

contract waived a right to a continuing contract. Id., 40 Ohio St.3d at 27, 531

N.E.2d at 1303. Subsequent appellate court opinions have also rejected waiver

defenses in tutor back pay cases. State ex rel. Fink v. Grandview Hts. City School

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Dist. Bd. of Edn. (May 12, 1994), Franklin App. No. 93APE10-1462, unreported;

Cuyahoga Falls Edn. Assn. v. Cuyahoga Falls City School Dist. Bd. of Edn. (Nov.

20, 1991), Summit App. No. 14962, unreported.

{¶ 33} Accordingly, the court of appeals erred in failing to grant appellants

a writ of mandamus compelling the board to pay them the difference between their

pay as tutors and the pay set forth in the collective bargaining agreements' teachers'

salary schedules for the period from 1986-1987 through 1990-1991. Since the

damage and other issues, e.g., interest, have not yet been resolved, the court of

appeals must address these issues on remand. The summary judgment and denial

of mandamus relief are affirmed as to appellants Duncan, Eyre, Ford, and Weethee's

claim for increased compensation during the years they were covered by the

collective bargaining agreements.

Judgment affirmed in part,

reversed in part

and cause remanded.

MOYER, C.J., A.W. SWEENEY, WRIGHT, RESNICK and F.E. SWEENEY, JJ.,

concur.

DOUGLAS, J., concurs in judgment only.

PFEIFER, J., dissents and would affirm in toto.

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