The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Prater, :
Petitioner :
:
v. :
:
Pennsylvania Department of Correction - :
[D.O.C.], John E. Wetzel - Secretary of :
Corrections, Dorina Varner – Chief :
Grievance Officer, Keri Moore - Chief :
Grievance Officer, Barry Smith - :
Superintendent at SCI Houtzdale - [Super], :
Rebecca Reifer - Grievance Officer at SCI :
Houtzdale [G/C], M. Ivicic - Corrections :
Classification & Program Manager :
[CCPM], Susan McQuillen - Corrections :
Employment Vocational Coordinator :
[CEVC], Joel Barrows - Major at SCI :
Houtzdale, Mr. Norvell – Maintenance :
Supervisor at SCI Houtzdale [M/S], :
Mr. Kuhn - Carpenter at SCI Houtzdale :
[Car], Crystal Loy - Unit Manager at SCI :
Houtzdale [U/M], Rodney McBride - Unit :
Counselor at SCI Houtzdale [U/C], :
Stewart - Sergent at SCI Houtzdale - [Sgt.], : No. 392 M.D. 2018
Respondents : Submitted: March 29, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 10, 2019
Before this Court are the Pennsylvania Department of Corrections’
(Department) Secretary John Wetzel (Wetzel), Chief Grievance Officer Dorina
Varner (Varner), Grievance Officer Keri Moore (Moore), State Correctional
Institution (SCI) Houtzdale’s (Houtzdale) Superintendent Barry Smith (Smith),
Superintendent’s Assistant and Facility Grievance Coordinator Rebecca Reifer
(Reifer), Corrections Classification Program Manager M. Ivicic (Ivicic), Corrections
Employment Vocational Coordinator Susan McQuillen (McQuillen), Major Joel
Barrows (Barrows), Maintenance Supervisor Norvell (Norvell), Carpenter Kuhn
(Kuhn), Unit Manager Crystal Loy (Loy), Unit Counselor Rodney McBride
(McBride) and Sergeant Stewarts’ (collectively, Respondents) preliminary objections
(Preliminary Objections) to Wayne Prater’s (Prater or Petitioner) pro se petition for
review (Petition) filed in this Court’s original jurisdiction. After review, we sustain
Respondents’ first Preliminary Objection (PO) and, this Court lacking jurisdiction,
transfer the matter to the Clearfield County Common Pleas Court.
On May 31, 2018, Prater filed the Petition, wherein he alleges that, while
working in the maintenance department at SCI Houtzdale on March 1, 2018, he
engaged in conversation with three white inmate coworkers about institutions going
into lockdown and wasting money. According to Prater, during that conversation, he
stated that “the state always finds a way not to work.” Petition ¶ 3 (emphasis
omitted). Prater avers, after making that statement, Kuhn told Prater that he “will
never work for [Kuhn] again.” Petition ¶ 4 (emphasis omitted). Prater alleges when
he left the maintenance department that day, Kuhn subjected him to a “hostile pat
search[.]” Petition ¶ 8. Prater further describes that he reported to his work detail the
next day, but Norvell informed him he was wanted back in his housing unit. Upon
his return thereto, Prater was advised no one had requested his return. According to
Prater, he returned to the job site where Norvell again told him he was wanted in the
housing unit, but Prater explained to Norvell that the housing unit officers denied
calling for him, and Prater asked Norvell if he was fired. Norvell informed him he
was not fired, but was not working that day, and to return to his housing unit. On
March 2, 2018, Prater filed Grievance No. 724097, alleging he was subjected to racial
2
discrimination in his interactions with Norvell and Kuhn, and complaining of an
unlawful racially discriminatory culture in the maintenance department. He further
avers he was later directed to report to the Security Office where he was informed he
was being investigated concerning his March 1, 2018 statement. Notwithstanding,
Prater acknowledges he was not given a misconduct report for the statement.
Prater contends that on March 15, 2018, Grievance No. 724097 was
denied as frivolous, that he appealed from that denial to Smith, and that Smith denied
his appeal. According to Prater, less than one week later, on March 28, 2018, during
his morning meal, Smith told Prater, “I will show you how big my balls are.”
Petition ¶ 21 (emphasis omitted). Prater alleges that he perceived the statement as a
boast that Smith could do as he wished without repercussion. On that same date,
Prater allegedly reported for work, but was told to return to his housing unit, whereby
Loy and McBride informed him he had been removed from his job in the
maintenance department and had been assigned to work kitchen detail. Prater avers
that he told Loy to remove him from kitchen detail, but that his request was ignored.
Prater asserts that Loy conducted a Unit Manager Team meeting on March 28, 2018,
to remove him from his job assignment, but that he was given no reason for his
removal. Prater also describes that, on that same date, he received a job assignment
orientation notice informing him to report to the culinary department for a work
assignment. That day, Prater submitted two Department DC-135 Forms (DC-135
form)1 – one to Smith, objecting to his March 28, 2018 statement, and the other to
McQuillen requesting that the job change be postponed pending resolution of his
challenges to the change. According to Prater, on March 31, 2018, he also filed an
abuse and retaliation complaint via the Prison Rape Elimination Act (PREA)2 hotline
against Smith “for his actions and statement to [Prater].” Petition ¶ 28.
1
A DC-135 form is an Inmate’s Request to a Staff Member.
2
The PREA is now codified at 34 U.S.C. §§ 30301-30309.
3
Prater represents that, on April 3, 2018, McQuillen responded to the DC-
135 form stating: “[A]ddress to . . . Smith[.]” Petition ¶ 29. Prater further asserts
that, since Smith had not responded to the first DC-135 form, on April 5, 2018, he
sent Smith another one. On April 9, 2018, Smith denied having received the March
28, 2018 DC-135 form.
According to Prater, despite having requested on March 28, 2018 that he
be removed from all jobs until his grievance was resolved, on April 9, 2018, he
received a misconduct report for failing to report to kitchen work detail. At an April
16, 2018 hearing on the misconduct report, Prater was given a reprimand and again
assigned to kitchen detail. On April 17, 2018, Prater filed another complaint against
Smith via the PREA hotline for Smith’s March 28, 2018 statement. On April 19,
2018, Prater was called to the Security Office to make a written report of his
complaint. On April 24, 2018, Prater received another misconduct for failing to
report to his kitchen work detail. Also on April 24, 2018, Prater sent a DC-135 form
to Barrows contending that Loy was not doing her job correctly, and that he had
improperly received two misconducts. On April 26, 2018, Prater filed Grievance No.
733589, complaining that Loy had failed to remove him from all jobs, that McQuillen
had ignored his job change request and that Prater had sent a DC-135 form to
Barrows and that Loy’s refusal to grant his request resulted in two misconducts.
Barrows denied Grievance No. 733589 on May 3, 2018.
Prater contends that because Barrows was named in the grievance,
Barrows violated Inmate Grievance Policy DC-ADM 804 by responding thereto.
Further, he asserts that Respondents failed to comply with this Court’s precedent. He
seeks money damages and equitable relief.
On July 17, 2018, Respondents filed the Preliminary Objections averring
that this Court lacks jurisdiction over this matter, that the Petition fails to conform to
4
the Pennsylvania Rules of Civil Procedure, and that the Petition fails to state a claim
for which relief may be granted.3
Regarding Respondents’ first Preliminary Objection that this Court lacks
jurisdiction, the Pennsylvania Supreme Court has explained:
The Commonwealth Court has original jurisdiction in only
a narrow class of cases. That class is defined by Section
761 of the Judicial Code, 42 Pa.C.S. § 761, which provides
that, as a general rule, the court has original jurisdiction in
cases asserted against ‘the Commonwealth government,
including any officer thereof, acting in his official capacity.’
42 Pa.C.S. § 761(a)(1). This general rule is subject to
certain enumerated exceptions, the critical one for present
purposes being that the Commonwealth Court does not
generally have original jurisdiction over
actions or proceedings in the nature of trespass as to
which the Commonwealth government formerly
enjoyed sovereign or other immunity and actions or
proceedings in the nature of assumpsit relating to such
actions or proceedings in the nature of trespass.
42 Pa.C.S. § 761(a)(1)(v). Nevertheless, ‘[t]o the extent
prescribed by general rule,’ the Commonwealth Court
retains ancillary jurisdiction ‘over any claim or other matter
which is related to a claim or other matter otherwise within
its exclusive original jurisdiction.’ 42 Pa.C.S. § 761(c).
Furthermore, where the Commonwealth Court retains
original jurisdiction pursuant to Section 761(a) [of the
Judicial Code], such jurisdiction is exclusive. See 42
Pa.C.S. § 761(b).
3
This Court has stated:
In reviewing preliminary objections, all material facts averred in the
complaint, and all reasonable inferences that can be drawn from them,
are admitted as true. However, a court need not accept as true
conclusions of law, unwarranted inferences, argumentative
allegations, or expressions of opinion. ‘Preliminary objections should
be sustained only in cases that are clear and free from doubt.’ P[a.]
AFL-CIO v. Commonwealth, . . . 757 A.2d 917, 920 ([Pa.] 2000).
Seitel Data, Ltd. v. Ctr. Twp., 92 A.3d 851, 859 (Pa. Cmwlth. 2014) (citations omitted).
5
Stackhouse v. Pa. State Police, 832 A.2d 1004, 1007 (Pa. 2003).
Accordingly,
this Court lacks original jurisdiction over tort actions for
money damages that are premised on either common law
trespass or a civil action for deprivation of civil rights under
[Section 1983 of the United States Code,] 42 U.S.C. § 1983
[(Section 1983)]. Hill v. P[a.] Dep[’t] of Env[tl.] Prot[.], . .
. 679 A.2d 773 ([Pa.] 1996); Fawber v. Cohen, . . . 532
A.2d 429 ([Pa.] 1987); Balshy v. Rank, . . . 490 A.2d 415
([Pa.] 1985).
Miles v. Beard, 847 A.2d 161, 164 (Pa. Cmwlth. 2004).
In Miles, an inmate submitted a request to the Chaplaincy Program
Director at the SCI for kosher meals and filed a grievance when he did not receive
approval. Because he did not receive a response to his grievance for over seven
months, the inmate filed a complaint in common pleas court seeking an order
directing that he receive kosher meals, and also compensatory and punitive damages,
and declaratory and injunctive relief. The common pleas court dismissed the action,
sua sponte, concluding, inter alia, that it lacked original jurisdiction. On appeal, this
Court considered whether jurisdiction was properly in this Court, or in the common
pleas court. The Miles Court reasoned:
In Stackhouse . . . the plaintiff sought injunctive relief in
addition to money damages. In that case Diane Stackhouse
filed suit against the Pennsylvania State Police (State
Police), Commissioner Paul J. Evanko and Deputy
Commissioner Thomas K. Coury. She alleged that
employees of the State Police had undertaken an
investigation of her in connection with a job application she
had filed. She asserted, specifically, that certain State
Police employees were permitted to delve improperly into
her personal affairs, including her private inter-personal
relationships. She did not allege that the two individuals
named as defendants had personally inquired into private
matters; she merely contended that they had failed to insure
that those who did conduct the investigation were properly
trained to inquire only into matters that were appropriate
6
and relevant to it. She also alleged that after she informed
Commissioner Evanko of what had occurred, he did not
take any corrective action. She sought both
declaratory/injunctive relief and monetary damages. The
defendants filed a preliminary objection asserting that
original jurisdiction was with this Court. The common
pleas court agreed and transferred the matter. Thereafter,
[this Court] filed a per curiam order dismissing the case,
citing Fawber, Balshy and Hill. The matter was then
appealed to the Supreme Court. It noted that the equity
cause of action rested upon the same factual allegations as
the tort claims for defamation and invasion of privacy. The
Court held that, in such a circumstance, the inclusion of a
count of declaratory or injunctive relief does not operate to
transform the matter into the type of case envisioned by,
inter alia, Section 761 of the Judicial Code. Further, it
noted that were it to conclude otherwise, the result would be
to permit a jurisdictional determination to turn ‘solely on
the styling of claims within a complaint’ and this would
‘arguably permit forum shopping through pleading.’
[Stackhouse], 832 A.2d at 1008. In addition, it observed
that traditionally this Court and others have determined
jurisdictional questions based upon substance, rather than
on the form of the action. It, thus, concluded that the matter
had properly been filed in the common pleas court.
Here, as in Stackhouse, the allegation upon which the equity
and [Section] 1983 actions rest are clearly the same. . . .
Accordingly, [this Court] conclude[s] that Stackhouse
controls here.
Miles, 847 A.2d at 164-65. The Miles Court further addressed the impact of the
petitioner’s requests for injunctive relief, on its jurisdiction.
Additionally, although one might argue that what [the
petitioner] really wants is a mandatory injunction rather
than money damages, he is the one who included a request
for money damages in his complaint. It is not our function
to ignore a portion of his request for relief so that original
jurisdiction can be vested in this Court, a court of limited
original jurisdiction, rather than in the common pleas court,
a court of broad original jurisdiction. Indeed, such an
approach is clearly contrary to the holding in Stackhouse
and to the spirit of Supreme Court cases such as Gossman v.
7
Lower Chanceford Township Board of Supervisors, . . . 469
A.2d 996 ([Pa.] 1983), which caution that in determining
whether this Court has original jurisdiction over a matter,
we must consider that cases within our original jurisdiction
are appealable as of right to the Supreme Court, and the
efficient administration of justice is not well served when
that Court is forced to hear collateral matters (in Gossman,
an issue concerning further costs and counsel fees) because
‘such an interpretation of [its] jurisdiction would crowd
cases involving important and unique issues from [its]
allocatur docket.’ Id. at . . . 998. While we certainly admit
that the appeal sub judice does not concern a collateral
matter, we are not convinced that where, as here, the
plaintiff seeks, inter alia, money damages in a [Section]
1983 type of claim, this matter cannot be adequately
addressed without mandatory review by the Supreme
Court. Accordingly, we hold that jurisdiction was properly
vested in the common pleas court on this basis as well.
Miles, 847 A.2d at 165.
The instant matter is similar to Miles. Despite Prater’s contention that he
seeks review of his grievance denial, he alleges that the objectionable actions (the
underlying removal from his job, and the grievance denial) were due to unlawful
racial discrimination and retaliation.4 Prater seeks both monetary damages and
equitable relief.5
4
Although Prater does not allege with respect to his racial discrimination claims that
Respondents violated Section 1983, such is not required, since “a plaintiff filing a complaint in the
courts of this Commonwealth is not required to specify the legal theory or theories underlying the
complaint. He or she may merely allege the material facts which form the basis of a cause of
action.” Heinly v. Commonwealth, 621 A.2d 1212, 1215 n.5 (Pa. Cmwlth. 1993).
5
In his Petition, Prater requests the following relief:
78.) Petit[i]oner request[s] monetary damages in the amount as
follows:
a.) For all contacted parties and acting parties $15,000 each.
b.) For [Wetzel] ignoring correspondence and ignoring presented
issue $50,000.
8
Specifically, after describing the alleged incidents underlying his claim,
Prater avers:
45.) All Respondents have no regards for any rules and
regulations in place that governs it’s [sic] authority, making
all actions deliberate and with malicious intent.
46.) To present date[,] no administration has addressed or
mentioned what statement was made by Petitioner that was
inappropriate, illegal, or violated [Department]
rules/policies, which would warrant job removal or any
actions received by Petitioner.
47.) All actions done to Petitioner call’s [sic] into question
all procedural violations being done by all Respondent’s
[sic] requiring a [sic] inquiry into the illegal actions being
done.
c.) For [Smith] for his retaliatory act and statement $200,000, for
each issue.
d.) Petitioner request[s] that all SCI Houtzdale administration that
was contacted by DC-135 [form] . . . to be held in contempt and
given a two step demotion in job position.
e.) Petit[i]oner request[s] all back pay from [March 28, 2018] and
placed back on job [labor crew].
f.) Petitioner request[s] that the [w]hite [s]upremacist culture
within SCI Houtzdale be investigated and corrected.
g.) Petitioner request[s] that [Loy] be demoted and sanctioned to
$15,000, for her continuous changing statements on paperwork and
not follow[ing] polices.
h.) Petitioner request[s] that the court demand the two Chief
Grievance officer[s] – [Varner and Moore] be removed from
[their] position[s] and sanctioned $50,000, each for ignoring
pol[i]cy violations.
i.) Petitioner request[s] that the court sanction all listed parties as it
deems fit and grant Petitioner his requested relief.
Petition at 14-15.
9
Petition at 7.
Prater further asserts:
48.) Petitioner is a [b]lack inmate that was racially
discriminated against by the all white administration within
[the m]aintenance [d]epartment. Petitioner grieved the
matter and was removed from work detail after [he] filed
[the] grievance. There was an [sic] conversation about thr
[sic] continuous lockdowns at SCI Houtzdale, the state
wasting money, and the statewide lockdown due to funeral
of Sgt. at SCI Summerset [sic].
49.) There was [sic] 4 inmates, 1 [b]lack (Petitioner) and 3
[w]hite inmates that all made statements in conversation
with [P]etitioner being the only one to lose his job. It’s
clear it was racially motivated, due too [sic] the three
[w]hite inmates were never questioned or sent to [the]
Security Office. If there are 4 inmates having the same
conversation and the only [b]lack inmate (Petitioner) was
singaled [sic] out then fired, the only factor is his race. If
there was any kind of inappropriate statement made, why
was statement never addressed or listed?
50.) What makes this matter more egregious is that
Petitioner never received any misconduct report (DC-141)
or any reason why he was removed from [his] job.
Respondents[’] actions are arbitrary, capricious, and
retaliatory denying Petitioner the rights due by the
governing laws that gives [sic] [] Respondents the
authority to remove an inmate from any job.
51.) To show the arrogance of [Smith] at SCI Houtzdale, he
states to Petitioner – ‘I will show you how big my balls
are![,’] clearly sending a message that – I can do what I
want without any repercussions for his actions. This
clearly is an abuse of power that [t]his Honorable Court,
can show there are repercussions for law violations by
[the Department] [a]dministration that has [n]o
[r]espect for the rules & regulations that governs it’s
[sic] position of authority.
10
Petition at 8-9 (bold emphasis added). Prater further argues: “SCI Houtzdale
administration continues to violate state law, without being held accountable for
[its] illegal actions.” Petition at 10, ¶ 55 (emphasis added).
Notably, Prater’s Petition contains two counts. In the first Count, Prater
provides: “[] Respondents[’] acts, policies, and practices . . . are deliberately [sic]
with malice by intentionally misinterpreting or misconstruing” the relevant
Department policy for the purpose of removing Prater from his prison job for reasons
other than misconduct. Petition at 12, ¶ 68. Therein, Prater further alleges:
“Respondents[’] actions constitute abuse of power, bad faith and willful misconduct
by utilizing [the Department’s] policy in a capriciously [sic] manner as the means to
circumvent” Department Regulations and the Department’s policy providing due
process procedures. Id. at 12, ¶ 69. Further, according to Prater, Respondents’
“action[s] w[ere] the p[r]oximate cause that resulted in Petitioner[’]s job removal,
without notice, [and a] full hearing on [the] subject and denial of right to appeal [the]
decision.”6 Id. (emphasis added).
In the Petition’s second count, Prater asserts that Respondents’ “arbitrary
and capricious refusal to abide by and enforce” the relevant Department Regulations
and policies deprived him of due process, violated the holdings of Bush v. Veach, 1
A.3d 981 (Pa. Cmwlth. 2010), and Williams v. Wetzel, 178 A.3d 920 (Pa. Cmwlth.
2018),7 and “punished [him] for filing a grievance and sanctioned [him with] job
6
Notably, proximate cause is a tort liability concept. See Commonwealth ex rel. Smith v.
Myers, 261 A.2d 550 (Pa. 1970).
7
This Court has previously held that ‘before [the Department] can
impose any sanction, it must follow the procedure set forth in [Section
93.10(b) of the Department’s Regulations,] [37 Pa. Code § 93.10(b)].’
Bush, 1 A.3d at 984. In Bush, [the Department] removed an inmate
from his job in the prison’s kitchen after [the Department] caught the
inmate stealing food from the kitchen. [The Department] informed
the inmate that his misconduct resulted in a Class II charge, and, as a
sanction, [the Department] removed the inmate from his work
11
removal for exercising a protected right [where he did not] receiv[e] a misconduct
report [and was not] given[ ] any reason for job removal[.]” Petition at 12, ¶ 70.
According to Prater, such action “constitut[es] an abuse of power, bad faith, willful
misconduct, and retaliation by Respondents.” Id.
Prater alleges that the actions taken against him (i.e., the loss of his job
and the denial of his grievance) were based on unlawful discrimination and
retaliation. Prater’s Petition is less a grievance appeal than it is a civil action for
deprivation of civil rights. As in Miles:
[T]he allegation[s] upon which the equity and [Section]
1983 actions rest are clearly the same. . . . Accordingly, we
conclude that Stackhouse controls here.
Additionally, although one might argue that what [Prater]
really wants is a mandatory injunction rather than money
damages, he is the one who included a request for money
damages in his complaint. It is not our function to ignore a
portion of his request for relief so that original jurisdiction
can be vested in this Court, a court of limited original
jurisdiction, rather than in the common pleas court, a court
of broad original jurisdiction.
Miles, 847 A.2d at 165. Accordingly, this Court does not have jurisdiction over the
instant matter.8 Notwithstanding, Section 5103(a) of the Judicial Code, 42 Pa.C.S. §
assignment. [The Department] removed the inmate without first
providing written notice, a hearing before an impartial hearing
examiner, an opportunity to present evidence, and a written decision
or an opportunity to appeal. The inmate filed an action against [the
Department] employees, claiming a violation of his due process
rights. Upon review, although [this Court] determined there to be no
due process violation, [this Court] nonetheless conclude[s] that the
inmate sufficiently alleged a cause of action for a violation of his
rights established by [Department R]egulations . . . , 37 Pa. Code §
93.10(b).
Williams, 178 A.3d at 924 (citations omitted).
8
Since this Court has determined it does not have jurisdiction, it may not address the
parties’ substantive arguments.
12
5103(a), provides that this Court shall not dismiss an erroneously filed matter for lack
of jurisdiction, but shall transfer the case to the proper tribunal. Because Prater’s
action is based upon alleged incidents occurring in Clearfield County, this Court shall
transfer the matter to the Clearfield County Common Pleas Court.
For all of the above reasons, Respondents’ first Preliminary Objection is
sustained, and the action is transferred to the Clearfield County Common Pleas Court
for disposition of the remaining Preliminary Objections.
___________________________
ANNE E. COVEY, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Prater, :
Petitioner :
:
v. :
:
Pennsylvania Department of Correction - :
[D.O.C.], John E. Wetzel - Secretary of :
Corrections, Dorina Varner – Chief :
Grievance Officer, Keri Moore - Chief :
Grievance Officer, Barry Smith - :
Superintendent at SCI Houtzdale - [Super], :
Rebecca Reifer - Grievance Officer at SCI :
Houtzdale [G/C], M. Ivicic - Corrections :
Classification & Program Manager :
[CCPM], Susan McQuillen - Corrections :
Employment Vocational Coordinator :
[CEVC], Joel Barrows - Major at SCI :
Houtzdale, Mr. Norvell – Maintenance :
Supervisor at SCI Houtzdale [M/S], :
Mr. Kuhn - Carpenter at SCI Houtzdale :
[Car], Crystal Loy - Unit Manager at SCI :
Houtzdale [U/M], Rodney McBride - Unit :
Counselor at SCI Houtzdale [U/C], :
Stewart - Sergent at SCI Houtzdale - [Sgt.], : No. 392 M.D. 2018
Respondents :
ORDER
AND NOW, this 10th day of July, 2019, Pennsylvania Department of
Corrections’ Secretary John Wetzel, Chief Grievance Officer Dorina Varner,
Grievance Officer Keri Moore, State Correctional Institution Houtzdale’s
Superintendent Barry Smith, Superintendent’s Assistant and Facility Grievance
Coordinator Rebecca Reifer, Corrections Classification Program Manager M. Ivicic,
Corrections Employment Vocational Coordinator Susan McQuillen, Major Joel
Barrows, Maintenance Supervisor Norvell, Carpenter Kuhn, Unit Manager Crystal
Loy, Unit Counselor Rodney McBride and Sergeant Stewarts’ first Preliminary
Objection to Wayne Prater’s pro se petition for review is sustained, and this matter is
transferred to the Clearfield County Common Pleas Court for disposition of the
remaining Preliminary Objections.
___________________________
ANNE E. COVEY, Judge