Opposition Brief — Kolbeck v. General Motors Corp.

ihe BE ds SUN a eS SORES hal naa ge an! Se eat SU te a Ak a kT Be a (4) 4

No. 92-133

IN THE

SUPREME COURT OF THE UNITED

October Term, 1992

MICHAEL J. KOLBECK,

Petitioner

~~

Vv.

GENERAL MOTORS CORPORATION,

Respondent

Ree Mees ye ee ep

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

a

Thomas Finarelli, Esquire

Counsel of Record

Edward A. Gray, Esquire

Michael D. Brophy, Esquire

LAVIN, COLEMAN, FINARELLI

& GRAY

Penn Mutual Tower

510 Walnut Street

12th Floor

PA 19106

(215) 627-0303

Attorneys for Respondent,

General Motors Corporation

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QUESTIONS PRESENTED FOR REVIEW

The Petition for Writ of Certiorari presents the

following questions for review, neither of which was

presented to the court below:

WHETHER THE THIRD CIRCUIT COURT'S

REFUSAL TO ALLOW PETITIONER TO SUG-

GEST IN BANC RECONSIDERATION OF A DE-

NIED REQUEST FOR EXTENSION OF TIME TO

FILE FOR REHEARING BY THE THIRD CIR-

CUIT COURT OF APPEALS CONSTITUTES A

DEPRIVATION OF PETITIONER’S DUE PRO-

CESS RIGHTS.

WHETHER DENIAL OF PETITIONER’S PE-

TITION REQUESTING AN EXTENSION OF

TIME TO FILE FOR REHEARING AND DENIAL

OF APPELLANT’S PETITION TO RECALL THE

MANDATE ISSUED BY THE THIRD CIRCUIT

COURT OF APPEALS WERE VIOLATIONS OF

PETITIONER’S DUE PROCESS RIGHTS.

STATEMENT PURSUANT TO SUPREME COURT

RULE 29.1

Respondent in this matter is General Motors Corpo-

ration. There is no “parent company” of General Motors

Corporation. The following are subsidiary companies

(other than wholly-owned subsidiaries) of General Mo-

tors Corporation:

AeroVironment Inc. (USA)

Alambrados Automatrices. S.A. de C.V. (Mexico)

Alambrados y Circuitos Electricos, S.A. de C.V.

(Mexico)

AMBRAKE Corporation (USA)

Applied Intelligence Systems, Inc. (USA)

Aralmex, S.A. de C.V. (Mexico) *

Automotive Polymer Based Composites Joint Ven-

ture and Development Partnership

Autos y Maquinas del Ecuador S.A. (AYMESA)

(Ecuador)

Avis, Inc. (U.S.A.)

Bujias Mexicanas, S.A. de C.V. (Mexico)

Cableados de Juarez, S.A. de C.V. (Mexico)

CABLESA-Industria de Componentes Electricos

Limitada (Portugal)

Calsonic Harrison Co., Ltd. (Japan)

Cami Automotive Inc. (Canada)

CEI Co., Ltd. (USA)

Comau Productivity Systems, Inc. (USA)

Compagnie De Faisceaux Tunisian International

S.A. (Tunisia)

Compania Nacional de Direcciones Automotrices,

S.A. de C.V. (Mexico)

Componentes Delfa, C.A. (Venezuela)

Componentes Mexicanos de Matamoros, S.A. de

C.V. (Mexico)

Conductores y Componentes Electricos, de Juarez,

S.A. de C.V. (Mexico)

Convesco Vehicle Sales GmbH (West Germany)

Daewoo Automotive Components, Ltd. (Korea)

Delco Electronics Corporation (USA)

Delkor Battery Company, Ltd. (Korea)

Delmex de Juarez, S.A. de C.V. (Mexico)

Delredo, S.A. de C.V. (Mexico)

Detroit Deere Corporation (USA)

Detroit Diesel Corporation (USA)

DEB — Componentes Automotivos S.A. (Brazil)

DEMS Industries, Ltd. (Korea)

Diffracto Limited (Canada)

DR DE CHIHUAHUA, S.A. de C.V. (Mexico)

Electronic Data Systems Corporation (USA)

Ensamble de Cables Y Componentes, S.A. de C.V.

(Mexico)

Fabrica Columbiana de Automotores S.A. (“Colo-

motores”) (Columbia) ~

General Motors de Brasil, Ltda. (Brazil) :

General Motors de Colombia S.A. (Colombia)

General Motors de Ecuador S.A. (Ecuador)

General Motors de Mexico, S.A. de C.V. (Mexico)

- . ——

General Motors Egypt, S.A.E. (Egypt)

General Motors Espana, S.A. (Spain)

General Motors (Europe) AG (Switzerland)

General Motors France (France)

General Motors Hellas, A.B.E.E. (Greece)

General Motors Iran Limited (Iran)

General Motors Kenya Limited (Kenya)

General Motors del Peru S.A. (Peru)

General Motors de Portugal, Limitada (Portugal)

Genie Mecanique Zairose, S.A.R.L. (Zaire)

GM Allison Japan Limited (Japan)

GMFanuc Robotics Corporation (USA)

Hua Tang Automotive Corporation (Rep. of China)

IBC Vehicles Limited (England)

Ilmor Engineering, Ltd. (England)

Industries Mecaniques Maghrebines, S.A. (Tunisia)

Industrija Delova Automobila, Kikinda (Yugoslavia)

INLAN-Industria de Componentes Mecanicos, Lda.

(Portugal)

Isuzu Motors Limited (Japan)

Isuzu Motors Overseas Distribution Corp. (Japan)

Kabelwerke Reinshagen GmbH (West Germany)

Kabelwerke Reinshagen Werk West Berlin GmbH

(West Germany)

Kabelwerke Reinshagen Werk Neumarkt GmbH

(West Germany)

Koram Plastics Company, Ltd. (Korea)

Metal Casting Technology, Inc. (USA)

iv

Motor Enterprises, Inc. (USA)

New United Motor Manufacturing, Inc. (USA)

New Venture Gear, Inc. (USA)

NHK Inland Corporation (Japan)

Omnibus BB Transportes, S.A. (Ecuador)

Packard Electric Ireland Limited (Ireland)

Perceptron Inc. (USA)

Promotora de Partes Electronics Automotrices (Mexic:

P.T. Mesin Isuzu Indonesia (Indonesia)

Rimir, S.A. de C.V. (Mexico)

Rio Bravo Electricos, S.A. de C.V. (Mexico)

Robotic Vision Systems, Inc. (USA)

Senalizacion y Accesorios del Automovil Yorka, S.A.

(Spain)

Shinsung Packard Company, Ltd. (S. Korea)

Sistemas Electricos y Commutadores, S.A. de C.V.

(Mexico) .

Sung San Company, Ltd. (Korea)

Suzuki Motor Co., Ltd. (Japan)

Tactical Truck Corporation (USA)

Teknowledge, Inc. (USA)

TEREX Equipment Limited (Scotland)

Vauxhall Motors Limited (England)

Vestiduras Fronterizas, S.A. de C.V. (Mexico)

View Engineering (USA)

Volvo GM Heavy Truck Corporation (USA)

TABLE OF CONTENTS

Page

yi gl” eT ePEET TT ere er Tre rT ri vii

SOMEONE GE TIO GORD a once ce ckececcescveccesess 1

SUMMMATY OF ATBUUIIEE. occ ccc eccscccescsveswusa 2

iy | SPPTUTTI LIT UPT TELE LETT 2

CONNER 4 oo a dnccdccv an aveeksencubanaebaneres 9

senna

TABLE OF AUTHORITIES

CASE LAW Page

Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48

Re SR rrr eS eee err ra 8

Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52

ge te te ee re rae 4

Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir.

PAE Gaerne Kkckecescuke ee renes Ee ee

Duignan v. United States, 274 U.S. 195, 47 S.Ct.

~ ee Bk 4 2 er ererre 4

Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785,

ee) Se ee er rr 6

United States v. Hohri, 482 U.S. 64, 107 S.Ct.

es Te Me PE LEED a oc eves cciceess 8

United States v. Williams,504U.S. ,112S.Ct. ,

eee BE ee 4

Virginia Bankshares, Inc. v. Sandberg,501 U.S. _ ,

111 S.Ct. 2749, 115 L.Ed.2d 929 (1992) ...... 4

| Western Pac.R.Corp. v. Western Pac.R.Co., 345

| U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953)... 4, 5

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41

ST OE cca ce bes cchcsstcntnvens 4

STATUTORY PROVISIONS

pppoe FO Lt . errr err eer reer er 1, 6

| ee Tis sv avcasaccesesgsetecue i, 4,5

RULES OF COURT

Federal Rule of Appellate Procedure 40(a) ........ * ix

Internal Operating Procedures of the Third Circuit

PLGA Ces bib wecdncsecheeeeseeseoeses 3

Chapter 10..... MOS eRe sebaEGS CeObRRS CSR ORSES 1

Dy Gee UD BD vc cc scceccsescccsecseses 6

vii

i , J

TABLE OF AUTHORITIES — (Continued)

TREATISES AND OTHER TEXTS Page

Restatement Second of Torts, § 402A............ 7

STATEMENT OF THE CASE

Respondent, General Motors Corporation, accepts

petitioner’s recital of the relevant procedural history

appearing at pages 5-6 of Michael Kolbeck’s Petition for

Writ of Certiorari (referred to herein as “Petition”). The

issue of a “seat belt defense,” Petition at 6, specifically

required interpretation of the Pennsylvania Occupant

Protection Act, 75 Pa.C.S.A. §§ 4581-85, by the lower

federal courts. See Petition at 6; Appendix to Petition,

A-12 through A-28 inclusive. Respondent does not ac-

cept petitioner’s statement of the reasons offered to

explain his failure to timely file a petition for rehearing

in banc. Respondent also disagrees with petitioner’s

interpretation of the decision in Dillinger v. Caterpillar,

Inc., 959 F.2d 430 (3d Cir. 1992). See Petition at 7-8 and

Argument, infra.

- Contrary to petitioner’s statement of the case, Mr.

Kolbeck was allowed to file a “suggestion for rehearing”

in banc which was ultimately reviewed and rejected by

a three-judge panel of the court of appeals. Curiously,

petitioner omitted from his Appendix the “Petition for

Rehearing In Banc” filed April 27, 1992, (acknowledged

by the Clerk’s letter of April 28, 1992, which appears at

A-8 and A-9 of the Appendix) which expressly requested

rehearing in banc. Reference of such matters to a

three-judge panel was appropriate pursuant te 28 U.S.C.

§ 46 and Internal Operating Procedure 10.3.3 of the

Court of Appeals.

Kolbeck’s Petition for Writ of Certiorari, served on

counsel for respondent on July 22, 1992, presents for

review in this Court two questions not preserved for

appellate review below. Each suggests a due process

1. The releyant statutory provisions appear in the Petition at

3-4. Briefly, 28 U.S.C. § 46(c) authorizes rehearing in banc in the

courts of appeals where so ordered by the judges of the circuit.

Chapter 10.3.3 of the Third Circuit’s Internal Operating Procedures

governs submission of certain motions for reconsideration or re-

hearing.

2

violation which was neither presented to nor decided by

the court of appeals.

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari inaccurately states

that petitioner was not allowed to “suggest” the need for

rehearing in banc in the court of appeals. Kolbeck’s

Petition for Rehearing In Banc, though filed several

months out-of-time, was presented to and rejected by an

appropriately constituted panel of the court below. The

constitutional arguments presented for the first time

here not only lack support in case precedent, but seek to

excuse petitioner’s failure to timely file a petition for

rehearing in banc in the court below. Finally, the court

of appeals properly rejected the merits of petitioner’s

underlying state law claims which, on their face, would

not justify the exercise of discretionary jurisdiction by

this Court.

ARGUMENT

I. The Procedures Adopted By The Court Of Appeals

Allowed Petitioner, Who Purposefully Elected Not To

File A Timely Petition For Rehearing In Banc, The

Opportunity To Request Such Rehearing Out-Of-Time

And To Present Legal Argument To A Three-Judge

Panel Of The Court.

Petitioner, Michael Kolbeck, whose liability claims

against General Motors Corporation have been rejected

by a district court jury and by the United States Court of

Appeals for the Third Circuit, now seeks to expand both

settled constitutional precedent and federal appellate

procedure to excuse his admitted failure to timely file a

petition for rehearing in banc in the lower court.

Kolbeck’s petition makes superficial reference to

numerous constitutional provisions yet offers not a sin-

gle precedent to support the central proposition of his

3

case, namely, that a litigant has a constitutionally pro-

tected interest sufficient to compel review of an un-

timely filed petition for rehearing in banc. This argu-

ment lacks support in the Constitution, in common law

and in common sense as well. It is also contradicted in

fact by the lower court record.

Kolbeck’s petition argues that the court of appeals,

acting through its clerk, would not allow him “to suggest

that appropriate circumstances exist warranting sub-

mission of his request for an extension of time to file for

a rehearing to an im banc session of the court.” Petition

at 9. To the contrary, Kolbeck’s Petition for Rehearing In

Banc was submitted to and rejected by a three-judge

panel of the court. See Appendix to Petition at A-8

through A-11. That the clerk may have submitted the

rehearing petition to the court accompanied by a trans-

mittal form treating the document as a “motion for

reconsideration” of an earlier order did not deprive the

petition of its character or its content. Petitioner’s claim

that he was denied access to the courts notwithstanding,

the appellate record confirms both presentation and

proper judicial consideration of Kolbeck’s arguments.?

The order which affirmed judgment for General

Motors Corporation was entered November 27, 1991.

For a period of 14 days thereafter, counsel for petiticner

was entitled as a matter of right to file a petition for

rehearing. Fed. R.App.P. 40(a). When timely filed in the

United States Court of Appeals for the Third Circuit,

petitions for rehearing are circulated to all active circuit

judges pursuant to Chapter 9 of the court’s Internal

Operating Procedures and 28 U.S.C. § 46. Petitioner’s

failure to pursue this opportunity cannot be excused, ex

2. Petitioner has failed to include in his Appendix any of the

substantive motions filed in the court of appeals, review of which

demonstrates that the same substantive arguments which underlie

the pending petition were twice presented to and rejected by

three-judge panels. See Appellant’s “Petition to Recall the Mandate”

filed March 8, 1992 and Appellant’s “Petition for Rehearing In

Banc” filed April 27, 1992.

4

post facto, on transparent constitutional claims of lack of

due process or denial of access to the courts.

In his petition, which criticizes the procedure

adopted by the court of appeals for disposition of rehear-

ing petitions, Kolbeck now contends for the first time

that his due process rights were abridged.* He relies

heavily on this Court’s decision in Western Pacific

Railroad Corp. v. Western Pacific Railroad Co., 345

U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953), to support

his position. Arguments similar if not identical to those

advanced by Kolbeck here, however, were expressly

rejected in Western Pacific. Interpreting the powers

granted pursuant to 28 U.S.C. § 46, the Court observed

that “$46(c) is not addressed to litigants. It is addressed

to the Court of Appeals. It is a grant of power. It vests in

the court the power to order hearings en banc. It goes no

further.” Id., 345 U.S. at 250. In terms applicable to

3. Petitioner concedes that precedent interpreting the right of

access to the courts addressed constitutional deprivations not in

evidence here. Petition at 11, citing Bounds v. Smith, 430 U.S. 817,

97 S.Ct. 1491, 52 L.Ed. 2d 72 (1977). The right of access to the

courts “is founded in the Due Process Clause and assures that no

person will be denied the opportunity to present to the judiciary

allegations concerning violations of fundamental constitutional

rights.” Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986,

41 L.Ed.2d 935 (1974). Kolbeck’s various allegations, which do not

rise to the level of fundamental constitutional rights, were “pre-

sented” on several occasions to the court of appeals.

4. The traditional rules of this Court preclude grant of

certiorari when “the question presented was not pressed or passed

upon below.” United States v. Williams, 504 U.S. ,112S.Ct. ,

118 L.Ed.2d 352, 372 (1992) (Stevens, J. dissenting); see Duignan

v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996

(1927); cf. Virginia Bankshares, Inc. v. Sandberg,501 U.S. ,111

S.Ct. 2749, 115 L.Ed.2d 929, 949 n.8 (1992) (issues not presented

to, but passed upon by, court of appeals may be reviewed by the

Court). Assuming Kolbeck’s characterization of the record to be

accurate — which it is not — his claim that the actions of the clerk

deprived him of his constitutional right of access to the courts

should have been presented to a motion panel of the court of

appeals. See Chapter 10, Internal Operating Procedures of the Court

of Appeals for the Third Circuit.

5

Kolbeck’s petition, the Court continued: “[Section 46(c)]

neither forbids nor requires each active member of a

Court of Appeals to entertain each petition for a hearing

or rehearing en banc. The court is left free to devise its

own administrative machinery to provide the means

whereby a majority may order such a hearing.” Jd.

Reviewing the statute’s legislative history, the Court

emphasized that “the determination of how the en banc

power was to be exercised was to rest with the court

itself — litigants should be free to suggest that a

particular case was appropriate for consideration by the

full court, but they should be given no right to compel ail

circuit judges to take formal action on the suggestion.”

Id., 345 U.S. at 252 (emphasis added); see 345 U.S. at

256-58. Recognizing the power of a court of appeals to

“delegate the responsibility for the initiation of the en

banc power to the divisions of the court,” 345 U.S. at

261, this Court cautioned that counsel in such circum-

stances should be allowed “access to the few circuit

judges who must act initially, and perhaps decisively, on

the matter for the others.” Jd. at 262.

In this case, Mr. Kolbeck was twice allowed such

access to a panel consisting of Circuit Judges Mans-

mann, Cowen and Higginbotham. On April 20, 1992,

this panel reviewed and rejected Appellant’s Petition to

Recall the Mandate, and on June 11, 1992, the same

panel denied Appellant’s Petition for Rehearing In Banc

(transmitted as a motion for reconsideration). Neither 28

U.S.C. § 46 nor the rulings of this Court require more.

II. The Court Of Appeals Properly Denied Petitioner’s

Requests To Recall The Mandate And Extend The Time

For Rehearing.

The substantive basis for petitioner’s request for

rehearing in banc was a claimed intracircuit conflict

over the admissibility of evidence relating to non-use of

seat belts, as manifested in decisions in this case and in

Dillinger v. Caterpillar. Should the Court overlook the

6

procedural and factual deficiencies in petitioner’s case, it

is nonetheless clear that the decisions in Dillinger and

Kolbeck can be easily reconciled and do not mandate

issuance of a writ of certiorari.5

Fundamentally, two critical distinctions differenti-

ate the Kolbeck and Dillinger decisions. First, the recon-

struction of the accident and theory of liability presented

at this trial required the jury to infer that Mr. Kolbeck

(who was seated in the right front seat) was not wearing

his seat belt. See Kolbeck’s Petition at 5 (“At the time of

the accident, Mr. Kolbeck was a front-seat passenger. . .

He alleges that he suffered his spinal cord injury when

his head struck the rearview mirror assembly .. . ”).

Kolbeck’s petition, in its reliance on Dillinger, asks

the Court to ignore the manner in which counsel tried

his case. Unlike in Dillinger, where a product manufac-

turer defendant charged with having caused an accident

sought to introduce evidence of seat belt non-use in an

attempt to mitigate damages, it was the plaintiff here

who placed that information before the jury. His claim

necessitated that course, otherwise he would have been

unable to explain the occupant kinematics which he

believed demonstrated he struck the rearview mirror.

Interestingly, a literal reading of the Pennsylvania Oc-

cupant Protection Act, supra, cited by Kolbeck, would

have prevented him from meeting his burden of proof on

causation. Kolbeck sought in the lower courts to apply

the Pennsylvania statute only when it favored his posi-

5. As noted in Respondent’s Statement of the Case, supra, the

substantive issue at the heart of Kolbeck’s petition involves alleg-

edly conflicting treatments of the Pennsylvania Occupant Protec-

tion Act. Such interpretations of state law matters generally do not

support grant of certiorari by this Court. See Supreme Court Rule

10; cf. Duncan v. Tennessee, 405 U.S. 127, 31 L.Ed.2d 86, 92 S.Ct.

785 (1972) (writ of certiorari dismissed as improvidently granted

where double jeopardy questions were so interrelated with state

procedure as not to warrant exercise of discretionary jurisdiction).

7

tion; but being the party who introduced the disputed

evidence, to argue for its preclusion was incongruous.®

The negligence claim so actively pursued by Mr.

Kolbeck represents the second major distinguishing

feature of this litigation. Plaintiff proceeded at trial on a

negligence theory entirely separate from his product

liability claim. He requested and received jury instruc-

tions on this issue from the trial judge, the Honorable

Daniel H. Huyett, II. Mr. Coben’s closing argument to

the jury also repeated his negligence claims. Having

elected this course, plaintiff could not close the record to

evidence of his contributory negligence. Accordingly,

the Dillinger court’s review of the dichotomy in Penn-

sylvania law which forbids introduction of negligence

concepts into a product liability action is inapplicable.

The issue decided by Judge Huyett, whether Mr. Kol-

beck’s non-use of ihe seat belt was evidence of contrib-

utory negligence, was not even addressed in Dillinger.

Therefore, the decisions do not conflict.7

6. In terms of its effect on the outcome of the trial, the

evidentiary issue is a false one. The principal disagreement between

the parties was not whether Mr. Kolbeck was restrained or unre-

strained, but what portion of the vehicle’s interior he struck with his

head. In his opening speech to the jury, and again in closing,

counsel for Mr. Kolbeck identified the movement of his client’s body

within the vehicle after impact as the critical conflict between the

parties, emphasizing that unless the jury found his client struck the

rearview mirror, his case was lost. That essential issue was resolved

in favor of General Motors Corporation. While finding the rearview

mirror negligently and defectively manufactured, the jury decided

against the plaintiff on causation.

7. Much of the Dillinger opinion is devoted to Pennsylvania

case law which “refused to permit any evidence of negligence on

the part of the plaintiff to be introduced to defeat a claim under”

Section 402A of the Restatement (Second) of Torts. Dillinger,

supra, 959 F.2d at 435. Although referencing and criticizing Judge

Huyett’s opinion in Kolbeck, the Dillinger panel did not address the

presence of a negligence count in Mr. Kolbeck’s complaint. Its

analysis is confined solely to the traditional “refusal” of Pennsylva-

nia courts to allow contributory negligence to be asserted as a

defense in § 402A cases, and thus does not address the particular

legal issue decided in Kolbeck. Judge Huyett’s scholarly analysis of

8

Similarly, seat belt non-use as contributory fault was

inconsequential. The jury did indeed find Mr. Kolbeck

partially responsible for his injury, but it found no

responsibility on the part of General Motors Corporation.

The negligent manufacture of the rearview mirror was

found not to be a substantial factor, not because Mr.

Kolbeck failed to wear his seat belt, but because Kolbeck

did not strike his head on the mirror. Simply put,

plaintiffs cause was lost before the jury even considered

the effect of his negligence.

NOTES (Continued)

this state law issue presents an additional obstacle to Kolbeck’s

petition, as this Court traditionally affords “great deference” to a

district judge’s determination of state law questions. See United

States v. Hohri, 482 U.S. 64, 74 n.6, 107 S.Ct. 2246, 96 L.Ed.2d 51

(1987); Bishop v. Wood, 426 U.S. 341, 346 and n. 10, 96 S.Ct. 2074

(1976).

9

CONCLUSION

Petitioner’s deliberate failure to avail himself of

post-decision remedies should not be excused by this

Court, particularly where petitioner’s substantive claims

were properly considered and decided by the lower

federal courts. The court of appeals heard and rejected

Kolbeck’s “suggestion” for rehearing in banc, thus pro-

viding him with all of the process to which he was due.

For these reasons, it is respectfully submitted that

the Petition for Writ of Certiorari should be denied.

Respectfully submitted,

LAVIN, COLEMAN, FINARELLI & GRAY

By: /s/ THOMAS FINARELLI

Thomas Finarelli, Esquire

Edward A. Gray, Esquire

Michael D. Brophy, Esquire

Attorneys for Respondent,

General Motors Corporation

DATED: August 21, 1992