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July 15, 2009
COMMONWEALTH OF PENNSYLVANIA, APPELLEEv.GARRICK MOORE, APPELLANT
Appeal from the Order entered August 4, 2008, in the Court of Common Pleas of Erie County, Criminal Division at Nos. 325, 326 and 327 of 2008.
BEFORE: BOWES, ALLEN, and KELLY, JJ.
¶ 1 Garrick Moore ("Appellant") appeals from the trial court order denying his petition for extension of time to file a post-sentence motion. We remand with instructions, and hold that, for reasons of judicial economy and fairness, a defendant who raises ineffective assistance of counsel claims after being found in contempt of a Protection from Abuse order ("PFA") and sentenced to imprisonment pursuant to 23 Pa.C.S.A. § 6114, is entitled to an evidentiary hearing on the ineffectiveness of counsel claims, such that the record is adequate to assess the claims on direct appeal, consistent with Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).
¶ 2 The trial court summarized this case as follows:
On January 15, 2008,.this Lower Court entered a Final Order Of Protection From Abuse, in which [Appellant] was prohibited from having any contact with the Plaintiff. Subsequently, on July 23, 2008, an Indirect Criminal Contempt Hearing was held before the Lower Court in order to determine whether [Appellant] violated the above stated Protection from Abuse Order on three separate occasions. At the July 23, 2008 Indirect Criminal Contempt Hearing, [Appellant] was represented by Carolyn E. Gold, Esq., from the Erie County Office of the Public Defender. Pursuant to 23 Pa. C.S. § 6114, this Lower Court found [Appellant] guilty of Indirect Criminal Contempt at all three docket numbers, and [Appellant] was sentenced to serve six months of incarceration at each docket number. However, Docket Number 326 of 2008 was to be served concurrent to Docket Number 325 of 2008, while Docket Number 327 of 2008 was to be served consecutive to Docket Number 325 of 2008.
Thereafter, on July 31, 2008, [Appellant], by and through Nicole D. Sloane, Esq. of the Erie County Office of the Public Defender, filed a Petition For Extension of Time To File A Post-Sentencing Motion. In the petition, Attorney Sloane indicates that [Appellant] wrote to the Chief Public Defender asking for an "Appeal" based upon numerous claims of ineffective assistance of counsel. Attorney Sloane further indicated that the case must be transferred to outside counsel because the ineffective assistance of counsel claims were based upon the previous representation by Attorney Gold of the Public Defender's Office, and therefore, the Public Defender's Office would have a conflict of interest representing [Appellant] in any subsequent proceedings involving the issue of ineffective assistance of counsel. However, on August 4, 2008, this Lower Court properly denied [Appellant's] Petition For An Extension Of Time To File A Post-Sentencing Motion because this Lower Court lacks the jurisdiction to extend said time limits. On August 7, 2008, [Appellant], by and through Attorney Sloane, filed the instant appeal.
Trial Court Opinion, 10/6/08, at 1-2 (footnote omitted) (emphasis added).
¶ 3 On August 11, 2008, the trial court entered an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant filed on August 14, 2008.
¶ 4 Appellant presents the following question for our review:
Whether the trial court denied Appellant the essential procedural safeguards that attend proceedings where an individual's liberty is at stake including the right to the assistance of counsel and the right to appeal the judgment of sentence?
Appellant's Brief at 3.
¶ 5 Appellant explains that he sought an extension of time to file his post-sentence motion because "an extension would have allowed his case to be transferred to an attorney outside of the public defender's office so that ineffective assistance claims could be raised in the post-sentence motion and on appeal." Appellant's Brief at 7. Appellant averred that "[a] diligent search of legal authority fails to reveal any support for the trial court's assertion that it lacked the jurisdiction to extend the time limit to file a post-sentence motion..Further, even after the 10 day period has expired (but before 30 days), trial courts have the authority to grant a criminal defendant permission to file a post-sentence motion nunc pro tunc when the defendant exhibits sufficient cause to excuse the late filing." Appellant's Brief at 10. We agree.
¶ 6 It is initially noteworthy that the request for nunc pro tunc relief is separate and distinct from the merits of the underlying post-sentence motion. Commonwealth v. Dreves, 839 A.2d 1122, 1128-1129 (Pa. Super. 2003) (en banc). Pennsylvania Rule of Criminal Procedure 720(A)(1) requires that post-sentence motions be filed within ten days of sentencing.*fn1
¶ 7 This Court has addressed the nunc pro tunc filing of post-sentence motions as follows:
To be entitled to file a post-sentence motion nunc pro tunc, a defendant must, within 30 days after the imposition of sentence, demonstrate sufficient cause, i.e., reasons that excuse the late filing.When the defendant has met this burden and has shown sufficient cause, the trial court must then exercise its discretion in deciding whether to permit the defendant to file the post-sentence motion nunc pro tunc.
Commonwealth v. Dreves, 839 A.2d at 1128) (emphasis added).
¶ 8 It is well settled that an abuse of discretion is not merely an error of judgment, but rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence on the record. Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super. 2005).
¶ 9 Here, the trial court abused its discretion when it misapplied the law and stated that it "lacked the jurisdiction to extend the time limitation contained in Rule 720(A)(1)." Trial Court Opinion, 10/6/08, at 2. This statement by the trial court is contrary to the language of Dreves, supra.
The trial court clearly had the authority to grant or deny Appellant an extension of time in which to file his post-sentence motion. However, the trial court erred when it averred that it lacked jurisdiction to permit Appellant to file his post-sentence motion nunc pro tunc.
¶ 10 Furthermore, with regard to the underlying merits of Appellant's petition concerning the ineffectiveness of trial counsel, the trial court commented:
[T]he underlying basis of [Appellant's petition for extension of time to file a post-sentence motion] was to raise a claim of ineffective assistance of counsel. As a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review because the role of appellate counsel may not include raising claims not contained in the record certified for appeal. The record may not be sufficiently developed on direct appeal to permit adequate review of ineffectiveness claims; and appellate courts do not normally consider issues not raised and developed in the court below. Consequently, [Appellant] is not prejudiced by the denial of his Petition For An Extension Of Time To File A Post-Sentencing Motion, because [Appellant] can raise the claim of ineffective assistance of counsel in a Petition For Post-Conviction Collateral Relief (PCRA), which is the appropriate vehicle to bring such a claim.
Trial Court Opinion, 10/6/08, at 3 (citation omitted).
¶ 11 We agree with the trial court that Appellant may pursue ineffectiveness of counsel claims pursuant to the PCRA. See generally Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (providing that an appellant should wait until collateral review to raise ineffective counsel claims). However, Appellant cites the PCRA, 42 Pa.C.S.A. § 9543, and queries whether he would be eligible to seek relief under the PCRA following the trial court's finding of "indirect criminal contempt at three miscellaneous docket numbers." Appellant's Brief at 11.
¶ 12 The PCRA at 42 Pa.C.S.A. § 9543 provides:
§ 9543. Eligibility for relief
(a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the crime; or
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.
¶ 13 A criminal contempt proceeding arising under the Protection from Abuse Act is criminal in nature, and the Commonwealth must prove every element beyond a reasonable doubt. Commonwealth v. Nelson, 690 A.2d 728 (Pa. Super. 1997). The sanction of criminal contempt, whether direct or indirect, is an actual criminal conviction. Commonwealth v. Haigh, 874 A.2d 1174, 1177 (Pa. Super. 2005), appeal denied, 887 A.2d 1240 (Pa. 2005). "Where a PFA is involved, an indirect criminal contempt charge is designed to seek punishment for violation of the protective order." Commonwealth v. Brumbaugh, II, 932 A.2d 108 (Pa. Super. 2007) (quoting Commonwealth v. Padilla, 885 A.2d 994, 996 (Pa. Super. 2005)). "Thus, as with those accused [of] other crimes, one charged with indirect criminal contempt is to be provided the safeguards which statute and criminal procedures afford." Haigh, 874 A.2d at 1176; Padilla, 885 A.2d at 996-997 (both quoting Commonwealth v. Baker, 722 A.2d 718, 720-721 (Pa. Super. 1998) (en banc) (citations omitted)).
¶ 14 In the present case, our review of the record indicates that Appellant has indeed been convicted of three crimes by being in contempt of his PFA at three different counts pursuant to 23 Pa. C.S.A. § 6114. The record contains three "criminal complaints" filed pursuant to 23 Pa. C.S.A. § 6114, Appellant's successful application for a public defender, and a "sentencing order" specifying that Appellant was found "guilty" of three counts of violating a PFA and sentencing him to an aggregate one year in prison. Given Appellant's criminal convictions and sentencing, it appears that he would be eligible under 42 Pa. C.S.A. § 9543 to file a petition under the PCRA.
¶ 15 However, the PCRA may not be a practical or timely vehicle for relief for a defendant who has been found in contempt for violating a PFA. Pursuant to 23 Pa.C.S.A. § 6114(b), a defendant who has been found to be in contempt of a PFA may be sentenced to no more than six months imprisonment.*fn2 It is therefore likely that, absent a stay of sentence, the defendant who pursues ineffectiveness of counsel claims under the PCRA would have served all or part of his sentence before his ineffectiveness of counsel claims were resolved under the PCRA. As a general rule, an appellant's claims of ineffective assistance of trial counsel should await collateral review. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). An exception to Grant exists, and ineffectiveness claims may be heard on direct appeal, where the ineffectiveness claims were presented to the trial court and the record is adequate to assess their merit in light of the trial court's conclusions. Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003). In Commonwealth v. Kennedy, 868 A.2d 582 (Pa. Super. 2005), we held that the trial court acted within its discretion in denying a post-sentence motion for an evidentiary hearing to develop a claim of ineffective assistance of counsel for direct review. Most recently, though, this Court in Commonwealth v. Liston, 941 A.2d 1279, 1280 (Pa. Super. 2008) (en banc), petition for allowance of appeal granted, 959 A.2d 1248 (Pa. 2008).*fn3 advocated procedure which "best promotes judicial economy." Although the facts of Liston were different where the trial court reinstated appellant's appeal rights nunc pro tunc but did not address his remaining ineffective assistance of counsel claims, our stated policy in favor of judicial economy is consistent that "the concernsàwith judicial economy and efficiency remain valid." Id. at 1283.
¶ 16 Accordingly, where a defendant has been found in violation of a PFA, is sentenced pursuant to 23 Pa.C.S.A. § 6114(b), and alleges ineffectiveness of counsel, judicial economy may be best served by the PFA court conducting a post-sentence Bomar evidentiary hearing on a defendant's claims of ineffective assistance of counsel.
¶ 17 Given the foregoing, we vacate the trial court's order denying Appellant's motion for extension of time to file a post-sentence motion and reinstate Appellant's right to file his post-sentence motion nunc pro tunc to pursue his claims of ineffective assistance of counsel. As with Liston, supra, the trial court in this case shall consider the ineffectiveness of counsel issues raised in Appellant's post-sentence motion and dispose of them on the merits. In order to do so, the trial court is directed to conduct an evidentiary hearing on Appellant's ineffectiveness of counsel claims.
¶ 18 Order vacated. Remanded with instructions. Jurisdiction relinquished.
¶ 19 Judge Bowes files a Concurring/Dissenting Opinion.
¶ 1 In the present case, the trial court held that it did not have the authority to grant Appellant permission to file his untimely post-sentence motion nunc pro tunc. This conclusion was incorrect as our Supreme Court has indicated that it is within the authority of a trial court to overlook the untimely filing of a post-trial motion and address the motion on the merits. If the trial court chooses to do so, any issues raised in the untimely motion will be considered preserved for purposes of appeal. In Commonwealth v. Metz, 633 A.2d 125, 127 (Pa. 1993), the Court summarized this exercise of judicial discretion:
It is well-established that issues not raised in post- trial motions are not preserved for appellate review. . . .
We recognize that exceptions to this rule have been made in certain limited circumstances----specifically, where the appellant raises the issue post-trial in a procedurally defective manner and the trial court chooses to overlook the defect and address the issue on its merits. See, e.g., Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988) (per curiam) (Superior Court erred in considering issue waived where it was presented in supplemental post-trial motions filed without leave and trial court nevertheless addressed issue on merits), reversing 365 Pa.Super. 613, 530 A.2d 480 (1987); Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804, 806 (1989) (Superior Court erred in refusing to review merits of appeal where trial court chose to ignore untimely filing of post-trial motions and addressed merits of alleged errors); Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), allocatur denied, 522 Pa. 583, 559 A.2d 526 (1989); Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805, allocatur denied, 528 Pa. 629, 598 A.2d 283 (1991). . . .
See also Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super. 2003) (en banc) (if party requests permission to file post-sentence motion nunc pro tunc, trial court may exercise its discretion and permit such filing).
¶ 2 In the present case, pursuant to this Court's decision in Commonwealth v. Liston, 941 A.2d 1279 (Pa.Super. 2008) (en banc), the Majority removes that discretion from the trial court, grants Appellant permission to file his post-sentence motion nunc pro tunc, and remands for an evidentiary hearing regarding Appellant's claims of ineffective assistance of counsel. As the Majority notes, our Supreme Court has granted allowance of appeal in Liston, and its order in that regard signaled a potential disapproval of Liston:
a. Did the Superior Court contradict Commonwealth v. Grant in purporting to create its own new exception to that case?
b. Did the Superior Court contradict Commonwealth v. Reaves by holding that any PCRA petitioner entitled to a nunc pro tunc direct appeal is automatically entitled to nunc pro tunc post sentence motions as well, without proving prejudice?
c. Did the Superior Court usurp this Court's exclusive authority to create procedural rules under Article V, § 10(c) of the state constitution?
Commonwealth v. Liston, 959 A.2d 1248, 1248 (Pa. 2008).
¶ 3 Since the trial court was in error that it lacked the authority to permit the untimely filing of post-sentence motions nunc pro tunc, I believe the better course would be to vacate the order and remand to the trial court so that it may exercise its discretion in this matter. Such action is clearly authorized under pertinent Supreme Court precedent.
¶ 4 In view of our Supreme Court's grant of review in Liston as well as the language of its order, this course of action is more prudent than following the dictates of that decision. The Majority's decision herein may well be seen as another effort by this Court to carve out its own exception to Commonwealth v. Grant, 821 A.2d 1249 (Pa. 2003), which is a practice that our Supreme Court has specifically condemned. Commonwealth v. O'Berg, 880 A.2d 597 (Pa. 2005). Hence, I concur in the Majority's conclusion that this matter should be remanded to the trial court. However, our remand should expressly permit the trial court to decide whether to grant Appellant permission to file post-sentence motions nunc pro tunc.
From the portion of the Majority Opinion that does not defer to the trial courts' discretion in this regard, I respectfully dissent.
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Millwood Inn And Suites
Millwood Inn And Suites
Hotel Guest Rating: 8.4/10
1375 El Camino Real
Millbrae, CA 94030
Hotel Freebies Available*
• Free Breakfast show dates
• Free Internet in Room show dates
• Free Parking show dates
Welcome to the Millwood Inn And Suites
Modern, welcoming rooms and loads of freebies, including Wi-Fi, hot buffet breakfast, evening cocktails and airport shuttle service, await at Millwood Inn and Suites in Millbrae.
Hotel Features
Offering much more than a place to rest your head, the 34 stylish, contemporary rooms and suite along exterior corridors feature homey amenities like free Wi-Fi, coffeemakers, microwaves and mini-fridges. In-room safes, ironing equipment, luxury toiletries and flat-panel HDTVs with premium channels are other appealing perks. Start each morning with complimentary hot breakfast followed by a workout in the fitness center. Room service is also available. Let the tour desk staff help plan your San Francisco excursions, and stock up on snacks and drinks at the hotel's convenience store. Laundry and dry-cleaning services as well as a guest laundry facility are also on-site, as is a business center. Airport shuttle service and parking are both free.
Hotel Location
Millwood Inn and Suites is located in Millbrae, just off of Highway 101 and I-280 and within walking distance to several restaurants. Business travelers benefit from its proximity to the San Francisco Convention Center, within five miles. The city's many attractions are within 15 miles, including the San Francisco Zoo, AT&T Park and the San Francisco Opera House. Catch a cable car within 15 miles, or explore Union Square, 16 miles away. Guests can also check out several popular attractions, such as Fisherman's Wharf, the Golden Gate Bridge and Pier 39, 16 miles from The Millwood Inn and Suites. Those who came to the city without wheels can hop on the BART (Bay Area Rapid Transit) or CalTrain stations one mile away from the hotel. The hotel is three miles from San Francisco International Airport.
Guest Favorites
Millwood Inn and Suites is a popular choice among Priceline guests traveling to San Francisco, thanks to free, efficient airport shuttle service, modern, nicely decorated rooms and excellent complimentary breakfast, all within close proximity to Bay Area attractions.
Millwood Inn And Suites Amenities
- 24-hour front desk
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- Air conditioning
- Business center
- Children welcome
- Complimentary buffet breakfast
- Complimentary coffee in lobby
- Dry cleaning
- Early check-in
- Exterior corridors
- Family plan
- Fax service
- Fitness center on-site
- Free airport shuttle
- Free high speed internet connection
- Free parking
- Full service housekeeping
- Gift/News stand
- Handicap rooms
- High speed internet access for laptop in public areas
- Hotel does not provide pornographic films/TV
- Hotspots
- Housekeeping - daily
- Late check-out available
- Laundry/Valet service
- Non-smoking rooms (generic)
- On-site business center
- Onsite laundry
- Parking lot
- Room service
- Room service - limited hours
- Safe deposit box
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- Sundry/Convenience store
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- Telephone
- Tour/sightseeing desk
- Translation services
- Valet same day dry cleaning
- Wakeup service
- Wireless internet connection in public areas
Hotel Information
Upon check-in photo identification and credit card are required. All special requests are subject to availability upon check-in. Special requests cannot be guaranteed and may incur additional charges. Guests are required to show a photo identification and credit card upon check-in. Please note that all Special Requests are subject to availability and additional charges may apply.
Hotel Guest Reviews of the Millwood Inn And SuitesOur hotel ratings and reviews are from real hotel guests. Priceline.com ensures that its reviews are guests-only by proactively sending hotel surveys to customers after they've completed their hotel stays. In the post-stay surveys, priceline.com hotel customers are asked a number of questions about their stay and the hotel. On a scale of 1-10 with 10 being the best, the survey asks guests to rate their overall experience and specifically rate the hotel's cleanliness, staff and location. Priceline.com does not allow site visitors to post unsolicited hotel reviews.
Sort by: All Travelers | Business Traveler(6) | Solo Traveler(3) | Traveling as Couple(18) | Family with Young Children(4) | Family with Teens(1) | Senior Traveler(1) | Group Traveler(4)
Verified Hotel Guest from Carson, CA
August 10, 2016
August 10, 2016
Free breakfast, free internet, free parking. Clean room.
Room was somewhat small but had everything needed.
Nancy from Winjipeg, Canada
July 31, 2016
July 31, 2016
Cute, character hotel with all the comforts and amenities one needs. Airport shuttle, free hot breakfast, comfy beds - what's not to love!
Xueli from Guangzhou, China
July 16, 2016
Family Traveling with Young Children
July 16, 2016
Family Traveling with Young Children
Room is smaller than expected
Justin from Fenton, MI
July 4, 2016
Solo Traveler
July 4, 2016
Solo Traveler
The room was very nice and updated. The bed was comfortable and the staff was super nice and attentive. The free breakfast in the morning was great!
It's outward appearance could be off-putting for some, as it does not appear as nice as it truly is.
Verified Hotel Guest from Burlingame, CA
June 11, 2016
June 11, 2016
Good location near airport, and nice room
Verified Hotel Guest from Altona, Canada
June 9, 2016
June 9, 2016
Fantastic little gem!
Verified Hotel Guest from Anchorage, AK
April 28, 2016
Solo Traveler
April 28, 2016
Solo Traveler
This guest did not leave comments about this hotel.
John from Glasgow, United Kingdom
April 18, 2016
Group Traveler
April 18, 2016
Group Traveler
Really clean comfy wee room. Two double beds big TVs Tea coffee fridge microwave what's not to like. Lots of food places around for a last meal. It even had a reasonable breakfast included in the price. Ideal for a last night before flying out.
Verified Hotel Guest from Glendale, AZ
April 13, 2016
Business Traveler
April 13, 2016
Business Traveler
Decor was nice
Verified Hotel Guest from Lodi, CA
April 9, 2016
April 9, 2016
Room looked recently remodeled. Clean, sheets and towels like new, nice selection at free breakfast. Seems like it should be rated a higher star level. Would definitely stay again
Reviews of Millwood Inn And Suites
(1 - 10 of 38 reviews)
(1 - 10 of 38 reviews)
from $132
- La Quinta Inn & Suites San Francisco Airport West from $119 (0mi)
- Best Western Plus El Rancho Inn from $89 (0.2mi)
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- The Dylan At Sfo from $98 (1.2mi)
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- Kitchen, The (0.8mi)
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- Burlingame, CA (1.8 mi)
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- Brisbane, CA (7.4 mi)
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- Pacifica, CA (10.0 mi)
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- Menlo Park, CA (17.6 mi)
- Moss Beach, CA (17.6 mi)
- Palo Alto, CA (20.6 mi)
- Sausalito, CA (22.3 mi)
- Emeryville, CA (23.1 mi)
- Oakland, CA (24.4 mi)
- Los Altos, CA (24.7 mi)
- Mountain View, CA (25.9 mi)
- Berkeley, CA (26.4 mi)
- Mill Valley, CA (27.3 mi)
- Corte Madera, CA (28.1 mi)
- Alameda, CA (28.6 mi)
- El Cerrito, CA (28.9 mi)
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- Sunnyvale, CA (29.4 mi)
Most Popular Guest-Rated Hotels in Millbrae
Most Popular Business-Friendly Hotels in Millbrae
- Aloft San Francisco Airport
- Fairfield Inn & Suites By Marriott Sfo Airport/Millbrae
- Millwood Inn And Suites
Most Popular Romantic Hotels in Millbrae
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- La Quinta Inn & Suites San Francisco Airport West
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- Millwood Inn And Suites

subset: commoncrawl


text:
The stock of RingCentral Inc (NYSE:RNG) is a huge mover today! About 306,613 shares traded hands. RingCentral Inc (NYSE:RNG) has risen 8.51% since April 28, 2016 and is uptrending. It has outperformed by 2.58% the S&P500.
The move comes after 5 months positive chart setup for the $1.66 billion company. It was reported on Dec, 1 by Barchart.com. We have $23.43 PT which if reached, will make NYSE:RNG worth $116.20 million more.
Analysts await RingCentral Inc (NYSE:RNG) to report earnings on February, 2. They expect $-0.09 earnings per share, 0.00% or $0.00 from last year's $-0.09 per share. After $-0.09 actual earnings per share reported by RingCentral Inc for the previous quarter, Wall Street now forecasts 0.00% EPS growth.
RingCentral Inc (NYSE:RNG) Ratings Coverage
Out of 10 analysts covering RingCentral (NYSE:RNG), 8 rate it a "Buy", 0 "Sell", while 2 "Hold". This means 80% are positive. RingCentral has been the topic of 18 analyst reports since July 21, 2015 according to StockzIntelligence Inc. Oppenheimer maintained it with "Outperform" rating and $23 target price in Friday, July 31 report. Oppenheimer maintained it with "Outperform" rating and $25 target price in Tuesday, November 3 report. The rating was initiated by RBC Capital Markets with "Outperform" on Tuesday, October 6. On Wednesday, December 9 the stock rating was maintained by RBC Capital Markets with "Outperform". The firm has "Outperform" rating given on Wednesday, December 2 by RBC Capital Markets. The firm has "Buy" rating by Summit Redstone Partners given on Tuesday, June 28. JP Morgan initiated RingCentral Inc (NYSE:RNG) rating on Thursday, July 23. JP Morgan has "Overweight" rating and $27 price target. The stock of RingCentral Inc (NYSE:RNG) earned "Strong Buy" rating by Raymond James on Friday, July 31. Oppenheimer maintained RingCentral Inc (NYSE:RNG) on Wednesday, December 16 with "Outperform" rating. The rating was downgraded by Morgan Stanley on Thursday, December 17 to "Equal-Weight".
According to Zacks Investment Research, "RingCentral, Inc. provides solutions for business communications primarily in the United States. The Company's products include RingCentral Office, RingCentral Mobile and RingCentral Fax. It provides solutions such as auto-receptionist, flexible extension structure, multiple voicemail boxes, smart call routing, business answering rules, extension dialing, call transfers and elegant integration with Smartphones. RingCentral, Inc. is headquartered in San Mateo, California."
Insitutional Activity: The institutional sentiment decreased to 1.04 in 2016 Q2. Its down 0.47, from 1.51 in 2016Q1. The ratio dropped, as 19 funds sold all RingCentral Inc shares owned while 40 reduced positions. 29 funds bought stakes while 60 increased positions. They now own 46.80 million shares or 2.34% less from 47.92 million shares in 2016Q1.
Fmr Ltd accumulated 0% or 304,700 shares. Great West Life Assurance Can owns 5,200 shares or 0% of their US portfolio. Waddell & Reed owns 382,700 shares or 0.02% of their US portfolio. Products Limited Liability Com holds 0.03% or 19,200 shares in its portfolio. Comml Bank Of Montreal Can has 0.01% invested in the company for 325,629 shares. The New York-based Goldman Sachs Group has invested 0% in RingCentral Inc (NYSE:RNG). Macquarie Group Inc Incorporated Ltd holds 147,800 shares or 0.01% of its portfolio. State Board Of Administration Of Florida Retirement Sys holds 0% or 19,978 shares in its portfolio. Cap World Investors last reported 1.44 million shares in the company. Princeton Alpha Mgmt L P accumulated 0.08% or 23,650 shares. Gradient Investments Lc holds 0.03% or 14,120 shares in its portfolio. Los Angeles Cap Management & Equity Rech owns 24,553 shares or 0% of their US portfolio. Gsa Capital Prtn Llp has 48,810 shares for 0.05% of their US portfolio. Deutsche Commercial Bank Ag holds 0% or 205,884 shares in its portfolio. Marshall Wace Llp holds 0.02% or 144,164 shares in its portfolio.
Insider Transactions: Since June 8, 2016, the stock had 0 buys, and 24 selling transactions for $8.55 million net activity. The insider Shah Praful sold $196,600. $68,864 worth of RingCentral Inc (NYSE:RNG) was sold by Makagon Kira. Shares for $38,710 were sold by Marlow John H. Shmunis Vladimir had sold 16,472 shares worth $376,669. Shares for $50,264 were sold by Sipes David on Tuesday, August 23.
RNG Company Profile
RingCentral, Inc., incorporated on August 29, 2013, is a well-known provider of software-as-a-service (SaaS) solutions for business communications. The Company's cloud business communications solutions provide a single user identity across multiple locations and devices, including smartphones, tablets, personal computers (PCs) and desk phones, and allow for communication across multiple channels, including voice, text, team messaging collaboration, high definition (HD) video for Web conferencing and fax. The Company's products include RingCentral Office, RingCentral Professional, RingCentral Fax, RingCentral Contact Center and Glip by RingCentral. RingCentral Office is a multi-user, enterprise-grade communications solution. RingCentral Professional is an inbound call routing subscription with additional text and fax capabilities targeting smaller deployments, and RingCentral Fax is an Internet fax subscription that permits sending and receiving faxes over the Internet.
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text:
Escabeche is a traditional Spanish poached fish dish. It's usually marinated for at least 24 hours (which almost pickles the vegetables) and served cold. Our chicken version does not marinate and is served warm.
4 servings (serving size: 1 chicken breast half and about 3/4 cup vegetable mixture)
More from Oxmoor House
Recipe Time
Prep: 15 Minutes
Cook: 41 Minutes
Nutritional Information
Calories 318
Fat 7.3 g
Satfat 1.3 g
Protein 45 g
Carbohydrate 16.9 g
Cholesterol 105 mg
Iron 2.3 mg
Sodium 670 mg
Caloriesfromfat 21 %
Fiber 3.4 g
Calcium 64 mg
4 teaspoons olive oil, divided
4 (8-ounce) bone-in chicken breast halves, skinned
1/2 teaspoon freshly ground black pepper, divided
1/4 teaspoon salt
2 cups thinly sliced onion
1 1/2 cups thinly sliced red bell pepper
1 cup sliced carrot
6 garlic cloves, sliced
1 1/2 cups fat-free, less-sodium chicken broth
1/4 cup cider vinegar
1 teaspoon dried thyme
3 whole cloves
1 (3-inch) cinnamon stick
1/4 cup drained sliced pickled jalapeño pepper
Heat 2 teaspoons oil in a large Dutch oven over medium heat. Sprinkle chicken evenly with 1/4 teaspoon black pepper and salt. Add chicken to pan; cook 5 minutes on each side or until browned. Remove from pan; set aside.
. Heat remaining 2 teaspoons oil in pan over medium heat. Add onion, bell pepper, carrot, garlic, and remaining 1/4 teaspoon black pepper. Cook over medium heat 5 minutes or until vegetables are crisp-tender, stirring frequently.
. Add broth and next 4 ingredients to pan; bring to a boil. Return chicken to pan. Cover, reduce heat to low, and simmer 20 minutes or until chicken is done and vegetables are tender.
. Remove and discard cinnamon stick and cloves. Stir in jalapeño pepper.
January 2008


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Police trial may ride on definition
A single word may be a deciding factor in the first Orange County trial of a uniformed police officer charged with murder for an on-duty incident.
Malice – a word with a relatively simple dictionary definition – distinguishes a murder from any other killing. Over the years, judges have written thousands of opinions interpreting the legal meaning of the word.
How a jury understands malice will likely determine the fate of ex-Fullerton police officer Manuel Ramos, charged with second-degree murder and involuntary manslaughter in the 2011 death of Kelly Thomas. Ramos is accused of triggering the beating death of the mentally ill homeless man after, prosecutors said, he threatened Thomas with excessive force.
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Tickets for the girls basketball game vs Cleveland on January 7, 2017 at the Target Center are on sale in the high school office for $25. The tickets allow you to attend the 1:00 p.m. girls game and the 7:00 p.m. Timberwolves game vs the Utah Jazz.
Blooming Prairie High School is proud to present the NFHS Network.
What is the NFHS Network?
We will be LIVE STREAMING most home and some away games and activities LIVE and on DEMAND!
How do you watch? The first thing you need to do is sign up with NFHS Network. Go to http://www.nfhsnetwork.com/ and search for Blooming Prairie High School. Click the "Subscribe" button. There you will see a couple different subscription options. A portion of your subscription purchase will be given back to Blooming Prairie High School.
Subscribing to the NFHS Network gives you:
Full access to ALL Live regular season and post-season sporting events
Immediate access to events when they are available On Demand
Watch games on the go with our iPhone and Android apps
Do you own a business and would like to advertise on our network? Paid sponsors will be advertised several times per game/event.
If you are interested or have questions, please contact Ali Mach or Erik Vigeland for more information.


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Having unwanted fat in various locations of your body can have a considerable impact on your health and self-confidence. While standard weight loss through workout and diet plan is a terrific method to drop weight in general, even the very best workouts can't target problem locations like the stomach, inner thighs, arms, and butts. Liposuction is a time evaluated treatment that is utilized to remove excess fat from specific locations of the body, enabling a specific to shape and contour their body to their liking. Is liposuction right for you? Discover now.
Pros of Liposuction
There are numerous advantages to this cosmetic procedure, consisting of:
• Right away visible changes. Unlike traditional weight loss, liposuction creates changes that are instantly noticeable in the body. Some distinction is visible right away, and the preferred outcomes are usually accomplished in just a couple of days.
• Proven and safe. This cosmetic treatment has actually been performed by experienced cosmetic surgeons all over the world for several years and the strategy has been improved over and again to be safe and effective.
• Healing time is usually fast. The downtime required after having this type of procedure is generally much less than exactly what is required for other kinds of cosmetic procedures, consisting of tummy tucks, breast reduction, and more. Individuals who have had the procedure can typically return to work much more quickly than they anticipated and can return to living a healthy, active lifestyle.
• Weight loss can be long-term. With the right upkeep methods, the fat that was gotten rid of throughout the liposuction procedure will not return.
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Cons of Liposuction
Prior to having liposuction done, it is essential to examine the potential downsides of the treatment and identify if the advantages exceed the threats in your certain case. Your surgeon can assist you learn more about the dangers connected with the treatment and can help you choose if moving forward is the ideal thing for you.
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Although there are threats related to liposuction, for many people, the benefits far outweigh them. Educate yourself about the procedure by having thorough discussions with your cosmetic surgeon and consider how liposuction has the possible to affect you as a distinct individual. Just you and your specialist can identify if liposuction will supply you with the outcomes you are looking for within your expectations.
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Laser liposuction is a newer, minimally invasive procedure that includes heating the fat cells to melting point and getting rid of the melted fat through a small cannula. The procedure is typically done right in your doctor's office and is an exceptional choice for people who have less than 500 ml of fat to remove from any one location. Laser liposuction can be a safe, complementary treatment to weight loss in order to shape the body you've always desired.
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Nets vs. Clippers Prediction
The Los Angeles Clippers look to dominate the Brooklyn Nets when they host them tonight at 10:30PM ET.Add a comment
Nets vs. Clippers Prediction
The Los Angeles Clippers look to dominate the Brooklyn Nets when they host them tonight at 10:30PM ET.Add a comment
Thunder vs. Pistons Prediction
Will the Thunder rebound from their loss to the Magic last night when they visit the Pistons at 7:30PM ET?Add a comment
Heat vs. Spurs Prediction
The San Antonio Spurs are heavily favored at home tonight when they host the Miami Heat at 8:30PM ET. Can the Spurs cover the lofty spread?Add a comment
Curry keeps lighting up the competition
Having ripped off 103 points in his past three games, Stephen Curry is looking every bit the reigning MVP. And, unfortunately for the Suns, the Golden State sensation shows no interest in sparing the despondent.Add a comment
Charlotte hopes to scare James Gang
Kemba Walker has poured in at least 20 points in each of the Hornets' past seven games. But can the 26-year-old lead his squad to victory against the class of the Eastern Conference?Add a comment
Kings vs. Blazers Prediction
Is the total set too high in tonight's Kings and Trail Blazers matchup at 10:00PM ET in Portland?Add a comment
Pistons vs. Spurs Prediction
The San Antonio Spurs look to hand the Detroit Pistons another loss when the two meet up tonight. Can the Spurs win convincingly?Add a comment
Knicks vs. Celtics Prediction
Scoring shouldn't be difficult to come by when the Celtics hosts the Knicks tonight at 7:30PM ET, but will the over cash for bettors?Add a comment
Clippers vs. Thunder Prediction
Can the Los Angeles Clippers continue their strong 2016-17 campaign when they hit the road to face the Oklahoma City Thunder tonight at 8PM ET?Add a comment
Jazz vs. Magic Prediction
Are the Magic a good underdog play tonight when they host the Jazz at 7:00PM ET?Add a comment


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The Bird's Last Jest
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Thu, 31/01/2013 - 06:13
Valad Europe, the multi-let real estate investment manager, achieved considerable lettings success across the Benelux region during 2012, with more than 112,000 square metres of space let across 211 leases.
During the period, Valad's Benelux team signed 95 new leases and renewed 116, achieving a tenant retention rate of more than 75 per cent.
Highlights include agreeing five new leases totalling 4,050 sq m on office and industrial space at Trade Park Matlinge in Rotterdam and several new leases and renewals for office space totalling 2,000 sq m at Edge Offices in Amsterdam. The renewals were headlined by Mitsubishi Electric Europe B.V. and ING Bank who both renewed their 4,200 sq m leases on industrial space at Capronilaan 46, Schiphol and Neptunusweg, Leeuwarden.
Mark McLaughlin, Valad Europe's head of Benelux, says: "Once again this year, the importance of having local asset management teams and on-the-ground expertise was vital to our success in the Benelux region. In the current market, a strong focus on renewing leases is equally important as finding new tenants and it is our combined knowledge of our assets, our tenants and the local market which contributes to this success."
Fri 09/12/2016 - 09:06
Wed 07/12/2016 - 12:39
Thu 01/12/2016 - 10:10
Tue 29/11/2016 - 14:07
Thu 08/12/2016 - 07:35
Wed 07/12/2016 - 10:57
Mon 05/12/2016 - 12:48
Fri, 09/Dec/2016 - 13:40
Fri, 09/Dec/2016 - 13:38
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Fri, 09/Dec/2016 - 10:09
Fri, 09/Dec/2016 - 10:07
Fri, 09/Dec/2016 - 09:15


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Mobile App
- News byStream
ANU B.Pharmacy Results Out
The 2nd and 3rd-semester results of Acharya Nagarjuna University Pharmacy College were released on 13-April-2016. The results were released by the director of the examination cell, Mr. Sai Babu along with the principal of Pharmacy College. The B.Pharmacy examinations were held in the month of February.
Addressing the media, Mr.Sai Babu said that, "The results have been declared within a short period of time. A pass percentage of 83 have been recorded. The valuation has been done in a stringent manner and proper scrutiny has been done thoroughly. Pharmacy College has registered a good pass percentage". He congratulated the college principal for the good result.
College Principal Mrs.S.Prameela Rani said that "The College has an excellent and experienced faculty. University has provided all the essential facilities which are essential for a Pharma college. The college has been consistently working hard to achieve a pass percentage of 95. The students of the college also excelled themselves in campus placements. A total number of 125 students got placed in the academic year 2015-2016". She congratulated the toppers and appreciated the college faculty for their sincere and dedicated hard work.
Students those who want to apply for revaluation can apply on or before 25-April-2016 by paying a fee of Rs.1,050/paper. Students can access the results at the university's website.
Source: Sakunth Kumar, City Journalist, CollegeDekho, Vijayawada
Cool, interesting and funny. An ardent lover of animals and gets a kick out of Chetan Bhagat and Amish Tripathi novels. My favourite novel is 'The God of Small Things' written by Arundathi Roy.
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A new recording of Weber's piano concertos was obviously long overdue, and this one fits the bill more than adequately, coming as it does generously coupled with the much better known Konzertstück and in first-rate sound quality from HMV. Not the least of its virtues is the light it casts on the origins of the piano idiom of Chopin and Liszt and, in the case of the Konzertstück, on the very foundations of the romantic concerto. I wouldn't envy any historian out to determine who was responsible for which innovation in the first two decades of the nineteenth century, but certainly to hear so many fully-formed romantic textures in music dating from 1810-21 is an instructive, not to say startling, experience.
In light of the "chill-out" trend of the 1990s, major labels released many albums of slow, meditative pieces to appeal to listeners who wanted relaxing or reflective background music. Deutsche Grammophon's vaults are full of exceptional recordings of classical orchestral music, and the performances by Herbert von Karajan and the Berlin Philharmonic are prominent in the label's catalog. The slow selections on Karajan: Adagio are in most cases drawn from larger compositions, though these movements are frequently anthologized as if they were free-standing works. Indeed, many have come to think of the Adagietto from Gustav Mahler's Symphony No. 5 as a separate piece in its own right, largely because of its evocative use in the film Death in Venice. Furthermore, the famous Canon by Johann Pachelbel is seldom played with its original companion piece, the Gigue in D major, let alone in its original version for three violins and continuo; it most often appears in an arrangement for strings.


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text:
Ritholtz's Reads: Hedge Funds' Conspiracy of Mediocrity
Barry Ritholtz is a Bloomberg View columnist. He founded Ritholtz Wealth Management and was chief executive and director of equity research at FusionIQ, a quantitative research firm. He blogs at the Big Picture and is the author of "Bailout Nation: How Greed and Easy Money Corrupted Wall Street and Shook the World Economy."
Read More.
Read More.
It's mid-week already, and your three (four?) day weekend is almost here. Until then, we have your fire-roasted morning train reads:
- Is This the Top? (A Wealth of Common Sense) see also BAML: Investors Are Cooling on U.S. Equities (MoneyBeat)
- Wolf: The wary retreat of the bond bulls (FT)
- Act Local, Solve Global: The $5.3 Trillion Energy Subsidy Problem (IMF Direct)
- Hedge funds' conspiracy of mediocrity keeps fees high, returns low (Fortune)
- Apartments: Supply and Demand (Calculated Risk) see also Why New Homes Have Become More Expensive: They're Much Bigger (Real Time Economics)
- The Priceless Art of Not Caring (Motley Fool)
- Wall Street Analyst Encouraged Rail Company to Lobby Against Train Safety Rules (The Intercept)
- Is the Wearable Health Movement Sustainable? (Re/Code)
- The Algebra of Evolution (Seeking Wisdom)
- David Letterman retires: Here's the most important thing that happened each year of his career (Washington Post) see also 23 Things That David Letterman Invented (Mental Floss)
What are you reading?
Record-High 60 Percent of Americans Support Same-Sex Marriage
This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.
To contact the author on this story:
Barry L Ritholtz at firstname.lastname@example.com
To contact the editor on this story:
Cameron Abadi at email@example.com


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January 19, 2010
BURBERRY LIMITED AND BURBERRY USA, PLAINTIFFS,v.DESIGNERS IMPORTS, INC., D/B/A DESIGNERS IMPORTS.COM USA, INC., DEFENDANT.
On May 22, 2007, Plaintiffs Burberry Limited and Burberry USA ("Burberry" or "Plaintiffs") commenced this action against defendants Designers Imports, Inc. d/b/a Designers Imports.Com USA, Inc. ("Designers" or "Defendant"). Their Amended Complaint, filed June 5, 2007, alleges that Defendant used, sold, and advertised merchandise bearing three counterfeit Burberry registered trademarks: the Burberry name, the Burberry Check design, and the Burberry "Equestrian Knight" on horseback device.
Burberry brings claims of trademark counterfeiting and infringement pursuant to 15 U.S.C. § 1114(1)(a); false designation of origin and trademark dilution pursuant to 15 U.S.C. § 1125(a)(1)(A); common law claims for breach of contract and unjust enrichment; trademark infringement and unfair competition in violation of New York common law; and trademark dilution pursuant to 15 U.S.C. § 1125(c); likelihood of injury to business reputation pursuant to New York General Law Section 360-1; and deceptive acts and practices pursuant to New York General Law Section 349.
Burberry seeks statutory damages and attorneys' fees and costs, and various forms of injunctive relief, including a permanent injunction barring Defendant from selling Burberry-branded merchandise.
Defendant claims half-heartedly that it did not sell counterfeit Burberry-branded merchandise, but its real argument is that it was an innocent infringer whose actions were not willful and were not the product of willful blindness. Defendant also claims that Burberry has not come to Court with clean hands and so Burberry is not entitled to damages, attorney's fees or costs.
The parties waived jury trial, and the Court conducted a bench trial on September 14 and 15, 2009. The Court heard the testimony of witnesses from Burberry and Defendant and considered the exhibits received in evidence, as well as designated portions of depositions. The parties stipulated to the following facts in the jointly-submitted pretrial order:
1. Plaintiff Burberry Limited is a corporation duly organized and existing under the laws of the United Kingdom with a principal place of business at Horseferry House, Horseferry Road, London SWIP 2AW, United Kingdom.
2. Plaintiff Burberry USA, a sister company of Plaintiff Burberry Limited, is located at 444 Madison Avenue, New York, NY 10022. Burberry USA enforces in North America the trademarks owned by Burberry Limited. Burberry Limited, Burberry USA, and their predecessor are herein referred to collectively as "Burberry."
3. Burberry has continuously used the BURBERRY(r) word mark in commerce since 1856.
4. Burberry introduced the BURBERRY CHECK trademark in its original distinctive red, camel, black and white check design in the 1920's. Burberry has continuously used the BURBERRY CHECK in both the original colors and other distinctive color combinations for over three-quarters of a century.
5. Burberry has continuously used the Burberry equestrian knight on horseback (the "EQUESTRIAN KNIGHT DESIGN") on numerous products since 1901.
6. Burberry USA is the exclusive importer and distributor in the United States of BURBERRY(r) merchandise that bears the BURBERRY(r) mark, the BURBERRY CHECK, and/or the EQUESTRIAN KNIGHT DESIGN (collectively, the "Burberry Trademarks"). Burberry has used the Burberry Trademarks on, and in connection with, the advertising and sale of Burberry's products, including, but not limited to, scarves, swimwear, coats, jackets, polo shirts, handbags, and t-shirts in interstate and intrastate commerce, including commerce in the State of New York and in this judicial district.
7. Burberry Limited owns the following valid and enforceable U.S. trademark registrations for the BURBERRY(r) word mark, among others: U.S. Reg. No. 260,843; U.S. Reg. No. 510,077; U.S. Reg. No. 1,133,122; and U.S. Reg. No. 3,202,484. These registrations are incontestable pursuant to 15 U.S.C. § 1065.
8. The BURBERRY word mark is famous within the meaning of 15 U.S.C. § 1125(c).
9. The BURBERRY word mark was famous within the meaning of 15 U.S.C. § 1125(c) prior to Defendant's use and/or sale of the items in dispute in this litigation.
10. Burberry Limited owns the following valid and enforceable U.S. trademark registrations for the BURBERRY CHECK trademark, among others: U.S. Reg. No. 1,241,222; U.S. Reg. No. 2,732,617; and U.S. Reg. No. 2,022,789. These restrictions are incontestable pursuant to 15 U.S.C. § 1065.
11. The BURBERRY CHECK trademark is famous within the meaning of 15 U.S.C. § 1125(c).
12. The BURBERRY CHECK trademark was famous within the meaning of 15 U.S.C. § 1125(c) prior to Defendant's use and/or sale of the items in dispute in this litigation.
13. Burberry Limited owns the following valid and enforceable U.S. trademark registrations for the EQUESTRIAN KNIGHT DESIGN trademark, among others: U.S. Reg. No. 863,179; and U.S. Reg. No. 2,512,119. These registrations are incontestable pursuant to 15 U.S.C. § 1065.
14. The EQUESTRIAN KNIGHT DESIGN trademark is famous within the meaning of 15 U.S.C. § 1125(c).
15. The EQUESTRIAN KNIGHT DESIGN trademark was famous within the meaning of 15 U.S.C. § 1125 (c) prior to Defendant's use and/or sale of the items in dispute in this litigation.
16. Defendant Designers Imports, Inc. d/b/a Designers Imports.com USA, Inc. is a New York corporation located at 11 Lake Street, No. 201, Monroe, New York 10950 and/or 1117 Route 17M, Suite 2, Monroe, New York 10950.
17. Since at least as early as 2003, Designers has continuously sold apparel and accessories online, including at its website located at www.designersimports.com.
18. Asher Horowitz is the owner and Chief Operating Officer of Designers.
19. Mr. Horowitz is the only officer of Designers, its only Director, and its sole shareholder.
20. Mr. Horowitz sets the price for the goods that his business sells. He also decides what will be displayed on www.designersimports.com.
21. Mr. Horowitz sets his own salary and makes sure that bills at the company are paid.
22. Designers cannot allocate a portion of its expenses to its sale of Burberry-branded items.
23. Mr. Horowitz was aware of BURBERRY products before he founded Designers.
24. Since at least as early as 2003, Designers has sold or offered for sale products that display one or more of the Burberry Trademarks that were not purchased directly from Burberry or one of its authorized retailers.
25. Designers has purchased keywords containing the BURBERRY trademark from Google's Pay Per Click program such as "Burberry," "Burberry scarf or scarves, "Burberry jacket," and "Burberry handbag." Designers purchased similar advertising from Yahoo, including the keyword "Burberry scarf." When potential customers shop online for Burberry products, they are automatically referred to the Designers website.
26. Mr. Horowitz is the only person who decides what Burberry-branded goods Designers will sell on its website.
27. Designers' suppliers include "Moda Oggi." Moda Oggi has since been sued as a third party by Burberry for selling counterfeit Burberry-branded products, and Burberry prevailed on summary judgment against Moda Oggi on this and related claims on June 10, 2009. See Burberry Limited, et al. v. Euro Moda, Inc., et al., Civil Docket for Case No. 1:08-cv-05781-CM, 2009 WL 1675080 (S.D.N.Y. June 10, 2009);
28. On April 12, 2005, Burberry and Designers entered into a settlement agreement ("Settlement Agreement") regarding Designers' sales of items that Burberry contented were counterfeit. The agreement was amended on May 4, 2005. The agreement was received in evidence (Ex. 185).
29. After the agreement was signed, Burberry bought products from Defendant to determine whether it was complying with the agreement.
30. On February 23, 2006, Burberry's attorney sent a letter to Defendant's attorney contending that Designers sold two counterfeit scarves that infringed the Burberry Trademarks. Designers' lawyer responded that the goods were purchased from a Burberry store and that the goods were not counterfeit.
31. On March 8, 2006, Burberry's lawyer sent another letter to Defendant's counsel contending that Designers sold a counterfeit bikini and three counterfeit polo shirts that infringed the Burberry Trademarks. Designers' counsel responded (Ex. 177).
32. On May 9, 2007, Burberry's attorney sent a letter to Defendant's counsel contending that Designers sold two counterfeit quilted coats and two counterfeit white shirts with check trim that infringed the Burberry Trademarks. Designers' counsel responded (Ex. 178).
33. On July 9, 2007, Burberry's attorney sent a letter to Defendant's counsel contending that Designers sold two counterfeit scarves that infringed the Burberry Trademarks. Defendant's counsel received this letter (Ex. 179).
34. Investigators acting on behalf of Burberry purchased the following Burberry-branded articles of clothing from Designers' website, www.designersimports.com (the "Purchased Goods"):
* One bikini with check trim purchased on March 1, 2006;
* Three polo shirts, one each in white, black, and gray purchased on March 1, 2006;
* One "Constance" padded jacket purchased on February 7, 2007;
* A second padded jacket, in the longer "Langford" style, purchased on April 7, 2007;
* One cashmere "Baby Blue Happy Scarf" and one cashmere "Classic Plaid Scarf," purchased on June 9, 2007;
* One "Nova Check Cashmere Scarf" purchased on October 11, 2007;
* One cashmere Cream-White Check "Plaid Mini Scarf" purchased on April 7, 2008; and
* Two white t-shirts with checked trim purchased on February 7, 2007 and April 7, 2007.
35. Designers shipped the Purchased Goods to Burberry's investigators.
36. Burberry's investigators shipped the Purchased Goods to Burberry at its New York offices.
37. An employee in Burberry's New York office received the Purchased Goods.
38. On June 28, 2005, Kate McKinnon, an Investigator for Abacus Security, sent three (3) Burberry-branded handbags that had been purchased from Designers to Burberry's New York Office. Burberry determined that these three (3) handbags were not counterfeit, but rather genuine.
39. On December 15, 2005, Ayodele Akingbade, an Investigator for Abacus Security, sent three (3) Burberry-branded handbags that had been purchased from Designers to Burberry's New York Office. Burberry determined that these three (3) handbags were not counterfeit, but rather genuine.
Defendant stipulated to the counterfeit nature of substantially all of the products that Burberry found to be counterfeit, except for two scarves, purchased in December, 2005. Accordingly, Burberry had two goals at trial: (a) to establish that Defendants were the source of the counterfeit products; and (b) to establish that Defendant's violations were willful or the result of willful blindness. Defendant's goal was to minimize its damages to the extent possible.
a. Proof Regarding the Source of Products
Burberry engaged a series of investigators to buy certain products from Defendant and submit these products, along with the packing slips, invoices, and shipping information, to Burberry (Trial Tr. 95-100). Burberry would then attach a security tag bearing a unique number to these products, photograph the products, and prepare a chain of custody form (Trial Tr. 95-96). The chain of custody form listed the source of the product, the date of receipt, and the date the recipient sent the product to another party (Trial Tr. 96). For everything but the most obvious counterfeits, Burberry would ship the suspect products to its London office, where Burberry's expert would examine them and determine whether a product was genuine or counterfeit (Trial Tr. 98).
Burberry submitted twenty products for their expert to review (Trial Tr. 41, 46). Burberry's expert found that six products (all handbags) were genuine but that the balance of fourteen were counterfeit (Trial Tr. 36, 42, 44). As previously indicated, Defendant does not contest the counterfeit nature of twelve of the fourteen products.
Defendant does contend, however, that two of the Burberry expert's counterfeit determinations were erroneous: the determinations relating to a blue "happy" scarf and a check cashmere scarf, both purchased in December, 2005 (Trial Tr. 248-52). Mr. Horowitz testified that he suspected that J. Burke was a possible investigator for Burberry when he saw Burke's name on an order for two scarves and a coat (Trial Tr. 248, 271-72). While Defendant had Burberry scarves in stock at the time, Designers was aware that Burberry was monitoring its compliance with the Settlement Agreement, so Mr. Horowitz enlisted his wife to buy two Burberry scarves from a Burberry store in Boca Raton, Florida (Trial Tr. 249). Mr. Horowitz filled Mr. Burke's order with the two scarves his wife had purchased (Trial Tr. 249-51). Burberry tested these scarves and found them to be counterfeit (Trial Tr. 251-52). Mr. Horowitz challenges Burberry's determinations (Trial Tr. 251-52).
Since Burberry's findings on the two scarves were erroneous, Defendant argues that Burberry's twelve other determinations of counterfeit must be wrong as well. Defendant's argument is falsus in uno; falsus in omnibus; but that is inconsistent with Defendant's stipulation that it had no factual basis for challenging Burberry's other determinations. Even if Burberry's determinations regarding the two scarves were incorrect, moreover, this would not impair the validity of Burberry's separate determinations made at different times, on twelve different products, that the Defendant's goods were in fact counterfeit. Finally, Defendant did not establish that the determinations were wrong: Defendant cannot prove that it sent Mr. Burke the two authentic Burberry scarves that Mrs. Horowitz purchased in the Boca Raton Burberry store.
Based on the routine procedures Burberry took to protect its trademarks, and its carefully devised and methodically applied procedures to test the authenticity of Burberry-branded merchandise, the Court finds that Designers sold the following twelve items of counterfeit merchandise to Burberry:
Date of Purchase Goods Sold
March 1, 2006 1. Bikini
2. White Polo Shirt
3. Black Polo Shirt
4. Gray Polo Shirt
February 7, 2007 5. "Constance" Jacket
6. White Shirt -- Checked Trim
April 7, 2007 7. Quilted Langford Coat
8. White Shirt -- Checked Trim
9. Cashmere Cream-White Check Mini Scarf
June 9, 2007 10. Cashmere Baby Blue Happy Scarf
11. Cashmere Classic Plaid Scarf
October 11, 2007 12. Nova Check Cashmere Scarf
b. Proof of Defendant's Willfulness or Willful Blindness
Burberry has demonstrated Defendant's willfulness based on its conduct spanning several years during which Defendant repeatedly sold a variety of counterfeit Burberry merchandise. In addition to the April 2005 Settlement Agreement (Ex. 185), Burberry submitted a series of letters and emails proving that it repeatedly placed Defendant on notice that Defendant was violating the trademark law by selling counterfeit Burberry merchandise (Ex. 177-79). Additionally, Mr. Horowitz testified that, even after the Settlement Agreement, he occasionally purchased Burberry items from anonymous internet vendors and from vendors whose last names he did not know (Trial Tr. 282-84). Mr. Horowitz also testified that he did not always question his vendors about the source of their Burberry merchandise (Trial Tr. 284-85); that he used suppliers whose goods had been seized by the Customs Department (Trial Tr. 286-87; 289-90; 292-93); and that he purchased a substantial amount of Burberry goods from Moda Oggi, a known seller of counterfeit merchandise (Trial Tr. 295). In fact, the United States Customs Service repeatedly notified Defendant that it was seizing Burberry-branded goods addressed to Designers because the goods were counterfeit (Exs. 223-25; 302-05).
Defendant introduced testimony, however, that mitigates the willfulness of his trademark violations. Mr. Horowitz testified, for example, that he often traveled overseas to purchase branded merchandise (Trial Tr. 242); that he visited the offices of his suppliers (Trial Tr. 242); that, following the Settlement Agreement, he ceased selling items that Burberry claimed were counterfeit (Trial Tr. 248); that he generally complied with his obligations under the Settlement Agreement (Trial Tr. 247-48; 300-01); that all the Burberry items he currently sells originated in Burberry outlet centers (Trial Tr. 254); that all the non-Burberry branded produces he recently added to his website originated with authorized distributors or manufacturers (Trial Tr. 257); that he made numerous, sincere efforts to authenticate his merchandise before offering them for sale (Trial Tr. 277-82; 288-89; 292); and that he was unaware that Moda Oggi was a seller of counterfeit items (Trial Tr. 295). Defendant also introduced a supplier's deposition testimony, stating that Mr. Horowitz insisted on buying only authentic goods (Trial Tr. 304-06).
The Court has subject matter jurisdiction under 15 U.S.C. § 1121, 28 U.S.C. §§ 1331 and 1338, and has supplemental jurisdiction under 28 U.S.C. § 1367(a).
Trademark Counterfeiting and Infringement under the Lanham Act (Counts I and II)
Burberry alleges that Defendant committed trademark counterfeiting and infringement under section 32(1)(a) of the Lanham Act through its unauthorized use of the Burberry trademarks. Section 32(1)(a) of the Lanham Act provides that a person shall be civilly liable if, without the registrant's consent, such person:
use[s] in commerce any reproduction, counterfeit, or copy or colorable limitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.
15 U.S.C. § 1114(1)(a).
Section 45 of the Lanham Act, 15 U.S.C. § 1127, defines a "counterfeit" mark as "a spurious mark which is identical with, or substantially indistinguishable from, a registered mark."
Defendant is liable for trademark counterfeiting and infringement if Burberry establishes that: (1) Burberry had valid registered marks entitled to protection under the Lanham Act; and (2) Defendant used a similar mark in commerce in a way that would likely cause confusion among the relevant consuming public. Cartier Int'l B.V. v. Ben-Menachem, 2008 WL 64005, at *10 (S.D.N.Y. Jan. 3, 2008).
Burberry has met its burden. The parties stipulated that Burberry had valid registered marks entitled to protection under the Lanham Act. These marks include the BURBERRY(r) word mark; the BURBERRY CHECK mark; and the EQUESTRIAN KNIGHT DESIGN. Defendant has offered for sale and has sold merchandise displaying spurious designations that are identical to, or substantially indistinguishable from, Burberry's famous, registered trademarks on goods for which Burberry trademarks are registered, including: a bikini; a jacket; a coat; five shirts; and four scarves. Defendant intentionally used these spurious designations without authorization and in connection with the advertising, sale, offering for sale and distribution of goods for its own financial gain.
Defendant's use of the Burberry trademarks is likely to cause confusion among the relevant consuming public. To determine whether confusion is likely to arise, a court need only determine that the items at issue are counterfeit and that Defendant distributed, offered for sale, and sold the items. Gucci Am., Inc. v. Duty Free Apparel, Ltd., 286 F.Supp.2d 284, 287 (S.D.N.Y. 2003).
The Court finds that Defendant is liable for trademark counterfeiting and infringement.
False Designation of Origin, Trade Name, Infringement, and False Description and Representation under the Lanham Act (Count III)
The Court also finds Defendant liable under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A):
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, terms, name, symbol, or device, or any combination thereof, or any false designation or origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to "deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person..
Having established its claim for federal trademark infringement under Section 32, it is unnecessary for the plaintiff to make any additional showing to satisfy Section 43(a). Russian Kurier, Inc. v. Russian Am. Kurier, Inc., 899 F.Supp. 1204, 1208 (S.D.N.Y. 1995).
Trademark Dilution under the Lanham Act and Dilution and Likelihood of Injury under Section 360-1 of N.Y. Gen. Bus. Law (Counts IV and VI)*fn1
A trademark holder claiming dilution under 15 U.S.C. § 1125(c) must show that: (1) the senior mark is famous; (2) the defendants are making commercial use of the junior mark in commerce (under the Federal Trademark Dilution Act, the "FTDA") or use of the junior mark in commerce (under the Trademark Dilution Revision Act of 2006, the "TDRA"); (3) defendant's use of the junior mark began after the senior mark became famous; and (4) actual dilution (under the FTDA) or a likelihood of dilution (under the TDRA). See e.g., Malletier v. Dooney & Bourke, Inc., 561 F.Supp.2d 368, 380-81 (S.D.N.Y. 2008).
Plaintiffs have met their burden on their trademark dilution claim, based on the parties' stipulations: the fame of Burberry's mark; Defendant's commercial use of Burberry's mark in commerce; and Defendant's use of Burberry's mark subsequent to Burberry's mark becoming famous. Further, Burberry has established a presumption of actual and likely dilution by showing that Defendant's used counterfeit marks that were identical to the Burberry trademarks. See Savin Corp. v. Savin Corp., 391 F.3d 439, 452-53 (2d Cir. 2005).
Dilution by tarnishment reflects an "association arising from the similarity between a mark or a trade name and a famous mark that harms the reputation of the famous mark."
15 U.S.C. §1125(c). Defendant tarnished Burberry's marks by using them on inferior products (Tr. 18:23-22:19; 36:17-37:4). See e.g., Hormel Foods v. Jim Henson Products, Inc. 73 F.3d 497, 507 (2d Cir. 1996) (a trademark may be tarnished when linked to products of shoddy quality). Accordingly, the Court finds Defendant liable for trademark dilution by tarnishment under both the FTDA and the TDRA.
Since Burberry has established that (1) the Burberry trademarks are famous, and (2) there is a likelihood of dilution, Defendants are also liable under New York State Business Law § 360-1 for dilution and likelihood of injury to business reputation. See Malletier, 561 F.Supp.2d at 381.
Deceptive Acts and Practices under New York Law (Count V)
New York General Business Law § 349 forbids "[d]eceptive acts and practices." Burberry has satisfied the three-factor test for establishing a § 349 violation: (1) that Defendant engaged in a consumer-oriented act (sale of Burberry-branded merchandise); (2) that was misleading in a material way (the products were counterfeit); and (3) Burberry suffered injury. See Vitabiotics, Ltd. V. Krupka, 606 F.Supp. 779, 785 (E.D.N.Y. 1984) (sale of infringing products creates presumption of injury under Section 349). Accordingly, the Court finds Defendant liable under Section 349 of the New York General Business Law.
Trademark Infringement and Unfair Competition under New York Common Law (Counts VII and VIII)
The New York common law on trademark infringement and unfair competition claims mirrors the Lanham Act. To prevail on its common law claim of trademark infringement, Burberry need only present evidence sufficient to establish a violation of section 32(1) of the Lanham Act. Standard & Poor's Corp., Inc. v. Commodity Exch., Inc., 683 F.2d 704, 708 (2d Cir. 1982). Since Burberry has established liability under the Lanham Act, it has also established liability under New York's common law of trademark infringement.
The same principle is applicable to the New York State unfair competition claim. A claim under the Lanham Act, coupled with a showing of bad faith or intent, establishes a claim for unfair competition. Girl Scouts of U.S.A. v. Bantam Doubleday Dell Publ'g Group, Inc., 808 F.Supp. 1112, 1131 (S.D.N.Y. 1992). Use of a counterfeit mark creates a presumption of bad faith under New York law. Philip Morris U.S.A., Inc. v. Filizardo, 2004 WL 1375277 (S.D.N.Y. June 18, 2004), at *6. Accordingly, Burberry's evidence of Defendant's sale of counterfeit Burberry-branded merchandise creates a presumption of bad faith, satisfying the elements of Burberry's common law unfair competition claim.
Common Law Breach of Contract (Count IX)
The April 12, 2005 Settlement Agreement is governed by New York law (Ex. 185 ¶11). The parties do not dispute the existence or validity of the April 12, 2005 Settlement Agreement, nor does Defendant argue that Burberry failed to perform under the Settlement Agreement.
Burberry has also established Defendant's non-performance. Paragraph 2.6 of the Settlement Agreement provides that Defendant will not "knowingly infringe or dilute Burberry's trademarks." The same paragraph defines "knowingly" as occurring when Defendant "knows or should have known that their actions violate Burberry's trademark rights."
The Court has already found that Defendant committed trademark infringement. It now finds that the same infringing conduct constituted a breach of contract. See e.g., Heisman Trophy Trust v. Smack Apparel Co., 595 F.Supp.2d 320, 329 (S.D.N.Y. 2009) (evidence of trademark infringement shows the likelihood of success on breach of settlement agreement claim).
Regarding damages, Section 12 of the Settlement Agreement contains a liquidated damages clause providing that Defendant is obligated to pay "$1,500.00 per day for each day a breach occurs."
Defendant's breach of contract liability, however, is limited to violations that occurred prior to Burberry's commencement of the lawsuit. Under New York's doctrine of the election of remedies, when a party breaches a contract, the adverse party has to make an election: to either treat the entire contract as breached and pursue damages for the breach or, alternatively, to reject the proposed breach, demand performance, and continue to treat the contract as valid. See e.g., Inter-Power of New York Inc. v. Niagara Mohawk Power Corp., 259 A.D.2d 932, 934 (3d Dept. 1999).
Accordingly, Defendant is liable only for trademark violations occurring prior to May 22, 2007, the date Burberry commenced this lawsuit. These pre-commencement violations include nine of the twelve items: the four items Defendant sold on March 1, 2006 (Bikini; White Polo Shirt; Black Polo Shirt; and Gray Polo Shirt); the two items Defendant sold on February 7, 2007 (the "Constance" Jacket and the White Shirt -- Checked Trim); and the three items Defendant sold on April 7, 2007 (the Quilted Langford Coat; the White Shirt-Checked Trim; and the Cashmere Cream-White Check Mini Scarf).
Common Law Unjust Enrichment (Count X)
The Court dismisses Burberry's unjust enrichment claim because a party cannot prevail on remedies under both contract and quasi-contract theories. See e.g., Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388 (1987) ("quasi contract" only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation imposed in order to prevent a party's unjust enrichment).
Defendant's Willfulness or Willful Blindess
The Court finds that Defendant acted willfully in selling twelve counterfeit Burberry-branded items of merchandise. Actual knowledge is not necessary for willful trademark infringement liability; rather, "[i]nfringement is willful when the defendant had knowledge that [his] conduct represented infringement or perhaps recklessly disregarded the possibility." Hermes Int'l v. Kiernan, 2008 WL 4163208, at *3 (E.D.N.Y. Aug. 28, 2008).
Here, Burberry established Defendant's willfulness by demonstrating a course of conduct spanning several years during which Defendant repeatedly sold a variety of counterfeit Burberry merchandise. Defendant repeatedly and knowingly violated its obligations under the Settlement Agreement. Defendant willfully failed to investigate the bona fides of Burberry-branded goods it purchased for sale and by failing to implement procedural safeguards against the sale of counterfeit goods. When Defendant became aware that Burberry, through its agent J. Burke, placed a test order for Burberry items, Defendant did not fill the order from its own inventory, but rather sent Mrs. Horowitz to an authorized Burberry store to purchase items to fill the order. This is further evidence that Defendant was not confident in the authenticity of its own Burberry-branded inventory. Accordingly, the Court finds that Defendant's trademark violations were willful.
Defendant, however, has introduced some evidence of compliance with the terms of the Settlement Agreement and of some level of diligence. These factors mitigate the degree of Defendant's willfulness.
The Court asked the parties to provide summations of their damages. Burberry claimed statutory damages under 15 U.S.C. § 1117(c) in the amount of $6.5 million (Dkt. #30, at 2, 10). Defendants argued that its maximum exposure is $18,000 (Dkt. #32 at 13).
Section 15 U.S.C. § 1117(c) provides:
In a case involving the use of a counterfeit mark (as defined in section 1116(d) of this title) in connection with the sale, offering for sale, or distribution of goods or services, the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits under subsection (a) of this section, an award of statutory damages for any such use in connection with the sale, offering for sale, or distribution of goods or services in the amount of--(1) not less than $1,000 or more than $200,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just; or (2) if the court finds that the use of the counterfeit mark was willful, not more than $2,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just.
15 U.S.C. § 1117(c) (2004) (amended 2008).*fn2
In determining the amount of statutory damages, courts consider several factors, including:
(1) the expenses saved and the profits reaped; (2) the revenues lost by the plaintiff; (3) the value of the [trademark]; (4) the deterrent effect on others besides the defendant; (5) whether the defendant's conduct was innocent or willful; (6) whether a defendant has cooperated in providing particular records from which to assess the value of the infringing material produced; and (7) the potential for discouraging the defendant.
Kenneth Jay Lane, Inc. v. Heavenly Apparel, Inc. 2006 WL 728407, at *6 (S.D.N.Y. March 21, 2006).
Several of these factors support a substantial award. Defendant has acted willfully in selling twelve counterfeit Burberry-branded items of merchandise. Burberry's trademarks are highly valuable and of worldwide renown. The goal of deterring others from similar conduct requires a significant award. Louis Vuitton Malletier, S.A. v. LY USA, 2008 WL 5637161, at *2 (S.D.N.Y. Oct. 3, 2008). A large award is also necessary because the Settlement Agreement failed to deter Defendant and because of Defendant's ability to reach a vast customer base through internet advertising. See e.g., Rolex Watch U.S.A., Inc. v. Jones, 2002 WL 596354, at *5 (S.D.N.Y. Apr. 17, 2002).*fn3
There are other factors which mitigate the degree of Defendant's willfulness. Defendant cooperated in providing financial records. These records indicate that Defendant reported sales of $4,276,581 for Burberry-branded merchandise sold between March 29, 2005 and June 26, 2008 (Ex. 308). Defendant also reported net income of $1,158,295 for scarves, shorts, jackets, and coats sold between March 29, 2005 and May 13, 2008 (Ex. 220).*fn4
Burberry-branded merchandise, however, represented only a percentage of Defendant's entire business, and not all Burberry-branded items were counterfeit.*fn5 Finally, few courts have awarded maximum statutory damages on the basis of a per mark, per type of good calculation. See e.g., Gucci Am., Inc. v. MyReplicaHandbag.com, 2008 WL 512789, at *5 (S.D.N.Y. Feb. 26, 2008) (collecting cases to note that "[M]ost judges have issued awards well below the maximum available on the basis of per-mark-per-type-of-goods").
Having considered all relevant factors, the Court awards Burberry statutory damages in the amount of $1,500,000. This amount represents $100,000 per mark per types of goods sold. Specifically, Defendant infringed three of Burberry's registered trademarks (the Burberry name, the Burberry Check design, and the Burberry "Equestrian Knight" on horseback device) and sold five types of counterfeit Burberry-branded merchandise (Bikini; Shirts; Jacket; Coat; and Scarves). An award of $100,000 per mark per type of good sold totals $1,500,000.
Since there was willful infringement and no "extenuating circumstances," the Court allows Burberry attorneys' fees and costs, as required by 15 U.S.C. § 1117(b). Sara Lee Corp. v. Bags of New York, Inc., 36 F.Supp.2d 161, 170 (S.D.N.Y. 1999). Burberry's counsel should submit an itemized fee application, supported by time-sheets, along with a statement of the nature of the work performed, as well as explanations of each attorney's expertise and any other relevant factors. See e.g., Pressman v. Estate of Steinworth, 886 F.Supp. 365, 367 (S.D.N.Y. 1999).
Section 34(a) of the Lanham Act provides for injunctive relief to prevent trademark violations "according to the principles of equity and upon such terms as the court may deem reasonable." 15 U.S.C. § 1116(a). Courts may grant permanent injunctions where a plaintiff demonstrates actual success on the merits and irreparable harm. Gucci Am., Inc. v. Duty Free Apparel, Ltd., 286 F.Supp.2d at 290. As indicated, Burberry has established success on the merits. Burberry has also established irreparable harm by establishing a likelihood of confusion. See Genesee Brewing Co., Inc. v. Stroh Brewing Co., 124 F.3d 137, 142 (2d Cir. 1997). Accordingly, the Court permanently enjoins Defendant from infringing on any Burberry trademarks.
The Court denies Burberry's request to completely bar Defendant from selling Burberry goods. Defendant may continue to participate in the secondary market provided Defendant sells only legitimate products. In light of Defendant's continuing pattern of trademark infringement, however, any further violation of the injunction will result in Defendant's being permanently enjoined from selling, offering for sale, advertising, or distributing any Burberry-branded merchandise.
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decided: April 1, 1982.
H. B. ALEXANDER & SON, INC., PETITIONERv.COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, RESPONDENT
Appeal from the Order of the Board of Claims in case of H. B. Alexander and Son, Inc. v. Commonwealth of Pennsylvania, Department of General Services v. Nassaux-Hemsley, Inc., Docket No. 581.
Arthur Berman, Berman, Bowell & Tintner, for petitioner.
Thadeus A. Tanski, Chief, General Litigation Unit, with him Anthony P. Krzywicki, Chief Counsel, for respondent.
President Judge Crumlish and Judges Rogers and Doyle, sitting as a panel of three. Opinion by Judge Rogers.
[ 65 Pa. Commw. Page 559]
The appellant, H. B. Alexander & Son, Inc. was awarded the contract to do the general construction work involved in improvements to certain buildings at Laurelton State School and Hospital for the Pennsylvania Department of General Services. Included in general construction contract work was an item called Resilient Tile Flooring. After completing the work, Alexander filed a complaint with the Board of Claims to recover about $10,000 which it says it was required to spend doing work ordered by the Department but not required of it by the contract. Alexander sued the Department on this claim in the Board of Claims.
The Department filed an Answer and New Matter to Alexander's complaint. The Department's New
[ 65 Pa. Commw. Page 560]
Matter, which was endorsed with notice to plead, consisted of extensive reproductions of provisions of the contract imposing on the contractor the duty to inspect the site before bidding. The only averments of fact contained in the New Matter were:
35. Plaintiff did not visit his area of the jobsite where contract work was required.
36. All of the conditions described in the Room Finish Schedules were visible and otherwise readily ascertainable from a visible inspection of the buildings.
Alexander did not file a Reply to New Matter. The Department filed a motion for judgment on the pleadings on the ground that Alexander's admission, for failing to plead, that it did not inspect the site, required that judgment be entered against Alexander. The Board of Claims granted the motion, entering judgment in favor of the Department. Alexander has appealed. We reverse and remand the record for further proceedings.
Since judgment on the pleadings has been entered against Alexander, the facts alleged in its Complaint must be taken as true. Alexander's averments are: that the bidding documents included Resilient Floor work, which he subcontracted; that the subcontractor in preparing his price to Alexander had before him the Department's contract drawings to which were attached Room Finish Schedules; that on the Room Finish Schedules, under the heading "Floor", were spaces for recording flooring work required to be done in each room of the particular building being remodeled; that with respect to five of the total of thirteen buildings required to be remodeled, the spaces under the heading "Floor" contained the words "none" or "patch concrete" with no reference to Resilient Flooring; that the subcontractor offered
[ 65 Pa. Commw. Page 561]
to do this work for Alexander for $4,900 but, upon being required to do work in rooms where no Resilient work was recorded as required, quit; and that Alexander was required to hire another subcontractor who completed the expanded work at a cost of about $15,000 instead of the $4,900 on which his bid was partially based. The gravamen of Alexander's claim is that the Room Finish Schedules were simply wrong with respect to the scope of the flooring work, that he was misled in this regard and should recover his actual costs. The theory of Alexander's case is basically that of Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 39 A.2d 139 (1944) where the Supreme Court allowed recovery to the contractor for the expense of the unanticipated excavation of rock although he failed to test for rock as the bidding documents provided he should, because the Turnpike Commission had in its possession, but withheld from bidders, tests which showed the presence of subsurface rock at the site. Alexander's theory is that he and his subcontractor were presented with a document which lead them reasonably to believe that in some areas flooring work was not required of them although in order to do the work, flooring was actually required. Alexander also avers, as did the contractor in Smith, with effect, that the Department's invitation for bids left insufficient time for the inspection which would have revealed, contrary to the information on the Room Finish Schedules, that Resilient Tile work was required in the five buildings in question. Just as the contractor in Pennsylvania Turnpike Commission v. Smith, supra, might have examined subsurface conditions, Alexander might have examined the five buildings in question here. He says that under Smith, as the victim of "constructive fraud", he may recover despite his failure to inspect.
[ 65 Pa. Commw. Page 562]
Therefore, we disagree with the Board of Claims that Alexander's failure to respond to the Department's allegation of New Matter that he did not visit the site justified the harsh stricture of judgment on the pleadings.
Judgment reversed; the record is remanded for further proceedings not inconsistent with this opinion.
And Now, this 1st day of April, 1982, the order of the Board of Claims of February 6, 1981, making absolute the Order Nisi issued on August 26, 1980, is reversed and the record is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
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Service & facilities
|Earliest check-in
Service & facilities
Hotel facilities
- Number of luxury rooms
- Hotel-owned car park
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-Property description-, capitol hotel tokyu which ceased operations in, 2006 boasted an impressive forty three years of, distinguished history. It will be reborn on the, same site in the autumn of 2010 as the capitol, hotel tokyu., The capitol hotel tokyu will be situated very, conveniently in akaska the heart of down town, tokyo. Its location will be near four different, subway lines and is just short distance from, japanese parliament government building. Guests, will also be able to savor the quiet natural, surroundings of hie shrine a serene space, surrounded by natural beauty where it is possible, to escape the hustle and bustle of tokyo., The capitol hotel tokyu features 251 guest rooms, includes 13 suite rooms. All the rooms are 18th, floor and above except for 4 of the suite rooms, which has view of verdantly green of hie shrine., It also features 3 restaurants and lounge and a, bar. Ball room banquest room and function rooms, are on 1st and 2nd floor. Fitness gym and spa are, also available., The capitol hotel tokyu will provide a tranquil, setting informed by a sophisticated japanese taste, allowing guests to savor the changing seasons and, forget the stress of daily life., The capitol hotel tokyu entitled five star in red, in michelin guide book in tokyo for 2012 issues.
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