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United States District Court, Eastern District of Pennsylvania
March 23, 2015
LEHIGH GAS WHOLESALE, LLC, Plaintiff,v.LAP PETROLEUM, LLC, Defendant.
Gerald Austin McHugh, United States District Court Judge
This is a commercial dispute that involves claims for breach of contract and tortious interference with contract. Plaintiff, a Pennsylvania corporation, brought suit in the Eastern District of Pennsylvania. Defendant, a Virginia corporation, has moved to dismiss this action for lack of personal jurisdiction, or, in the alternative, transfer to the Eastern District of Virginia. Because Plaintiff concedes that this Court lacks general jurisdiction over Defendant, and has failed to carry its burden to present competent evidence in support of specific jurisdiction, I will grant Defendant's Motion and transfer this matter to the Eastern District of Virginia.
I. Factual Background
Plaintiff Lehigh Gas Wholesale, LLC ("LGW") is a Delaware limited liability company with its principal place of business in Allentown, Pennsylvania. Compl. at ¶ 12. Although operating out of Pennsylvania, LGW "is engaged in the marketing and distribution of petroleum products in the Commonwealth of Virginia and certain other states." Id. at ¶ 13. LGW sells Sunoco-branded products to subjobbers and service station retailers. Id.
Defendant LAP Petroleum, LLC ("LAPP") is a Virginia limited liability company with its principal place of business in Virginia Beach, Virginia. Id. at ¶ 10. LAPP "is a branded motor fuels products jobber and subjobber in the business of selling, among other brands, Sunoco-branded motor fuel products to service station retail dealers in the Commonwealth of Virginia." Id. at ¶ 11.
The underlying transaction that gives rise to this case was first entered into by two non-parties. On November 1, 2010, Manchester Marketing ("MM") entered into a Sales Agreement with D&MRE, LLC ("DMRE"), both Virginia owned and operated entities. Id. at ¶¶ 6–9, 14. Under the Sales Agreement, DMRE agreed to purchase Sunoco-branded motor fuels from MM for resale at DMRE's service stations for a period of ten years or until DMRE purchased at least 9, 000, 000 gallons of motor fuel from MM. Id. On March 5, 2013, MM assigned all rights under the Sales Agreement to Defendant LAPP. Id. at ¶ 17. On the same date, LAPP agreed to purchase 7, 700, 000 gallons of Sunoco-branded motor fuels from MM ("Subjobber Agreement") over a period of ten years commencing on April 1, 2013. Id. at ¶ 18.
In a paragraph titled, "Governing Law, " the Sales Agreement and Subjobber Agreement both state, "The parties hereto acknowledge and agree that this Agreement has been made within, and that this Agreement shall be construed and interpreted in accordance with the provisions of, the laws of the Commonwealth of Virginia." Sales Agreement at ¶ 34; Subjobber Agreement at ¶ 35. Similarly, both agreements contain a paragraph titled "Venue, " that reads, "The parties hereto consent to the jurisdiction of the Courts of the Commonwealth of Virginia, including specifically, the Circuit Court of the County of Chesterfield and waive all objections to actions brought in such courts based upon jurisdiction, preference, convenience or otherwise." Sales Agreement at ¶ 35; Subjobber Agreement at ¶ 36. Defendant avers that "[t]he Subjobber Agreement was negotiated, executed and performed exclusively in Virginia." Motion to Dismiss at ¶ 5; see also Affidavit of Sanjay Patel at ¶¶ 7–14. Plaintiff does not contest this factual assertion, as it was not an original party to the agreement, but notes that it has not had the opportunity to conduct discovery in order to test Defendant's characterization of the facts.
On December 19, 2013, MM assigned all rights under the Subjobber Agreement to Plaintiff LGW. Compl. at ¶ 19. Defendant LAPP claims it was unaware of this assignment. Defendant's Brief at 3; Affidavit of Atul Patel at ¶ 11. Defendant purchased 596, 369 gallons of product under the Subjobber Agreement and allegedly stopped purchasing product on January 16, 2014. Compl. at ¶ 21. Plaintiff characterizes the Subjobber Agreement as a subcontract, alleging that the primary agreement was a Jobber Agreement between MM and Sunoco. Plaintiff's Opposition Brief at 4; Subjobber Agreement at ¶ 1.
Defendant avers that it conducts its business exclusively in Virginia. Affidavit of Sanjay Patel at ¶ 4. In addition, Defendant claims that it "has never operated in Pennsylvania; has never conducted any business or attempted to conduct any business in Pennsylvania; has never advertised in Pennsylvania; and has never initiated any business contacts in Pennsylvania." Id. Plaintiff has not presented any alleged contradictory evidence regarding these representations other than the existence and terms of the contractual relationship between the parties.
LGW's Complaint includes two causes of action: (1) breach of contract pursuant to the Subjobber Agreement; and (2) tortious interference with contract.
II. Legal Analysis
In the event of a jurisdictional challenge, Plaintiff carries the burden to prove personal jurisdiction using "affidavits or other competent evidence." Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009); O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007). The "bare pleadings alone" are not enough to withstand a motion to dismiss for lack of personal jurisdiction, as Plaintiff must respond with "actual proofs, not mere allegations." Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). Because I am not holding an evidentiary hearing, Plaintiff only needs to establish a prima facie case of personal jurisdiction. Metcalfe, 566 F.3d at 330. In order to meet this burden, Plaintiff must demonstrate "with reasonable particularity sufficient contacts between the defendant and the forum state." Mellon Bank (E.) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992) (internal quotations and citations omitted). At this early stage, I am required to accept Plaintiff's allegations as true and construe all disputed facts in Plaintiff's favor. Id.
a. Personal Jurisdiction
Plaintiff concedes that this District lacks general jurisdiction over Defendant. Plaintiff's Opposition Brief at 3. Therefore, this Court must have specific personal jurisdiction over Defendant in order to preside over this action. Specific personal jurisdiction is a three-part inquiry in this Circuit. The Court must find that (1) the defendant "purposefully directed [its] activities at the forum"; (2) the litigation arose out of or related to one or more of these activities; and (3) jurisdiction "comport[s] with fair play and substantial justice." O'Connor, 496 F.3d at 317 (internal citations omitted).
In the specific context of "interstate contractual obligations, [the Supreme Court has] emphasized that parties who 'reach out beyond one state and create continuing relationships and obligations with citizens of another state' are subject to regulation and sanctions in the other State for the consequences of their activities." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985). The absence of physical contacts alone is not enough to defeat personal jurisdiction. Id. at 476. At the same time, however, "contacts with a state's citizens that take place outside the state are not purposeful contacts with the state itself." O'Connor, 496 F.3d at 317. Finally, and perhaps most significantly, in order to comply with due process, a defendant must deliberately target the forum state such that it "may reasonably anticipate being haled into court there." Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001) (internal quotation and citations omitted); D'Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 103 (3d Cir. 2009).
In evaluating jurisdiction over a contractual dispute, I must consider the totality of the circumstances, including "the location and character of the contract negotiations, the terms of the contract, and the parties' actual course of dealing." Remick v. Manfredy, 238 F.3d 248, 256 (3d Cir. 2001). Requisite contacts may also include "contemplated future consequences." Mellon Bank (E.) PSFS, Nat. Ass'n, 960 F.2d at 1223. See also Penco Products, Inc. v. WEC Mfg., LLC, 974 F.Supp.2d 740, 749 (E.D. Pa. 2013). Moreover, "courts should inquire whether the defendant's contacts with the forum were instrumental in either the formation of the contract or its breach." Gen. Elec. Co., 270 F.3d at 150. The Third Circuit has explicitly held that the "fact that a non-resident has contracted with a resident of the forum state is not, by itself, sufficient to justify personal jurisdiction over the nonresident." Mellon Bank (E.) PSFS, Nat. Ass'n, 960 F.2d at 1223.
Plaintiff first argues that Defendant "purposefully directed [its] activities" to Pennsylvania by "obligating itself to purchase Sunoco-branded products" under the Subjobber Agreement. Plaintiff's Opposition Brief at 4. The Subjobber Agreement specifically references the right to use the Sunoco brand, subject to the provisions of the primary Jobber agreement, to which Sunoco was a party. Subjobber at Agreement at ¶ 23. Plaintiff alleges that this obligation required Defendant to comply with Sunoco's branding standards, including compliance with Sunoco's image specifications and pricing guidelines. Id. at ¶¶ 2–4, 17, 18, 23. Moreover, Defendant was required to accept Sunoco credit cards in lieu of cash. Id. at ¶ 17. Plaintiff maintains that by entering into the Subjobber Agreement, "not only did [Defendant] obligate itself to purchase Sunoco's products, but it secured the integral right to use Sunoco's brand names and trademarks in operating its business." Plaintiff's Opposition Brief at 5. Therefore, since Sunoco is a Pennsylvania owned and operated corporation, Plaintiff contends that Defendant submitted to the "oversight of its business operations" by Sunoco and should have known that it was subject to suit in Pennsylvania as a result. Id. at 5–6.
Defendant counters that the Subjobber Agreement was negotiated, executed, and performed exclusively in Virginia by Virginia parties. Further, the terms of the Subjobber Agreement specifically contemplate future litigation as taking place in Virginia, including a Virginia venue provision as well as a Virginia choice-of-law clause. In sum, Defendant proffers, "nothing in the totality of the circumstances surrounding the negotiation, execution, performance or terms of the Subjobber Agreement in any way supports a conclusion that Defendant LAP Petroleum purposefully directed any activities towards Pennsylvania such that it could reasonably anticipate being haled into court there." Defendant's Brief in Support of its Motion at 9. In its Reply Brief, Defendant further emphasizes that Plaintiff has made "absolutely no allegations or assertions that Defendant directed any contact toward Pennsylvania or engaged in any activity whatsoever directed toward Pennsylvania." Defendant's Reply Brief at 1.
Indeed, the purposeful availment requirement "ensures that a defendant will not be haled into a jurisdiction solely as a result of 'random, ' 'fortuitous, ' or 'attenuated' contacts." Burger King Corp., 471 U.S. at 475. Emphasizing MM's role in this dispute as a third-party that unilaterally assigned its rights under the Subjobber Agreement to a Pennsylvania corporation, Defendant contends it would be fundamentally unfair and offend traditional notions of fair play and justice to hale it into this forum based on actions entirely outside its control. Defendant further argues that the fact that it ended up as a party to a contract with a Pennsylvania resident "is a purely random and fortuitous situation" resulting from precisely the type of unilateral activity of a third party that cannot be used to establish personal jurisdiction under Burger King Corp.. See id.
While the absence of physical contacts alone is not enough to defeat jurisdiction, the law is equally clear that contact with a state's citizen outside the forum does not amount to purposeful availment, which seems to defeat Plaintiff's best argument here that personal jurisdiction is achieved through Sunoco's role in the Subjobber Agreement. The contract at issue was not only negotiated and performed exclusively in Virginia, originally by Virginia parties, but perhaps more importantly, the clear terms of the contract support a finding that Virginia was the contemplated venue in the event of a contractual breach. Given that Plaintiff must have read and understood the contract it inherited via assignment, if anything, it was Plaintiff that was on notice that it could be haled into Virginia. Thus, in viewing the totality of the circumstances, Plaintiff has failed to demonstrate with reasonable particularity that Defendant deliberately targeted Pennsylvania.
Moreover, it seems tenuous, at best, that compliance with a third party's branding guidelines, absent a showing that Defendant intentionally directed more substantial activities at Pennsylvania, would provide a basis for Defendant to be haled into the present forum. Defendant summarizes the issue aptly:
In sum, the mere fact that Defendant entered into a contract with a third party and, in doing so, agreed to conduct itself in accordance with certain standards of yet another third party who happens to be headquartered in Pennsylvania, is simply insufficient to establish personal jurisdiction in Pennsylvania.
Defendant's Reply Brief at 3. Thus, even in viewing all facts and inferences in a light most favorable to Plaintiff, this Court cannot exercise personal jurisdiction over Defendant.[1]
Plaintiff next argues that because the second count of the Complaint raises a tortious interference with contract claim, I should employ the Calder "effects test" to assess whether there is personal jurisdiction over Defendant specific to this claim. Calder v. Jone, 465 U.S. 783 (1984) (holding that a California court could exercise personal jurisdiction over non-resident defendants in libel suit where defendants published allegedly libelous article in National Enquirer and "effects" of defendants' actions were calculated to injure plaintiff in California).
To establish personal jurisdiction over Defendant under Calder, Plaintiff must show that: (1) Defendant committed an intentional tort; (2) Plaintiff felt the brunt of the harm here in Pennsylvania such that Pennsylvania can be said to be the focal point of the resulting harm suffered; and (3) Defendant expressly aimed its tortious conduct at Pennsylvania, such that Pennsylvania can be said to be the focal point of the tortious activity. Remick v. Manfredy, 238 F.3d 248, 258 (3d Cir. 2001). In approaching Calder, it is prudent to recall Judge Becker's caution that Calder "cannot be severed from its facts." IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 261 (3d Cir. 1998). In particular, "to make out the third prong of this test, the plaintiff must show that the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum." Id. at 266.
Plaintiff argues that the Court has personal jurisdiction over the tortious interference claim because "Defendant tortuously interfered with the business relationship between two (2) Pennsylvania corporations, both of whom are headquartered and maintain their principal places of business in the Commonwealth, and, accordingly, the brunt of the harm must have necessarily been felt in Pennsylvania." Plaintiff's Opposition Brief at 6–7; Plaintiff's Sur-Reply Brief at 7. Plaintiff relies heavily on Remick v. Manfredy, supra, to argue that the Calder "effects test" has been satisfied here. 238 F.3d at 260. In Remick, the Third Circuit found jurisdiction, but did so because the defendants' alleged tortious conduct was expressly aimed at injuring Remick "in Pennsylvania where he lives and works." Id.
Under the Calder "effects test, " the critical question is whether Plaintiff has identified acts undertaken by Defendant demonstrating that it "expressly aimed" its tortious conduct at Pennsylvania. IMO Indus., Inc., 155 F.3d at 266. Plaintiff fails to address this crucial issue, which is fatal to its argument. In fact, as explained in greater detail above, Plaintiff has not presented competent evidence that Defendant directed any specific activity, tortious or otherwise, toward Pennsylvania. Accordingly, I do not need to engage any further in the Calder "effects test, " nor do I need to reach the issue of whether Plaintiff's tortious interference claim is barred by the "gist of the action" doctrine, as Plaintiff has failed to establish personal jurisdiction over Defendant specific to this claim.
b. Venue
Because this Court lacks personal jurisdiction over Defendant, the parties agree that venue is also improper under 28 U.S.C. § 1391.[2]
28 U.S.C. § 1406(a) "comes into play where plaintiffs file suit in an improper forum." Lafferty v. St. Riel, 495 F.3d 72, 77 (3d Cir. 2007). "The language of [§] 1406(a) is amply broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not." Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962). Once triggered, 28 U.S.C. § 1406(a) is clear that a district court "shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."
I conclude it is in the interest of justice to transfer this action to the Eastern District of Virginia pursuant to 28 U.S.C. § 1406(a), where Plaintiff could have originally started suit.
III. Conclusion
Because this District lacks specific jurisdiction over Defendant, Defendant's Motion to Dismiss or Transfer is granted in part. This action shall be transferred to the Eastern District of Virginia. An appropriate order follows.
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text:
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subset: commoncrawl


text:
A Good Deal: No Evil 022
Round up4.31 / 5.00 1,593 Views
Park Bench
A short film about a park bench4.12 / 5.00 1,150 Views
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text:
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Appeal from the Circuit Court of Winnebago county; the Hon.
WILLIAM M. CARROLL, Judge, presiding. Reversed and remanded.
Rehearing denied November 1, 1957.
This action was brought by the plaintiffs, J. Paul Masters and Susan T. Masters, to recover damages occasioned by a gas explosion which demolished their newly constructed dwelling house and contents. Plaintiffs alleged that the explosion was caused by the negligence of the Central Illinois Electric & Gas Co., which installed a gas service line, Frank Wojcik and A.F. Wojcik, partners d/b/a Wojcik Construction Co., general contractors who built the house, A. Reyner Eastman, architect who supervised the construction, and Aubrey J. Gregory and Hilmer T. Anderson, partners d/b/a Gregory Excavating Co., whose employee struck the service line with a grading machine, thereby pulling the line loose from the gas meter in the house and allowing the escape of gas which exploded.
On the first trial the court directed verdicts in favor of the Construction Company and the architect Eastman at the close of plaintiffs' case, the jury returned a verdict for $42,000 against the Gas Company, and found the Excavating Company not guilty. On post-trial motions the court granted the Gas Company's motion for judgment notwithstanding the verdict, and allowed plaintiffs' motion for a new trial as to the Excavating Company. This court denied the Excavating Company's petition for leave to appeal, affirmed the judgments in favor of the architect and Construction Company, and reversed and remanded for a new trial as to the Gas Company. Masters v. Central Ill. Electric & Gas Co., 7 Ill. App.2d 348.
The second trial resulted in a hung jury. At the third trial the jury returned a verdict finding the Gas Company and the Excavating Company not guilty and judgment was entered on the verdict. Plaintiffs' post-trial motion was denied and plaintiffs appealed.
The complaint and factual situation are set forth fully in the former opinion. Plaintiffs state that the evidence in this record is identical with that on the former appeal, and defendants have pointed out no substantial difference. On the former appeal this court held that the trial court properly directed a verdict in favor of the Construction Company because there was no evidence of negligence, and in favor of the architect because there was no evidence that he violated any duty he owed to plaintiffs. On the third trial the Gas Company and Excavating Company proceeded on the theory that the architect or the Construction Company was negligent; that such negligence contributed to cause the explosion; and therefore that plaintiffs could not recover on account of the contributory negligence of "their agent or agents." The trial court adopted defendants' theory and instructed the jury accordingly.
On this appeal plaintiffs contend that by the former verdict and judgment the defendants were estopped from claiming that the architect and the Construction Company were guilty of negligence; that the trial court erred in giving instructions tendered by defendants; and that the verdict finding the Gas Company and Excavating Company not guilty is contrary to the manifest weight of the evidence.
The rules applicable to the doctrine of former adjudication and estoppel by verdict have been defined by the Supreme Court in many cases. "An estoppel by verdict is but another branch of the doctrine of res judicata, and it rests upon the same principle of law; that is, that a matter once litigated between parties to a final judgment in a court of competent jurisdiction cannot again be controverted. When this doctrine is applied to a single question or point arising in the course of litigation which has finally been adjudicated, it is designated as an estoppel by verdict, and the same question or point cannot again be litigated between the same parties in the same or any other court of law or in chancery, and neither party, nor their privies, will be permitted to allege anything inconsistent with the finding upon that question." Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485, 493.
"In applying the doctrine of estoppel by judgment, the distinction has been made between the finality of a judgment as a bar or estoppel where the second demand is for the same cause of action and between the same parties or their privies as the former action and those cases where the second action is between the same parties but upon a different claim or cause of action. If the action is of the former class, the judgment operates as an estoppel not only as to every matter actually litigated in such action, but extends to all grounds of recovery or defense which might have been presented." Ohio Nat. Life Ins. Co. v. Board of Education, 387 Ill. 159, 167.
"Where some controlling fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction, and the same fact or question is again at issue between the same parties or their privies, its adjudication in the former suit if properly pleaded, will be conclusive of the same question in the latter suit. This is so irrespective of the question whether the cause of action is the same in both suits. . . . Under this rule in order that the judgment in the first suit shall operate as an estoppel in the second suit, it must appear on the face of the record or be shown by extrinsic evidence that the precise question was raised and determined in the first suit." City of Elmhurst v. Kegerreis, 392 Ill. 195, 202.
In Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401, the Dairy and its driver, Vandeville, brought suit for damages to its truck and for his personal injuries against Mary Emery, owner, and her son, William, driver of her automobile which collided with the truck. She counterclaimed for property damage to her auto. The Court of Appeals held that the Emerys could plead as an additional defense that in another suit William had recovered judgments against the Dairy and Vandeville. The court said: that since it had been adjudicated that the operator of Mary Emery's automobile was not negligent as to the plaintiffs, that question was foreclosed and the plea of res judicata was available to her. The court referred to Portland Gold Mining Co. v. Stratton's Independence, 158 F. 65, 68, wherein the Eighth Circuit Court of Appeals said that if a defendant's responsibility is necessarily dependent upon the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel. The New York Court of Appeals further said: "Thus it has been held that where the liability of a principal or master is derivative, a judgment on the merits in favor of the servant or agent from whom the liability is derived may be set up as a defense by the principal or master, although he was not a party to the earlier action. . . . Under such circumstances the judgment is held to be conclusive upon those who were parties to the action in which the judgment was rendered. Where a full opportunity has been afforded to a party to the prior action and he has failed to prove his freedom from liability or to establish liability or culpability on the part of another, there is no reason for permitting him to retry these issues."
In Voss Truck Lines, Inc. v. Pike, 350 Ill. App. 528, Voss, owner of a trailer, and Curtis, owner of a tractor, brought suit in Sangamon county against Pike, owner of a truck, and the administrator of the estate of Howard, deceased driver of the truck, for damages resulting from a collision of the vehicles. Both defendants answered and Pike counterclaimed against both plaintiffs for damages to the truck, alleging that Price was Voss' driver of the tractor, leased by Curtis to Voss. Plaintiffs moved for summary judgment on the ground that Price had obtained a verdict and judgment against Pike in a McLean county suit in which Pike had answered and counterclaimed against Price, and also against Voss and Curtis who were made additional parties. The circuit court in Sangamon county allowed the motion for summary judgment finding Price, Voss and Curtis not guilty on Pike's counterclaim against them, and awarding damages to Voss and Curtis.
The Appellate Court, Third District, held that the McLean county judgment was not conclusive on the question of the contributory negligence of the plaintiff Voss, because it was not determined by that judgment that Voss could be guilty of no negligence contributing to the accident aside from the acts or conduct of its servant, Price, and reversed and remanded the case for trial on the merits. However, the Court said (p. 536): "As to the contributory negligence of Price, insofar as it is involved in the Sangamon County case, and the negligence of Pike, there would seem to be no question but that Voss is entitled to the benefit of an estoppel by verdict and the findings in the McLean County case are binding as between Voss and Pike."
In Hanna v. Read, 102 Ill. 596, 603, the court said that estoppel by verdict "is equally available to a plaintiff in support of his action, when the circumstances warrant it, as when offered by a defendant as a matter of defense."
We take judicial notice of the record on the former appeal. (Rose v. Dolejs, 7 Ill. App.2d 267, 270.) On the face of that record the issues on the former trial were defined by plaintiffs' amended four count complaint and separate answers thereto filed by the four defendants. In each count plaintiffs alleged that they were in the exercise of due care and defendants severally denied such allegations. On these issues of due care the Gas Company and Excavating Company were afforded full opportunity on the first trial to establish that the plaintiffs were guilty of contributory negligence by "their agent or agents, if any," including the architect or the Construction Company. That the Gas Company was aware of this opportunity is indicated by the contention in its brief on the first appeal that "The plaintiffs and their agent were guilty of contributory negligence as a matter of law."
Whether or not the architect or the Construction Company had any legal duty to the plaintiffs or were guilty of any negligence were questions material to the determination of liability on the first trial. On these material questions the trial court directed the jury to find the architect and the Construction Company not guilty at the close of plaintiffs' case, and after denying their motion for a new trial, entered judgment that said defendants go hence without day. This action by the trial court involved the merits of the case and constituted a final adjudication that such defendants were not guilty of any negligence, subject only to appeal.
Counsel for the Gas Company contends that: "The adjudication of the negligence of the Architect Eastman upon the first appeal, having been limited to the record at the end of the then plaintiffs' case, is not res adjudicata upon this appeal when the full record is before this Court," citing Penn Plate Glass Co. v. J.H. Rice Co., 216 Ill. 567. The cited case involved two trials and two appeals to the Appellate Court in an action between a single plaintiff and a single defendant. There was no final adjudication not subject to appeal until after the Supreme Court had affirmed a judgment entered by the Appellate Court on the second appeal. The decision is not applicable here.
It seems to us that the record conclusively shows: that there was identity of the parties and causes of action upon the two trials; that a controlling fact or question material to the determination of both cases was adjudicated on the first trial; that since it had been finally adjudicated upon the first trial and affirmed on appeal that the architect and the Construction Company were not guilty of any negligence which proximately caused the explosion, such adjudication was conclusive upon the question of plaintiffs' contributory negligence derived through any negligence on the part of either of those defendants; that upon the third trial plaintiffs were entitled to the benefit of the adjudication on the former trial and the former judgment was binding and conclusive upon all parties to the record including the defendant Gas Company and Excavating Company; and we so hold. With these conclusions in mind we turn to the instructions given for defendants over plaintiffs' objections.
The Gas Company's instructions IX, XIII, XIV, XV and XVI read as follows:
"IX. The Court instructs the jury that neither Plaintiff is entitled to recover against the Defendant, Central Illinois Electric & Gas Co., unless he or she proves by a preponderance of the evidence
First: That the Defendant, Central Illinois Electric & Gas Co. was guilty of negligence as charged in the complaint which proximately caused the loss in question.
Second: That the Plaintiff, himself or herself, or their agent or agents, if any, were not guilty of any negligence or lack of care and prudence which proximately contributed in whole or in part to the damages for which recovery is sought.
The Court further instructs you that if the Plaintiff fails to prove any of these propositions by a preponderance or greater weight of the evidence, your verdict should be for the Defendant, Central Illinois Electric & Gas Co."
"XIII. The Court instructs the jury that the Plaintiffs must prove by a preponderance of the evidence that they and their agent or agents, if any, conducted themselves as ordinarily prudent and careful people would conduct themselves for the protection of their property under the facts and circumstances in evidence in this case, and if the Plaintiffs fail to so allege and prove such care by a preponderance of the evidence, then they are not entitled to recover in this case."
"XIV. The Court instructs the jury that if you believe from the evidence of this case A. Reyner Eastman had superintendence and direction of the grading of the Plaintiffs' property, then in this case he was the agent of the Plaintiffs in this respect.
The Court further instructs you that if, under the evidence in the case, Eastman was the agent for the Plaintiffs, and in the performance of his duty was guilty of any act or omission which under the evidence in this case was negligent and such act or omission proximately contributed to cause the accident, you should find the Defendant, Central Illinois Electric & Gas Co., not guilty."
"XV. The Court instructs the jury that if you believe from the evidence that A. Reyner Eastman, pursuant to an arrangement with J. Paul Masters assumed the direction and control of the grading and excavating in the Plaintiffs' lawn, then the burden is on the Plaintiffs to prove that said Eastman was not guilty of any act or omission in the performance of his duties which under the evidence in the case was negligent and which proximately contributed to cause the accident; and the Court further instructs you that unless the Plaintiffs do so prove, they are not entitled to recover in this case."
"XVI. The Court instructs the jury that while the law imposes upon the Defendant, Central Illinois Electric & Gas Co., the duty defined in this Instruction, it also imposes upon the Plaintiffs and their agent or agents, if any, to protect their property by the exercise of that care and caution which an ordinarily careful person would have exercised under the circumstances.
The Court further instructs you that unless the Plaintiffs prove by a preponderance of the evidence that they and their agent or agents, if any, did exercise such care, they cannot recover in this case."
The Excavating Company's instruction XIII is substantially the same as Gas Company's instruction IX, except for the name of the defendant and the use of the words "or through their agents or servants" instead of "or their agent or agents, if any," in the second proposition of the instruction.
In their arguments before the jury the only persons referred to by defendants' counsel as such agents were the architect and the Construction Company. By the above instructions the burden of proving that such agents were free from negligence was cast upon the plaintiffs, and the jury was required to determine the negligence of the architect and the Construction Company as plaintiffs' "agents" or "servants." Both of them had been exonerated from any culpability by the former adjudication and by such exoneration defendants were foreclosed from asserting anything inconsistent with such adjudication. Applying the law relative to former adjudication to the facts in the instant case, we conclude that the above instructions were substantially erroneous and that they necessarily misled and prejudiced the jury in arriving at its verdict.
Plaintiffs also contend that these instructions were erroneous because the evidence shows that the architect and the Construction Company were independent contractors and not agents or servants. Since it had been adjudged that both of them were not negligent, it matters not whether they were agents or independent contractors, and it is not necessary to decide that question.
A complete recital of all the defects complained of in defendants' instructions would unduly prolong this opinion. It should be noted, however, that all of the above instructions are peremptory in form. For the plaintiffs the Court gave seven instructions, none of which was peremptory. Eight of the seventeen instructions given for defendants were peremptory, and on nine occasions the jury was reminded that plaintiffs were required to prove their case by a preponderance of the evidence. The giving of an inordinate number of peremptory instructions has been repeatedly condemned. Moore v. Daydif, 7 Ill. App.2d 534, 538; Stone v. Warehouse & Terminal Cartage Co., 6 Ill. App.2d 229, 236; Baker v. Thompson, 337 Ill. App. 327.
Instruction X for the Gas Company is as follows:
"The Court instructs the jury that Central Illinois Electric & Gas Co. in the installation of its gas service in the premises of the Plaintiffs was acting under the direction and permission of the Plaintiffs, and as a result had a possessory interest protected from invasion or damages by subsequent users. . . ."
Counsel for the Gas Company argues that instruction X told the jury that by installing the gas service with plaintiffs' permission the company had a possessory interest in plaintiffs' premises, and merely applies the doctrine of Illinois Bell Tel. Co. v. Charles Ind Co., 3 Ill. App.2d 258; and that "this was not only an accurate statement of fact and law but was in no sense misleading." The Ind case was an action tried before the court without a jury to recover for damages inflicted by defendant's ditch-digging machine to a telephone cable buried under a public street, as provided by ordinance. In discussing the nature of this permit, this court said (p. 274) that the utility took from the municipality a possessory or proprietary interest which is "protected from invasion or damage by subsequent users."
In the instant case the company's right to install or maintain the service line in plaintiffs' premises was not questioned, and damage to the line was not involved. The language lifted from the context of the opinion in the Ind case and used in this instruction was wholly inapplicable here. In addition to invading the province of the jury in determining the facts, we think that instruction X was susceptible of telling laymen on the jury that by installing its gas service the company acquired protection from invasion for damages sustained by subsequent gas users, i.e. the plaintiffs, regardless of any negligence in the installation. This instruction was highly misleading and prejudicial to plaintiffs.
Plaintiffs object to Excavating Company's instruction II, as follows:
"The Court instructs the jury that no juror should consent to a verdict which does not meet with the approval of his own judgment and conscience after due deliberation with his fellow jurors, and after considering all the evidence admitted by the Court and the law, as given in the Instruction of the Court."
Instruction II has been disapproved by the Supreme Court (City of Evanston v. Richards, 224 Ill. 444, 448; People v. LeMorte, 289 Ill. 11, 19), has been condemned repeatedly as tending to encourage a disagreement of the jury (Alexander v. Sullivan, 334 Ill. App. 42, 48; Gehrig v. Chicago & Alton R. Co., 201 Ill. App. 287, 294; Mandel v. Bloomington & N. Ry. & L. Co., 188 Ill. App. 227), and should not have been given.
On substantially the same facts three juries have reached different conclusions, indicating that this is a close case on the merits. Where the facts are close it is important that the jury be instructed correctly. Anderson v. Middleton, 350 Ill. App. 59, 63; Sharp v. Brown, 349 Ill. App. 269, 273. Many instructions given for defendants have been repeatedly condemned and others were erroneous in substance. The errors noted could not have been cured by other instructions and prevented plaintiffs from having a fair trial. Since the case must be reversed and remanded for a new trial, we express no opinion on the weight of the evidence.
The judgment of the circuit court is reversed and the cause remanded to the Circuit Court of Winnebago county for new trial.
Reversed and remanded.
DOVE, P.J. and SPIVEY, J., concur.
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Provincetown Guest Specials & Packages
Land's End Inn offers some wonderful specials on top of our already lowered quiet season rates.
We currently have special reduced rates on standard rooms (normally $405 per night, they have been reduced to $305 per night) for the nights of June 20 & 21, 2016.
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Ken's Butter Tart Squares
Total Time
Prep 45 mins
Cook 40 mins
This is a different twist on the usual butter tarts but equally as delicious.
Ingredients Nutrition
- 3⁄4 cup flour
- 1⁄3 cup brown sugar
- 1⁄3 cup butter
- 3⁄4 cup raisins
- 1⁄2 cup sugar
- 1⁄8 teaspoon salt
- 2 eggs
- 2 tablespoons melted butter (measure after melting)
- 1 teaspoon vanilla
- 3 tablespoons flour
- 1 cup nuts, optional
- Preheat oven to 350.
- Combine the first three ingredients until crumbly.
- Press into an ungreased pan.
- Bake 5-7 minutes.
- Soak raisins in cold water for half an hour and thoroughly drain.
- Beat eggs and gradually add sugar, flour, vanilla. At this point you can add the melted butter and salt.
- Add raisins, nuts.
- Pour over the partially baked base.
- Return to the oven and bake for 30 minutes or until top is golden brown.
- Cool and cut into squares.
Most Helpful
Butter tarts are DH's favourite, these squares are just as good as the tarts and not near the trouble to make. They will become a regular for his "cookie jar". Thanks friend Ranikabani for sharing a sweet one!!
As a coeliac, I substituted the flour for the gluten free stuff and I still thought the end result was great. It was easy to make and very 'more-ish'. (Just presumed that the melted butter & salt were added after the beating of the eggs...?)
This recipe didnt turn out at all. It looks or tastes nothing like butter tart squares. I think some of the recipe is missing. Its was quite gross.


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Baked Beans
- 6 slices bacon, diced
- 2 cups chopped onion
- 1/2 teaspoon salt
- 1/4 teaspoon ground black pepper
- 2 cans pinto beans, drained and rinsed
- 1/4 cups brown sugar
- 2 cans diced tomatoes with green chilies
- 1 cup water
Preheat oven to 350 degrees F.
In a Dutch oven, cook bacon over medium heat until browned and crispy. Add onions and a dash of salt and pepper. Allow to cook for a few minutes.
In a large bowl, mix together pinto beans, brown sugar and diced tomatoes. Add to Dutch oven and allow cooking.
Add 1 cup of water. Cook for 30 minutes.
Recipe courtesy of Paula Deen, 2008
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Root Beer Baked Beans
Recipe courtesy of Aarti Sequeira
Three Ring Salad
Recipe courtesy of Robert Irvine


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Review: HP Elite x3, The First '3-In-1' Computing Device
The CRN Test Center did a deep dive with the groundbreaking new device, and found plenty of pluses and minuses.
The CRN Test Center did a deep dive with the groundbreaking new device, and found plenty of pluses and minuses.
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The CRN Test Center drops Xplore's new rugged tablet from 4 feet.
Huawei On Fire, Cisco Slips As Switch And Router Market Grows To $9.9B In Q3
Sales from switching and routing hit $9.9 billion in the third quarter of 2016, as Cisco's share slipped and Huawei boasted a 92 percent increase in switch revenues, according to new data from research firm IDC.
13 Scenes From Amazon Web Services re:Invent 2016
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The IoT market is quickly moving beyond smart homes and automated cars to the enterprise and verticals where solution providers play a big role.


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A BNY Mellon Company
Absolute return
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Where now for UK Asset-Backed Securities | Following the UK's vote to leave European Union (EU), investors have been preparing for a period of economic and political uncertainty. Attention has turned to the value of UK-centric assets such as real estate, and in turn, UK asset-backed securities (ABS)
Head of Emerging Market Fixed Income, Colm McDonagh, discusses the real risks faced by investors in developed fixed income markets compared to emerging markets and addresses whether investors are being adequately compensated for their exposure in the current environment.
Emerging market corporate debt is a sizeable asset class. The outlook for EM corporate debt remains compelling as fundamentals stabilise further and strong technical factors continue to underpin the asset class.
At Insight, we believe responsible investment means acknowledging the significance of environmental, social and governance risks, and ensuring our portfolios reflect these factors.
Winner of the Royal Society Insight Investment science book prize, Andrea Wulf, sits down with Professor Brian Cox and Evan Davis to discuss the scientist who inspired Darwin.
The UK electorate has voted in favour of leaving the European Union. Please visit our post referendum microsite for the latest views from Insight's fund managers on how we are reacting to market changes as the situation evolves.
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or emailBusiness Development Team
Rising bond yields weighed on fixed income assets as the global economy continued to show a modest pickup in activity. Uncertainty around the timing of the UK's exit from the European Union came to the fore contributing to weakness from sterling assets. Meanwhile lack of additional policy easing from the European Central Bank and the Bank of Japan further weighed on rates and presented something of a headwind for global equities. Laggard stock markets in the eurozone and Japan however enjoyed a partial rebound. The portfolio's fixed income component was the main detractor from returns over October while directional equity, real assets and total return strategies components made positive contributions to returns in aggregate.
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Insight pension fund and CIS commission disclosure code
Remuneration Statement - UCITS V
The current era of monetary policy began with the collapse of the Bretton Woods system. Recurrent crises and increasingly experimental policy suggest we may be close to another shift in the monetary regime.
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Read Insight's annual responsible investment report
Most investors tend to focus on the current business cycle or the next possible downturn, few think in terms of eras.
With the market environment challenging the long-held assumption that fixed income is a relatively stable asset class, investors are increasingly looking for strategies to help them navigate volatile markets. The following paper explores how an absolute return approach can be well-placed to navigate political risks such as Brexit, globally divergent monetary policy and asymmetric interest rate risks. It also illustrates through case studies how a diversified best-ideas strategy with the ability to take long or short exposure can go one step further and aim to turn these risks into sources of outperformance.
Emerging market (EM) corporate debt is a sizeable asset class. The market for EM hard currency corporate bonds stands at $1.7trn and a significant proportion is rated investment grade. The outlook for EM corporate debt remains compelling as fundamentals stabilise further and strong technical factors continue to underpin the asset class.
For a comprehensive guide to Insight's fixed income team views across government bonds, credit, inflation and currencies around the world
Investors increasingly seek strategies that are more flexible and better equipped to handle the challenges presented by rapidly evolving market dynamics. We believe an absolute return approach to fixed income investing and strategies that can extract a "complexity premium", without compromising on credit quality, offer advantages in the current environment.
In the run up to the US election we reduced a number of macro positions, particularly within our absolute return funds. However, we retained high conviction allocations to inflation breakeven and real yield trades. Elsewhere we still have short exposure in the US and Europe, particularly towards the front end.
Asset-Backed Securities (ABS) are a misunderstood area of fixed income. In particular, many investors do not fully appreciate how European-originated abs differ structurally from their US equivalents. This guide explains what ABS are and the size of the investment opportunity in Europe.
The bank of japan has never been afraid of monetary experimentation. It gave the world quantitative easing. However, the move to cut interest rates into negative territory caught market participants by surprise.
Many asset classes are priced to perfection as we head into 2016. That cannot be said about the $2.9 trillion global inflation-linked bond market. With inflation far below central bank target rates, both policymakers and investors seem more concerned about the threat of deflation.
Many pension schemes have adopted a flight path approach to full funding, and for many, particularly those starting to pay out more to pensioners than they receive, it is becoming increasingly important to start planning for a smooth landing.
The surprise outcome of the UK referendum on June 23 highlighted the very real threat of political event risks on portfolios. Positioning for political surprises is challenging, particularly within regionally-constrained strategies.
Ranbir lakhpuri, portfolio manager for secured finance at Insight Investment discusses leveraged loans and the Insight loan fund.
Matthew Merritt, Head of the Multi-Asset Strategy Group at Insight Investment, discusses how to invest for growth with low volatility, how his team has managed difficult markets so far this year, and how they are investing for the future.
Colm Mcdonagh, Head of Emerging Market Fixed Income at Insight Investment, discusses how risk is being redefined on a global scale and how this will impact the emerging market (em) debt universe.
Traditionally, many investors have accessed global credit through local currency or 'regional' allocations, such as funds benchmarked against sterling, euro or US dollar indices. However, today more investors are considering expanding their investment horizon to a global approach that can offer greater diversification, deeper liquidity and more scope to generate excess returns.
Traditionally, many investors have accessed global credit through local currency or 'regional' allocations, such as funds benchmarked against sterling, euro or US dollar indices. However, today more investors are considering expanding their investment horizon to a global approach that can offer greater diversification, deeper liquidity and more scope to
generate excess returns.
The meetings in Doha between OPEC and non-OPEC producers to negotiate a production freeze to rescue oil prices ended in failure on Sunday 17 April. This short note considers the reasons for the failure to agree and the implications for oil prices in the remainder of 2016.
Read comment and opinion from the portfolio managers of the Absolute Insight fund range.
Following the UK's vote to leave European Union (EU), investors have been preparing for a period of economic and political uncertainty. Attention has turned to the value of UKcentric assets such as real estate, and in turn, UK assetbacked securities (ABS).
Credit investors have had little respite from volatility in 2016. Credit spreads initially Set three-year highs before a round of accommodative central bank action and rhetoric saw them reverse sharply back to year-end levels. For now fears of a sustained rise in credit spreads have been allayed. However, at some point, fundamentals and the business cycle
MAY reassert their influence.
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text:
Razing puts end to fight over historic 'junk house' in Lake Elmo
There are 130 comments on the TwinCities.com story from Jul 26, 2010, titled Razing puts end to fight over historic 'junk house' in Lake Elmo. In it, TwinCities.com reports that:Linda Hardy had high hopes for renovating this house on her Lake Elmo property, but it was razed Saturday after a five-year battle with neighbors and city officials who considered it an eyesore.
Join the discussion below, or Read more at TwinCities.com.
Since: Apr 08
#1 Jul 27, 2010
My math must be bad, they spent 200k on it and wanted to spend another 330k to bring it up to code. Heck, you could have torn it down and put it back up for 1 tenth of that price. Something is missing.
"Here I come to save the Day!"
Since: Jan 09
Gothem city
#2 Jul 27, 2010
30 k to demolish it?? What the heck?? Why not have the Fire Dept use it for burning practice? Duh! Or give it to a house moving company, they could have pulled it and sold it?
I don't think this gal ever would have fixed it up, she had her chance and property values decreasing because of sloppy neighbors is certainly not fair. Just sad that tax payers all have to pay for the city counsel's involvement in the situation.
#3 Jul 27, 2010
Minnesota nice at its finest..........
Saint Paul, MN
#4 Jul 27, 2010
We have houses like this all over the state. If it wasn't across the road from a swanky development, it would still be there I'm sure.
Not saying it's right to have junk all over the place.....just sayin'.
#5 Jul 27, 2010
MN nice is nothing more than cover for passive aggressive behavior.
Unless she won the lottery this house was never going to be anything more than the biggest thing in her growing junkyard.
Saint Paul, MN
#6 Jul 27, 2010
The whiners are the same kind of people that move out to rural area and then complain about the smell.
Since: Jan 09
United States of America
#7 Jul 27, 2010
No, its the people moving into the city neighborhoods, and complaining about the smell.
Since: Apr 08
Twin Cities
#8 Jul 27, 2010
It brings a tear to my eye to see the old Friedrich homestead destroyed like this. It was an amazing farm with a history that touched just about everyone in the old neighborhood. The development that took over the land when the last of the Friedrichs left it has successfully erased any glimmer of the charm that 31st Street once had. In all reality, Mrs. Hardy was not going to ever be able to pull together the money to have the structure brought up to code herself, but her dream was noble. It's a crying shame that the Minnesota Historical Society didn't take any interest in the house, which was movable and worthy of restoration.
Saint Paul, MN
#9 Jul 27, 2010
Typical nut. Put your money where your mouth is--buy the porperty, fix it up. "In reality," folks like you want all of this done on the public dole. One man's "charm" is another man's junk pile.
The most telling sentence in this article was "In June, nine cars most of them inoperable littered the yard and Hardy's adjoining yard. Debris and piles of old appliances sat for years, rusting in the mud."
Now that's charm...
#10 Jul 27, 2010
It's Obama's fault. And the DFL. Hip Hop isn't helping eithter. Or those video games. We need to take our civilization back. Let's start by tearing down houses. We can do it. We're Amercians. Support our troops.
Since: Apr 08
Twin Cities
#11 Jul 27, 2010
Well, good morning, grumpypants! I think you misunderstood me. Before Mrs. Hardy purchased the house, it sat on several acres that defined the neighborhood. There were ponds on either side of the long road (Friedrich Road) leading from the street to the farm house and outbuildings. It was a grand place, a second home to many of the kids growing up in Skunk Hollow and along 31st during that time. Bonfires on the weekends, horses that we liked to visit with apples, lots of trees and character and yes, charm. When the developers purchased the Friedrich land, they put the farmhouse up for sale. It was then that the Hardys had it moved to their small yard on 31st, where it sat boarded to deteriorate among the junk cars and appliances that the Hardys had accumulated. A very sad thing to happen to a home that had been so full of life for over 130 years and generations of a family that settled Lake Elmo. I never suggested the taxpayers fund any of it, so I don't know why you leaped to that conclusion. I waxed nostalgic and expressed my sadness that the Historical Society didn't intervene on behalf of the building's former glory.
Saint Paul, MN
#13 Jul 27, 2010
From the sounds of things, Fred G. Sanford would have complained living next to her.
#14 Jul 27, 2010
Sounds like you have many happy memories of the house and homestead -BUT- the building itself was nothing to marvel at on its own. I'm guessing that the Historical Society has certain criteria before they consider restorations and the only thing this structure had going for it was its age. Other than that, it wasn't a rare architectural gem. Just a dime-a-dozen farmhouse that wasn't maintained. Memories or not, they did what they had to since it was obvious the owners were never going to finish the project.
Since: Apr 08
Twin Cities
#15 Jul 27, 2010
You're right, of course. The heart of the home was the family within it, not the structure that housed it. Thanks for bringing that back to me, E.
Since: Aug 09
Saint Paul, MN
#16 Jul 27, 2010
I hope the citizens of Lake Elmo aren't stuck paying for this cleanup. If she can afford $300,000+ to fix it up, she sure as heck can pay for expense to haul it all away.
Saint Paul, MN
#17 Jul 27, 2010
So....she collected junk and let it rot in her yard; which lead them to tearing down the house she was fixing next door? Dirty politics and if this was supposed to be her "warning" or "slap on the hand"....what a COST!
Saint Paul, MN
#18 Jul 27, 2010
Nice job Lake Elmo. You show so much heart in dealing with your residents. I guess this is what you get when you have college dropouts running the city.
Saint Paul, MN
#19 Jul 27, 2010
You are talking about a city council who has to call the cops because of fights that break out at council meetings. If there was ever a city that the state should take a long, hard look at it's Lake Elmo. They should just be absorbed into Stillwater or Woodbury and dissolve that band of idiots running the show.
#20 Jul 27, 2010
Have you followed this story at all? She wasn't fixing the house - it has been years since she has done anything with it. And no, this was not supposed to be a warning...she has had several warnings and extentions over the years, and nothing has been done. She's on a disability income, I believe, and other than maybe a winning lottery ticket, there was no way she was going to come up with the money needed to finish the house.
It's a shame that the house had to be destroyed. But maybe now that it has been, she can let go of the dream that she and her husband shared and move on with her life.
#21 Jul 27, 2010
So how does this work? Developer buys up farms, puts up yuppie condos in a former field. Yuppies move in and whine about the old farm house and the typical "stuff" you get on a farm (and what farm doesn't have a couple spare cars rusting away?). Developer muscles city to tear down the farmhouse (gotta put a CVS or a Walmart in there ASAP!)
Personally I'd like to see stuff like "The Farms at Lake Elmo" torn down and replaced with actual farms, we could use more cropland near the city to lower the grocery bills!
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No doubt he will get a hero's welcome. Do I really need to add the /sarcasm tag?
> No doubt he will get a heros welcome. Do I really need to add the /sarcasm tag?
Obama may even install him as a national security advisor and convene with him routinely in the situation room.../s
Blanket party times 10.
Nah, no hero's welcome for this action. The 'Progressives' would only consider him a real hero had he 'fracked' his superiors.
It is important for the Administrations to maintain the narrative that Bergdahl served honorably.
I still believe they're going to say he was on a special undercover mission.
They'll say he had a tracking device up his butt. I don't put anything past them.


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Kukla's Korner Hockey
Ducks Recall 8 Players from AHL
by Alanah McGinley on 04/18/07 at 10:12 PM ET
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From HockeyFights.com,
The Anaheim Ducks announced today that the National Hockey League (NHL) club has recalled centers Tim Brent, Ryan Carter and Petteri Wirtanen, right wingers Mike Hoffman and Bobby Ryan, defensemen Brian Salcido and Clay Wilson and goaltender Gerald Coleman from the Portland Pirates, Anaheim's primary development affiliate in the American Hockey League (AHL).
continued… (*Geez… preparing for war, Anaheim?)
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Other people who were arrested alongside Hollywood was Musah Mohammed aka "Cobra" (31), Yabaah Barigah (24), Hussein Fuseini (24), and Ishmael Adukornu (21).
On arrest, Police said they recovered 169 wrappers of cocaine, 30 cocaine stones, parcels of Indian Hemp, 50 wrappers of Indian Hemp, one compressed slab of Indian hemp, 500 tablets of Nitrazepan tablets, a charm, GH¢748 and four unregistered motor bikes from the suspects.
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1 review
AeroGrowGarden Classic 7-Pod Indoor Garden Reviews
- Other Gardenings:
- Average: 4.1
- High: 5.0
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- AeroGrow
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AeroGrowGarden Classic 7-Pod Indoor Garden
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Comments about AeroGrowGarden Classic 7-Pod Indoor Garden:
i received a deluxe aero garden 7 from my daughter {early} for Christmas. what an adventure!! what fun!! what a lot i have already learned about herbs and growing with air and water only. it is also a great alternative to outdoor growing and is not only healthy but cleaner and easier. you can grow your own herbs for cooking or for medicinal uses. it is great for growing herbs for teas also. just a very innovative product and so much fun!!


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Blending the historical, biographical and political, the wide-ranging Bright, Infinite Future describes how the values of the '60s are creating a new progressive majority in '16. The multi-faceted Mark Greenbestselling author, public interest lawyer and elected officialis our guide through contemporary American politics as Nader launches the modern consumer movement; Clinton wins the 1992 New York primary and therefore the nomination; and Green loses the closest NYC mayoral election in a century to Bloomberg after 9/11 in a perfect storm of money, terrorism, and race.
As Public Advocate, Green is Mayor Giuiliani's bête noir, exposing NYPD's racial profiling, killing off Joe Camel, and then running against a "Murderer's Row" of Cuomo, de Blasio, Schumer, and Bloomberg.
Starting with the consequential movements of the '60s, Green shows how a rising tide of minority and millennial voters, GOP's lurch from mainstream to extreme, and the contrast between the presidencies of Bush and Clinton Obama are leading to a new era of "Progressive Patriotism" built on four cornerstones: an Economy-for-All, Democracy-for-All, Compact on Race & Justice, and Sustainable Climate.
Full of behind-the-scenes stories about bold-faced names, this will be the 2016 book for liberals looking to a "bright, infinite future" (Leonard Bernstein), conservatives wanting to know what they're up against, and readers who want to know "what-it-takes" in the arena.


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Two weeks ago, we reported on the crisis in aged care.
Whilst there is no good news on the number of places available - at least one important place has been found.
MAY STINEAR: I had a call from Morshead Home on Friday night actually and they said they had a place and that we could come today - that was the highlight if my life over the last three or four months I would say.
MARGARET CURTIN, MORSHEAD HOME FOR VETERANS & AGED PERSONS: She's very excited. Bruce has just arrived. I haven't had much time to spend with him yet.
REPORTER: After waiting from a hospital bed in a busy acute care ward for three months, May Stinear's husband Bruce is finally settling into his new home.
UPSOT MARGARET CURTIN: "and we welcome you"
MAY STINEAR: I couldn't quite believe it. I didn't like to tell people because I wasn't to see Shirley, the lady from Moreshead, until Tuesday and I was rather afraid that it wouldn't happen - that this couldn't possibly happen. I did tell my family but I didn't tell many other people because I thought it would be so awful if we think we are going to get this bed and then it doesn't happen so it wasn't until Tuesday when Shirley came to the hospital that I realised that the whole was going to happen and we're here. Now we're here.
BRUCE STINEAR: Am I home again?
FRIEND: He's asking if he is home again.
MAY STINEAR: No dear you are in a nursing home with your own room with your own bathroom so it will be nice won't it, it'll be nice won't it.
BRUCE: Yep. Y
MAY: Yep it will
REPORTER: Bruce Stinear has dementia and he was confused and unsettled by the move - but that is apparently normal - and he's expected to do much better once he's settled in.
MARGARET CURTIN, MORSHEAD HOME: Bruce needs to be in a homelike environment he needs the stimulation that we can offer he needs activities he needs to be up day room with other people and get into a routine a more home like routine.
MAY STINEAR: So we are now here and he is in a lovely bright room with all the lovely flowers outside and things and tucked into bed and sleeping and hopefully from now on he will progress and get better.
MAY UPSOT: I've got some personal pictures which he'll see when he wakes up.
MAY STINEAR: I've put up an Antarctic momento that is meaningful to him and a couple of photos and an Antarctic calendar which he always set great store by each year, a doona, and in time we can bring other things, personal things like a recliner chair and you set the room up almost like it's a home away from home.
REPORTER: We first met May at the Canberra Hospital two weeks ago when she described trying to find her husband a nursing home bed. The industry is in crisis, waiting times for aged care places in the ACT are among the highest in the country.
MARGARET CURTIN, MORSHEAD: Five minutes after I offered the bed to May I could have offered it to somebody else in exactly the same position, so it is very very difficult. I would say I have another twenty or thirty people in that same position.
REPORTER: The Moreshead Nursing Home says it offered the bed out of concern for May's welfare as well as that of her husband Bruce.
MARGARET CURTIN, MORSHEAD HOME: I just felt if May didn't have the chance to move Bruce to an aged care facility then she would always have regrets she was spending a lot of time at the hospital trying to bridge the gap. She was spending most of her day at the hospital
MAY STINEAR: I feel that I've achieved a goal that he's now placed in a very caring situation and I can visit him here and it's not too far from home so I am very delighted that he's here. I'm very grateful it's ended for us and I wish something could be done so that all those hundreds of people who are still waiting could get nursing homes.. and that the state and commonwealth governments would do something and more some money into aged care.


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Having unwanted fat in different areas of your body can have a significant impact on your health and self-esteem. While traditional weight-loss through exercise and diet plan is a fantastic method to reduce weight in general, even the best exercises can't target problem locations like the stomach, inner thighs, arms, and buttocks. Liposuction is a time evaluated treatment that is used to eliminate excess fat from specific locations of the body, allowing an individual to shape and contour their body to their liking. Is liposuction right for you? Find out now.
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There are lots of benefits to this cosmetic treatment, including:
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• Proven and safe. This cosmetic treatment has actually been performed by knowledgeable cosmetic surgeons all over the world for many years and the strategy has been fine-tuned over and once again to be safe and reliable.
• Recovery time is normally quick. The downtime needed after having this kind of procedure is generally much less than exactly what is required for other kinds of cosmetic procedures, including tummy tucks, breast reduction, and more. People who have had the procedure can often go back to work a lot more rapidly than they expected and can get back to living a healthy, active way of life.
• Weight-loss can be permanent. With the best upkeep techniques, the fat that was eliminated during the liposuction procedure will not return.
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Cons of Liposuction
Before having liposuction done, it is necessary to examine the possible downsides of the treatment and determine if the benefits exceed the risks in your particular case. Your cosmetic surgeon can assist you learn more about the risks associated with the treatment and can help you decide if moving forward is the best thing for you.
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There are risks associated with liposuction, for numerous people, the benefits far exceed them. Inform yourself about the treatment by having thorough conversations with your surgeon and think about how liposuction has the prospective to impact you as a distinct individual. Only you and your specialist can figure out if liposuction will offer you with the outcomes you are looking for within your expectations.
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Movie Review
Chasing Ice
Rated PG-13 for brief strong language. 1 hour, 16 minutes.
Publication date: Publication Date Dec. 14, 2012
Review by Peter Canavese
Released: (2012)
Jeff Orlowski's documentary feature uses emotional appeal and a measure of science to provide what it characterizes as definitive evidence of global warming. Orlowski follows James Balog, a photographer with a master's degree in geomorphology. Balog's commitment to environmental photography has, of late, refocused primarily on melting glaciers, which Balog calls "the canary in the global coal mine."
Orlowski observes Balog at work with his Extreme Ice Survey, a project recording receding ice-lines and crumbling glaciers in Greenland, Iceland, Alaska and Montana. The presentation of Balog's often hauntingly beautiful imagery -- and the fully committed approach he takes to capturing it -- go a long way toward the photographer's career mission of reconnecting city dwellers to our presence in and interaction with nature. Now driven to promote environmental crisis management, Balog muses, "The story is in the ice -- somehow." As artwork, each photo is unique. But as far as being an argument for global warming, if you've seen one melting glacier, you've seen them all, which might account for the film's compact 76-minute running time.
Orlowski makes up the balance partly with a smattering of talking-head commentary paying too-brief lip service to the science of global warming and the effects of global climate change. Mostly, though, the film hero-worships Balog, a passionate and talented artist whose work has taken a physical toll (and also one who gives off whiffs of self-congratulation and vanity).
The facts show that global warming is a reality of the status quo, but facts aren't always enough. Balog explains that his work has led him to a more "seductive approach" in depicting nature to man. It's anyone's guess whether hardcore deniers would be convinced by anything, including dramatic time-lapse record of disappearing glaciers, though the film provides anecdotal examples (one interviewee offers that he quit his job, at Shell Oil, on viewing Balog's evidence).
"Chasing Ice" stakes its claim on that seductive approach, and while more detailed scientific analysis and greater discussion of impacts would have been welcome, the film's visual rhetoric is solid. Plus, Balog talks of taking environmental action for the sake of his daughters, a gesture likely to make hearts melt as quickly as glaciers.
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The best. The desk gentlemen treated our group very good. Thank you every so much helping us find our friend whom was lost. Would love to have video. thank you again
Today:Open 24 Hours
1101 Dual Hwy,
Hagerstown, MD 21740
(301) 733-2700
in Business
Regular Hours
Property Location With a stay at Days Inn Hagerstown, you'll be centrally located in Hagerstown, convenient to Maryland Theater and Hagerstown Premium Outlets. This hotel is within the region of Hagerstown Speedway and Pry House Field Hospital Museum.
Rooms Make yourself at home in one of the 70 air-conditioned rooms featuring refrigerators and microwaves. Complimentary wireless Internet access keeps you connected, and cable programming is available for your entertainment. Bathrooms have complimentary toiletries and hair dryers. Conveniences include desks and coffee/tea makers, as well as phones with free local calls.
Amenities Enjoy the recreation opportunities such as a fitness center or make use of other amenities including complimentary wireless Internet access.
Dining A complimentary continental breakfast is served daily.
Business, Other Amenities Featured amenities include express check-out, a 24-hour front desk, and laundry facilities. Free self parking is available onsite.
Days Inn-Hagerstown MD
Parking: Lot
Wi-Fi: Free
Price Range : Below Average
Check-In Time: 3 PM
Check-Out Time: 11 AM
Policy: Cash Deposit Required
Property Amenities: 24-hour front desk, Express check-out, Elevator/lift, Free breakfast, Fitness facilities, Laundry facilities
Room Amenities: Daily housekeeping, Phone, Cable TV service, Hair dryer, Free local calls, Air conditioning, Iron/ironing board (on request), Desk, Refrigerator, Television, Microwave, Coffee/tea maker, Premium TV channels
The best. The desk gentlemen treated our group very good. Thank you every so much helping us find our friend whom was lost. Would love to have video. thank you again
1716 Dual Hwy, Hagerstown, MD
1220 Dual Hwy, Hagerstown, MD
920 Dual Hwy, Hagerstown, MD
1801 Dual Hwy, Hagerstown, MD
58 E Washington St, Hagerstown, MD


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We specialise in oil and gas boiler exchanges, upgrades, servicing and the maintenance of all oil & gas boilers and are accredited installers for; Worcester Bosch, Vaillant, Glowworm also AGA & Rayburn cookers.
Based in the Farnham, Aldershot area we travel to all premises within a 30 mile radius in order to provide you with an exceptional service. We offer a very competitive service at realistic rates for today's market, whether it is for a small maintenance job or a larger installation of a boiler or bathroom suite.
We pride ourselves in giving a friendly and personal service to our clients, yet our professionalism and knowledge of the industry are paramount to you the customer.
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Alton, Camberley, Alresford, Hindhead, Fleet, Hampshire


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Born ~June 2016, Male, Russian Blue Mix
Just look at that regal face! His coat is a lovely dark charcoal gray. His foster mom thinks he is the cat's meow. Sterling is a super sweet kitten who loves to be held and cuddled. He is very loving with humans and would love nothing more than to have his own human family.
Sterling is up for adoption because his foster mom actually takes care of several colonies of cats. She feeds about 340 cats at night all by herself…yes, you read that correctly! She contacted Purebreds Plus Cat Rescue to help find a loving home for this beautiful specimen of a kitten. His coloring and coat suggests he has some Russian Blue heritage. Ideally his foster mom would like to send him home with one of his siblings.
Sterling has been neutered, has had his kitten vaccinations, and has been microchipped.
If you would like more information about lovely boy, please contact Frauke at 925-784-8244 or firstname.lastname@example.com or send an Adoption Application.
Please note that Sterling is not in a Purebreds Plus Cat Rescue foster home but residing with his foster mom in Fremont, CA while being placed in his new home.
Our mission is to educate pet owners, breeders, and shelters about our breeds, and to place our cats with Forever Families who will give them the proper care and love they deserve. We carefully match cats with their Forever Families by evaluating each cat's personality, temperament, and special needs. Then we determine the best fit for both the cat and the new family. Please note that we do NOT ship cats.
Our adoption fee is $175 unless otherwise noted. This fee allows us to provide excellent vet care for the cats that really need it. The healthy kitties make it possible for the sick ones to be saved.
When you adopt from Purebreds Plus Cat Rescue, you are saving TWO lives - the cat you adopt and the cat who gets to take its place in Rescue!
Our adoption fee is $175. That includes the kitty, spayed/neutered, up to date on vaccines, tested for FIV/FELV.
We do not ship pets, however, you are welcome to put in an application and once approved make plans to come out and meet the kitty and fly it back with you.
Thank You!
Your message has been sent to Purebreds Plus Cat Rescue.
You'll receive a copy, too, at to help you keep track of which pets you've inquired about, and which shelters and rescues you've emailed.
NOTE: Some shelters have physical locations you can visit; some of these shelters may only have pets for a limited time, so please do not wait for a reply—just go visit the shelter! Other organizations are rescue groups run by busy volunteers who may take a while to reply. You can find information about the shelter or rescue group caring for this pet, and their adoption procedures, on the pet's details page on Adopt-a-Pet.com.