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Indigo blue denim Fendi "Be Baguette" shoulder bag featuring plush yellow dyed silver fox fur trim. Also designed with a silver toned metal 'F' logo detail and magnetic flap closure. Green leather lined interior features a zipper pocket and a small open top pocket. Comes with mirror and dust bag. Please note this new item comes to you directly from a high-end boutique. Retails for $2,350.?ÕÌ_
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- Total Height: 10.5" to end of fur
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text:
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Our mission is to become a worldwide reference for education in the field for all professionals involved in the process to dissemintate knowledge & skills of Acute Cardiovascular Care
Our mission is to promote excellence in clinical diagnosis, research, technical development, and education in cardiovascular imaging in Europe.
Our mission: To promote excellence in research, practice, education and policy in cardiovascular health, primary and secondary prevention.
Our goal is to reduce the burden in cardiovascular disease in Europe through percutaneous cardiovascular interventions.
Our Mission is "to improve the quality of life of the population by reducing the impact of cardiac rhythm disturbances and reduce sudden cardiac death"
To improve quality of life and logevity, through better prevention, diagnosis and treatment of heart failure, including the establishment of networks for its management, education and research.
Working Groups goals is to stimulate and disseminate scientific knowledge in different fields of cardiology.
ESC Councils goal is to share knowledge among medical professionals practising in specific cardiology domains.
In today's world we all need to consider the real value of time away from work.
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January 4, 2012
RIMANDO CUETO,PLAINTIFF,v.OVERSEAS SHIPHOLDING GROUP, INC.,OSG SHIP MANAGEMENT, INC.,ASC LEASING VI, INC., AND DOES 1-10, INCLUSIVE, IN PERSONAM, AND M/T OVERSEAS BOSTON, HER ENGINES, TACKLE, APPAREL, FURNITURE, AND APPURTENANCES, IN REM,DEFENDANTS.
ORDER DENYING EX PARTE MOTION FOR LEAVE TO FILE SUPPLEMENTAL EXPERT REPORT [Docket No.16]
In this maritime personal injury action, Plaintiff Rimando Cueto ("Plaintiff') claims that he was injured while employed as a seaman by defendant OSG Ship Management, Inc., ("OSG") aboard an oil tanker owned by defendant ASC Leasing VI, Inc., ("ASC", collectively "Defendants"). On December 30, 2011, Defendants filed an Ex Parte Motion for Leave to File Supplemental Expert Report of Edward L. Bennett [Docket No. 16.] Defendants seek permission to supplement the expert report of Edward Bennet, a vocational rehabilitation expert. On January 3, 3012, Plaintiff filed an Affidavit in Opposition to the Ex Parte Motion. [Docket No. 18.] The supplemental report seeks to add a new position, Dynamic Positioning Officer, for which Defendants claim Plaintiff is qualified and a new theory as to Plaintiff's expected work life expectancy. For the following reasons, the Ex Parte Motion is Denied.
A. Legal Standard
Federal Rule of Civil Procedure 26 governs the disclosure of expert testimony. Rule 26(a)(2) provides that a party must disclose to other parties "the identity of all expert witnesses who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." Rule 26 Unless as otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report-- prepared and signed by the witness . . . . The report must contain a complete statement of all opinions the witness will express and the basis and reasons for them.
Fed. R. Civ. P. 26(a)(2)(B). With respect to the timing of expert disclosures, Rule 26(a)(2)(c) provides: "A party must make these disclosures at the times and in the sequence that the court orders." Rule 26(e)(2) governs the supplementation of expert reports. It provides, in pertinent part:
For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.
Fed. R. Civ. P. 26(e)(2).
Parties who run afoul of Rule 26 may face sanctions as specified in Federal Rule of Civil Procedure 37, which provides in relevant part:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Fed. R. Civ. P. 37(c)(1). The exclusion sanction is "self-executing" and "automatic." Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (referencing the Advisory Committee's Notes to Rule 37(c)(1) (1993 Amendments)). However, "[t]wo express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the party can prove that its failure to disclose the required information is substantially justified or harmless." Id. at 106-07 ("Implicit in Rule37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness.") *fn1
B. The Scheduling Order
On November 10, 2010, the Court conducted a Case Management Conference and issued a Scheduling Order. The relevant dates from the scheduling order are:
1. June 10, 2011 Deadline to exchange expert reports
2. June 27, 2011 Deadline to supplement expert reports
3. July 29, 2011 Close of Expert Discovery
4. January 2, 2012 Deadline to Lodge Pre-trial Order
5. January 9, 2012 Pretrial Conference
On June 10, 2011, the parties timely exchanged expert witness reports, including the expert report of Edward L Bennett. (Affidavit in Opposition at 3.)
C. The Supplementation Is Not Proper Under Rule 26(e)
Defendants first argue that the supplemental report is required under Rule 26 (e). "Although Fed. R. Civ. P. 26(e) requires a party to 'supplement or correct' a disclosure upon information later acquired, that provision does not give license to sandbag one's opponent with claims and issues which should have been included in the expert witness' report. . .." Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 639 (D. Haw. 2008) quoting Beller ex rel. Beller v. United States, 221 F.R.D. 689, 695 (D.N.M. 2003) (citation omitted). Similarly, a "party may not rely on Rule 26(e)(1) as a way to remedy a deficient expert report or as a means of getting in, in effect, a brand new report." Medtronic Vascular, Inc. v. Abbott Cardiovascular Systems, Inc., 2008 WL 4601038 at *1 (N.D.Cal. Oct. 15, 2008). Supplementation "does not cover failures of omission because the expert did an inadequate or incomplete preparation. To construe supplementation to apply whenever a party wants to bolster or submit additional expert opinions would reek havoc in docket control and amount to unlimited expert opinion preparation." Akeva LLC v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C.2002) (citations omitted.).
Defendants argue that the supplementation is proper because, prior to receiving Plaintiff's expert reports, they were unaware that: 1) Plaintiff was unwilling to accept a job that required him to reside in the United States; 2) the position of Dynamic Positioning Officer existed; and 3) that Plaintiff would claim to be able to work until age 65. (Mot at 5-6). Defendants do not identify any information that was not available to them during the time allowed by the Scheduling Order for the submission of supplemental reports. Defendants also do not explain why they could not have met the June 27, 2011 deadline to supplement the expert report. Finally, Defendants also do not explain why they did not seek to extend the deadline until almost the eve of the Pretrial conference.
In short, Defendants seek to add information and theories that should have been either included in the original report or in a timely submitted supplemental report. Thus, the supplementation is neither required nor permitted by Rule 26(e). See Reid v. Lockheed Martin Aeronautics Co. 205 F.R.D. 655, 661 (N.D. Ga. 2001)(" In short, Rule 26 imposes a duty on Plaintiffs; it grants them no right to produce information in a belated fashion.")
D. The Supplemental Report is Neither Substantially Justified Nor Harmless
1. The Supplemental Report is Not Substantially Justified Defendants claim that the failure to timely supplement is justified because their expert was unaware of Plaintiff's desire not to reside in the United States and Plaintiff's claimed work life expectancy. Defendants, and their expert, learned of these facts in June of 2011 when Plaintiff served them with his expert reports. Thus, these facts do not justify the failure to submit the supplemental report until December of 2011. Similarly, Mr. Bennett's lack of knowledge of the position of Dynamic Positioning Officer in June does not justify the failure to supplement until December.
Defendants also claim that they were "mislead" into thinking they could supplement Mr. Bennett's report any time up to fifteen days after Plaintiff's treating physician, Dr. Levine, issued a letter stating that Plaintiff had reached maximum cure, or specified permanent restrictions on the Plaintiff. (Tamulski Dec. ¶ 9.) According to Defendants, Dr. Levine has not yet recommended permanent restrictions or stated that Plaintiff has reached maximum cure, and, therefore, the supplemental report is timely. (Mot at 3.) Defendants have submitted a series of emails that appear to support the argument that a private agreement was reached. (Tamulski Declaration, Exhibit C). Plaintiff does not address the alleged agreement. Civil Local Rule 7.2, however specifically addresses stipulations among the parties:
a. Except as otherwise provided, stipulations must be recognized as binding on the court only when approved by the judge.
b. Any stipulation for which court approval is sought must be filed as a "joint motion." Parties are not required to obtain a hearing date for the motion, and are not required to file a separate points and authorities or declaration unless required by the nature of the motion or requested by the assigned judicial officer.
c. Upon the filing of a joint motion, the filing party must also submit a proposed order to the assigned judicial officer. The proposed order must be a document separate from the joint motion.
Civ. L.R. 7.2. Here, the parties did not seek court approval, did not file a joint motion, and did not submit a proposed order. Thus, the agreement among the parties is not binding on the court. Dos Amigos Distributors, Inc. v. Cadbury Bebidas, S.A. de C.V., 2008 WL 3844062 at *1-2 (S.D. Cal. Aug 14, 2008)(overruling objection to Magistrate Judge's order striking supplemental expert report where parties extended deadline without court approval.)
2. The Supplemental Report is Not Harmless
Defendants' final argument is that the supplemental report should be allowed because it will not prejudice Plaintiff. Defendants claim that the supplemental report "does not add any new theories of defense" (Mot at 6.) Plaintiff disagrees, pointing out that Defendants are attempting to add two new theories: 1) as to how Plaintiff's work life expectancy might be affected if the evidence were to show that he had a pre-existing degenerative disc disease; and 2) as to Plaintiff's employability as a Dynamic Positioning Officer. The Court agrees that Defendants is attempting to add at least one wholly new theory, rendering the addition not harmless.*fn2
Defendants next argue that Plaintiff will not be prejudiced because they informed Plaintiff of their desire to supplement the report in late September 2011. (Mot at 6.) At the same time, Plaintiff informed Defendants that he would object to the report. Notice two months after the deadline of a desire to untimely supplement does not alleviate any prejudice.
Defendants also argue that there is no prejudice because the trial date has not been set in this case. While no trial date has been set, the Pretrial Conference is set for January 9, 2012, a mere five court days after Defendants filed this motion. Moreover, the motion was filed six months after the deadline to supplement had passed and five months after the close of expert discovery.
Finally, Defendants argue that they will make Mr. Bennett available for deposition and pay the fees for both Mr. Bennett and the court reporter. While this might alleviate some of the prejudice, it does not eliminate it. As Plaintiff argues, his experts have already given their complete opinions and depositions without the benefit of the supplemental report. If the supplemental report were allowed, Plaintiff would need the chance to supplement his own expert reports, which might also lead to the need to for further depositions. Accordingly, the late submission of the supplemental report cannot be found harmless.
For the foregoing reasons, and good cause not appearing, It Is Hereby Ordered that the Ex Parte Motion for Leave to File a Supplemental Expert Witness Report is DENIED.
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29 W. Wilkinson Avenue, Gadsden, AL 35904
- $28,000
- 1+ Years on site
- Beds: 3
- Baths: 1 Full
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- 896 sq ft
Take a look at this 3 bedroom, 1 bath bungalow located in the Mill Village area. This home includes a living room with FP, eat-in kitchen with all appliances, den or 3rd bedroom, laundry room and covered front porch! The features include new carpet, 9 foot ceilings, security system, an updated electrical panel plus the HVAC is less than 5 years old! It is situated on a beautiful lot with paved driveway. It includes partial fencing, attached carport and a detached garage/workshop with power! This is a great buy and perfect for an investor or 1st time buyer! Home is move in ready.
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- Beds: 3
- Baths: 1 Full
Listing Details
- Fireplace
- Yes (1)
- Lot Size
- Approximately 68x154
- Parking
- Garage
- Features
- Stucco Exterior
- Property Type
- Single Family Residence
- Bathrooms
- 1
- Home Size (Sqft)
- 896
- Year Built
- 1945
Public Facts: As provided by County Assessor and Recorder offices. May not reflect recent additions or improvements. If you see any errors, the best way to get the records updated is to contact your local county records office. If any of the information in this section conflicts with property information provided by a listing agent or broker, agent-provided information should be deemed more reliable.
Local Info
| Median Household Income
| Median Years In Residence
| Median Homeowner Age
| Households with Children
| Percent of Homes Rented
Nearby Elementary Schools
- Floyd Elem Sch
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June 19, 1964
H. K. PORTER COMPANY, INC., APPELLANTv.UNITED SAW, FILE AND STEEL PRODUCTS WORKERS OF AMERICA, FEDERAL LABOR UNION NO. 22254, AFL-CIO, APPELLEE.
Before BIGGS, Chief Judge, FORMAN and GANEY, Circuit Judges.
H. K. Porter Company (hereafter the Company) acquired in November of 1955 substantially all the assets of Henry Disston & Sons, Inc. (hereafter Disston), who for many years maintained a steel production plant in the Tacony section of Philadelphia. The Company continued to operate this plant there calling it the Henry Disston Division of the H. K. Porter Company until February of 1959. It then announced that it intended to move a large part of its production facilities from Philadelphia to Danville, Virginia.
Thereafter, United Saw, File and Steel Products Workers of America, Federal Labor Union No. 22254, AFL-CIO (hereafter the Union) and the Company, discussed, among other things, severance pay and pension rights of the employees. They, however, failed to agree thereon.
The Union brought an action in the United States District Court for the Eastern District of Pennsylvania*fn1 to compel the Company to proceed to arbitration under its collective bargaining agreement of September 15, 1957 as extended on September 15, 1958. The District Court held that the disputes concerning severance pay and pension rights of the employees were arbitrable.*fn2
After hearing the dispute, the Arbitrator,*fn3 on August 17, 1962, among other things, ruled:
"1. Each employee who, at the time he was terminated, had completed twenty-five years of service or more, but had not reached age sixty-five shall be paid full pension.
"The formula for payment to be worked out by H. K. Porter Company and the Union.
"Each terminated employee shall receive a $1,000 non-contributory life insurance policy as provided for in Section XIX-A.
"2. Each employee who, at the time he was terminated had reached age sixty-five, but had not completed twenty-five years of service shall be paid a pro rata pension based on an equitable formula to be worked out by H. K. Porter Company and the Union.
"3. The request for pensions for employees who, at their termination, had not reached age sixty-five and who had not put in twenty-five years of service is denied."
The Company filed an action in the District Court attacking the award. The litigation was brought to a head by motions for summary judgment filed by both the Company and the Union. For its part the Company sought to have the award vacated on the grounds that the Arbitrator had "exceeded his authority and the scope of the submission" and that he had "added to, amended and completely disregarded the explicit and unambiguous provisions of the Agreement." The Union, on the other hand, sought, among other things, an order that the Company perform the obligations set forth in the award of the Arbitrator.
The District Court denied the motion of the Company and granted the motion of the Union, ordering enforcement of the arbitration award,*fn4 from which the Company has appealed on the same grounds it asserted in attacking the award.*fn5
In their collective bargaining agreements of September 1, 1950, February 4, 1952 and July 15, 1953, Disston and the Union treated the subject of pensions in part as follows:
"C. ELIGIBILITY. Basic yearly pension allowance (without Social Security) which shall be paid a retired employee who has reached the age of sixty-five with at least twenty-five years of continuous service with the Company, . . ."
Provision was also made for retirement at age sixty with at least thirty years of continuous service.
After the acquisition of the Disston plant by the Company, it entered into a Memorandum of Agreement with the Union, dated September 19, 1956, as of September 1, 1956, containing, among other things, the following provisions:
"I. A joint Union-Management Committee will be established to write a finalized Agreement to be entered into between the Union and the Henry Disston Division of H. K. Porter Company, Inc. of Pittsburgh, and shall use for such purpose the Agreement between the Union and Henry Disston & Sons, Inc. Included in the rewrite shall be the following:"
"(G) Pensions :
The Company will continue the pension plan negotiated between the Union and Henry Disston and Sons, Inc. except for the following changes:
"(1) Elimination of the provision of eligibility for pension at age 60 with 30 or more years of continuous service."
Approximately a year later, on September 16, 1957, the Company entered into a collective bargaining agreement with the Union containing the following provisions:
"Section XX - PENSIONS.
"The Company agrees to continue pensions payments as negotiated September 1, 1950, February 4, 1952 and July 15, 1953 with its predecessor Henry Disston & Sons, Inc. The Company will also provide for all employees covered by this Agreement the following Pension Plan:
"A. The administration of this Pension Plan shall be in the charge of the Management General Pension Board, Henry Disston Division, H. K. Porter Company (Delaware) Hourly Employees Pension Plan.
"B. UNION MANAGEMENT PENSION COMMITTEE. A pension committee consisting of three members from Management and three members from active Union membership shall review eligibility problems . . . Problems of eligibility within the terms of this pension plan that cannot be solved by this Pension Committee shall be the only pension problems subject to arbitration, . . .
"C. ELIGIBILITY. Basic yearly pension allowance (without Social Security) which shall be paid a retired employee who has reached the age of sixty-five with at least twenty-five years of continuous service with the Company, shall depend upon two conditions:
"1. The number of years of continuous service the employee has with the Company. The length of continuous service of an employee shall be computed from the date on which he or she first began work. . . ."
"2. The amount of the employee's average regular yearly earnings, . . ."
Pensioned employees were also entitled to life insurance policies under the Agreement on the following basis:
"Section XIX - LIFE INSURANCE.
"A. The Company will provide to all employees covered by this Agreement, including the Union President and Union Secretary, effective on the day after completing one month of continuous service with the Company, a $2500. non-contributory Life Insurance policy until retirement date; and on the First of the month following the employee's pensioned retirement, a $1000. non-contributory Life Insurance Policy while on pensioned retirement. . . ."
Other provisions of the Agreement related to arbitration in part as follows:
"Section III - ADJUSTMENT OF GRIEVANCES.
"A. Should differences arise between the Company and the Union or any of its members as to the meaning and application of the provisions of this Agreement, or should any grievance arise between the parties hereto, there shall be no stoppage of work, strike or lockout on account of such differences, but an earnest and sincere effort shall be made by the parties hereto to settle such differences in the following manner:"
"Section IV - IMPARTIAL CHAIRMAN.
"A. The Impartial Chairman shall be chosen by mutual agreement between the Union and the Company. . . .
"B. The use of arbitration is confined to grievances of individuals or groups and neither the Company nor the Union agree to submit to arbitration either broad labor policies or plant-wide wage adjustments.
"C. The Impartial Chairman shall have the authority to make final decision in such cases where the Union and the Company cannot agree."
The Arbitrator ruled that he was without power to grant allowance of severance pay, absent any authority thereon in the collective bargaining agreement. To do so, he reasoned, would be to make an unauthorized addition to the agreement in violation of Section XX-B. He therefore rejected the Union's request for severance pay.
The Arbitrator, however, differentiated his interpretation of the pension clause of the agreement from severance pay on the ground that there were patterns of past practice with regard to pensions, not present in the instance of severance pay. He believed that these practices, although carried out not by the Company but by Disston, demonstrated that the Pension Board had abided by the spirit of Section XX rather than by its exact wording. Consequently, the Arbitrator held that this justified a broader interpretation than a mere literal reading of the eligibility clause which called for sixty-five years of age and twenty-five years of continuous service before the granting of a pension.
After analyzing the evidence submitted to him, the Arbitrator in fact found twenty cases between 1950 and 1955, wherein there was deviation from a strict interpretation of the eligibility requirement. In his opinion he stated:
". . . In numerous instances where an employee had less than 25 years of continuous service a pension was granted because 'special consideration was given because of the long period of total employment.' Instances were cited of pensions being granted where the workers (Snyder and Bamford) had not met the age requirement but had long total service (44 years and 41 years). The Personnel Director, Mr. Norton testified that breaks in service caused by the 1930 depression were generally not construed as breaks. In several instances the closing of a shop or the curtailment of the operation of a shop was a factor in influencing the decision of the Pension Board. In one instance a pension was given because of physical disability, to an employee who was only 46 years of age. This was done in spite of the fact that the labor agreement made no provision for a pension because of physical disability."
The Memorandum of Agreement of September 1, 1956 between the Company and Disston provided that the former would continue the pension plan negotiated between the Union and Disston. For this reason, the Arbitrator concluded that he should consider the pension practices of the former employer Disston.
The Company argued that it was in no wise bound by the practices prevailing under the Disston agreement. It asserted that while a plan for pensions was perpetuated by the agreement between the Company and the Union which prevailed in 1959 generally similar to the scheme followed under the Disston agreement, there was a difference in some terms and new policies were contemplated to be carried out by new personnel. The Company further submitted that the Arbitrator construed not the contract with the Company but the one with Disston. It contended also that the second part of the award of the Arbitrator which granted pensions to employees with less than twenty-five years of service is completely unsupported even by any of Disston's prior practices and must be vacated.
I The parties conceded that the District Court properly refused to review the merits of the arbitration award.*fn6 To be valid, however, an arbitrator must draw the essence of the award from the collective bargaining agreement.*fn7 An arbitrator should not dispense his own brand of industrial justice, but must confine himself to the interpretation and application of the collective bargaining agreement.*fn8 He may, nevertheless, "look for guidance from many sources."*fn9 The Supreme Court has said:
"The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law - the practice of the industry and the shop - is equally a part of the collective bargaining agreement although not expressed in it. . . ."*fn10
We disagree with the contentions of the Company that the Arbitrator in this case was precluded from considering the pension practices under the Disston agreement, for a provision of the Memorandum of Agreement of September 19, 1956 committed it to "continue the pension plan negotiated between the Union and Henry Disston and Sons, Inc. . ."
It should be remembered that the arbitration proceedings in this case arose out of the grievances of employees whose services with the Company were terminated in 1959 when the Company removed a large part of its Disston facilities from Philadelphia to Danville, Virginia. The first part of the Arbitrator's ruling went no further in prospective effect than to rule that those employees who had rendered the Company and its predecessor twenty-five years or more of service and whose jobs were terminated by reason of the removal of the plant should not suffer the loss of pensions even though such employees had not attained sixty-five years of age.
In the margin is a list of the instances examined by the Arbitrator where the length of service had influenced the Pension Board of Disston to grant pensions to employees notwithstanding the failure of strict compliance with the eligibility clause of sixty-five years of age and twenty-five years of continuous service.*fn11 Under the circumstances of this case these practices formed a source of guidance to which the Arbitrator was authorized to look, in interpreting the eligibility clause of the agreement. The Arbitrator acted entirely within his competence in granting the pensions based on duration of service. The District Court properly approved these findings and conclusions. Hence the judgment of the District Court with regard to the Part I ruling of the Arbitrator will be affirmed.
II Examination of the record, however, has failed to reveal any support for the second part of the Arbitrator's award. There he ruled:
Name of Employee Age at TerminationPrevious Continuous Total
Years of Years at Years of
Service Termination Service
1. James Rose*fn* 68 34 12 46
2. Frank McKinney*fn* 73 28 201/2 481/2
3. Edward Riley*fn** 78 29 271/2 561/2
4. Peter McKinney*fn** 71 26 281/2 541/2
5. George Jackson*fn** 65 19 32 51
6. William Robinson*fn** 70 36 201/2 561/2
7. Fred Zetkovitz**fn** 70 16 31 37
8. Richard Gundelswiler 77 11 48 59
9. Frank Snyder**fn** 62 24 20 44
10. Thomas Bamford**fn** 58 41 41
11. Irving Errickson 67 20 213/4 413/4
12. George Southwell 68 46
13. Harry J. Mason 74 271/2 231/2 51
14. William Pritchard 73 531/2
15. Harry Higham**fn** 28 9 37
16. Henry Schneider 68 211/2 211/2 43
17. George Hermanowicz 64 7 351/2 421/2
18. Leonard Hutchinson 64 50 50
19. Elmer Dutcher 61 471/2 471/2
20. Robert Kessler 46 30 30
"2. Each employee who, at the time he was terminated had reached age sixty-five, but had not completed twenty-five years of service shall be paid a pro rata pension based on an equitable formula to be worked out by H.K. Porter Company and the Union.
"Each terminated employee shall receive a $1,000 non-contributory life insurance policy as provided for in Section XIX-A."
The Arbitrator said in his opinion:
"It is well accepted that a pension is paid primarily because of years of service and not because an employee has attained a certain age."
Assuming the accuracy of this statement, it gives support to the allowance of pensions to employees for long service (over twenty-five years continuous or total), but it defeats the conclusion that the employee should be granted a pension when he has reached the age of sixty-five regardless of his years of service.
A reference to the cases examined by the Arbitrator upon which he bases his authority to deviate from the clear and unambiguous words of the eligibility clause discloses in all twenty cases each employee rendered not less than twenty-five years of total service.*fn12 Indeed, the minimum was thirty years and the maximum fifty-nine years. In all instances except two where the employees were under sixty-five years, they qualified for pensions, being over sixty and having thirty years of service. In the two under sixty, one was forty-six years of age with thirty years of service, but was given either a grant or a pension on account of physical disability. The other was fifty-eight but had forty-one years of service and no reason appears for the grant to him.
That the Company was moving its plant to a new location may have invoked hardship on older employees. Yet, absent any provision either explicitly or implicitly authorizing the Arbitrator's ruling in Part 2 of his award, or any prior practice which reasonably could so interpret it, he lacked a basis for his conclusion. As already stated, the Arbitrator may not administer his own brand of industrial justice.
We find that in Part 2 of the award the Arbitrator had no ground upon which to base his interpretation of the clear and unambiguous words of the eligibility clause.Standing by itself, it gave him no room to construe it in any manner than according to its plain meaning. Bereft of any practice evidencing a relaxation of the requirement of years of total service and relying only upon age, the Arbitrator was unjustified in deviating from the plain mandate of the eligibility clause, as it concerned those who fulfilled only the portion making the age of sixty-five a requirement. Indeed, such an interpretation neither goes to the essence nor to the application of the collective bargaining agreement. The District Court erred in holding that the Arbitrator did not exceed his authority when he ruled that:
"2. Each employee who, at the time he was terminated had reached age sixty-five, but had not completed twenty-five years of service shall be paid a pro rata pension based on equitable formula to be worked out by H.K. Porter Company and the Union.
Accordingly, the judgment of the District Court to that extent will be reversed. The case will be remanded with instructions to enter judgment in favor of the Company insofar as Part 2 of the Arbitrator's award is concerned, pursuant to the views expressed herein.
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HP Pavilion ze5700 Notebook PC Reviews
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HP gives the comfort to use it in all of my work, rather it be in design, illustrating or simply writing and publishing. I will never be without it in work or play.
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The battery life is longer than any other that I have tried and even after I am low on battery life it gives me time to finish my work without dying.
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The decision by the European Court of Justice to ban insurance companies from factoring a motorist's sex into their calculations for car insurance premiums has been given a frosty welcome by drivers and industry figures alike.
Head of business development at Gocompare.com John Miles said: "If they (insurers) are unable to use gender as a risk, they may need to increase prices to cover the risk of losses." Director of AA Insurance, Simon Douglas said: "It's important not to confuse equality with fairness. The calculation of car insurance premiums based on risk is by definition fair, but is incompatible with gender equality," he says.
All the evidence points to women being safer drivers than men, particularly in the case of younger drivers. But why is this so?
A study conducted by the Social Issues Research Centre in Oxford, Sex Differences in Driving and Insurance Risk states: "men, and young men in particular, tend to be more aggressive than women in all known cultures…they express aggression directly, which has a very significant impact on driving, encouraging more competitive and hostile behaviour and a higher probability of crashing." The study also pointed to differences between the sexes in terms of risk-proneness, and higher levels of sensation-seeking in many levels of activities, attributed to a well-established difference in hormones such as testosterone.
In the report's conclusion, it was suggested that less-safe driving was 'hard-wired' into men. "Motor insurance underwriting takes gender differentiation into account to ensure that each gender effectively pays for its own class at different ages. Young men are charged more than young women because they cause more frequent and expensive accidents. This is justified on the basis of evidence."
Last year, a study by the Institute of Advanced Motorists suggested that men and women's attitudes to driving weren't as different as one may expect. The research found that men and women are equally likely to admit to speeding, parking fines or losing their temper. Without being able to factor sex into insurance prices, new initiatives could come into play. Technology-based telematics insurance which monitors driving behaviour is one example which has been mooted. "These could be further developed to allow insurers to more accurately match a driver's insurance premium to their actual risk," says Gocompare.com's Miles.


text:
Out of sight: Astronomers create 46-gigapixel image of the Milky Way
Researches from German university Ruhr-Universitat Bochum spent half a decade creating the largest astronomical image created to date, a 46-gigapixel image of the Milky Way, which is now available via an interactive online viewer. The image is made up of 46 billion pixels, and the file weighs in at a hefty 194GB in size. The individual photos were taken at the Cerro Armazones Observatory in Chile in an effort to document objects of 'variable brightness' in our galaxy. Images were recorded night after night, studying 268 sections of sky to look for objects dimming and brightening over time, signaling the presence of a planet moving in front of a star, for example.
In total, the finalized 46-gigapixel image has a resolution of 855,000 x 54,000, and according to the space survey's lead Moritz Hackstein 22,000 Full HD TV screens would be required to display it at its full resolution. The online viewer includes controls for panning and zooming, as well as JPEG quality controls and color adjusters. The image's coordinates are also displayed.
Press release:
RUB researchers compile the largest astronomical image of all time
Milky Way photo with 46 billion pixels
More than 50,000 new objects with variable brightness recorded
Astronomers at the Ruhr-Universität Bochum have compiled the largest astronomical image to date. The picture of the Milky Way contains 46 billion pixels. In order to view it, researchers headed by Prof Dr Rolf Chini from the Chair of Astrophysics have provided an online tool (http://gds.astro.rub.de/). The image contains data gathered in astronomical observations over a period of five years.
Five-year observation period at the university observatory
For five years, the astronomers from Bochum have been monitoring our Galaxy in the search of objects with variable brightness. Those objects may, for example, include stars in front of which a planet is passing, or multiple systems where stars orbit each other and which obscure each other every now and then. In his PhD thesis, Moritz Hackstein is compiling a catalogue of such variable objects of medium brightness. For this purpose, the team from the Chair of Astrophysics takes pictures of the southern sky night after night. To this end, they use the telescopes at Bochum's university observatory in the Atacama Desert in Chile. More than 50,000 new variable objects, which had hitherto not been recorded in databanks, have been discovered by the researchers so far.
268 individual images make up the photo of the Milky Way
The area that the astronomers observe is so large that they have to subdivide it into 268 sections. They photograph each section in intervals of several days. By comparing the images, they are able to identify the variable objects. The team has assembled the individual images of the 268 sections into one comprehensive image. Following a calculation period of several weeks, they created a 194 Gigabyte file, into which images taken with different filters have been entered.
Online tool facilitates search for individual celestial objects
Using the online tool, any interested person can view the complete ribbon of the Milky Way at a glance, or zoom in and inspect specific areas. An input window, which provides the position of the displayed image section, can be used to search for specific objects. If the user types in 'Eta Carinae', for example, the tool moves to the respective star; the search term 'M8' leads to the lagoon nebula.
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Everything we enjoy today came from people obsessed with an idea; those who further develop their ideas benefit mankind. I hear people complaining NASA was a waste of money (before its evisceration by you know who); much of the technology we enjoy today is the result of civilian adaptation of NASA's technology.
More evidence that not everyone is just focused on their own naval cavity but have actual curiosity of the universe - outside of their own self.
Amazing images !
Now back to my little itty-bitty self involved naval gazing tiny minded zero curiosity close minded world where only what I care about matters !!
I & my thoughts are the MOST important thing in universe !! ;)
and you are true in both respects imo! ;-)
Of course the scientists involved in this project were probably thinking, "If we discover something groundbreaking, we'll be rich and famous! And rich!"
"... rich and famous! And rich!" ?
two-times "rich" is certainly better than one! ;-) :D
Apparently these so-called scientists have nothing better to do than make pretty pictures of space.
Meanwhile we are still waiting for a cure for cancer.
mmmmm, maybe there are different scientist in different fields?
These scientist are trying to answer 'fundamental' questions, not answer what happens to toxic weed & insect killer chemical's affects on the human body and how to fix it.
BTW, there are hundreds of cancers, some have been 'cured', but you know that don't cha !!
Enjoy that myopia !!
@Wubslin, there are places that need colonizing out there.
'THAT' is your definition of science ? Do you know what fundamental research is ? Does ANY fundamental research return a Profit - not likely.
Does photography return a profit, not for most of it/us, so should not be funded, yes ?
Odd narrow thinking don't you think ?
@MustyMarie: It's not narrow thinking at all. We cannot afford to spend money on things that do not return a profit.
If people want to spend their own money on 'research' I have no objection, but what I *do* object to is taxpayers' money being wasted in this fashion.
Cancer cure has no return in profit normally.
If you leave people die by cancer, the result will be a jounger population and lower welfare expenses.
you are blinkered at best, blind at worst.
It is impossible to forsee what research will provide a "profit" because the whole point of research is pushing the boundaries of knowledge.
When Faraday investigated electro-magnetism, he would have no idea that his ideas would be used to cure cancer in 100 years time. When Bohr was formulating quantum mechanics, he had no idea his work would lead to the modern computer which in turn is used to model complex molecules which in turn allows us to cure cancer.
The camera you use is built on 100s of years of reasearch; at the time the science that drives your camera was discovered there was no concept of where the future profit may be : and we STILL do not know where more profit may be.
Scientitsts investigate the world; technologists utilise those investigations; financiers may or may not make a profit. It is not for scientists to determine what may be profitable in 10 or 100 or 200 years time. It is their job to investigate.
BAZAAR. . . the Apollo Program's 'balance sheet' shows no PROFITS and neither did Dr Salk's research, and neither did the 'Newtonian' experiments. . . so folks that's how we'll move forward as I'm sure this business person feels towards donating funds to his favorite political candidate/charity/church. . . nary a Profit on those balance sheet either. . . some under the table I'm sure though.
Did the Ancient Egypts build their pyramids to make some profit? Sometimes I am surprised how narrow-minded some people are. Or actually, I am not surprised, but saddened...
The examples where GREAT BENEFIT came in unexpected ways from basic research that was done for no other purpose than to satisfy human curiosity are just too numerous to mention.
Wubslin - you have no forsight to know what research is going to lead to "profit" at some point in the future.
It is impossible to know.
Cancer treatments, that you are fond of, do not arrive from nothing to finished product, in a lab full of people funded to cure cancer. They come from the synthesis of decades and centuries of fundamental research. Research, that at the time, you would consider trivial.
And yes, I do expect the taxpayer to fund science. There is nothing more worthwhile that the taxpayer can fund than knowledge. Look at countries that do not invest in knowledge. They tend to be dumps.
well, before we funded science nothing really turned out did it?
Science was done by gentlemen amateurs and plodded along slowly.
You say scientists should be working on cancer research - fair enough, but you have no idea where the breakthrough will come from do you? Nobody does. That is the point of research.
All breakthroughs in science build on previous research. Cures for cancer will be developed from the research you do not want to fund.
You can't have it both ways. Everything you depend on now for your 21C life comes from fundamental research - including the computer you are using to complain about fundamental research.
For a million years our ancestors only concerns were food and shelter. We have moved on from that.
Wubslin, likely you would be dead or someone you love would be dead if not for some quirky research done 20/30 yrs ago.
Or for that matter, it could have been NASA R&D for the space program.
But I also subsidize YOU already ! I do not like it but I do subsidize you, so should I not subsidize you ?
You are a silly near-sighted individual who apparently can not see the 'big picture', thank god you are not a scientist or anyone of any power - much like many of those in the GOP/TB party, myopic at the worst - except for ENDLESS amount of money wasted on military - see how far Bush's policy/wars got the middle-east - real fine place to live now thx to him!
Short sighted is everywhere, you are just another one of them - unfortunately!
Not to late to change-open that mind, it is quite closed or limited - perspective change is what you need - or ......?
Fine, choose YOUR country in where they spend only according to YOUR desires.
Spend your own money on building streets then, I don't drive a car, I don't need street. Just saying. Silly. Bye.
Returning to the point of the article, I hardly think it's going to come from pretty pictures of space.
The point is not that it is pretty pictures. The point is the science. You have NO idea what use today's work will be in 100 years time.
Your entire life is filled with technology that you happily use that is the result of research that, if you were alive at the time, would have complained about.
If your life is all about "profit" and if any money is left over it is used on food and shelter rather rather than science and culture then where is the humanity? Our most precious thing is our culture and that is no measured in "profit" (maybe for some sad individuals it is). Human culture is about looking beyond immediate needs and to creating art and science. If humans for had remained in a state of only looking for food and shelter, we would still be scavaging around the savannah.
"Spend your own money on research then. "
You live in a society where science is considered worthy of funding by that society.
You have two choices
1) campaign to stop public funding of science
2) drop out of society
bitching about it is not a real option, and neither really is (2) is it?
I'm guessing you don't spend a whole lot on public science? Pennies per week? If you feel you need that, for say, food and shelter; that is quite sad.
Spending billions on our military and destroying States like Iraq, Syria, Libya is also not going to help our poor. What are you doing about it?
"Pretty pictures of outer space are not going to help them"
How do YOU know?
How do you know that a physical phenomena will not be discovered in space (helium was - and that is used in a process for cancer treatment); and application of that phenomena will not be able to cure cancer in the future?
How do you know that development of digital imaging will not allow cancer diagnostics?
Science does not work how you think - its a gradual process.
Your argument is a fallacy - the reason people are living in grinding poverty in your country is not due to (a tiny amount of) social spending on science, it is due to a lack of social spending on human beings. It is due to unept politicians, greedy corporations and a general population that doesn't give a damn about poverty on their doorstep.
You don't want money spend on ANYTHING except profit. THAT is why there is griding poverty in your country
Very cool! Amazing!
Es espectacular poder apreciar la belleza de la creacion divina y que la ciencia nos lo haga ver.
Realmente es un hermoso regalo de estas personas que se tomaron el tiempo, la dedicacion y el intelecto para realizarla.
Dios mediante puedan seguir realizando mas de estas espectaculares imagenes.
I zoomed in to the dot at the exact center of the galaxy. It didn't have Sony's logo on it, so this image must be a fictional fabrication! :)
All kidding aside, I think it's pretty cool. Exploration of the Earth started with curiosity about "what's over there?" (and more importantly, what's out there we can use?)... and how can you communicate it to others better than with pictures showing spatial relationships of one object to another. Who doesn't love getting a high-res photo of a scene and then peeping in at the details? Not many details to see here but I can still start to appreciate the vast distances and quantities of objects out there.
So many negative comments? This is science, at it's best. Fantastic.
What's so amazing that keeps us stargazing?
And what do we think we might see?
Poetry? Why poetry? Stars and the universe is beautiful. Totally without any poetry. Looking up at the sky a dark night. And maybe add some northern lights. Who needs words?
BTW - there is much more that distinguish us from the chimpanzees. We are much better at teamwork. We can plan the future. We can combine much more information. We can make music. We can follow complex rules. etc etc etc
I have to admit I don't see the attraction.
An impressive thing to have done don't get me wrong I appreciate the effort put into this, but for me as a viewer it doesn't seem special at all.
I find this much more interesting as a viewer.
Only 36 comments so far? I'm afraid most people would be more intrigued by a 46-gigapixel image of Kim Kardashian's backside. (But fully mapping it might require a few more gigapixels than that.)
"film is better than digital" ?
The original plan for the milky way was probably etched in stone!
Not enough dynamic range. Although it took 5 years to shoot, it strongly appears to me as having been shot with the Canon 5DS R. :P
Very cool. But not sure how much more of your life you want to dedicate to this.
I don't know, there's some distortion and dynamic range could be better. Also, the framing is a bit weak. 6.5/10 for the effort.
I found a Borg Cube! Go to 12:24:23.346 - 63:40:49.66. What if they saw us?! :-D
THIS is what people should be fighting for.
I'll be the first one to place an order for Sony when their 46GP cameras come out.
@Mario, if you can find me a lens that matches the 46 GP image, then I have no problems whatsoever that the download takes 2 minutes.
Actually, the lens is not a big deal. All the current 3-mirror designs I checked may be scaled down to about FF-sized sensor without losing resolution. (If scaled down more, they are going to be bound by diffraction). For example, LSST becomes 600mm equivalent when scaled down to FF sensor. And they have resolution in order of 5Gpix.
Combine 9 of these (like the Google-sphere camera), and you get 45Gpix.
Cheating! One sensor. One lens. It is assumed that the sensor just outresolves the lens.
I agree, it was cheating!
However, my estimate of good sensor for scaled-down LSST was also wrong — and wrong by approximately "the required" factor. 5GPix is good for astronomical applications — when you take into account the limits of vision due to atmospheric disturbances. The lens itself is good for much better than 5GPix.
I do not have hard data at hand, so need some handwaving. For example, the design of about 2010 had 3° field of view with ≈0.15" PSF spread. This is about 5G spreads per area.
However, in the age of DSP, the PSF spread is a meaningless metric. What is more important is something like MTF10 limit, or MTF03 limit (deconvolution becomes pretty useless above these). There is no direct relationship between PSF spread and MTF10/MTF03 — but for diffraction-limited lens, having the sensor's Nyquist at MTF10/MTF03 would be about 4–6 sensels per Airy disk.
For a monochromatic sensor, this is about 20-30GPix. For Bayer, increase the count 1.3–2 times. Bingo.
he he. Even if scaled down, I assume it is not a lens you carry around.
This may depend. Basically, the optical part could be very handable. It IS a ∅500mm mirror, but you have only 2 elements (and not 15, as with many lens designs). In bulkiness, it is not MUCH more than what many people routinely carry; and it COULD be quite lightweight.
The hard part is to keep a ∅500mm optical surface stable up to 0.05µ — when it is rotated from vertical to horizontal position. I have no clue whether an active design (with actuators reacting on the lens direction) can help making it more lightweight than (heavy!) amateur-made ∅500mm telescopes.
So when can I get a 46-gigapixel camera???? 194GB for one photos sounds fine.
Where can I order my 300ft. by 19ft. print?
I'm loving all the Sony file format jabs, haha! But if I had to guess, the underlying file is likely a zip compressed 16-bit .TIFF due to the MB/MP ratio... sorry, I'm leaving now.
I agree. It seems like 1:1 is found at 5 or maybe 6 zoom clicks.
I agree. Older viewers always had it. But now everything is so soft and fluffy. No exact user interface at all. Only swyping and dragging. A google earth interface really do not work so well for digital pictures.
I suppose it depends on which type of telescope is in use (earth based or orbiting) and what they are trying to achieve (infra red, chemical analysis, planet searching etc, etc) One reddish image of the Lagoon Nebula in Sagittarius was taken with the Curtis-Schmidt Telescope showing the nebula's emission in three exact colors specifically emitted by hydrogen, oxygen, and sulfur.
46 gigapixel... RAW or JPEG? Compressed or uncompressed? 12 or 14 bit?
Ha! And you thought that Canon had won the megapixel wars with the 5DS. Take that!
Very nice! Now where is Pluto? =D
Where are all the pretty colourful colours we see when NASA shows us pictures from space. It seems like a boring place out there.


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filed: January 13, 1989.
COMMONWEALTH OF PENNSYLVANIAv.WILLIAM A. TROY, APPELLANT
Appeal from the Judgment of Sentence of the Court of Common Pleas, Clearfield County, Criminal Division, at No. 86-922-CRA.
Ronald L. Collins, Clearfield, for appellant.
Brosky, Rowley and Montemuro, JJ. Rowley and Montemuro, JJ., concur in the result.
[ 381 Pa. Super. Page 329]
This appeal lies from the judgment of sentence following appellant's conviction by a jury of involuntary deviate sexual intercourse, burglary, criminal trespass, indecent assault and defiant trespass.
On appeal, appellant raises three issues for our consideration: (1) whether he can be convicted of the offense of involuntary deviate sexual intercourse if he has been acquitted of the offense of rape; (2) whether the trial court erred in permitting the Commonwealth to impeach its own witness by the use of a prior inconsistent statement; and (3) whether the trial court committed error in refusing to permit appellant to inquire into or to present evidence of another person seen in the vicinity of the victim's residence or to inquire into allegations that the victim had previously claimed to have been raped. Finding that the record renders appellant's contentions unavailing, we affirm.
As his first issue, appellant asserts that since he was acquitted of rape (18 Pa.C.S.A. § 3121(2)), his acquittal for involuntary deviate sexual intercourse (IDSI) should logically obtain, as well, since the conduct giving rise to the charges was deviate in nature and constituted but one act.
The two statutory provisions under which appellant was charged read, in part, as follows:
[ 381 Pa. Super. Page 330]
§ 3121. Rape.
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution
§ 3123. Involuntary deviate sexual intercourse
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution,
Additionally, the legislature has defined deviate sexual intercourse for the purpose of the conduct charged instantly as "[s]exual intercourse per os or per anus between human beings who are not husband and wife . . . ." 18 Pa.C.S.A. § 3101. The statutory definition of "sexual intercourse," "[i]n addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration, however slight; emission is not required." Id. From the foregoing, the absence of proof of penetration, not the nature of the sexual acts committed upon the victim, appeared to have been the touchstone of appellant's acquittal of the instant rape charge.
The crime of involuntary deviate sexual intercourse occurs when the actor, by physical compulsion or threats thereof, coerces the victim to engage in acts of anal and/or oral intercourse. Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979). The deviate conduct for which appellant stands convicted involves the forcible insertion of his penis into the mouth and rectum of victim. In Commonwealth v. Bruner, 364 Pa. Super. 156, 527 A.2d 575 (1987), allocatur denied, 517 Pa. 614, 538 A.2d 497 (1988), this court
[ 381 Pa. Super. Page 331]
held that involuntary deviate sexual intercourse included acts of forcing the perpetrator's penis into the mouth of the victim and compelling the victim to place his penis into the mouth of the assailant. In Commonwealth v. King, 290 Pa. Super. 563, 434 A.2d 1294 (1981), we upheld a conviction for involuntary deviate sexual intercourse based upon conduct encompassing anal rape and the victim's forced performance of oral-genital intercourse upon her attacker.
That the conduct here in question comes within the ambit of Section 3123 of the Crimes Code (proscribing the commission of involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123, supra) and the legislative definition assigned to this type of transgression is beyond peradventure. Accordingly, the legislature has quite obviously made a distinction between the two types of conduct, as evidenced by the differences in the statutory definitions for sexual intercourse and deviate intercourse (see 18 Pa.C.S.A. § 3101, supra) and their separate treatment in the statutory scheme encompassing crimes against the person (see 18 Pa.C.S.A. §§ 3121 and 3123, supra).
To give appellant's argument its final repose, we turn to this court's decision in Commonwealth v. Romanoff, 258 Pa. Super. 452, 392 A.2d 881 (1978). Romanoff was charged with both rape and IDSI. The latter act involved the insertion of his penis into the victim's mouth. The trial court granted Romanoff's Motion to arrest the judgment of conviction on the rape charge because the evidence failed to establish penetration. On appeal, Romanoff made the identical argument which appellant now presents, i.e., Romanoff asserted that rape and IDSI comprise the same criminal elements and that the statutory definitions of "sexual intercourse" and "deviate sexual intercourse" rendered the two crimes one offense under the circumstances. As so rationalized, Romanoff concluded that his conduct amounted to only one criminal act.*fn1 This argument failed to persuade then as it does now. We wrote:
[ 381 Pa. Super. Page 332]
We are not impressed by appellant's refusal to acknowledge that deviate sexual intercourse differs from sexual intercourse, as it is considered in its ordinary meaning, because of its aspect of deviateness. What may be an ambiguity in the definitions of actions made criminal will not cloud our applying common sense understanding to the facts. It was not error for appellant to have been indicted and tried for the instant two crimes, albeit that proof of the rape charge did not sustain conviction on that charge.
[ 381 Pa. Super. Page 333258]
Pa. Super. at 460, 392 A.2d at 884-85; (emphasis in text).
Appellant attempts to distinguish Romanoff on the basis that the accused there was charged with rape for the act of forcing his penis into the victim's vagina and with IDSI for placing his penis in the victim's mouth. By way of contrast, appellant asserts that both transgressions charged against him were deviate and constituted but one act. However, this represents a difference without a distinction for, as Romanoff acknowledges, proof of rape requires proof of the element of penetration without which an acquittal on the rape charge must follow or a guilty verdict thereon must be arrested. We are loathe to speculate upon the paths which jurors' thought processes travel toward their ultimate destination of verdict. Here, however, where the evidence was otherwise sufficient to support appellant's conviction for IDSI, we are inclined to agree with the reasoning of the Romanoff court that it was the absence of proof of penetration which defeated the Commonwealth's prosecution of the instant rape charge. While both statutory definitions embrace deviate acts, only one -- sexual intercourse in the ordinary sense -- requires proof and contains the element of penetration.
Insofar as appellant's argument would attempt to convey a factual inconsistency in the verdicts acquitting him of rape and convicting him of IDSI, the law does not require consistency in criminal verdicts so long as the evidence is sufficient to support the guilty verdict rendered. Commonwealth v. Maute, 336 Pa. Super. 394, 485 A.2d 1138 (1984). Here, the evidence was more than sufficient to sustain the conviction of IDSI.
Next, appellant alleges that the Commonwealth was impermissibly allowed to impeach its own witness with a prior inconsistent statement implicating appellant in violation of Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). In Brady, the Supreme Court held that a prior inconsistent statement of a nonparty witness may be used as substantive evidence, not merely to impeach the witness'
[ 381 Pa. Super. Page 334]
credibility, if that witness is available for cross-examination at that judicial proceeding and the prior out-of-court statement was tendered under highly reliable circumstances. It is this latter prong of the Brady standard which appellant claims was violated. The specific "highly unreliable" circumstance under which appellant complains the initial statement was given was the witness' alleged ingestion of penicillin which both appellant in his Brief and the witness at trial stated caused the latter to become confused and forgetful. The witness' initial statement placed appellant at the victim's residence on the date and at the time of the sexual assault. A later statement, which coincided in substance with the witness' testimony at trial, did not. At trial, however, Patrolman Dohner, to whom the initial statement had been given, testified that the witness was positive of the date and time when appellant had left her residence to see the victim and that other members of the witness' family were present when she gave Patrolman Dohner her first statement. This circumstance, we believe, rendered the proffering of the initial statement sufficiently reliable under Brady. Moreover, and more importantly, as Brady recognized, appellant's counsel had the opportunity to vigorously cross-examine this witness with respect to comparisons between her initial statement and her later changed statement which her trial testimony tracked. The jury had an adequate opportunity to observe this witness' demeanor as she testified in explanation of the reasons for this inconsistency and, therefore, was able to weigh her credibility accordingly. Hence, under Brady, no error occurred here.
Appellant's final issue challenges the trial court's refusal to permit him to inquire into or to present evidence of some other unknown, unidentified tall, blond person allegedly seen in the area of the victim's apartment at the time of the sexual assault to demonstrate that this elusive individual, instead of appellant, may have been the perpetrator of the assault. Appellant also claims that he could have presented a witness who stated that the victim told this
[ 381 Pa. Super. Page 335]
unidentified witness that the former was meeting someone on the night in question, again, only to establish that someone else may have committed the subject offense. Further, appellant wished to present evidence that the victim stated that she had been previously raped while residing in New Jersey. The purpose of this offer, appellant claims, was to attack her credibility, not to demonstrate prior sexual activity.
Both parties and the trial court refer to the latter's disallowance of this evidentiary offer pursuant to 18 Pa.C.S.A. § 3104, commonly known as the Rape Shield Law. That statute bars evidence of the victim's past sexual conduct, as well as opinion and reputation evidence bearing upon such conduct, unless it was with the accused and the accused has raised the defense of consent. Appellant has not raised this defense and, thus, the proffered evidence is irrelevant under the facts of the case. See Commonwealth v. Folino, 293 Pa. Super. 347, 439 A.2d 145 (1981). Even taking at face value appellant's reason for the offer, i.e., that he only wished to present this evidence in aid of his alibi defense, he has supplied this court with only vacuous assertions. He has not identified the witness who would, purportedly, testify that the victim stated that she was meeting someone that night, nor did he produce at trial or otherwise identify either the tall, blond man allegedly seen in the vicinity of the victim's apartment at the time and on the date in question or a witness claiming to have seen this elusive individual.
With regard to the allegation of the New Jersey rape, appellant's Brief argues, "[T]he defense was not, again, offering that for the purpose of showing sexual conduct on the part of the victim, but rather to attack credibility." At 14. If this is so, appellant's assertions are made once again in a vacuum. He has not delineated for us the specific evidence which he wished to present in this regard. This matter is also not a proper focus of inquiry pursuant to 18
[ 381 Pa. Super. Page 336]
Pa.C.S.A. § 3104(a).*fn2 Appellant's defense, we note once again, was that of alibi. Any evidence sought to be presented under the Rape Shield Law would be inconsistent with and render his proffer of alibi a nullity. It would not have gone to his exculpation in any measurable sense. See Commonwealth v. Coia, 342 Pa. Super. 358, 492 A.2d 1159 (1985).
Judgment of sentence affirmed.
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Original Article
Synthesis of thermosetting polyetherimide-containing allyl groups
Version of Record online: 28 JAN 2013
DOI: 10.1002/pola.26549
Copyright © 2013 Wiley Periodicals, Inc.
Journal of Polymer Science Part A: Polymer Chemistry
Volume 51, Issue 8, pages 1734–1741, 15 April 2013
Additional Information
How to Cite
Lin, C. H., Chang, S. L., Wang, Y. R., Hsu, C. K. and Juang, T. Y. (2013), Synthesis of thermosetting polyetherimide-containing allyl groups. J. Polym. Sci. A Polym. Chem., 51: 1734–1741. doi: 10.1002/pola.26549
Publication History
- Issue online: 8 MAR 2013
- Version of Record online: 28 JAN 2013
- Manuscript Accepted: 19 DEC 2012
- Manuscript Received: 14 OCT 2012
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- County: Walworth
- Property Taxes: $4,469
- Property Tax Year: 2015
- Postal Municipality: Elkhorn
- Listing Company: Keefe Real Estate, Inc.
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Property Description for W5135 Sterlingworth Ct 30 La Grange WI 53121-2789
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