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From your iPod to the Freedom Chair to the Walt Disney Concert Hall, design and architecture shape our world. On DnA: Design and Architecture host Frances Anderton talks to design world leaders about the latest in products fashion graphics architecture and more in Los Angeles and beyond.
February 11th, 2015
Episode 68 of 170 episodes
A composer, a reporter and a preservationist give props to buildings in the Southland. Plus, Brad Dunning talks about the future of the desert backyard.
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Welcome to the daily audio workout for your head.


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Also called surplus, overstocks, and closeouts, products sold by liquidators can be a useful part of your overall product mix. What are liquidators? They sell all types of products, from clothing and electronics, to office supplies, home accessories, furniture, and more.
Liquidated goods come from many sources. They may be products from companies going out of business, or products that customers have returned. Products even come from companies that are moving and would rather get rid of inventory than pack and move it. Manufacturers may liquidate products if the customer cancelled an order and the manufacturer wants to get rid of it; retailers may liquidate products that are nearing the end of their season and not moving fast enough. Even the government liquidates products—everything from textiles to aircraft.
Businesses can benefit from liquidators in many ways. Their low-priced products can serve as good loss leaders to get customers to your store or site. If the products are cheap enough, you can give them away as promotional items or gifts-with-purchase. And because they are always changing, liquidated goods are a good way to keep your product mix fresh.
There are business-to-business sites where you can find a wide range of suppliers selling liquidated products. Liquidation.com is one of the most popular, offering a variety of merchandise including clothing and accessories, jewelry, computers and electronics, housewares and more. The site has new, used, and refurbished goods, as well as returns and closeouts. Register for free and you can search, sign up for alerts, and bid on products. You'll also find products listed by Hot Deals, New Merchandise or Closing Soon.
Even the government can be a liquidation source. Visit the federal government's GSAAuctions.gov site for more information. Even if you're not in the market for aircraft or industrial machinery, you can also find household and personal items, jewelry, furniture, and office equipment. Registration is free and you can search or browse through the thousands of items, and then place a bid.
You can also find liquidators at trade shows. ASD Liquidation Expo is a popular event. Finally, in some cases you can make deals with individual retail locations or e-commerce sites to sell their excess inventory. Getting excess merchandise from local sources can be a good way to avoid shipping costs.
As with any type of wholesale source, before doing business with a liquidator, you need to make sure the company is legitimate. (See "How to Find Wholesale Sources of Products" for more information.) The site should have a physical address for the company and a phone number. Ask for references and check them. Ask others in the industry if they have heard of the company and what its reputation is.
Understanding the terms of business is especially important when dealing with liquidators. Be clear about the company's return, cancellation, and exchange policies; any guarantees on products or delivery times; what type of customer support is available; payment methods; and shipping policies. Another important factor is how much information you can get about what you're buying. You want as many details as you can obtain, including its condition, where it came from, product photos, and the product's original price. (Before contacting a supplier, check out "Convincing a Vendor to Do Business with You.")
As with any wholesale purchase, you need to know your cost per unit to figure out if you can make a profit. Many liquidators sell goods on an auction basis, so before you bid, figure out at what price you can sell the items. Be sure to include all costs, such as shipping and any costs to repair or refurbish the goods before reselling them.
You need to be flexible with liquidated items since you can't rely on them as a regular source of product. Think of them as a way to balance out your other offerings. Before you buy, have a plan for how you're going to incorporate liquidated goods into your merchandise mix. The key to profiting from liquidations is to turn the product over fast, so you need to have a sales strategy ready to go.
Karen Axelton is Chief Content Officer at GrowBiz Media (growbizmedia.com), a content and consulting company that helps entrepreneurs start and grow their businesses.

subset: commoncrawl


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Society is engaged in a profound conversation about caring for each other in the face of illness and as life approaches completion.
With your help, ResolutionCare Fund is helping health providers raise the bar on quality of life for their patients by teaching and mentoring about best practices in palliative care. We provide medical professionals with information about managing symptoms of serious illnesses and their treatments, about guiding individuals and their networks through an intricate and sometimes unfriendly healthcare system, and about improving communication concerning Advance Care Planning and the more delicate questions of meaning and purpose that are signatures of this phase of life.
If you would prefer to donate by phone, you can call our office at (707) 442-5683. Thank you!
Your donation will appear on your credit card statement as "WPY Community Initiatives."
ResolutionCare Fund is a fiscally sponsored project of Community Initiatives, a 501(c) 3 organization, and a licensed affiliate of the University of New Mexico's Project ECHO model.
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Baby Sweater Knitting Pattern
new independent designer patterns for fall: swends sweater by sofie berbjerg
knitting pattern... so flipping cute! Now if only I could knit. And had a little one to do this for!!
Super fun baby boy (or girl) knitted sweater! Ravelry: Pull Gaspard pattern by Christine Rouvillé
Ravelry: Garter Stitch Baby Kimono pattern by Joji Locatelli. Free Baby knitting pattern.
KNITTING PATTERN PDF sweater Knit pattern von KnotEnufKnitting
A casually chic take on a turtleneck, this piece provides comfort without compromising style. Twin Rib details, clean construction and a deep shirt-tail hem combine some favorite weekend elements into a piece that can be worn anywhere. Cozy up to this luxuriously soft sweater, knit in Baby Alpaca and Cima.
Another 5 Hour Baby Sweater {Knit Pattern} More
Little Garter Baby Sweater and Hat Free Knitting Pattern | Free Baby and Toddler Sweater Knitting Patterns including cardigans, pullovers, jackets and more http://intheloopknitting.com/free-baby-and-child-sweater-knitting-patterns/
Knitting pattern for a Harry Potter baby sweater! Scarf is built right into the design! TOO CUTE.
Free Knitting Pattern - Baby Sweaters: Tied Hoodie


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About the Book
This is a book of images designed to entice dreams. The premise is that before bedtime, you will select an image from the book and focus on it…then drift to sleep. In the morning, try to recount the dream. Repeat this process for all the images throughout the book. Keep a log of the dreams that were most pleasing, calming, comforting, exciting, scary, etc. so that once you've gone through the whole book, you will know which images will have what effect on your subconscious. After this log has been created, simply select the type of dream you want to have and focus on the appropriate image and hopefully you will reach the desired effect. Dream away…
Features & Details
- Category Comics & Graphic Novels
Small Square, 7×7 in, 18×18 cm
60 Pages
- Publish Date Sep 19, 2012
- Tags sleep.", vivid, dream, fantasy, images, guitars, music, steampunk, beauty, imagination, animals, :wingsdream, musicdreamshigh
About the Creator
David is a multi-award-winning architect as well as an avid musician and artist. He has a strong background in the arts as well as the field of psychology.
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Welcome to the Website of the
Second District Volunteer Fire Department and Rescue Squad, Inc.
Be on the look out for Santa in your neighborhood! ... (Full Story & Photos)
Second District Volunteer Fire Department and Rescue SquadWinter 2016 Coloring Contest
Unfortunately time slipped away from us and we are late getting this up but we've had a few people interested so here it is! With the delayed start we only have one week to get pictures in.
Contest Rules:1. Color picture using crayons, markers, and/or paint. 2. Age Categories: 4 & under, 5 – 8 year olds, ... (Full Story & Photos)
On Saturday 11/5/16 SDVFDRS responded to a request for an ambulance standby at the Fall carnival at the Kings Christian Academy. There were lots of fun bounce houses of all shapes & sizes for the kids, pony rides, a ZIP line and all kinds of games. And of course you cant have a carnival without lots of good food, cotton candy, home baked goods, hotdogs & popcorn for everyone. It was a beautiful day ... (Full Story & Photos)
On October 27, 2016 units from Company 6 were dispatched for a Motor Vehicle Accident with one overturned. Chief 6B and Lieutenant 6 arrived shortly after dispatch to find a single vehicle off the roadway on it's side. The patient was out of the vehicle and transported to St. Mary's Hospital with minor injuries.
*Photos courtesy of TheBayNet.... (Full Story & Photos)
On October 13-14, 2016 crews from SDVFDRS visited Piney Point Elementary School, Little Flower School, Kings Christian Academy and a Daycare. During the visit students were taught fire safety, learned what a firefighter looks like and learned about tools on the engine. This years fire prevention theme is "Don't wait, check the date! Replace smoke alarms every 10 years."... (Full Story & Photos)


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Spicy Franks With Lime
Total Time
Prep 5 mins
Cook 0 mins
My sister and I always make this when we want a quick and easy snack! We have ever since we were little! You don't need to follow the recipe exactly, add more or less chile to suit your taste! Use as many franks as you want to eat! Also I've found the tastiest seasoning to use is this Mexican Candy called LUCAS. Its a small chile can with yellow wrapping and a goose or duck on the cover! Also I've tried it with beef franks and found I do not like the taste!
Ingredients Nutrition
- 5 turkey hot dogs (I've found the only ones I like for this are Louis Rich)
- 2 limes
- 1 tablespoon fruit seasoning (Tajin, Chile Con Limon)
- Cut turkey franks twice lengthwise. Then cut into pieces. Put in bowl.
- Squeeze lime juice over franks.
- Add fruit seasoning to suit your taste and enjoy this quick and easy snack!


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Slide to see the images
Hello world, my name is Sophie and I am a polydactyl! That means I have extra toes on my front paws. I''m just a little girl with some growing to do, but for the time being I''m just enjoying being a silly kitten - you should see me in action! I hope to find my forever home soon, and that it is filled with lots of kitten toys to play with! If you''re looking for a new feline companion to share your life with, please come down and meet me today!
You can adopt me for only $10!
For more information contact the Silicon Valley Animal Control Authority (SVACA) at 408-764-0344 or visit www.svaca.com.


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Radical Refugees begin the Slaughter of Neighbors
By Lestado Codicus | November 13, 2015
Terrorists Disguised as Refugees Begin their Slaughter of Neighbors
Paris, France – Over 140 declared dead so far in multifaceted terrorist attack.
ISIS created the refugee "crisis" and infiltrated the borders of European nations unhindered. Because of this, a terrorist attack of massive proportions has happened today. Just 2 weeks ago we wrote a prediction about this based on a verse from the Quran. We break down the prediction and Quran verse more thoroughly in this new article. This isn't even the first terrorist attack in France this year. How many more have to happen before people listen?
Today's Attacks in Paris
Six different locations were all attacked today in Paris. From drive by shootings to bombing stadiums, terrorists are inciting fear all across France. According to Micheal Cadot, the head of Paris police, all of the killers are suspected to have died in encounters with police.
Terrorists butchered people at outdoor cafes, restaurants, theaters and stadiums. According to a witness "there was blood everywhere, they were firing a pump-action shotgun into the crowd." Another witness described "walking on bodies" and dodging bullets to escape. "It took at least 10, 15 minutes, they reloaded, they had all the time they needed," one survivor told Le Monde (French Newspaper).
"Witness Benoit Tanaka was outside Le Bataclan when he heard a steady stream of shots emanating from the venue. "Screaming in the street as people escape through the backstage … we hear screaming as shots continue to be fired," he wrote on Twitter." (National Post, 2015)
At least two restaurants, Le Carillon and Le Petit Cambodge, were packed with diners outside at sidewalk tables. Gunmen showed up with AK47s and started indiscriminately firing into the crowds. The radical refugees then fled in "one or two" vehicles.
"We were listening to music when we heard what we thought were firecrackers. A few moments later, it was a war zone. Blood everywhere," a survivor from Le Carillon told interviewers.
Another survivor from Le Carillon said "It lasted a terribly long time. He raised his Kalashnikov and fired indiscriminately into Le Carillon. We heard people screaming … there were a dozen bodies on the ground."
"At about the same time as bullets ripped into the restaurants, several large explosions were heard outside the Stade de France during a match between France and Germany.
A huge "boom" was picked up on television broadcasts, interrupting the soccer match. In order to avoid starting a panic, the match continued as successive explosions boomed outside.
"While the Prefecture of Police advised Parisians to stay inside unless "absolutely necessary," hundreds could reportedly be seen streaming down the Boulevard Magenta waving French flags, trying to reach the Stade de France stadium to show solidarity with the victims.
As many as 1,500 French troops were mobilized as army trucks began to rumble into the 10th and 11th arrondissements—the epicentre of the attack—just after midnight.
Hollande announced just before midnight that the country's borders had been closed so that "the people who committed these crimes can be apprehended."" (National Post, 2015)
This string of attacks occurred just 10 months after Paris experienced several Terrorist attacks that left 17 dead, including most of the editorial staff of the satirical newspaper Charlie Hebdo. Letting people into your country without checking scrutinizing their backgrounds will lead to more events just like this. The only way to stop this is to have secure borders.
Our condolences go out to everyone affected by this tragedy.
When you want to read more about ISIS:
[display-posts category="ISIS"]


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Escape the craze of your hectic life and raise your spirits with a paddle on the James River:
• $49.99 ($89 value) for a 90-minute stand-up paddleboarding lesson
• $69.99 ($179 value) for an SUP paddleboarding package
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Stand-up paddleboarding lesson: Lessons take place on flat, calm waters and can help students understand basic strokes, board function, proper stance, footwork, and more. Once you've completed your lesson, you'll take tour on James River.
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Well, if you generally like to be a bear then you probably would have liked participating today in the precious metals markets — XME/GLD/SLV, and Miners, GDX. The bottom has dropped out in this space. It's not a positive for the market at this stage, and deeper lows with this close look to be potentially in the cards. I will be looking for some potential setups in this space that attempt to take advantage of this new trend. Now some might say that the move in Gold has not been reflected in Volatility, VIX +.65%, which is only up a small amount with the move in Gold. There was also a huge move in Bonds, TLT +1.46%, this does put some concern going into next week in spite of the fact the market is finishing well off the worst levels of the day. Have a great weekend.
Market Recap
Stock market averages fell on weak economic data, but the decline has been orderly and without much volatility. A report released before the opening bell on Retail Sales was down .4 percent for March and well below expectations of 0 percent. Separately, PPI for March was down .6 percent, vs. expectations of -.1 percent. A third piece of data didn't help much after the University of Michigan said its gauge of consumer sentiment dropped to 72.3 for April, from 78.6 and well below expectations of 78.0. Meanwhile, Wells Fargo (WFC) and JP Morgan (JPM) are down on earnings and big losses are being suffered in oil and gold. Crude dropped $2.3 and gold is off more than $65. Yet, on Wall Street, the Dow Jones Industrial Average is down just 29 points. With an hour left to trade, the NASDAQ is down 12.2 points.
Today's Bullish Trading
Ford Motor (F) is down 7 cents to $13.48 amid weakness in the broader market Friday and options on the auto-maker are seeing active trading. 71,000 calls and 38,000 puts so far. The largest trade (by number of contracts) is a 20,000-contract block of Weekly 14 calls that expire on 4/26. An investor bought the calls for 8 cents per contract, according to a source on the exchange floor, and appears to be opening a new position in Ford options. 21,900 of these Weekly calls now traded against 1,825 in open interest. The action in the stock might reflect expectations that Ford shares could roll higher into an April 24th earnings report. The Weekly (4/26) 14 calls, which are currently 3.9 percent out-of-the-money, expire two days after the company is due to report.
Today's Bearish Trading
Macy's (M) is up 18 cents to $44.49 and climbing to new 52-week highs today after the company's CEO gave an outlook on CNBC Friday. Options volume on the stock is roughly 20,000 puts and 8,240 calls. The top trades are part of a spread, in which the investor bought 6,400 May 44 puts on Macy's for $1.13 per contract and sold 6,400 May 31 puts at 30 cents. The spread, for 83 cents, appears to be a new position because volume exceeds open interest in both contracts. If so, a shareholder might have initiated the position as a type of protective strategy after the recent rally in Macy's and ahead of earnings. The company is expected to report around May 15.
Bearish trading was also seen in Myriad Genetics (MYGN), Immunogen (IMGN), and Flotek (FTK).
Index Recap
Overall options were very light Monday and Tuesday, two of the slowest days of the year, then picked up dramatically Wednesday and Thursday, but are now slowing again heading into the weekend. In the CBOE Volatility Index (.VIX) pit on the Chicago Board Options Exchange, for example, 244,000 calls and 111,000 puts traded so far today, which is only 60 percent the normal levels, according to Trade Alert data. Volumes are likely to pick up Monday and Tuesday, as it will be the last two days to trade April options on VIX before the contracts expire Wednesday (most other products expire at the end of the week). VIX is up .07 to 12.31 and well below the levels seen last week when it finished at 13.92.
Analyzing the ETF Market
SPDR Gold Fund (GLD) saw volatile action today as the yellow metal suffered steep losses. Gold was recently down $66 to $1498.6 and its lowest levels since mid-2011. GLD, which is an exchange-traded fund that represents ownership in the metal, is down $7.09 to $143.96 on very heavy turnover of 47 million shares. 245,000 calls and 356,000 puts traded on the ETF so far. April 144, 140 and 135 put are the most active, as some investors are possibly looking for the slide to continue next week and are taking positions in April puts that expire in 7 days. Meanwhile, 30-day implied volatility is up 32 percent to 18.5.


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They offer the most delicious grilled meats and FISH right off the grill. Never fails always a delicious meal with some light entertainment as well !
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They offer the most delicious grilled meats and FISH right off the grill. Never fails always a delicious meal with some light entertainment as well !
We have been to Sails last night. There were three of us. We ordered two fish of the day, one barbecue chicken and dessert for ice cream. It was night time so it was hard to see the view in the dark. As far as the atmosphere go, it was ok. Service was slow but not too slow. This might... 更多
I cant comment on the food as I visited Saturday 12pm and there was no parking available. Lets start with the rude reception at the security checkpoint. My wife was driving and she promptly stopped and asked "wha yuh want". We replied that we were going to Sails Restaurant. He replied "wat yur numba plaite" After that tete-a-tete' we proceeded... 更多
I'm a local, and I've been to this restaurant easily over fifty times since its inception. The food is generally good, however, I haven't tried everything on the menu. I keep coming back because it's one of three top places to have a decent meal in Chaguaramas. Up until Zanzibar in Peake marina, I'd have rated Sails as my top... 更多
It is great to dine right on the waters. The menu is scrumptious and the variety is wide. The food tastes great and you get value for money. The service is good. A great venue to share with your friends and family.
Been here a few times. Food is very good. Service can be a little bit dicey occasionally.....I've gotten better service in the early afternoon when it's not as full. The ambience is lovely. Sit outside on a dock to have your meal. Look at the boats passing, enjoy some wine. Food is a bit pricey. Every time I've visited, I... 更多
Been to sails numerous times, the ambience is always nice but the service is never up to scratch. Sometimes you can wait forever for a simple dish or even a beer. They have great burgers and seafood , just a shame that their service has never improved.
Sails is a must-visit restaurant in Chaguaramas. Cosy, charming and casual, the outdoor seating, mere feet away from the water's edge is the key selling point for me. The ambience is lovely! The food is delicious too but a bit pricey.
My boyfriend and I always come here to have some high quality grill food when I visit him. It's relaxing to be by the sea and when the sun is setting over the marina it's beautiful. The food is always the best. One con is that the service can be a little slow. It usually takes a long time to... 更多
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May 13, 2011
MOHAMMED BHUIYAN, PLAINTIFF,v.CORRECTIONAL OFFICER WRIGHT, ET AL., DEFENDANTS
Plaintiff commenced this civil rights action under 42 U.S.C. § 1983, alleging that, while he was confined at the Auburn Correctional Facility on April 20, 2003, the defendant correction officers assaulted him and/or failed to intervene to protect him, violating his right to be free from cruel and unusual punishment under the Eighth Amendment and his right to Equal Protection under the Fourteenth Amendment. On March 24, 2011, with the consent of the parties, this matter was referred to me for all further proceedings, including the entry of final judgment, by the Hon. Frederick J. Scullin, Jr., Senior United States District Judge, pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73. (Dkt. No. 92). This court conducted a bench trial in Syracuse, New York, on May 9 and 10, 2011. Having considered all of the testimony and evidence admitted at trial, the court finds in favor of the defendants on all claims brought against them. The following constitutes the court's supporting findings of fact and conclusions of law, as required by FED. R. CIV. P. 52.
A. Stipulated Facts*fn1
The parties stipulated that plaintiff Mohammed Bhuiyan (hereinafter "plaintiff" or "Bhuiyan") was an inmate in the custody of the New York Department of Correctional Services ("DOCS"), at Auburn Correctional Facility ("Auburn") in 2003. On April 20, 2003, defendants Wright, Kuc, and Davis were correction officers at Auburn. Defendants Koziol and Withers were sergeants at Auburn at that time.
At approximately 8:45 p.m. on April 20, 2003, plaintiff was crossing from the North Recreation Yard to the South Recreation Yard at Auburn prison. He was stopped by one or more corrections officers. At some point while he was still in the prison yard, handcuffs were placed on plaintiff, while defendants Wright and Koziol were present. Defendant Wright and Koziol escorted plaintiff from the recreation yard to his cell block. The plaintiff was subjected to at least one "pat frisk"; no contraband was found on his person.
Photographs were taken of Bhuiyan on April 21, 2003. Plaintiff was seen by Nurse Quinn in the Auburn infirmary that afternoon, at approximately 3:40 p.m. Plaintiff's medical records verify that he sought medical attention for a wide range of complaints, including back pain, both before and after April 20, 2003.
B. Plaintiff's Version of Disputed Facts
Mohammed Bhuiyan is an Indian, originally from Bangladesh. His first language is Bangla, and he is a practicing Muslim. Plaintiff testified that correction officers at Auburn, including all of the named defendants, periodically referred to him as a "terrorist" and harassed him in other ways because of his ethnicity and religion. In April 2002, plaintiff filed a grievance complaining of such harassment by correction officers other than the defendants. He claimed that, in response to the grievance, defendant Withers cursed and threatened plaintiff with a beating if he filed any other such grievances. (Pl.'s Exh. 17).
A correction officer not named in this complaint charged plaintiff, in an inmate misbehavior report filed in December 2002, with possessing terrorist or gang-related material in his cell. Plaintiff was vindicated on this charge when the confiscated letter proved to be a letter from his mother, written in Bangla. Bhuiyan claimed that defendant Davis was involved in the cell search that prompted this disciplinary charge, and burned plaintiff's beard with a lighter during the incident. C.O. Davis' name was not reflected in the misbehavior report. (Pl.'s Exh. 19).
Plaintiff testified that, at about 5:30 p.m. on April 21, 2003, defendant Wright came to his cell, mentioned his prior grievances against other correction officers, called him a "terrorist," and threatened to beat and kill plaintiff. As plaintiff acknowledged, these allegations were not included in the written grievance he filed a few days later about the alleged incidents on April 21st.
As plaintiff was crossing through the tunnel between the north and south recreation yards during the evening of April 20, 2003, defendant Wright ordered Bhuiyan to submit to a pat frisk. Plaintiff claimed that he obeyed the directions given by C.O. Wright; however, he admitted being upset (but not crying) and asking why the officers were mistreating him. According to the plaintiff, numerous officers surrounded him, someone kicked his feet to move them further from the wall against which he was told to stand, an officer took his identification and his cigarettes from him, and eventually he was placed in handcuffs, with his hands behind his back. Plaintiff testified that defendant Withers was in the area and directed defendants Koziol and Wright not to do anything "here" and to take the plaintiff back to his cell block.
Defendants Wright and Koziol escorted plaintiff, in handcuffs, to the "feed-up room" on the upper floor of the cell block where plaintiff was confined. Once in this small room, plaintiff testified that defendant Koziol punched him twice in the chest. Defendant Koziol then allegedly directed defendant Wright to beat plaintiff further. According to plaintiff, defendant Wright punched him once in the face, drawing blood from around plaintiff's right eye. Sgt. Koziol wiped the blood from plaintiff's face using his "kufi,"*fn2 and cautioned C.O. Wright to hit plaintiff where it would leave no marks. Defendant Wright proceeded to repeatedly hit and kick plaintiff in his body, causing him to fall to the floor and hit two front teeth on the ground. When plaintiff screamed, C.O. Wright tightened the strings of the hood on plaintiff's sweat shirt in an effort to silence him.
Defendant Koziol brought the plaintiff up to his feet, at which time Bhuiyan first saw defendants Kuc and Davis on the other side of the door to the feed-up room, allegedly keeping watch. Defendant Koziol then purportedly warned plaintiff not to tell anyone about the incident or they would bury him under the jail and/or charge him with assaulting an officer. When plaintiff did not respond to defendant Koziol, defendant Kuc allegedly pulled on plaintiff's beard and told him to answer the sergeant. Plaintiff was then released and allowed to return to his cell. He testified that defendant Davis made threatening and racist remarks such as "haven't you killed the terrorist yet" as plaintiff was moving towards his cell.
Plaintiff testified that other inmates gave him ice to put on his right eye and that he experienced serious back and neck pain. The next morning, he asked to be taken to emergency sick call, but was refused. Plaintiff testified that he did not see any medical personnel until about 3:30 p.m. on April 21, 2003, when he was taken to the prison infirmary and examined by Nurse Quinn. He filed a written grievance about the incident a few days later. (Pl.'s Exh. 5).
Plaintiff testified that, in the years following this incident, he continued to suffer from back pain that was more persistent and serious than the occasional back pain of which he complained prior to April 2003.*fn3 Plaintiff suggested that the root canal he had on two front teeth in 2008 related to his hitting those teeth on the floor during the 2003 incident.*fn4
C. Defendants' Version of Disputed Facts
All of the named defendants, as well as Lt. Michael Ouimette, Lt. William Estabrook, and Nurse Kristen Quinn testified in the defense case. Each witness had considerable experience on the staff at the Auburn facility. All of the named defendants denied that they threatened or harassed plaintiff as alleged, or made derogatory comments to him relating to his race, ethnicity, or religion.
Although the DOCS directive governing searches for contraband does not explicitly discuss "random" pat frisks, it does allow discretionary pat frisks of inmates en route to and from recreation areas. (Pl.'s Exh. 26 at 2). Lt. Ouimette, Lt. Estabrook, and defendant Koziol (now also a lieutenant), among others, testified that random pat frisks of inmates in the tunnel between the north and south yard recreation areas at Auburn (often referred to as the "arch gate") were a routine and approved practice of the security staff to try to intercept contraband frequently found on inmates.
Defendant Wright denied having any contact with plaintiff on April 20, 2003, before C.O. Wright stopped Bhuiyan for a pat frisk near the arch gate at around 8:30 p.m. Defendant Wright testified that, during the evening of April 20th, he would have selected plaintiff for a pat frisk as he passed through the tunnel between the north and south yards because something about Bhuiyan's conduct or demeanor made him suspicious. C.O. Wright testified that he could not recall what initially drew his attention to plaintiff, but the fact that he questioned why he was being frisked reinforced Wright's suspicion that plaintiff might be carrying contraband.
Defendant Koziol was observing inmate movements in the area at that time, and saw plaintiff's interaction with defendant Wright. Sgt. Koziol concluded, from the way plaintiff was gesturing, that Bhuiyan was being argumentative and/or uncooperative with C.O. Wright. Defendant Koziol walked towards plaintiff and ordered him to put his hands on the wall for a pat frisk. Because plaintiff continued to be argumentative, defendant Koziol decided that Bhuiyan should be removed from the area, to avoid any escalation of the incident. Plaintiff was handcuffed behind the back while his hands were on, or moving towards, the wall, and defendants Wright and Koziol escorted plaintiff towards his cell block. Sgt. Koziol and C.O. Wright both believed that a pat frisk of the plaintiff was not conducted while he was in the yard. Neither officer recalled any interaction with Sgt. Withers in connection with the incident involving plaintiff in the yard.
Defendant Withers testified that he now recalled nothing about the interaction between defendants Koziol and Wright with the plaintiff in the yard. Sgt. Withers' report on the incident, dated May 1, 2003 (Defs.' Exh. 9), stated he was in the general area during the incident in the yard, but did not have any verbal interaction with the plaintiff. Defendant Withers stated that it is possible he would have told then-Sgt.
Koziol to remove plaintiff from the yard, which at that time contained numerous other inmates. However, he stated any such instruction would have been motivated by a desire to avoid any escalation of the incident, and was not an implicit instruction for any officer to assault the plaintiff.*fn5
Defendants Koziol and Wright both testified that, as they escorted plaintiff to a landing area on the upper floor of his cell block, he started crying uncontrollably. Once on the landing, plaintiff's handcuffs were removed and he was pat frisked by C.O. Wright. No contraband was found. Sgt. Koziol testified that he was concerned about plaintiff's distraught emotional state, and took him into the small feed-up room to try to determine what was upsetting him. Defendant Koziol testified that he advised plaintiff that he could return to his cell with no disciplinary repercussions, and that plaintiff thereafter started to calm down.*fn6 Plaintiff was then allowed to return to his cell without incident.
Defendants Koziol and Wright both denied striking or assaulting plaintiff. They stated that, because the feed-up room was very small and contained shelves and perhaps a desk and a chair or two, there was insufficient space for three persons, much less enough room to carry out the alleged assault which plaintiff described. Defendants Wright and Koziol did not recall seeing defendants Kuc or Davis in the landing area during their interaction with plaintiff.
C.O. Kuc testified that he had no specific recollection of seeing plaintiff during the evening of April 20, 2003, and he did not witness any assault of an inmate on that date. Defendant Kuc's contemporaneous report, in response to plaintiff's grievance, stated that, starting at 8:40 p.m. on April 20th, he was relieving officers at the gates on either end of the tunnel between the north and south yards, and thus would not have been on the top floor of plaintiff's cell block at the time he was allegedly keeping watch over the alleged assault of the plaintiff.
Defendant Davis was assigned to work on a lower floor of plaintiff's cell block during the 3:00 to 11:00 p.m. shift on April 20, 2003, and he did not recall seeing any of the defendants in plaintiff's presence that evening. Both during his testimony and his contemporaneous report (Defs.' Exh. 7), C.O. Davis denied witnessing any inmate assault on April 20th. Defendant Davis testified that he never called plaintiff a "terrorist," and he denied being present during the December 20, 2002 cell search when another officer accused plaintiff of possessing suspected terrorist material in his cell.
Retired Lt. Estabrook testified that he was the 3:00 to 11:00 p.m. shift commander at Auburn. When he reported for work on April 21, 2003, he was instructed by the Deputy Superintendent for Security to investigate an allegation of assault that plaintiff had made to a doctor in the Auburn infirmary earlier that day. Lt. Estabrook had the plaintiff escorted to the infirmary, where he took photographs of the plaintiff in his boxer shorts as he was examined by Nurse Quinn. He thereafter interviewed plaintiff about the alleged incident, and he directed all the officers allegedly involved to submit reports.*fn7 Lt. Estabrook eventually submitted reports regarding his investigation of the incident to two superior officers at Auburn. (Defs.' Exhs. 10, 11).
Nurse Quinn testified that, at about 3:30 p.m. on April 21, 2003, she conducted a head-to-toe medical assessment of plaintiff. She observed and documented a slight abrasion to plaintiff's right eyelid and some swelling in that area. Plaintiff complained of no other injuries, and Nurse Quinn did not find evidence of any other injuries. The photographs taken of plaintiff in his shorts that afternoon (Defs.' Exh. 13), are consistent with Nurse Quinn's observations.
Nurse Quinn examined the plaintiff's medical records from April 21, 2003, noting two prior entries that day. (Defs.' Exh. 16; Pl.'s Exh. 21 at p. 2 & Exh. 22).*fn8
Plaintiff's Ambulatory Health Record indicates that he was seen by Nurse John MacClellam at about 8:50 a.m. on the morning after the alleged assault. The plaintiff complained of general aches and pains and abrasions to his right eyelid, but there is no mention of a claim that plaintiff was assaulted. Nurse MacClellam found no evidence of bruising or swelling on plaintiff's upper body or arms.
Plaintiff had a previously-scheduled appointment with Dr. Graceffo at the infirmary later on April 21st. Dr. Graceffo's notes, which do not reflect the time of his examination, indicate that plaintiff complained of being hit in the chest and eye by security. The doctor noted swelling to plaintiff's right eye lid and, at plaintiff's request, ordered x-rays, which showed no rib fractures.
D. Court's Findings of Fact
After considering all of the testimony, the credibility of the witnesses, and the exhibits and other evidence, this court finds that the plaintiff has not established, by a preponderance of the credible evidence, his version of the critical disputed facts. Given the complete lack of corroboration of plaintiff's story, and the inconsistencies between his testimony and other credible evidence, the court finds that Mohammed Bhuiyan was not assaulted by any of the defendants on April 20, 2003, and that the defendants were not motivated by racial, ethnic, or religious animus in their interactions, if any, with plaintiff on that evening.
From the filing of his grievance on April 24, 2003, through his testimony at trial, plaintiff was largely consistent in recounting his version of the events of April 20, 2003, although he could marshal little objective corroboration of his story. The five named defendants were generally consistent, with their prior statements and with each other, in their adamant denials of plaintiff's allegations of excessive force and discriminatory conduct. Plaintiff's counsel argued that the defendants removed plaintiff to an isolated place without any civilian witnesses, inevitably leaving him in a position where he could rely only on his word against the word of multiple correction officers. However, the plaintiff's testimony was inconsistent with other credible evidence in several significant respects, which caused this court to conclude that he did not sustain his burden of proof with respect to the allegations of excessive force and discrimination.
First, plaintiff claims that he was singled out for a pat frisk and subsequent assault because of his identification as a foreign-born Muslim, in the aftermath of the events of September 11, 2001. However, plaintiff did not marshal any corroboration for his sweeping claim that all of the named defendants were motivated by discriminatory animus in their alleged interactions with him on April 20, 2003. Plaintiff's claims of prior discriminatory remarks or harassment either involved correction officers other than the named defendants, were very general, or were not supported by anything other than his testimony or prior statements. As noted above, all of the defendants specifically denied harassing, threatening, or making derogatory comments about plaintiff based on his race or religion.
Numerous defense witnesses testified that random pat frisks in and around the tunnel between the north and south recreation yards were a commonly-used and approved practice to minimize the transportation of contraband in that busy and high-risk area. Defendant Wright could not recall the particular suspicions that led him to select plaintiff for a pat frisk on the day in question. However, the plaintiff testified that this was the only occasion on which he was selected for a pat frisk at Auburn; the absence of any pattern of such conduct undermines the suggestion that he was targeted on this single occasion because of his race or religion.
Defendant Koziol testified that he decided to remove plaintiff from the tunnel area in handcuffs because Bhuiyan was uncooperative with an ordered pat frisk, and because Sgt. Koziol wanted to avoid escalation of the incident in the presence of numerous other inmates. Particularly in light of plaintiff's admission that he was upset, and questioned why he was being subjected to mistreatment in the yard, defendant Koziol presented a persuasive, non-discriminatory reasons for taking plaintiff back to his cell block to complete a pat frisk. As discussed further below, the court's conclusion that plaintiff's allegations that defendants thereafter assaulted him and otherwise mistreated him were unfounded, vitiate his claims of discriminatory, unfavorable treatment.
Plaintiff failed to sustain his burden of proving that three of the defendants, whom he alleges were involved in the violations of his constitutional rights on April 20, 2003, had any relevant interaction with him on that evening. Although Sgt. Withers thought it was possible that he advised Sgt. Koziol to remove plaintiff from the tunnel area on the evening in question, neither he, nor defendants Koziol or Wright recalled his involvement in the incident. Defendant Kuc's contemporaneous report makes a compelling case that he could not have been present to witness the alleged assault of plaintiff in the feed-up room on the top floor of plaintiff's cell block.
Plaintiff Davis was assigned to an entirely different floor of plaintiff's cell block and testified that he did not see any of the defendants in plaintiff's presence on the evening of April 20th.
Most tellingly, plaintiff claims that he was severely beaten and kicked on the evening of April 20, 2003, and he was denied any medical attention until he was seen by Nurse Quinn after 3:30 p.m. the next day. However, DOCS medical records show that plaintiff was in fact seen by a nurse at 8:50 a.m. on April 21st and by Dr. Graceffo before 3:40 p.m. that same day. Plaintiff's counsel attempted to raise questions about the authenticity of the medical records. However, the testimony of Nurse Quinn and the court's review of all of plaintiff's medical records undermine the suggestion that the records were somehow fabricated by DOCS medical staff, who were not involved in the alleged altercation, to counter plaintiff's allegations.*fn9 Lt. Estabrook testified that, as soon as he arrived on duty as the watch commander at 3:00 p.m. on April 21st, he was told to investigate Bhuiyan's statement to the prison doctor that plaintiff was assaulted by officers. That testimony, involving various Auburn officials not implicated by plaintiff's allegations, further corroborates that plaintiff was indeed examined by Dr. Graceffo before Nurse Quinn performed her examination.
Finally, the medical examinations of plaintiff indicate that he suffered no bruising or swelling on his body or limbs, which seems inconsistent with plaintiff's allegation of being repeatedly punched and kicked in those areas. Plaintiff's subjective claims of back and other pain, from the day after the incident and for a considerable period thereafter, and the need for a root canal on two front teeth many years later, do not provide sufficient corroboration of plaintiff's claims of injuries sustained on April 20, 2003. While the slight abrasion and swelling to plaintiff's right eye were not explained, that alone is insufficient to meet his burden of proof that he was the victim of the vicious assault he alleged.
A. Eighth Amendment Claims
1. Excessive Force
Inmates enjoy Eighth Amendment protection against the use of excessive force, and may recover damages under 42 U.S.C. § 1983 for a violation of those rights. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). The Eighth Amendment's prohibition against cruel and unusual punishment precludes the "unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 (1976); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). To sustain a claim of excessive force under the Eighth Amendment, a plaintiff must establish both objective and subjective elements. Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999).
In order to satisfy the objective element of the constitutional standard for excessive force, the defendants' conduct must be "'inconsistent with the contemporary standards of decency.'" Whitely v. Albers, 475 U.S. 312, 327 (1986) (citation omitted); Hudson, 503 U.S. at 9. "[T]he malicious use of force to cause harm constitute[s][an] Eighth Amendment violation per se[,]" regardless of the seriousness of the injuries. Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). "The Eighth Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (citations omitted). " 'Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.'" Sims, 230 F.3d at 22 (citation omitted).
The subjective element requires a plaintiff to demonstrate the "necessary level of culpability, shown by actions characterized by wantonness." Id. at 21 (citation omitted). The wantonness inquiry "turns on 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Id. (quoting Hudson, 503 U.S. at 7). In determining whether defendants acted in a malicious or wanton manner, the Second Circuit has identified five factors to consider: the extent of the injury and the mental state of the defendant; the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response." Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003).
The court finds that the plaintiff did not sustain his burden of proving that, on April 20, 2003, he was subjected to any excessive or malicious use of force. Rather, to the extent any force was used on plaintiff during the incident, it was minimal, reasonable, and appropriate to complete a justified security pat frisk on a reluctant inmate. As discussed above, the court has concluded that the plaintiff did not prove, by a preponderance of the credible evidence, that he was subjected to the gratuitous and malicious punches and kicks purportedly inflicted by defendants Koziol and Wright after plaintiff was removed from the prison yard. Even if plaintiff had established that the defendants had kicked at plaintiff's feet or had somehow caused the minor abrasion over his right eye, while attempting to carry out the pat frisk,*fn10 any such use of force would have been de minimis and would not support an Eighth Amendment claim. See, e.g., Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 471 (S.D.N.Y. 1998) (although kicking an inmate's ankles and feet during a pat frisk cannot be condoned, this use of force is de minimis and insufficient to rise to the level of a constitutional violation); Kalwasinski v. Artuz, 02 CV 2582, 2003 WL 22973420, at *5-7 (S.D.N.Y. Dec. 18, 2003) (the claim that a defendant correction officer pressed an argumentative plaintiff's face into the wall while conducting a pat frisk, causing plaintiff to suffer a sore forehead and left cheek, was a minor use of force to carry out a necessary prison procedure, not an Eighth Amendment violation); Anderson v. Sullivan, 702 F. Supp. 424, 425-27 (S.D.N.Y. 1988) (prison guards allegedly pushed inmate's face into a bar while applying handcuffs, causing temporary swelling; even assuming, as plaintiff claims, that he did not resist, the amount of force was not significantly disproportional to the goal of handcuffing plaintiff).
2. Failure to Intervene
A correction officer who is present while an assault upon an inmate occurs may bear responsibility for any resulting constitutional deprivation, even if he did not directly participate. See, e.g., Cicio v. Graham, No. 9:08-CV-534 (NAM/DEP), 2010 WL 980272, at *13 (N.D.N.Y. March 15, 2010); Tafari v. McCarthy, No. 9:07-CV-654 (DNH/GHL), 2010 WL 2044705, at*8 (N.D.N.Y. May 24, 2010).*fn11 A law enforcement official has an affirmative duty to intervene on behalf of an individual whose constitutional rights are being violated by other officersin his or her presence. Id.*fn12 In order to establish liability under this theory, a plaintiff must prove that the defendant in question (1) possessed actual knowledge of the use by another correction officer of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force. Id.;
Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008) (citation omitted).
Given that the court has found that no defendant applied excessive or malicious force to the plaintiff, a claim that any defendant violated the Eighth Amendment by failing to intervene must also fail. In any event, the plaintiff did not prove, by a preponderance of credible evidence, that defendants Withers, Kuc, and Davis were present for, or personally involved in, plaintiff's interactions between defendants Koziol and Wright, much less in a reasonable position to intervene. See, e.g., Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (personal involvement is a prerequisite to the assessment of damages in a section 1983 case); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003).
B. Equal Protection Claim
Under the Fourteenth Amendment's Equal Protection clause, a plaintiff may be able to recover for a physical assault*fn13 that would not meet the objective threshold for Eighth Amendment excessive force claims, if the defendant's conduct was motivated by racial or religious discrimination. See Baskerville v. Mulvaney, 411 F.3d 45, 49 (2d Cir. 2005) (upholding a jury verdict for defendant corrections officers but noting that "[t]he district court did not disagree with [plaintiff's] legal theory that a corrections officer could push or shove an inmate and such action would not meet the objective threshold of excessive force but might nevertheless be actionable if motivated by racial discrimination or religious retaliation."). As noted above, the court has concluded that plaintiff did not prove, by a preponderance of the credible evidence, that he was the victim of any assault or that the defendants were motivated by racial or religious discrimination to the extent they interacted with plaintiff on April 20, 2003. Accordingly, the court finds in favor of defendants on plaintiff's Equal Protection claims.
For the reasons discussed above, the court finds in favor of the defendants on all claims brought against them. Accordingly, it is hereby ORDERED, that the complaint is dismissed with prejudice and the Clerk of the Court is directed to enter judgment in favor of the defendants on all claims.
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filed: December 29, 1986.
CASIMIR TOCZYLOWSKIv.GENERAL BINDERY CO. AND CITY OF PHILADELPHIA AND JOSEPH KOTS. APPEAL OF JOSEPH KOTS
Appeal from the Order of the Court of Common Pleas, Philadelphia County, Civil Division, at No. 802 January Term, 1982.
Claudia M. Tesoro, Assistant City Solicitor, Philadelphia, for appellant.
John F. Dougherty, Jr., Philadelphia, for General Bindery Co.
Lloyd George Parry, Philadelphia, for appellee.
Cavanaugh, Brosky, and Montemuro, JJ. Montemuro, J., files a dissenting statement.
[ 359 Pa. Super. Page 574]
This is an appeal taken from the entry of an order on March 10, 1986*fn1 vacating judgment of non pros. Appellant contends that the trial court abused its discretion in so vacating, alleging: (1) that the ninety-seven (97) day filing delay between the entry of non pros and the petition to vacate was never reasonably explained, making the petition untimely; (2) that the failure of appellee's former counsel to appear at the Philadelphia call of the list, which resulted in the entry of non pros, was unreasonable; and (3) that the facts alleged in support of appellee's cause of action were legally insufficient to support vacation of non pros.
Upon review of the record, we are in agreement with appellant that the behavior of appellee's former counsel, with respect to (1) and (2) above, was not reasonably explained, and, as such, we now reverse the trial court and reinstate the judgment of non pros.
Appellee's original complaint was filed as a major jury*fn2 defamation action on January 7, 1982, naming General Bindery Co., Inc., the City of Philadelphia, and Joseph Kots (herein "appellant") as party defendants. During the pleadings stage, both the City of Philadelphia and appellant Kots
[ 359 Pa. Super. Page 575]
filed preliminary objections, and an amended complaint was filed.*fn3 The City of Philadelphia's preliminary objections were granted, but appellant Kots' were denied; Kots then filed an answer.
According to the docket entries, the last action taken connected to this claim, by any party, was in December, 1982. The case was then silent until July 7, 1985, when a letter was dispatched to appellee's former counsel from the court administrator's office in Philadelphia, stating, in relevant part:
Dear Counselor,
It is contemplated that the above case will be assigned for trial on the individual judge program in the very near future.
Accordingly, it will be necessary for you as counsel for plaintiff, to fill out and return the enclosed information sheet no later than two (2) weeks from this date.
Very truly yours,
Harry A. Takiff, J.
Court Administrator
However, prior to any "contemplated" assignment to an individual judge, the case was assigned to the major jury list, and, on October 4, 1985, appeared on the list under the "New Listings" heading. By October 7, the case had moved into the older listings, at number 87. The case proceeded to move up the list until, on October 16, the case was at number 11, or within the top fifteen, and was called for trial. On each day the case was listed on the major jury list, the following "Notice to the Bar" appeared on the front page of Philadelphia's Legal Intelligencer, the official publication for all notices to the Bar.*fn4
[ 359 Pa. Super. Page 576]
Civil Trial Pool
To assure maximum effectiveness of the Civil Individual Judge Program, we are supplementing it with a master pool from which cases will be assigned to judges who are available from time to time for assignments when their individual lists permit, as well as judges who will be assigned cases from the master pool list only.
There will appear daily in The Legal Intelligencer a list of approximately 360 cases consisting of 105 major jury, 105 general jury, 75 major non-jury and 75 general non-jury cases, selected in chronological order based on first filing date. Based on the procedure described above, it is anticipated that these lists will move actively.
The call of the list will be held in Courtroom 907, Five Penn Center, promptly at 9 a.m. Counsel in the first 15 cases on each list must appear to answer. The rules governing continuances will be strictly enforced.
Edward J. Bradley
President Judge
Judge Harry A. Takiff
(Emphasis supplied). Despite this notice, appellee's former counsel was not present at the October 16 call of the list. Appellant's counsel, who was present, motioned that a judgment of non pros be entered. The Honorable Harry A. Takiff, who was presiding at the call of the list, granted the motion.
Ninety-seven (97) days later, on January 21, 1986, appellee, represented at that time by present counsel, filed a petition to vacate the entry of non pros. The petition, which included an affidavit from former counsel, averred that: (1) former counsel, upon receipt of the July 7 letter from the court administrator's office, had begun to monitor the individual judge calendars, as printed in the Legal Intelligencer, exclusively, and never saw the major jury listing; (2) former counsel, who was in the process of an employment and address change, did not receive notice of
[ 359 Pa. Super. Page 577]
the entry of non pros until December 11, 1985; and (3) present counsel had just been transferred the case as of January 21, 1986, and was entering his appearance and filing the petition to vacate in as prompt a fashion as could be expected under the circumstances. Both General Bindery Co., Inc. and appellant Kots opposed the petition as unreasonable. The petition was granted on March 10, and appellant only filed this timely appeal.
A petition to open a judgment of non pros is addressed to the court's equitable power, and the exercise of those powers will not be disturbed absent an abuse of discretion. Hutchinson v. Hutchinson, 492 Pa. 118, 123, 422 A.2d 501, 503-04 (1980). However, before a court may open a judgment, the party seeking vacation must demonstrate that: (1) the petition to open was timely filed; (2) the default which occasioned the entry of judgment can be reasonably explained; and (3) the facts constituting grounds for a cause of action are alleged. Horan v. R.S. Cook and Associates, Inc., 287 Pa. Super. 265, 268, 430 A.2d 278, 279 (1981); Corcoran v. Fiorentino, 277 Pa. Super. 256, 260, 419 A.2d 759, 761 (1980); Dupree v. Lee, 241 Pa. Super. 259, 262, 361 A.2d 331, 333 (1976). In his attack upon the vacation of non pros, appellant alleges that appellee failed to satisfy any of the above criteria. With respect to criteria (1) and (2), the history of this case supports appellant's allegations.*fn5
With regard to the initial criterion, which specifies that a petition to vacate must be promptly filed, the trial court found that appellee's former counsel had been in the midst of an office relocation, and, as such, appellee had reasonably explained the delay in the filing of the petition now at issue.*fn6 However, a review of the relevant factual background simply does not support the trial court's finding of a reasonable delay. While it is undisputed that former
[ 359 Pa. Super. Page 578]
counsel was in the process of an office relocation at some point in time prior to December 11, 1985, it is also admitted that counsel received notice of the entry of non pros on December 11.*fn7 No further action was taken until the January 21, 1986 filing of a petition to vacate. There is simply no support in the record that the relocation in any way precluded former counsel from filing the petition to vacate well in advance of the January 21, 1986 filing by present counsel.*fn8 Accordingly, we are confronted, by this appeal, with an unexplained delay of forty-one (41) days. While a delay of this length is not, in and of itself, so terribly long as to defy any attempt at explanation, it has not been explained at all, and, as such, cannot be deemed reasonable. See Hatgimisios v. Dave's N.E. Mint, Inc., 251 Pa. Super. 275, 276-277, 380 A.2d 485, 486 (1977) (unexplained delay of thirty-seven days "too long"); also see Schutte v. Valley Bargain Center, Inc., 248 Pa. Super. 532, 538, 375 A.2d 368, 371 (1977) (unexplained forty-seven day delay in petitioning to open default judgment "unreasonable"). We hold, therefore, that the trial court abused its discretion in finding that the present petition was promptly filed.
Furthermore, were we to defer to the trial court's finding that the petition was prompt, we would, nonetheless, be confronted with the second criterion for vacation: the giving of a reasonable explanation or excuse for the incident that occasioned the default. We feel that appellee has failed to demonstrate any reasonable excuse for the absence of counsel from the call of the list, and hold that the second requirement for vacation has also not been met.
[ 359 Pa. Super. Page 579]
The trial court found that the absence of former counsel was occasioned, primarily, from some "confusion" created by the language of the July 7, 1985 letter from the court administrator, and that the absence, hence, was "reasonable". We disagree.
The Legal Intelligencer is the official periodical for publication of all notices to the Philadelphia Bar. Philadelphia Local Rule of Civil Procedure 100(A); Triangle Pacific Philadelphia Corp. v. Trident Enterprises, Inc., 495 Pa. 427, 429, 434 A.2d 1165, 1166 (1981). It is incumbent upon a Philadelphia practitioner to be familiar with the Intelligencer and its contents, particularly those sections which govern the practice of litigation in the Philadelphia courts. The letter received from the court administrator's office by former counsel merely indicated that an assignment to an individual judge was being "contemplated." Though potentially confusing, it did not excuse counsel from her duty to be knowledgeable concerning other portions of the Intelligencer, which clearly stated, in its "Notice to the Bar", that individual judge assignments were only being made on occasion from the master lists. As such, former counsel was not excused from her duty to monitor the master lists; it was her duty, as a diligent practitioner, to monitor the master major jury list and the individual judge calendars.
Her duty to have so performed is further buttressed by Philadelphia Local Rule of Court 200, which governs the assignment of cases for trial:
(A) Civil Case Categories.
Until such time as Civil Cases are assigned to an Individual Judges upon the commencement of an action, they shall be placed on one of the following lists as appropriate:
(1) Major Jury List -- consisting of all cases not in Arbitration in which a jury trial has been demanded.
(2) General Jury List -- consisting of all cases in which a jury trial demand has been properly filed and a jury listing fee paid: (a) on appeal from Arbitration determinations to the Common Pleas Court; or (b)
[ 359 Pa. Super. Page 580]
which may not be submitted to Arbitration because of substantive or procedural legal principles.
(3) Equity/Non-Jury List -- consisting of all equity cases and all cases in which a jury trial has been waived.
(4) Asbestos Cases after appeal from Non-Jury verdicts.
All cases shall be placed on such lists in chronological order according to the term and number of the case.
(B) Assignment of Cases.
(1) The Civil Cases on the Lists shall be assigned to individual judges for all pre-trial and post-trial purposes on a random basis until such time as all of the cases are assigned. Such assignments shall be made to participating Judges four times yearly. Each assignment shall consist of one hundred cases, in chronological order, taken from the trial lists set forth in Section A of this Rule.
(2) Upon exhaustion of the Civil Cases on the Lists, all Civil Cases shall be assigned on a random basis to an individual judge for all pre-trial, trial and post-trial purposes upon institution of suit.
(Emphasis supplied).
Clearly, Local Rule 200 outlines in no uncertain terms that cases are to be placed on the appropriate master lists prior to any assignment to an individual judge's calendar and that only "upon exhaustion" of the master lists are the individual judge assignments made. As such, the rule imposes upon a Philadelphia practitioner a need for watchfulness with respect to the civil trial listings in the Intelligencer, as opposed to the type of limited scrutiny which was applied by appellee's former counsel.
In light of the foregoing, it is inconceivable to this Court that former counsel's excuse for non-appearance, i.e. the letter, can be deemed reasonable. A litigator is under an obligation to keep abreast of publications to the bar, such as the Intelligencer, as well as local rules of court. While we may be somewhat sympathetic to the difficulties
[ 359 Pa. Super. Page 581]
former counsel may have encountered in relocating her practice and resuming work, these considerations simply do not permit us to find that a reasonable excuse for the mistake has been given. A counsel's preoccupation with dissolving his law firm and establishing his own practice has never constituted a reasonable excuse for default, see Horan, supra, 287 Pa. Super. p. 279, 430 A.2d 278, nor have the "burdens of litigation" excused counsel from proceeding diligently, see King v. Fayette Aviation, 226 Pa. Super. 588, 590, 323 A.2d 286, 287 (1974). To permit former counsel to advance such neglect of her duties as "reasonable excuses" would merely interfere in the "orderly administration of justice", Dupree, supra, 241 Pa. Superior Ct. p. 266, 361 A.2d p. 335, as viewed by the appellate courts of this Commonwealth.
Accordingly, the Order is vacated. Judgment of non pros is reinstated.
MONTEMURO, Judge, dissenting:
I dissent. Finding no abuse of discretion, I would affirm on the Opinion of the Honorable Harry J. Takiff.
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Before you select another pumpkin for your front porch display, consider cooking it instead: roast, bake, and stew up everything from savory salads and creamy soups to earthy desserts and more. Grated like a carrot, it can be added to cake and muffin batters. Puréed, it's famous in pie. Sliced or diced, pumpkin is delicious roasted and eaten on its own, baked into casseroles, or stewed for soups. Pumpkin is also a low-calorie superfood. It's high in potassium, fiber, and beta-carotene. But as good for you as pumpkin is, its mild, lightly sweet flavor is what leaves you delighted and satisfied. Taste autumn with these delicious pumpkin recipes. This seasonal squash is great in both savory and sweet dishes.
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This video, via YouTube user atooy, compares the sound of the Korg Monotron to the classic Korg MS-20.
How well do you think the Korg Monotron holds up?
James Lewin Twitter @podcasting_news
And more changes to the setup we discover
Budget DIY Mono is how much?
17 analogue voices, Beatstep Pro style sequencing
A few patches from the Pittsburgh Modular SV-1
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Reproduction in whole or in part in any form or medium without express written permission from Sonic State is prohibited.


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24hr licence.
Fantastic sound system
View the venue listing
More on Tramp
24hr licence. Fantastic sound system Underground
Murat Kilic, Ant J Steep, Sam Deluxe, Nadine and Luke Bowdich
s well as being a respected long time DJ in the Australian electronic music scene, Murat Kilic has more recently become a profilic producer of tech house, minimal and techno over the last few years with releases on some of the world's most forward thinking labels like Stil Vor Talent of Berlin, Germany and Stereo Seven Plus of Milan, Italy. He has also completed remixes for labels such as BEEF, Kaato, Subsonic and Tribal Vision.
Murat's recent overseas gigs include Sunrise Party Salvador-Brazil, Transit @ MV in New Caledonia, Roxy Club Prague, Love Parade Germany 2007/2008, Palais Club Munchen & Blanco in Istanbul to name a few. This year he will playing over 10 dates in the EU between 15 May – 5 July 2009.
Fri, 9 Dec 2016
22 attending
Sun, 18 Dec 2016
84 attending
Sun, 18 Dec 2016
19 attending
Secret Warehouse
Fri, 23 Dec 2016
63 attending
Sat, 31 Dec 2016
21 attending
Sun, 1 Jan 2017
35 attending
Sun, 1 Jan 2017
27 attending
Sun, 1 Jan 2017
22 attending


text: With a stay at Atrion Highland Hotel in Katerini (Elatochori), you'll be minutes from Elatohori Church of St Nicholas and close to Elatohori Ski Center. Treat yourself to a stay in one of the 16 individually decorated guestrooms, featuring fireplaces. Complimentary wireless Internet access keeps you connected, and satellite programming is available for your entertainment. Conveniences include phones, as well as desks and refrigerators. Be sure to enjoy recreational amenities including a spa tub and a sauna. Additional amenities include complimentary wireless Internet access, babysitting/childcare (surcharge), and ski storage. Enjoy a bite to eat at a coffee shop/café, or stay in and take advantage of the hotel's room service (during limited hours). Quench your thirst with your favorite drink at a bar/lounge. Featured amenities include complimentary high-speed (wired) Internet access, express check-in, and luggage storage. Planning an event in Katerini? This hotel has 75 square feet (7 square meters) of space consisting of conference space and meeting rooms. Free self parking is available onsite. Recreational amenities at the hotel include a spa tub and a sauna. Children under 14 years old are not allowed in the spa tub without adult supervision. Guests under 18 years old are not allowed in the spa tub. The recreational activities listed below are available either on site or nearby, fees may apply.


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Mollohan was a veteran appropriator who took pride in delivering federally financed projects to his state. But voters' alarm over deficit spending is turning that practice into a liability. With unsustainable debt voters are not buying pork barrel projects and bailouts any more.
Representative Alan Mollohan Loses in Primary
Stimulus or Bailout: Is There any Difference?
Now recall the stimulus checks where most of us received $600 from the government. Was there a great outcry against the borrowing of $152 billion to finance this election year bribe? Not that I can recall. All I could muster was, "I cannot think of a more stupider plan!"


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ASHA-PAC is the political action committee for the American Speech-Language-Hearing Association. A political action committee (PAC) is an organization representing a specific cause or interest that raises funds to support the political campaigns of key legislators.
ASHA-PAC provides financial support to candidate committees for the U.S. House and Senate that recognize the importance of speech-language pathology and audiology services and who demonstrate concern for the rights of all citizens to receive these services. Contributions are made to the ASHA-PAC by ASHA members and are entirely voluntary.
ASHA-PAC is registered with the Federal Election Commission (FEC). Under the oversight of the FEC, ASHA-PAC files regular reports detailing the financial activities of the PAC. ASHA-PAC complies with all federal laws and regulations governing its operations.
Questions about ASHA-PAC? Contact us at [email protected].
Federal law prohibits associations from using member dues for political contributions. ASHA-PAC is funded through voluntary, individual contributions from ASHA members only. We cannot accept contributions from corporations, non-ASHA members, and non-U.S. citizens.
ASHA Members: Login to Contribute
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Capitol Club ($50 - $99 annually)
PAC Supporter ($1 - $49 annually)
Entry-Level Degrees Reach Six-Year High: The number of audiology clinical doctorate entry-level degrees and speech-language pathology master's degrees granted reached a six-year high in the 2014–2015 academic year.
Audiologists: Go Beyond the Audiogram: It benefits patients to guide discussion to acknowledgment and acceptance of a hearing loss.
False Medicare Claims Cost Nursing Facility Operator $30 Million
The American Speech-Language-Hearing Association (ASHA) is the national professional, scientific, and credentialing association for 186,000 members and affiliates who are audiologists; speech-language pathologists; speech, language, and hearing scientists; audiology and speech-language pathology support personnel; and students.
The ASHA Action Center welcomes questions and requests for information from members and non-members.
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