535 F.Supp. 677 (1982)
UNITED STATES ex rel. Michael Everett PAUL, Petitioner,
v.
Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.
No. 81-CV-248.
United States District Court, N. D. New York.
April 8, 1982.
Penelope D. Clute, Plattsburgh, N.Y., for petitioner.
Robert Abrams, Atty. Gen. of the State of N. Y., Albany, N. Y., for respondent; James G. McSparron, Asst. Atty. Gen. in Charge, Daniel L. Saxe, Asst. Atty. Gen., Albany, N. Y., of counsel.

MEMORANDUM-DECISION and ORDER
JAMES T. FOLEY, Senior District Judge.
Petitioner, represented by counsel in this federal habeas corpus proceeding, is presently an inmate of Auburn Correctional Facility. In my judgment, the petition presents a substantial and complex issue under the Double Jeopardy clause of the Fifth Amendment applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Petitioner was indicted on February 14, 1972 for the crimes of (1) Intentional Murder of one Flagg, (2) Felony Murder of Flagg, (3) Attempted Murder of one Tranumm, and (4) Attempted Robbery in the First Degree of property owned by Flagg. This indictment names Eric Caesar as a defendant with petitioner. Caesar did not testify at the trial and the disposition of the indictment against him is not disclosed. After a trial by jury in Supreme Court, Criminal Division, Queens County, Supreme Court Justice Frank D. O'Connor presiding, petitioner was found guilty by a partial verdict returned April 28, 1972 of Attempted Robbery, the fourth count, and not guilty on the first count of Common Law Murder of Flagg. No verdict was reached by the jury on counts two and three of the indictment: the felony murder count and the attempted murder count. The partial verdict was accepted by the trial judge. The transcript of this first trial covering the submission of the case to the jury for verdict, the questions of the jury to the court and their comments, is interesting reading. (Tr. pp. 255-74).
In a second trial, Acting Supreme Court Justice George J. Balbach presiding, petitioner *678 was again tried on the felony murder of Flagg count and the attempted murder of Tranumm count, these being the unresolved charges from the first trial. On December 20, 1972, he was found guilty on the two counts. He was not sentenced until October 29, 1973. The sentence imposed by Justice Balbach was fifteen years to life on the felony murder count and zero to twelve years on the attempted murder count, sentences to run concurrently.
The time sequence for the following events are very important in the resolution of the double jeopardy question. After this second trial with the jury verdict rendered on December 29, 1972, convicting the petitioner of the felony murder of Flagg and the attempted murder of Tranumm, a motion dated February 1, 1973 was filed with Justice O'Connor in behalf of petitioner for a judgment of acquittal notwithstanding the verdict or in the alternative for a new trial, in regard to the first trial's attempted robbery conviction returned by verdict of the jury on the four count indictment. Supreme Court Justice O'Connor, by decision dated May 7, 1973 and apparently filed May 14, 1973, set aside the verdict, actually involving only the attempted robbery conviction, and granted a new trial. The bases for the ruling seems to be the failure of the prosecution to provide a pretrial statement of an eyewitness requested by the defense, and the failure to reveal information to the defense as to the other eyewitness. Such decision, therefore, was filed on May 14, 1973, after the jury verdict had been returned in the second trial on the felony murder count on December 20, 1972, but before petitioner was sentenced on those counts on October 29, 1973. A new trial was never held on the count of the indictment for attempted robbery, and the count was finally dismissed by Supreme Court Justice T. S. Agresta on December 12, 1975.
The conviction of petitioner in the second trial was directly and collaterally attacked on grounds other than double jeopardy. On October 25, 1973, his motion to set aside the verdict on the two counts of felony murder and attempted murder and for a judgment of acquittal was denied by Justice Balbach. Petitioner's direct appeal to the Appellate Division, Second Department, resulted in an affirmance of the conviction on June 4, 1975, without opinion. Leave to appeal to the New York State Court of Appeals was denied on August 6, 1975, without opinion.
Petitioner has also previously applied pro se to the United States District Court for the Eastern District of New York for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This previous federal petition was based upon three separate grounds: (1) a publicly displayed trial calendar deprived him of a fair trial; (2) that restrictions placed on defense counsel by the trial judge violated his confrontation rights; and (3) that the prosecutor's summation was so unfair as to deny him a fair trial. In a Decision and Order dated February 27, 1980, United States District Judge Henry Bramwell denied the petition for habeas relief on the merits.
During the pendency of petitioner's federal habeas petition, the petitioner applied pro se for a writ of habeas corpus in Supreme Court, Clinton County. Supreme Court Justice Harold J. Soden granted a hearing and assigned counsel to the petitioner who remains as counsel for petitioner in this federal proceeding. The grounds for relief in the state petition were basically the same as in the present petition, including for the first time that the prosecution of petitioner at the second trial on the unresolved counts from his first trial violated his protection against double jeopardy. The state petition for habeas corpus was denied in a decision dated November 15, 1979 by Justice Soden. The Appellate Division, Third Department, affirmed the denial on June 26, 1980, without opinion. Leave to appeal to the New York Court of Appeals was denied on October 9, 1980.
By Memorandum-Decision and Order, I directed the filing and service of the present petition upon the Respondent pursuant to Rules 4 and 5 of the Rules Governing Section 2254 Cases in order to obtain an answer or other pleading in response to its allegations. An answer for the respondent *679 and a memorandum of law in opposition to the petition has been filed by the Attorney General concluding that the petition should be dismissed. The brief in support of the petition has attached relevant exhibits 1-5, and the Attorney General submits with his memorandum of law a substantial number of state court briefs and trial transcripts of the two trials relating to this case. These records must be returned to the Queens County District Attorney's Office. This court appreciates this necessary assistance and cooperation. Copies of the decisions of Justice O'Connor, Justice Balbach, Judge Bramwell, and Justice Soden shall be filed with the Clerk of this Court.
Petitioner sets forth four grounds in his petition upon which federal habeas relief is sought. These grounds are: (1) that the conviction at the first trial on the attempted robbery count of the four count indictment operated as an acquittal of the felony murder charge because the attempted robbery charge is a lesser included offense, (2) that the retrial on the attempted murder charge was barred by the New York Criminal Procedure Law since it was not a consecutive count to the resolved counts, (3) that petitioner's constitutional right against double jeopardy was violated in that a partial verdict in the first trial barred the second prosecution on the unresolved counts of felony murder and attempted murder, and (4) that the state court erred in denying petitioner's state court writ by misapplying the New York Criminal Procedure Law.
Before federal habeas corpus relief can be granted the petitioner must exhaust all available state remedies on all grounds alleged in the petition. 28 U.S.C. § 2254(b) and (c); Rose v. Lundy, ___ U.S. ___, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Further, this exhaustion requirement is not satisfied unless the habeas petitioner explicitly refers to a federal constitutional standard in presenting his claim to the state courts. See Klein v. Harris, 667 F.2d 274 (2d Cir. 1981); Daye v. Attorney General of the State of New York, 663 F.2d 1155 (2d Cir. 1981), petition for hearing in banc granted, hearing in banc April 13, 1982; Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979); Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979); Wilson v. Fogg, 571 F.2d 91 (2d Cir. 1978). It is clear from the petition herein, and as the respondent concedes, that the petitioner has exhausted available state remedies on the grounds presented in this petition. However, in reaching the merits in this federal habeas corpus proceeding the only federal ground to be considered is that petitioner's retrial on the unresolved counts violated his Fifth Amendment right against double jeopardy. See 28 U.S.C. § 2254(a).
The double jeopardy clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb". The Supreme Court has found the double jeopardy clause to consist of three separate guarantees. The double jeopardy clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Justice Rehnquist dissenting in Whalen v. United States, 445 U.S. 684, 699, 100 S.Ct. 1432, 1442, 63 L.Ed.2d 715 (1980), notes that historians trace the origins of our constitutional guarantee against double jeopardy back to the days of Demosthenes.
The issue to be decided herein is whether any of these guarantees were violated by petitioner's retrial for the felony murder of one Flagg and attempted murder of one Tranumm after acquittal at a first trial on the common law murder count and conviction on the attempted robbery count. For the reasons stated hereinafter, it is my judgment that petitioner's retrial on the felony murder count after his conviction on the attempted robbery count was barred by the Fifth Amendment protection against double jeopardy.
In determining whether two offenses are the same for purposes of applying double jeopardy protection the rule of Brown v. *680 Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), must be considered. In Brown, quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court held:
`the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'
Brown v. Ohio, supra, 432 U.S. at 166, 97 S.Ct. at 2225. If each statute in question requires proof of an additional fact which the other statute does not, the offenses are not considered the same under the Blockburger test for double jeopardy purposes. Id.
In applying the Blockburger test, the elements of the offenses as identified by New York State must be accepted by this court. Garner v. Louisiana, 368 U.S. 157, 169, 82 S.Ct. 248, 254, 7 L.Ed.2d 207 (1961). Under New York Penal Law § 110.00 an attempt to commit a crime is defined as "with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." Murder is defined under the Penal Law § 125.25 as "[w]ith intent to cause the death of another person, he causes the death of such person..." Felony murder is defined in the same section. A person can be found guilty of this crime when he
commits or attempts to commit robbery ... [or other enumerated felonies] and, in the course of and in furtherance of such crime ... he ... causes the death of a person....
Under the New York Penal Law, a person can be found guilty of robbery when "in the course of committing a larceny, he uses or threatens the immediate use of physical force". N.Y.Penal Law § 160.00.
In the present circumstances, petitioner was originally convicted by a jury verdict on April 28, 1972 for conduct that was a necessary element of the more serious crime, felony murder, which he was later convicted of in a second trial. Because proof of the underlying felony, in this case attempted robbery, is always a necessary element of the crime of felony murder, the two offenses in my judgment must be considered the same under the Blockburger test. In Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), the Supreme Court held that a robbery prosecution was barred by double jeopardy subsequent to a conviction for felony murder, the underlying felony of which was the robbery. The Supreme Court found that the double jeopardy clause would be violated if a person who had been convicted of a crime having several elements included in it was then subsequently tried for a lesser included offense.
The circumstances are reversed in the present case, that is, petitioner was convicted of a lesser included offense, the attempted robbery of Flagg, and then subsequently convicted of a greater offense, felony murder of Flagg. However, under the reasoning and ruling in Brown v. Ohio, supra, this would also violate the double jeopardy clause. See Illinois v. Vitale, 447 U.S. 410, 421, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228 (1980) ("Under Brown, the reverse is also true; a conviction on a lesser included offense bars subsequent trial on the greater offense."); see also Jeffers v. United States, 432 U.S. 137, 150-51, 97 S.Ct. 2207, 2215-16, 53 L.Ed.2d 168 (1979). In Brown, the Supreme Court found that joyriding and auto theft under the Blockburger test constituted "the same statutory offense" within the meaning of the double jeopardy clause. Each statute did not require proof of a fact that the other did not since the lesser offense required no proof beyond that which is required for the conviction of the greater offense. Id. 432 U.S. at 168, 97 S.Ct. at 2226. The Fifth Amendment barred the successive prosecution for a greater and lesser included offense.
After careful review of the record herein and with the acceptance of New York's statutory statement describing the elements of the two offenses involved here, I find that the double jeopardy clause of the Fifth Amendment barred petitioner's subsequent prosecution for the greater offense of felony murder after his conviction on a lesser *681 included offense of attempted robbery. Although the jury was unable to reach a verdict on the greater offense in the first trial, I find that conviction on a lesser included offense considered to be the "same offense" for double jeopardy consideration barred the state from retrying the petitioner for the greater offense. See Illinois v. Vitale, supra; Harris v. Oklahoma, supra; Brown v. Ohio, supra; Blockburger v. United States, supra. See also Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).
In reaching this conclusion, it should be noted that the fact the attempted robbery conviction remained undisturbed and not vacated, set aside and dismissed until after the petitioner's second trial and conviction of felony murder is an important one. As the opinion of Justice Balbach dated October 25, 1973 points out, under section 1.20, subd. 13 of the New York Criminal Procedure Law, a conviction is defined as such upon the rendition of the verdict rather than as of the date of sentence. The opinion of Justice Balbach stated that he recalled advising counsel for the petitioner at the second trial that if the petitioner chose to take the stand and testify in his own behalf, the prosecution could cross-examine on the attempted robbery conviction of the first trial. The petitioner did not testify in his own behalf at the second trial.
Further, the conviction of the lesser included crime of attempted robbery impliedly acquits the petitioner of the greater crime, see Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), therefore, the second prosecution on the felony murder count was barred, particularly with the attempted robbery conviction not vacated by the trial or appellate court. If petitioner had successfully appealed the attempted robbery conviction there would not then have been a bar to this reprosecution on the same charge. United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2193, 57 L.Ed.2d 65 (1978). However, double jeopardy barred being reprosecuted for the same offense as defined in Blockburger in the absence of a reversal or vacation of the original conviction which remained in effect at the time of the second trial. See Wilson v. Meyer, 665 F.2d 118 (7th Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 1621, 71 L.Ed.2d 855 (1982). While petitioner stood convicted of a lesser included crime, attempted robbery, his Fifth Amendment right against double jeopardy protected him from successive prosecution on the greater crime of felony murder. See Whalen v. United States, supra, 445 U.S. at 698-99, 100 S.Ct. at 1441-42 (Blackmun, J. concurring).
Before ruling on the merits of petitioner's double jeopardy claim, this court also considered the dismissal of the petition under Rule 9 of the Rules Governing Section 2254 Cases (28 U.S.C. fol. 2254). Rule 9 governs delayed or successive petitions and is intended to "minimize the abuse of the writ." Advisory Committee Note to Habeas Corpus Rule 9, 28 U.S.C., p. 273. In the present case, it is my judgment that petitioner has not abused the writ by his failure to raise the double jeopardy claim in his first federal petition which was denied by District Judge Bramwell on other grounds. See Rose v. Lundy, ___ U.S. ___, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Furthermore, it should be noted that the respondent has not contended that the petition should be denied on either of the grounds set forth in Rule 9.
In holding that petitioner's retrial on the felony murder charge violated his right against double jeopardy, I do not find or conclude that the retrial on the attempted murder charge of Tranumm is similarly involved. The attempted murder charge involved a different victim, one Tranumm, and the verdict of the jury in the first trial convicting only of the felony that is the underlying basis for felony murder did not affect the constitutional validity of his retrial on this attempted murder count. For this reason, it should be emphasized that petitioner is serving a valid sentence on the attempted murder of Tranumm conviction. Parole considerations on the attempted murder sentence by the successful challenge herein to the sentence on the felony murder conviction may be affected.
Accordingly, petitioner's application for a writ of habeas corpus is granted. The habeas *682 corpus statute is a remedial statute that should be construed liberally, and it is within the power of the federal courts "to fashion appropriate relief other than immediate release," Peyton v. Rowe, 391 U.S. 54, 66, 88 S.Ct. 1549, 1556, 20 L.Ed.2d 426 (1968). Therefore, petitioner's sentence on the felony murder conviction is hereby declared violative of the Double Jeopardy Clause of the Fifth Amendment. The October 29, 1973 judgment of conviction for felony murder is set aside and the petition for a federal writ of habeas corpus is granted and the writ shall issue to that extent. An appropriate order in accordance with the ruling herein shall be submitted, if consented to, otherwise settled on five days' notice.
It is so Ordered.


11 F.3d 577
UNITED STATES of America for the Use of GENERAL ELECTRICSUPPLY COMPANY, A DIVISION OF GENERAL ELECTRICCOMPANY, Plaintiff-Appellee,v.UNITED STATES FIDELITY & GUARANTY COMPANY;  E.H. HughesCompany, Inc., Defendants-Appellants,McClain Contracting, Inc., Defendant.
No. 92-5903.
United States Court of Appeals,Sixth Circuit.
Argued Aug. 6, 1993.Decided Dec. 7, 1993.

Cary K. Smith (argued and briefed), Frankfort, KY, for plaintiff-appellee.
Thomas E. Roma, Jr.  (argued and briefed), Landrum & Shouse, Louisville, KY, for defendants-appellants.
Before:  MILBURN, RYAN, and BATCHELDER, Circuit Judges.
BATCHELDER, Circuit Judge.

1
Defendants appeal the district court's granting of summary judgment for the plaintiff in this suit on a surety bond brought under the Miller Act, 40 U.S.C. Sec. 270a.  Finding that the district court lacked jurisdiction over the dispute under the Miller Act, we must remand to the district court to determine whether it has jurisdiction under 28 U.S.C. Sec. 1252 or any other federal statute, and, if it does, to reexamine the issues in light of that alternative jurisdictional basis.

I.

2
On May 11, 1988, the E.H. Hughes Co.  (Hughes) entered into a contract with the City of Owenton, Kentucky, to make improvements to the City's wastewater treatment plant.  Although federal funding for the project was provided through the Farmers Home Administration (FmHA), the United States was not a party to that contract and did not own the property on which the project was to be constructed.  The contract required Hughes to provide a performance bond and a payment bond in the full amount of the contract to secure performance of the work and payment for labor and materials.  Hughes supplied the bonds, with United States Fidelity & Guaranty Co.  (USF & G) as the surety on the bonds.  The bonds named the City of Owenton as the owner, but stated that the bonds ran in favor of both the City and the United States, acting through the FmHA.  They also stated that the bonds favored "all persons, firms, and corporations who or which may furnish labor, or who furnish materials to perform as described under the Contract...."

3
At the same time, Hughes entered into a subcontract with McClain Contracting, Inc.  (McClain) to furnish and install the electrical equipment required for performance of Hughes's improvements to the City's plant.  McClain contracted with General Electric Supply Co.  (General Electric) to provide a motor control center for the project, for a price of $29,500.

4
A dispute then arose between General Electric and McClain.  McClain claims that General Electric failed to deliver shop drawings on time, that the drawings were deficient when they were submitted, that the equipment provided did not meet the specifications, and that General Electric charged additional amounts for parts that were or should have been included in the original equipment.  Hughes and McClain claim that the deficiencies in the equipment supplied by General Electric and the late delivery caused them to suffer substantial damages.  General Electric claims that McClain never revoked acceptance of the goods or rejected any materials.  General Electric charged McClain more than $65,000 for the equipment, rather than the $29,000 price quoted, claiming that this price difference was caused by change orders made by the City's engineer.  McClain paid General Electric (with a joint check from Hughes) $16,991.27 toward these invoices.  When McClain did not pay the balance, General Electric sent a notice on May 7, 1990, to McClain, Hughes, and USF & G stating that McClain owed it $44,609.08.

5
In December of 1990, General Electric filed this action against McClain, Hughes, and USF & G, claiming jurisdiction under the Miller Act, 40 U.S.C. Sec. 270a, and alleging that it was owed $47,838.26.  Hughes and USF & G filed a motion to dismiss, arguing that the project was not covered by the Miller Act.  While that motion was pending, General Electric obtained a default judgment against McClain.  On May 3, 1991, the district court denied the motion to dismiss.  Hughes and USF & G then filed answers, asserting the defenses of estoppel, failure of consideration, set-off, and payment.  Hughes also filed a counterclaim, asserting that it was a third-party beneficiary to the contract between McClain and General Electric, and that Hughes suffered damages because of General Electric's failure to deliver timely and conforming materials.

6
After discovery, General Electric filed a motion for summary judgment.  On December 4, 1991, the district court awarded judgment to General Electric for the full balance claimed, with interest and attorneys' fees.  The court also found defendants could not bring a counterclaim against GE under the Miller Act.  Hughes and USF & G moved to alter or amend the summary judgment;  Hughes moved also to set aside the default judgment against McClain and for leave to file an amended answer and counterclaim, claiming that on December 5, 1991, McClain had executed an assignment to Hughes of all McClain's rights, claims, and causes of action arising from the General Electric contract.  On June 4, 1992, the district court set aside the default judgment against McClain, finding that the Miller Act gave it no jurisdiction to entertain the claim against that subcontractor, and denied the motion for leave to file an amended answer and counterclaim as being moot.  On June 10, 1992, the district court denied Hughes's and USF & G's Rule 59 motion to alter, amend, or vacate summary judgment and amended its order granting summary judgment to General Electric by increasing the attorneys' fees.  Hughes and USF & G now appeal.

II.

7
We must first address defendants' claim that the district court erred in denying their motion to dismiss for lack of jurisdiction over the action under the Miller Act, 40 U.S.C. Secs. 270a, 270b.  Finding that the district court did lack jurisdiction under the Miller Act, we do not reach the remaining assignments of error but remand to the district court to determine whether there is an alternative basis for jurisdiction.

A.

8
Defendants maintain that the district court lacked jurisdiction under the Miller Act because that Act provides a remedy for persons providing labor and materials under contracts "for the construction, alteration, or repair of any public building or public work of the United States."   They claim that the Owenton water treatment plant is not a "public building or public work of the United States" despite the federal funding of the project.  Plaintiff General Electric, on the other hand, argues that the district court had jurisdiction over the dispute under the Miller Act because, although the project was owned by the City, the FmHA contributed funding to the project under 7 U.S.C. Sec. 1926(a) and the FmHA required Hughes to obtain performance and payment bonds in favor of the City and the United States acting through the Farmers Home Administration.

9
We find that the district court lacked subject matter jurisdiction over this case because the Miller Act does not apply to this local waste-water treatment project.  The Miller Act states in pertinent part:

10
Sec. 270a.  Bonds of contractors of public buildings or works

11
(a) Type of bonds required

12
Before any contract, exceeding $25,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as "contractor":

13
(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States.

14
(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person....

15
40 U.S.C. Sec. 270a(a) (emphasis added).  The Act goes on to permit persons furnishing labor and material to sue on the payment bond in federal court.1  Thus, a laborer or materialman working on a "public building or public work of the United States" who has not been paid in full can sue in federal court on the payment bond required in section 270a.

16
The Miller Act was passed to protect subcontractors and materialmen working on federal projects because state law liens may not be asserted against federally-owned property and, therefore, normal state lien remedies are not available in these cases.  In addition, the Act seeks to protect the United States from suits concerning payment of subcontractors and suppliers.  United States ex rel. Mississippi Road Supply Co. v. H.R. Morgan, Inc., 542 F.2d 262 (5th Cir.1976), modified on reh'g, 554 F.2d 164 (5th Cir.), cert. denied, 434 U.S. 828, 98 S.Ct. 106, 54 L.Ed.2d 86 (1977).  The Supreme Court has stated that the Miller Act is "entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects."  Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944).

17
The Act does not define "public building or public work of the United States";  the courts, however, have given some guidance on what that phrase means.  The typical "garden variety" Miller Act case is one in which the United States both owns the land and contracts for its improvement.  Mississippi Road Supply, 542 F.2d at 265.   But courts on occasion, recognizing the purposes of the Act, have extended the Act to other situations in which these elements are not present.  See id.  (citing to situations where title passes to government after construction completed).

18
The Supreme Court has addressed the definition of "public work," although in the context of a National Industrial Recovery Act project.  In  United States ex rel. Noland Co. v. Irwin, 316 U.S. 23, 62 S.Ct. 899, 86 L.Ed. 1241 (1942), Congress had authorized the construction with federal funds of a library building at Howard University.  The Depression put a hold on this project, but after Congress passed the National Industrial Recovery Act, the Secretary of Interior (the administrator of the Recovery Act) approved the library as part of a public-works program to be paid for with federal funds.  The U.S. government then entered into an agreement with a contractor to build the library.  When a materialman sued on the payment bond required under the contract, the contractor and surety claimed that the building was not a "public work" under the Miller Act.  Id. at 27, 62 S.Ct. at 901.   The Supreme Court noted that the Miller Act gives "[n]o aid in ascertaining the meaning of 'public works' " but that the Recovery Act defined the term as encompassing " 'any projects of the character heretofore constructed or carried on either directly by public authority or with public aid to serve the interests of the general public.' "   Id. at 28, 62 S.Ct. at 901.   The Court held that a project can be a "public work" even if the government has no title to the buildings, improvements, or land on which they are situated.  Id. at 29, 62 S.Ct. at 902.   The Court noted,

19
We have no doubt that the Miller Act was intended to apply to the "public works" authorized by the Administrator under the National Industrial Recovery Act.  The National Industrial Recovery Act did not leave to speculation the nature of the "public works" that Congress envisaged.  Its language was not technical but plain and specific.  Expressly included were "projects of the character heretofore constructed or carried on * * * with public aid to serve the interests of the general public."   Beyond question the library at Howard University was such a project.

20
Id. at 30, 62 S.Ct. at 902.   While the Irwin Court clearly indicated that title to the land or to the project was not the key, its definition of "public works" equally clearly was limited to the meaning of that term under the Recovery Act and did not extend to projects other than those authorized by the Recovery Act.2  Thus, the Supreme Court has not defined "public work" as it applies to most potential Miller Act claims.

21
This Court in Peterson v. United States ex rel. Marsh Lumber Co., 119 F.2d 145, 147 (6th Cir.1941), gave a vague definition of "public work" under the Heard Act, the predecessor to the Miller Act.  There we said that a "public work" was to be understood in its "plain, obvious and rational sense" and included "any work in which the United States is interested and which is done for the public and for which the United States is authorized to expend funds."  Id. at 147.   We found that the project for flood control of navigable streams and rivers, funded by the United States, was a "public" project because it was for "the benefit of the public at large" and promoted commerce among the states.  Id.

22
Most courts that have addressed the issue have indicated that government funding alone is not enough to make a project a "public work."   See Mississippi Road Supply, 542 F.2d at 266 ("existence of government funding alone is not enough");  TIJ Materials Corp. v. Green Island Constr.  Co., 131 F.R.D. 31, 33 (D.R.I.1990) (same).  What does make a project a "public work" is less clear.  The Mississippi Road Supply court stated that the Miller Act applies "either (1) [when] the subcontractors and suppliers of material could assert an action for equitable recovery against the United States or one of its agencies, or (2) [when] normal state labor and material lien remedies are unavailable because of federal ownership of the lands."  Mississippi Road Supply, 542 F.2d at 266.   The court in that case, to "avoid creating a precedent that would stretch the Miller Act's jurisdictional grant to dimly-lit limits," declined to hold that a federally-funded industrial development park built on land owned by the government and leased to a private organization was a "public work."  Id.3

B.

23
In the case before us, the funding for the Owenton waste-water treatment plant improvements was obtained in the form of a loan from the United States through the FmHA, pursuant to 7 U.S.C. Sec. 1926 and FmHA regulations governing loans for the planning, bidding, contracting for and construction of "community facilities."  7 C.F.R. Secs. 1942.17, 1942.18.  Among the myriad of regulations contained in those sections is the requirement that the owner of the project furnish performance and payment bonds, each in the amount of 100 percent of the contract cost, running to the owner and, unless prohibited by state law, to the United States through the FmHA as co-obligees.  See Sec. 1942.18(n)(3).  The payment and performance bonds provided in this case were typed on pre-printed FmHA forms and stated that Hughes as principle, and USF & G as surety, were bound unto the City as Owner and the United States through the FmHA as the Government.  The performance bond further provided that the City and the Government, were the only beneficiaries under that bond;  the payment bond, however, specifically ran to the Owner, the Government, and "all persons, firms, and corporations who or which may furnish labor, or who furnish materials to perform as described under the contract and to their successors and assigns."

24
The district court looked only to the question of whether the owner in this case furnished bonds running in favor of the United States.  Finding that it had, the court apparently reasoned that the Miller Act requires that bonds running to the United States be furnished on projects involving public buildings or public works;  this construction project has bonds running to the United States;  therefore this construction project involves a public work covered by the Miller Act.  The district court cited United States ex rel. Miller v. Mattingly Bridge Co., 344 F.Supp. 459 (W.D.Ky.1972), for this proposition, stating that in that case the court had found that it lacked jurisdiction under the Miller Act because the bonds did not run in favor of the United States, whereas here, they did.  The court did not, however, discuss either the facts or the reasoning of Mattingly Bridge.

25
We believe that the district court erred both in its reading of Mattingly Bridge and in its conclusions.  The Miller Act requires that if the project is a public work, then the bond must be furnished.  But just as the perfectly valid premise that all squirrels have tails does not lead to the conclusion that any animal with a tail is a squirrel, so also the premise that all Miller Act projects must have bonds does not lead to the conclusion that any project with a bond is a Miller Act project.  Nor does Mattingly Bridge support such a conclusion.  To begin with, Mattingly Bridge did not involve a federal regulation, unrelated to the Miller Act, requiring bonds running in favor of the United States as a condition of funding of the project.  Rather, that case involved a construction project in which the United States was not a party to the contract and the bonds ran in favor of the State of Kentucky, which was a party.  The court noted that "[t]he performance bond [required by the Miller Act] is for the benefit of the United States, and where there is no contract involving the United States it would need no bond."  344 F.Supp. at 462.   However, the court went on to make it very clear that in order for the Miller Act to apply, the United States must be a party to the contract for construction of the project:

26
The plaintiff contends strenuously that the building of an interstate highway is a public project or work contemplated by the Miller Act.  The answer to this contention is that this would be true where the United States contracted for the construction of the interstate highway involved, but such is not the case.

27
Id.

28
The parties here do not dispute that the United States does not hold title to either the land or the treatment plant.  The United States did not sign the contracts for the construction of the improvements to the treatment plant.  The FmHA required, as a condition of the funding, that the planning, bidding, contracting, and construction be subject to the approval of the United States and conform to FmHA regulations, one of which required that the owner furnish payment and performance bonds running in favor of the United States.  However, this did not make the United States a party to the contracts, either expressly or impliedly, or give the United States control of the project or impose liability on the United States for actions arising under the contract.4

29
In short, we find that the Government is connected to this project only as the funding source.  We find the reasoning of the courts in Mattingly Bridge and Mississippi Road Supply to be persuasive and we further find that the purposes of the Miller Act are not served by extending the Act to cases such as this one in which the government was neither the owner nor the intended owner of the property nor a party to the construction contract.  We therefore hold that this project is not a "public work of the United States" subject to the Miller Act and the district court lacked jurisdiction over this dispute under that Act.

C.

30
The plaintiff argues alternatively that the district court had jurisdiction over this matter under 28 U.S.C. Sec. 1352.  We remand to the district court to determine whether it has jurisdiction under that statute or under some alternative jurisdictional basis.  Because the district court only addressed the claims using a Miller Act analysis and that Act does not apply here, if the district court determines that it does have jurisdiction, the court must then reexamine the plaintiff's claims on this bond in light of the alternative jurisdiction.

III.

31
For the reasons set out above, we reverse the district court's granting of summary judgment to the plaintiff.  We remand to the district court to determine whether there is an alternative basis for jurisdiction such as 28 U.S.C. Sec. 1352, and if there is, to reexamine plaintiff's claims in light of that alternative jurisdiction.

1
 Section 270b of Title 40 states:
Sec. 270b.  Rights of persons furnishing labor or material
(a) Every person who has furnished labor or material in the prosecution of work provided for in such contract, in respect of which a payment bond is furnished under sections 270a to 270d of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him:  Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made....
(b) Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit....  The United States shall not be liable for the payment of any costs or expenses of any such suit.
40 U.S.C. Sec. 270b.

2
 We are aware that some courts have applied this definition to other situations.  See, e.g., Sullivan v. Faras-RLS Group, Ltd., 795 F.Supp. 305, 306-07 (D.Ariz.1992)

3
 Several cases have indicated that, at a minimum, the United States must be "a contracting party and that a bond was required in its favor."  United States ex rel. Motta v. Able Bituminous Contractors, Inc., 640 F.Supp. 69, 71 (D.Mass.1986);  see id.  (contractor entered into written contract with U.S. for highway construction, and bonds were issued pursuant to Miller Act);  United States ex rel. Miller v. Mattingly Bridge Co., 344 F.Supp. 459, 462 (W.D.Ky.1972) (no Miller Act jurisdiction because U.S. not party to contract and bonds did not run in favor of United States);  United States ex rel. Hutto Concrete Co. v. Magna Bldg. Corp., 305 F.Supp. 1244, 1246 (D.Ga.1969) (no Miller Act jurisdiction where government is not owner or vested with title to improvements and bonds do not run to it).  But see Sullivan, 795 F.Supp. at 307 (irrelevant that U.S. not a contracting party or named on bond where federal funds used to build building leased to U.S. as Post Office).  Courts have found no Miller Act jurisdiction in the following instances:  a low-rent housing project neither owned nor administered by federal government, United States ex rel. Kelly's Tile & Supply Co. v. Gordon, 468 F.2d 617 (5th Cir.1972);  federal- and state-funded interstate highway project where the U.S. was not a contracting party and not named on bonds, Mattingly Bridge, 344 F.Supp. at 462;  a low-rent housing project funded by the U.S., but in which the U.S. did not have an interest in improvements and there was no bond favoring the U.S., Magna Building, 305 F.Supp. at 1245;  and a federally funded highway project where the U.S. was not a party to the contract and the bond did not run in favor of it, TIJ Materials, 131 F.R.D. at 34

4
 See D.R. Smalley & Sons, Inc. v. United States, 372 F.2d 505 (Ct.Cl.), cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967), in which the court held that where the United States was not a party to the contracts for certain state highway projects, the fact that the United States provided the funding for those projects and required, as a condition of that funding, that the contracts be drafted pursuant to certain federal regulations and be approved by the government, that the projects meet certain requirements, and that changes in the project be approved by the government, did not make the state the federal government's agent or create any contractual relationship, express or implied, between the United States and the parties to the contracts, or impose liability upon the United States for acts and omissions of the parties who contracted to build the highway projects


282 P.2d 740 (1955)
William Douglas MILLER, Petitioner,
v.
STEELMAN CONSTRUCTION COMPANY, Insurors Indemnity and Insurance Company, and the State Industrial Commission, Respondents.
No. 36328.
Supreme Court of Oklahoma.
April 19, 1955.
Howard C. Triggs, Frank Grayson, Oklahoma City, for petitioner.
*741 Savage, Gibson, Benefield & Shelton, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.
WELCH, Justice.
This is a proceeding by William Douglas Miller to review an order of the State Industrial Commission denying compensation on a claim filed against respondent, Steelman Construction Company and its insurance carrier, Insurors Indemnity and Insurance Company.
The trial commissioner denied compensation on the theory that petitioner was not an employee of respondent at the time he sustained his injury, but was an independent contractor.
It is the contention of petitioner that the order is not sustained by the evidence and is contrary to law.
The evidence discloses that in the early part of March, 1952, petitioner who was then the owner of a dump truck was engaged by respondent to haul asphalt for use in the construction of a highway. Petitioner was to be paid compensation on a per mile per ton basis, mileage for the purpose of fixing compensation to be computed on the miles necessary to travel by use of the shortest available route. He was, however, not directed or required to use any particular route. On April 16, 1952, while en route with a load of asphalt one of the tires of his truck blew out and the truck turned over, causing severe damage to both petitioner's feet.
It is contended by petitioner that the evidence shows that the relation of master and servant existed between the parties rather than that of principal and independent contractor. In support of this contention he refers to the following evidence: Petitioner was directed by respondent as to where and at what place to load the asphalt; he was directed and required to drive his truck under a hopper at respondent's plant where it was loaded by another employee of respondent by the use of a mechanical device. After he arrived at his destination he was directed by the foreman to unload the asphalt at a particular designated place. He was directed and required to keep the top of the truck covered with a tarpaulin in order to protect the asphalt. The evidence further shows that such covering was required by the State Highway Department in order to keep the asphalt from cooling too rapidly and to protect it in case of rain. He was also told by the foreman not to travel too fast or too slow in order to protect the hot asphalt placed on the highway.
We do not think the evidence sufficient to definitely establish that the relation between the parties was that of master and servant rather than principal and independent contractor. In Williams v. Branum, 192 Okl. 129, 134 P.2d 352, 353, we held:
"One who contracts with another to haul gravel at a specified amount per ton, who used his own truck and was free from a supervision, except as to place and time of hauling, held, Independent Contractor and not within the purview of Workmen's Compensation Act."
See, also, Johnson v. Haskell Lemon Const. Co., Okl., 262 P.2d 142.
In Hawk Ice Cream Co. v. Rush, 198 Okl. 544, 180 P.2d 154, and cases therein cited, we held:
"An independent contractor is one who engages to perform a certain service for another, according to his own manner and method, free from the control and direction of his employer in all matters connected with the performance of the service, except as to the result or product of the work."
The directions and requirements of respondent above referred to related merely to the result or product of the work rather than the method by which the work was to be performed. An independent contractor is always subject to the direction of the principal as to result or progress of the work as distinguished from the method to be used in its performance. Wagoner v. A.A. Davis Const. Co. 112 Okl. 231, 240 P. 618; Porter Const. Co. v. Burton, 156 Okl. 72, 8 P.2d 64.
There is no evidence tending to show that respondent at any time exercised control over the time in which petitioner *742 should report for work or the hours he should work or as to the number of trucks he should use or the number of loads he should haul a day, or in any way exercised control over any employee hired by petitioner to drive the truck, or in any way exercised control over the method in which the work should be performed. Counsel for petitioner further assert that respondent exercised the right to require truckmen to do extra work and extra hauling at any time it so desired. There is no evidence tending to sustain such assertion. There is evidence to the effect that respondent on different occasions offered to employ various truckmen to do extra work. Some of them accepted such offer, others declined. There is no evidence, however, that any truckman was ever discharged by reason of having refused such offer. The evidence does show that on one occasion it offered to and did engage petitioner to do extra work for which it agreed to pay him $3.00 per hour. Petitioner accepted such offer, performed such work and accepted the compensation agreed upon without protest. There is no evidence that respondent claimed to have the authority to demand or require petitioner to perform such work. The matter was entirely at his option whether he would do so or not.
This contract had no connection with the contract for hauling asphalt. It was a contract separate and distinct from that contract and has no bearing whatever upon the question as to whether petitioner, while hauling the asphalt, was serving as an employee or an independent contractor.
Petitioner further asserts that respondent reserved the right to and did discharge truckmen at will. In this respect the evidence discloses that as a result of the accident occurring on the date above mentioned petitioner's truck was badly damaged and he was severely injured; that he was unable to drive a truck and continue hauling asphalt. He obtained another truck and hired his brother to drive the truck and haul the asphalt. He hauled asphalt for petitioner for a short time when the dump bed on his truck burst. He was off work for several days to have it repaired, and when he returned to work he was told by respondent's foreman that he could not use him, as he had all the trucks he needed. This is the only specific instance referred to in which it is claimed that respondent had ever discharged a truckman. This evidence, however, merely shows that for the reason above stated respondent terminated petitioner's contract. The contract was oral. No time for its existence nor the amount of asphalt that should be hauled was fixed by the contract. It was a contract at will and therefore subject to termination by either party at any time. The fact that respondent for the reason stated terminated the contract constitutes no evidence to show that in hauling the asphalt he was performing such service as an employee rather than as an independent contractor. Wagoner v. A.A. Davis Const. Co., supra.
There is little, if any, dispute as to the facts. The Commission found that at the time he sustained his injury petitioner was not an employee of the respondent, but was an independent contractor, and denied compensation. After considering and weighing the evidence we accept and approve that finding and order.
Order denying compensation sustained.


J-S68032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
MARLAINA KARLA THOMAS,                     :
                                           :
                   Appellant               :           No. 3546 EDA 2013

      Appeal from the Judgment of Sentence entered on October 28, 2013
             in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, No. CP-51-CR-0008066-2011

BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 21, 2014

        Marlaina Karla Thomas (“Thomas”) appeals from the judgment of

sentence imposed after a jury convicted her of attempted murder,

aggravated assault, possession of an instrument of crime, and recklessly

endangering another person.1 We affirm.

        The trial court set forth the relevant facts underlying this appeal as

follows:

              On June 2, 2011, nieces of [a friend of] the victim[,
        Ayesha Thompson (hereinafter “Thompson” or “the victim”),]
        had a fight with [Thomas’s] daughter[, Marlaina Lucas
        (“Lucas”),] at a Chinese store. Later that day, [Lucas] and her
        friends approached the victim and the nieces[,] who were sitting
        on the steps on the 5200 block of Marlowe Street in Philadelphia,
        PA.

1
    See 18 Pa.C.S.A. §§ 901(a), 2702(a), 907(a), 2705.
J-S68032-14

           Four fights then broke out. Among the people fighting
     were [Lucas], [Lucas’s] friend, and the nieces of the victim’s
     friend.

           The victim and two other adults tried to break up that
     fight. The victim then heard [Thomas] yell, “that’s my fucking
     daughter” and saw [Thomas] cross the street towards her.

            [Thomas] attempted to punch the victim in the face, but
     the victim moved her face and swung at [Thomas]. The two
     women had been fighting for about a minute, when the victim
     felt her arm “[give] out on [her].”

           After her arm gave out, the victim felt as though she could
     not breathe and collapsed on the ground, and an unknown man
     helped her up and indicated that she had been cut. The victim
     then saw [Thomas] flee toward Bridge Street.

           At that point, the victim realized that she had been cut
     from her jugular vein and down her arm.             The victim
     immediately identified [Thomas] as the person who cut her. A
     friend gave the victim a rag, and the victim wrapped her skin
     with the cloth and started to run towards [Lucas]. As the victim
     was running towards [Lucas], the victim yelled, “your mom hit
     me; your mom cut me[,]” and then hit [Lucas]. The police
     eventually separated the two women.

           Officer Luis Cordero [“Officer Cordero”] and Officer Edgar
     Vazquez arrived on the scene in response to a radio call around
     9:00 [p.m.] reporting a fight on the highway at the intersection
     of Bridge and Hawthorne Streets in Northeast Philadelphia.
     Upon arrival, Officer Cordero observed 30 to 40 individuals in a
     crowd. At the scene, Officer Cordero encountered the victim,
     who was screaming and had a towel wrapped around her right
     shoulder. Officer Cordero attempted to ask the victim what had
     occurred, but she kept screaming and attempted to attack
     [Lucas].

            Officer Cordero was holding the victim back so she could
     not attack [Lucas] again[,] when the victim began to show signs
     of dizziness. Officer Cordero tried to hold her up against a fence,
     but she collapsed and fell in and out of consciousness. After
     removing the towel to assess the extent of the victim’s injuries,
     Officer Cordero saw two large and deep lacerations starting on

                                 -2-
J-S68032-14

      the victim’s top right shoulder, running over her chest, and
      stretching down a few inches past her elbow.

             Officer Cordero and Officer Vazquez took her to Frankford
      South Hospital. As part of her treatment, the victim had a drain
      placed in her neck at Frankford Hospital and needed surgery to
      “repair four lacerations including a laceration to the extern[al]
      jugular vein.” She also needed a blood transfusion due to “acute
      blood loss.” Upon discharge from the hospital, the victim had
      “limited use of her right arm.” At the time of trial, the victim
      had been going to physical therapy twice a week for almost two
      years trying to rebuild muscle in her arm. At that time, she still
      had continual pain that was like an “itch inside of [her] body,”
      for which she was still taking medication.

Trial Court Opinion, 3/10/14, at 1-3 (citations to record omitted).

      After taking Thomas into custody, the police charged her with the

above-mentioned offenses.     The matter proceeded to trial, at the close of

which the jury convicted Thomas of all counts. The trial court subsequently

sentenced Thomas to serve an aggregate term of fourteen to twenty-eight

years in prison, followed by ten years of probation.    In response, Thomas

filed a post-sentence Motion challenging the weight and sufficiency of the

evidence.    The trial court denied the post-sentence Motion, after which

Thomas timely filed a Notice of Appeal.

      Thomas presents the following issues for our review:

      I.    Whether the adjudication of guilt is based upon
            insufficient evidence where no witness testified that
            they actually observed [Thomas] cut the victim or in
            possession of a cutting implement[,] and where the
            circumstantial inference that she cut the victim was
            unreasonable[?]

     II.    Whether the adjudication of guilt is against the weight
            of the evidence and shocking to one’s sense of justice

                                  -3-
J-S68032-14

           where no witness testified that they had actually seen
           [Thomas] cut the victim[,] and where there was
           credible evidence that [Thomas’s] daughter was the
           perpetrator who was seen throwing something into a
           sewer after the assault[?]

Brief for Appellant at 6 (issues reordered for ease of disposition).

      Thomas first argues that the evidence was insufficient to convict her of

any of the charged crimes because the Commonwealth did not establish

beyond a reasonable doubt her identity as the person who had attacked the

victim.2   See id. at 14-16; see also Commonwealth v. Hickman, 309

A.2d 564, 566 (Pa. 1973) (stating that, in every criminal case, “[p]roof

beyond a reasonable doubt of the identity of the accused as the person who

committed the crime is essential to a conviction.”).       Specifically, Thomas

contends as follows:

      [Thompson] … never saw [Thomas] with a weapon, nor did she
      see [Thomas] cut her.        Thompson was face to face with
      [Thomas] and would have seen the weapon and the cutting had
      [Thomas] been the perpetrator. Thompson observed [Thomas’s]
      daughter[,] [] Lucas[,] throw an object down a sewer, so[,]
      circumstantially[,] it was [Lucas] who was in possession of the
      implement used for the cutting. [Additionally, an eyewitness to
      the fight,] Vernice Byrd [“Byrd,”] [] did not see the actual
      cutting. [Byrd] claimed to have seen [Thomas] take something
      out of her mouth[;] however[,] it would be preposterous to infer
      that the [Thomas was] engaging in a fist fight with a razor or
      other cutting implement in her mouth.            This is a flatly
      unreasonable inference.      …     Additionally, when Byrd was
      interviewed by a Detective on the day of the incident[,] she
      identified the cutter as the individual who was fighting Amanda

2
 Aside from challenging the jury’s finding regarding Thomas’s identity as the
perpetrator, Thomas does not dispute that the evidence was sufficient to
establish the elements of the crimes of which she was convicted.

                                  -4-
J-S68032-14

      Samuels[,] and she identified [Lucas as] the person fighting
      Amanda Samuels.

Brief for Appellant at 15.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.    In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact[,] while passing upon the credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Melvin, 2014 PA Super 181, at *83 (Pa. Super. 2014)

(citation omitted).

      In its Pa.R.A.P. 1925(a) Opinion, the trial court determined that the

evidence was sufficient to support each of Thomas’s convictions, and her

identity as the perpetrator, stating as follows:

            While the victim admitted that she did not actually see
      [Thomas] slash her or the weapon used, she knew no one else
      had been in physical contact with her. (N.T. 7/19/13 p. 54.)
      Additionally, [Byrd] saw [Thomas] reach into and pull something

                                  -5-
J-S68032-14

      out of her mouth right before the victim sustained her injuries.
      (N.T. 7/19/13 p. 97-98.)

             Moreover, the victim identified [Thomas] unequivocally as
      her attacker three separate times before formal proceedings
      began: at the scene when the victim punched [Lucas] because
      her mother, [Thomas], cut her; at the hospital to the police
      officers[;] and in a photo array fourteen days after the attack.
      (N.T. 7/19/13 p. 46, 56-57, 63, 130, 133-34; N.T. 7/22/13 p. 8-
      9.)

           Consequently, there was sufficient circumstantial evidence
      from which the jury could reasonably infer that it was [Thomas]
      who slashed the victim’s throat and arm.[FN]
          [FN]
              Although there was some evidence from which the
          jury could infer that it was [Lucas,] and not [Thomas,]
          who slashed the victim’s throat and arm, it was certainly
          reasonable and within the jury’s province to disregard
          that evidence and conclude, based on other evidence,
          that it was, in fact, [Thomas] who slashed the victim’s
          throat and arm.

Trial Court Opinion, 3/10/14, at 4-5 (footnote in original). We agree with

the trial court’s rationale, and find that it is supported by the record.

      Additionally, we observe that, regarding Thomas’s contention that Byrd

had stated to a detective after the incident that Lucas was the person who

cut the victim, Byrd testified at trial that the detective incorrectly reported

her account of the attack. See N.T., 6/19/13, at 101-02, 105-07. It was

the province of the jury to assign the weight to these conflicting accounts.

See Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011).

Additionally, the jury could have considered the fact that Thomas fled the

scene after the incident as circumstantial evidence that she was the

perpetrator. See Commonwealth v. Spotz, 84 A.3d 294, 316 (Pa. 2014)

                                   -6-
J-S68032-14

(noting that flight may constitute circumstantial evidence of consciousness of

guilt).   Accordingly, we conclude that the trial court properly rejected

Thomas’s sufficiency challenge.

      Next, Thomas argues that the trial court erred in denying her post-

sentence Motion challenging the jury’s verdict as against the weight of the

evidence. See Brief for Appellant at 12-14.

      Our standard in reviewing a weight of the evidence claim is as follows:

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge
      has had the opportunity to hear and see the evidence presented,
      an appellate court will give the gravest consideration to the
      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight
      of the evidence. One of the least assailable reasons for granting
      or denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted).

      Relief on a weight of the evidence claim is reserved for
      extraordinary circumstances, when the jury’s verdict is so
      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail. On appeal, [an appellate] Court
      cannot substitute its judgment for that of the jury on issues of
      credibility, or that of the trial judge respecting weight. Our
      review is limited to determining whether the trial court abused
      its discretion[.]

Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and

quotation marks omitted).

                                  -7-
J-S68032-14

      Initially, we   observe      that Thomas      raises essentially      the    same

arguments in support of her weight claim as she did in her challenge to the

sufficiency of the evidence. See Brief for Appellant at 13-14; see also id.

at 14-16 (setting forth Thomas’s argument concerning her sufficiency claim).

Particularly,    Thomas    challenges    the    jury’s    credibility   determinations

concerning the Commonwealth’s witnesses, and contends that the evidence,

and reasonable inferences to be drawn therefrom, more credibly indicated

that Lucas was the perpetrator. See id. at 13-14. According to Thomas,

“[i]t was [Lucas] who was the aggressor in this whole sorry incident.                   …

[Lucas] had both the motive and the opportunity[,] and based upon [the

victim’s] observation that [Lucas] threw something into a sewer[,] had

possession of the cutting implement.”           Id. at 13.      Additionally, Thomas

contends that the jury’s credibility determinations were so erroneous as to

shock one’s sense of justice. See id. at 14 (arguing that no reasonable jury

would have credited the testimony of Byrd that “[Thomas] reached into her

mouth or a razor blade or other cutting instrument while trading punches

with Thompson ….”).

      In   the   instant   case,   the   jury   credited    the   testimony       of   the

Commonwealth’s witnesses, and we may not reweigh the evidence or

substitute our judgment for that of the jury.            See Sanchez, supra; see

also Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009)

(holding that the trial court properly exercised its discretion in denying a

                                     -8-
J-S68032-14

weight challenge where appellant asked this Court to reweigh the evidence).

To the extent that there were purported conflicts in the testimony presented

by some of the Commonwealth’s witnesses, the jury assessed the weight, if

any, to be given this evidence.   See Ratushny, 17 A.3d at 1272 (stating

that it is exclusively the province of the fact-finder to determine the weight

to be accorded conflicting evidence). We discern no abuse by the trial court

in rejecting Thomas’s challenge to the weight of the evidence.

      Accordingly, because we conclude that there was sufficient evidence to

support each of Thomas’s above-mentioned convictions, and the trial court

properly rejected Thomas’s weight of the evidence claim, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2014

                                  -9-


                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 19-1043
                                      _____________

                                 GIANFRANCO ARENA,
                                           Appellant

                                              v.

                        RIVERSOURCE LIFE INSURANCE CO.
                                _______________

                     On Appeal from the United States District Court
                            for the District of New Jersey
                               (D.C. No. 2-16-cv-05063)
                         District Judge: Hon. Jose L. Linares
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 10, 2019

           Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges.

                                (Filed: September 18, 2019)
                                     _______________

                                        OPINION ∗
                                     _______________

       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Gianfranco Arena (“Arena”) brought an action for breach of contract against

RiverSource Life Insurance Co. (“RiverSource”) after it denied his claim for the benefits

from the life insurance policies on his wife, Christine Arena (“Christine”). The United

States District Court for the District of New Jersey concluded RiverSource was entitled to

deny Arena’s claim because his wife’s death was subject to the suicide exclusion clauses

in her insurance policies. We will affirm.

I.     BACKGROUND

       In 2014, Christine purchased two life insurance policies issued by RiverSource;

one was a term policy and the other a “Flexible Premium Adjustable” policy. (App. at

176-77.) Both policies contain “[s]uicide [e]xclusion” clauses which limit RiverSource’s

liability for a death by suicide. (App. at 177.) The term policy provides that: “If the

insured, whether sane or insane, dies by suicide within 2 years from the Policy Date, Our

liability is limited to an amount equal to the total premiums paid.” (App. at 177

(emphasis removed).) The Flexible Premiums Adjustable policy says that: “Suicide by

the Insured, whether sane or insane, within two years from the Policy Date is not covered

by this policy. In this event the only amount payable by Us to the beneficiary will be the

premiums which You have paid, minus any Indebtedness and partial surrenders.” (App.

at 177 (emphasis removed).)

       By all accounts, Christine had a fulfilling and successful life. She thrived

professionally, working as an in-house attorney for Time Warner. She had a caring

husband and four healthy children. She was active in the Roman Catholic church and in

                                             2
her community, including service as the president of a charitable foundation. But, by

2015, the Arenas faced some financial stress. The IRS determined they owed $60,000 in

back taxes, and, the sale of their existing home fell through, after they had already

purchased a new one.

       Four days after that sale fell through, in the early morning of April 1, Arena found

his wife sitting at the kitchen table, talking on the phone to their parish priest. Arena

discovered she had already gone to the parish’s rectory earlier that morning to speak to

the priest in person. Christine was troubled, and the Arenas decided to promptly schedule

an appointment for her to see a psychiatrist, Dr. Lester Noah Shaw.

       At that appointment, Dr. Shaw found that Christine did not fit the criteria for

clinical depression because she only had experienced symptoms of anxiety and

depression for four to five days. Dr. Shaw also determined that Christine had a low risk

of suicide, as “there were a lot of protective factors and almost no risk factors.” (App. at

432.) Nonetheless, he prescribed for her Clonazepam and Sertraline, the generic versions

of Klonopin and Zoloft. 1 Christine began taking the medications immediately, but her

condition continued to deteriorate. On April 4, Dr. Shaw increased her dose of

Clonazepam, and two days after seeing her again, he again increased her dose. Following

       1
          Those medications have the potential for serious side effects, including
depression and suicidal thoughts and behaviors. The FDA warns that patients taking
Klonopin should be monitored for “the emergence of new or worsening depression,
suicidal thoughts or behavior, and/or any unusual changes in behavior.” (App. at 433.)
There are also concerns that Zoloft may lead to symptoms including anxiety and
impulsivity, and “that such symptoms may represent precursors to emerging suicidality.”
(App. at 433 (citation omitted).)
                                              3
two more appointments, Dr. Shaw increased Christine’s dose of both medications. On

April 13, Christine returned to Dr. Shaw and he added a prescription for Trazodone,

another antidepressant.

       On April 21, tragedy struck. The day started off normally. Christine worked from

home. At 2:00 p.m., she emailed the other board members of the charitable foundation

she led. At 2:06 p.m., she called her office and spoke to her boss. At approximately 2:30

p.m., Christine’s mother went to pick up the children from school. During the time

Christine’s mother was out, Arena and Christine had two brief telephone conversations,

at 2:48 p.m. and 2:52 p.m., and Christine called him again at 3:07 p.m. At some point

before her mother returned home, Christine took two of her husband’s leather belts,

moved a chair from another bedroom into a bathroom, fastened the belts together and

arranged them so that, having wrapped one around her neck, she was able to step off the

chair and hang herself.

       When her children arrived home from school, Christine’s eleven-year-old daughter

discovered her mother, who was still alive. Christine’s mother called 911 at 3:11 p.m.,

and Christine was rushed to the hospital. Christine passed away nine days later. The

police report listed the incident as a “suicide attempt[,]” and the medical examiner listed

Christine’s manner of death as a “suicide[,]” though neither made an inquiry into

Christine’s state of mind. (App. at 440.)

       Arena filed a claim for life insurance benefits with RiverSource. The insurance

company denied coverage, citing Christine’s death certificate and the suicide exclusion

clauses in her policies. Arena asked RiverSource to reconsider its decision, on the basis

                                             4
that Christine’s death was a result of the medications she had been prescribed, but

RiverSource reaffirmed its decision to deny coverage. He then filed a breach of contract

action in the Superior Court of New Jersey, which RiverSource removed to the District

Court.

         RiverSource eventually moved for summary judgment. That motion was granted,

despite a report by a forensic expert, Dr. Glenmullen, who opined that Christine could

have suffered a medication-induced disorder that altered her state of consciousness to the

point that she was unable to understand the consequences of her actions or form suicidal

intent. The District Court reasoned that “the Suicide Exclusions would apply to this case

even if Mrs. Arena would not have committed suicide but for the effect that the

medications had on her state of mind.” (App. at 9.) It acknowledged that our precedent,

Johnson v. Metropolitan Life Insurance Co., 404 F.2d 1202 (3d Cir. 1968), established

that killing oneself does not always qualify as suicide and that intent is required. But, the

Court concluded that the inquiry is into whether the decedent lacked “awareness that his

or her actions would result in death” and that Christine had such awareness. (App. at 10-

11.) It determined that Arena “ha[d] not offered any contentions or allegations ‘which

could support a reasonable conclusion that the decedent was unaware of the fatal

consequences of [her] acts[]’” and that Dr. Glenmullen’s opinion was insufficient to

create a genuine dispute of fact. (App. at 11 (second alteration in original).) The Court

further reasoned that, even if such evidence existed, the fact that Christine was “suffering

from an irresistible impulse to commit self-harm ‘would affirmatively establish that self

                                              5
destruction was the very result intended, albeit by a deranged mind.’” (App. at 11

(quoting Johnson, 404 F.2d at 1204).)

       Arena timely appealed.

II.    DISCUSSION 2

       On appeal, Arena argues the District Court erred in two ways. 3 First, he says that

a suicide exclusion clause requires the deceased to intend to take her life and that

Christine did not have that intent, and, second, that the Court improperly shifted the

burden from RiverSource to prove Christine had such intent to Arena to prove that she

did not.

       The parties’ dispute thus centers primarily on what intent on a decedent’s part is

required for a death to be a suicide under Johnson and New Jersey law. Arena contends

that “suicide requires intent to end one’s life[]” and that intentional actions and even

“‘awareness’ that one’s actions will result in death[]” are insufficient. (Opening Br. at 2.)

RiverSource disagrees and contends that awareness that one’s acts will result in death is

enough.

       It is true, as Arena argues, that it is longstanding precedent that a suicide clause,

excluding coverage for sane or insane actions, will only apply if the decedent intended to

       2
          The District Court had jurisdiction under 28 U.S.C. §§ 1332 and 1441. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the grant of summary
judgment. Dwyer v. Cappell, 762 F.3d 275, 279 (3d Cir. 2014).
       3
         Because we agree with Arena and conclude that intent is a required element for
suicide under New Jersey law, we do not address Arena’s argument that if a lower
standard of awareness fulfills that requirement, a genuine material dispute of fact still
exists.
                                              6
cause her death. See Bigelow v. Berkshire Life Ins. Co., 93 U.S. 284, 287 (1876)

(concluding that such a clause will apply “if the insured was conscious of the physical

nature of his act, and intended by it to cause his death, although, at the time, he was

incapable of judging between right and wrong, and of understanding the moral

consequences of what he was doing”). Our decision in Johnson comports with that

understanding and held that New Jersey law requires, at least under an interpretation most

favorable to the insured, that the “self destruction purposefully [be] accomplished in

accordance with an intention or design[.]” Johnson, 404 F.2d at 1204 (emphasis added).

In Johnson, we also specifically referred to two situations in which the deceased would

not have the required intent to commit suicide. The first is a circumstance in which a

purposeful act is undertaken but the result is not intended. See id. (“[A] deranged person

can believe that he is immortal, or that fuel oil is water, or, on some other irrational basis,

that saturating his clothes with fuel oil and applying a lighted match will not kill him.”).

The second is when a person’s “mental disorder [is] … so extreme that he has no

comprehension whatever of what he is doing.” Id. Subsequent New Jersey decisions

have since confirmed that suicide requires an intent to achieve the result of death. See,

e.g., Biro v. Prudential Ins. Co. of Am., 265 A.2d 830, 838 (N.J. Super. Ct. App. Div.

1970) (Matthews J., dissenting) (“Suicide includes both the notion of the instrumentality

of death being the decedent … and the notion that the decedent intended to take his own

life.”), adopted by Biro v. Prudential Ins. Co. of Am., 271 A.2d 1 (N.J. 1970) (per

curiam). We therefore conclude that New Jersey law requires, as an element of suicide,

that the decedent had an intent to end her life.

                                               7
       But such intent can be inferred from a decedent taking actions that will result in

death. Cf. Johnson, 404 F.2d at 1204 (noting that nothing in the record suggested that the

decedent’s “acts, obviously well adapted to self destruction, were not so intended”).

Circumstantial evidence is often the only evidence for suicide and is frequently used to

establish intent. See, e.g., New York Life Ins. Co. v. Prejean, 149 F.2d 114, 116 (5th Cir.

1945) (concluding that circumstantial evidence is sufficient if it is “consistent with the …

theory of suicide” and “fairly and reasonably exclude[s] every other reasonable

explanation of the facts”); cf. Hudek v. St. Peter Greek Catholic Cemetery Ass’n, 138 A.

654, 655 (N.J. Ch. 1927) (concluding that “indirect or circumstantial evidence” was

insufficient because it “consists merely of a repetition of vague rumors made by the

alleged suicide, shortly before his death, or mere conjectures and conclusions of the

witnesses”), aff’d, 140 A. 920 (N.J. 1928). But “summary judgment [i]s improper … if

the record establishe[s] a disputable issue of fact whether the insured … was attempting

to take his life[.]” Johnson, 404 F.2d at 1204. Arena contends that, under that standard,

RiverSource’s “evidence is insufficient because RiverSource bears the burden of showing

that Christine died with the intent to end her own life, and merely pointing to facts

confirming that she died at her own hands does not satisfy its burden.” (Opening Br. at

38.)

       We disagree. The parties do not dispute that Christine took two of her husband’s

leather belts, moved a chair from another bedroom into a bathroom, fastened the belts

together and wrapped one around her neck, and arranged the belts in a manner to effect a

hanging. Nor do they dispute that she in fact stepped off the chair and hanged herself.

                                             8
Those actions are sufficient circumstantial evidence to establish not only that Christine

had “awareness” that those actions would end her life but also that she intended to do so.

While such intent may have arisen suddenly on an otherwise relatively normal morning,

taking those actions is strong circumstantial evidence that at the time she took her own

life, she intended that result. As RiverSource notes, “there could have been no other

outcome from Ms. Arena’s action other than death.” (Answering Br. at 30.) RiverSource

was not required to produce direct evidence in the form of a suicide note or

contemporaneous expression of her intentions. Cf. Johnson, 404 F.2d at 1204 (relying on

a decedent’s actions to establish intent).

       Thus, to avoid summary judgment, Arena had to put forward evidence to create a

genuine dispute regarding Christine’s intent to commit suicide. He contends that

Christine’s mental state falls under the second “no intent” situation in Johnson, that

Christine’s mental disorder was “so extreme that [s]he ha[d] no comprehension whatever

of what [s]he [wa]s doing.” 404 F.2d at 1204. He bases that claim on three sources of

evidence. First is “testimony from Christine’s family, friends and colleagues, all of

whom testified that she would never have intended to end her own life had she been

thinking clearly.” (Opening Br. at 3.) Second is testimony from her physicians,

including Dr. Nash, who testified that Christine “was not capable of understanding the

consequences” of hanging herself. (App. at 512.) Third is Dr. Glenmullen’s forensic

diagnosis of Christine, which concluded to “a reasonable degree of medical certainty that

Christine suffered from medication-induced suicidality—a disorder that may cause a

person to commit self-harm without intending or understanding the consequences of his

                                             9
or her actions.” (Opening Br. at 3.) The drugs Christine was prescribed are known to

lead to suicidal thoughts and behaviors, and Dr. Glenmullen “testified that ‘[d]rug-

induced impulsivity can easily include . . . methodical behavior and that’s what …

retrieving the belts was[.]’” (Opening Br. at 39 (alterations in original) (quoting App. at

438).)

         We do not discount the importance of those alleged facts for the family, but they

are not legally material. They fall into two categories. There is, first, evidence as to

Christine’s general mental state being inconsistent with suicide, as well as her moral

aversion to suicide. That evidence is not enough because it does not undermine the

undisputed facts showing deliberate acts which can only be explained as an effort to kill

herself, even if she was not thinking clearly or was insane, when she acted. Second, there

is the evidence from Dr. Glenmullen that Christine was acting impulsively under the

control of her medication and that, as a result, the medications obfuscated her ability to

form the requisite intent – in short, that the drugs compelled Christine to take the actions

she did and so the actions are not probative of her mental state. But acting on an

irresistible impulse is different than having no intent or no comprehension of the actions

one is taking. We rejected a similar irresistible impulse argument in Johnson and noted

that such an impulse “would affirmatively establish that self destruction was the very

result intended, albeit by a deranged mind.” Johnson, 404 F.2d at 1204. While in

Johnson the impulse originated from his own mind and not from an outside influence, the

result is no different because the relevant inquiry is the mental state of the person at the

                                              10
time of the actions, and not what led to that mental state. The presence of medications

does not mean such deaths cannot qualify as suicides. 4

       Arena’s second argument is also unpersuasive. He contends that “[t]he district

court impermissibly placed the burden on [him] to show that the suicide exclusions did

not apply when New Jersey law requires insurers to establish that all coverage exclusions

apply.” (Opening Br. at 2.) True enough, in actions for insurance benefits, the insurance

company bears the burden of proving that an exclusion to coverage applies. Aviation

Charters v. Avemco Ins. Co., 763 A.2d 312, 314 (N.J. Super. Ct. App. Div. 2000). But

here the District Court concluded, as do we, that RiverSource met that burden of proof.

Cf. Nat’l State Bank v. Fed. Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992) (“The

Third Circuit has stated that ‘where the movant bears the burden of proof at trial and the

       4
           We do not believe that Kahle v. Plachman, 428 A.2d 913 (N.J. 1981), supports
the proposition that the Supreme Court of New Jersey has endorsed the idea that a
decedent who was prescribed psychotropic medication was incapable of forming the
required intent for purposes of a suicide exclusion clause. In Kahle, the court held that
the actions of the decedent, who took such drugs, were “committed under circumstances
in which the decedent was devoid of normal judgment [and thus could] not [be]
considered to be willfully, purposefully or intentionally self-inflicted[.]” Id. at 916. That
case, however, arose in the context of the Worker’s Compensation Act where “[t]he issue
of the compensability of an employee suicide … turns not on the employee’s conscious
volition or knowledge of the consequences of his act, but rather on the existence of an
unbroken chain of causation from the work-connected injury to the suicide.” Id. There,
the decedent’s mental state stemmed from her injury at work, regardless of her state of
mind when she took her own life. Id. at 913-14. Moreover, claims of medication for
depression obfuscating a decedent’s intent to harm herself have in the past been rejected
as a basis for not enforcing a suicide exclusion in other Courts of Appeals. Charney v.
Ill. Mut. Life Cas. Co., 764 F.2d 1441, 1442-43 (11th Cir. 1985) (per curiam).

                                             11
motion does not establish the absence of a genuine factual issue, the district court should

deny summary judgment even if no opposing evidentiary matter is presented.’” (quoting

Resolution Tr. Corp. v. Gill, 960 F.2d 336, 340 (3d Cir. 1992))). After that, it was up to

Arena to produce evidentiary materials demonstrating the existence of a genuine issue for

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); In re Bressman, 327 F.3d

229, 238 (3d Cir. 2003). He failed to do so. None of this, of course, lessens the tragedy

that he and his family have suffered. Nevertheless, the summary judgment ruling was

sound.

III.     CONCLUSION

         For the foregoing reasons, we will affirm the judgment of the District Court.

                                              12