J-S14014-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
GEORGE SWISHER,                            :
                                           :
                    Appellant              : No. 687 EDA 2014

                  Appeal from the PCRA Order February 5, 2014,
                   Court of Common Pleas, Philadelphia County,
                 Criminal Division at No. CP-51-CR-0401801-1999

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED MARCH 02, 2015

      Appellant, George Swisher (“Swisher”), appeals from the order

denying his petition for relief, filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-46 (“PCRA”), for DNA testing.         For the reasons that

follow, we affirm the order of the PCRA court.

      In this Court’s memorandum decision dated December 30, 2003, we

set forth the following statement of the facts established at trial in support of

Swisher’s convictions for two counts of second-degree murder, 18 Pa.C.S.A.

§ 2502, two counts of robbery, 18 Pa.C.S.A. § 3701, and one count each of

conspiracy, 18 Pa.C.S.A. § 903, and possession of an instrument of crime,

18 Pa.C.S.A. § 907:

            On the night of December 30, 1990, Swisher picked
            up his neighbor, Hector Alicea, from Alicea’s house,
            and the pair went to pick up a third friend, Jose
            Pagan. (N.T., 11/29/00, at 104). The trio then went
J-S14014-15

          to pick up a black male at Frankford and Ontario
          Streets. (Id. at 105). Alicea did not know the black
          males’ full name but he knew him as “Mod.” “Mod”
          is a nickname for Jamod Rohn. (Id. at 106, 120).
          Alicea thought that the four were going to the 400
          block of Dauphin Street to retrieve Pagan’s gold
          chain. (Id. at 106-07). The men parked at Orkney
          and Dauphin Streets, around the corner from their
          destination of 429 W. Dauphin Street. (Id. at 108).
          The four walked up to the house, and Swisher stood
          next to the house in a vacant lot. (Id. at 108).
          Pagan knocked, and one of the victims, Luis
          Bermudez, came to the second-floor window. (Id. at
          108). Some words were exchanged and Bermudez
          came downstairs and opened the door. (Id. at 108).
          Bermudez walked upstairs, followed by Pagan,
          Swisher, Mod, and Alicea. (Id. at 109).

          When Alicea arrived at the second floor, he stood in
          the doorway and saw all of the others inside of the
          apartment, with Pagan and Bermudez speaking
          loudly in Spanish. Alicea testified that he did not
          know what they were saying because he does not
          speak Spanish. (Id. at 109). Alicea then heard a
          woman’s voice call out “June,” which is Pagan’s
          street name. (Id. at 110). Alicea then walked
          further into the apartment and saw Pagan with a
          small, black gun in his hand. Pagan was waiving the
          gun in the air, and when Alicea walked further into
          the apartment, Pagan waived the gun toward Alicea
          and directed Alicea to watch the door. (Id. at 111).
          Alicea served as the “look-out” and guarded the
          door. Pagan, Swisher, Rohn, and the victims, Luis
          Bermudez and Ivelisse Gonzalez, remained in the
          front bedroom. (Id. at 111). Alicea looked back
          from his front door post, and saw Bermudez in a
          facedown position, being tied up by Swisher. (Id. at
          112). Alicea resumed his look-out duties, then he
          turned around again and saw Rohn having sexual
          intercourse with Ivelisse Gonzalez. (Id. at 112-
          114). While Rohn was raping Ms. Gonzalez, Swisher
          fondled her breasts. (N.T., 11/30/00, at 14). Alicea
          turned back towards the front door, after which he

                                 -2-
J-S14014-15

               heard a gunshot in the front bedroom.          (N.T.,
               11/29/00, at 115).

               When he heard the gunshot, Alicea looked into the
               front bedroom again, and he saw Pagan turn toward
               Ivelisse Gonzalez with a gun in his hand and fire.
               (Id. at 115).     Shocked, Alicea stood frozen as
               Swisher, Rohn and Pagan ran past him to exit the
               building. (Id. at 116). Alicea followed and fled the
               building. (Id. at 116). The four got into [Swisher’s]
               vehicle and Swisher sped away.        (Id. at 116).
               Swisher drove Alicea home, but before arriving
               there, Mr. Pagan gave him one $100 [bill] and told
               him not to say anything about the night’s events or
               Pagan would kill Alicea or Alicea’s family. (Id. at
               116). Although first denying having any information
               about the shootings, on September 19, 1997, Alicea
               finally admitted to police that he has served as a
               look-out during the incident on December 20, 1990.

Commonwealth v. George Swisher, No. 2120 EDA 2002 (Pa. Super.

December 30, 2003) (unpublished memorandum).

      A jury convicted Swisher of the above-referenced crimes in November

2000, and in February 2001, the trial court sentenced him to a term of life in

prison on the murder convictions and two and one half to five years of

imprisonment on the possession of an instrument of crime and conspiracy

convictions.     This Court affirmed the judgment of sentence in December

2003 and our Supreme Court denied his petition for allocatur in May 2004.

Swisher has filed two previous petitions for PCRA relief, which the PCRA

court denied in 2005 and 2011, and these decisions were affirmed on

appeal.

                                       -3-
J-S14014-15

      The present PCRA petition, Swisher’s third, seeks relief in the form of

DNA testing of certain items of physical evidence from the crime scene,

including cigarette filters or butts, bed sheets, and the ligatures used to bind

the victims. In his pro se PCRA petition, Swisher contends that “had [he]

participated in the crimes alleged[,] his DNA would have [] saturated the

crime scene according to the testimony presented at trial.” PCRA Petition,

6/15/2012, at 5. As such, Swisher argues that the absence of his DNA on

the crime scene items “would exclude him of such participation that may

have been alleged.” Id. at 5a. The PCRA court dismissed Swisher’s present

PCRA petition without an evidentiary hearing, and this appeal followed.

      Post-conviction DNA testing falls under section 9543.1 of the PCRA,

and thus “[o]ur standard of review permits us to consider only whether the

PCRA court's determination is supported by the evidence of record and

whether it is free from legal error.” Commonwealth v. Brooks, 875 A.2d

1141, 1144 (Pa. Super. 2005). Section 9543.1 of the PCRA, governing post-

conviction DNA testing, provides in relevant part as follows:

      § 9543.1. Postconviction DNA testing

      (a) Motion.--

            (1) An individual convicted of a criminal offense in a
            court of this Commonwealth and serving a term of
            imprisonment or awaiting execution because of a
            sentence of death may apply by making a written
            motion to the sentencing court for the performance
            of forensic DNA testing on specific evidence that is

                                     -4-
J-S14014-15

          related to the investigation or prosecution that
          resulted in the judgment of conviction.

          (2) The evidence may have been discovered either
          prior to or after the applicant's conviction. The
          evidence shall be available for testing as of the date
          of the motion. If the evidence was discovered prior
          to the applicant's conviction, the evidence shall not
          have been subject to the DNA testing requested
          because the technology for testing was not in
          existence at the time of the trial or the applicant's
          counsel did not seek testing at the time of the trial in
          a case where a verdict was rendered on or before
          January 1, 1995, or the applicant's counsel sought
          funds from the court to pay for the testing because
          his client was indigent and the court refused the
          request despite the client's indigency.

                               *     *        *

     (c) Requirements.--In any motion under subsection (a), under
     penalty of perjury, the applicant shall:

          (1) (i) specify the evidence to be tested;

          (ii) state that the applicant consents to provide
          samples of bodily fluid for use in the DNA testing;
          and

          (iii) acknowledge that the applicant understands
          that, if the motion is granted, any data obtained
          from any DNA samples or test results may be
          entered into law enforcement databases, may be
          used in the investigation of other crimes and may be
          used as evidence against the applicant in other
          cases.

          (2) (i) assert the applicant's actual innocence of the
          offense for which the applicant was convicted;

                               *     *    *

                                   -5-
J-S14014-15

              (3) present a prima facie case demonstrating that
              the:

              (i) identity of or the participation in the crime by the
              perpetrator was at issue in the proceedings that
              resulted in the applicant's conviction and sentencing;
              and

              (ii) DNA testing of the specific evidence, assuming
              exculpatory results, would establish:

              (A) the applicant's actual innocence of the offense
              for which the applicant was convicted;

                                   *     *      *

      (d) Order.--

                                   *     *      *

              (2) The court shall not order the testing requested in
              a motion under subsection (a) if, after review of the
              record of the applicant's trial, the court determines
              that there is no reasonable possibility that the
              testing would produce exculpatory evidence that:

              (i) would establish the applicant's actual innocence of
              the offense for which the applicant was convicted;

42 Pa.C.S.A. § 9543.1

      Sections 9543.1(c)(3) and (d)(2) require that a petitioner demonstrate

that there is a “reasonable possibility” that “favorable results of the

requested DNA testing ‘would establish’ the [petitioner’s] actual innocence of

the   crime    of   conviction.”    Brooks,     875   A.2d   at   1147   (quoting

Commonwealth v. Heilman, 867 A.2d 542, 546–547 (Pa. Super. 2005),

appeal denied, 583 Pa. 669, 876 A.2d 393 (2005). On prior occasions, this

                                       -6-
J-S14014-15

Court has held that the definition of “actual innocence” to be applied in this

context is that articulated by the United States Supreme Court in its opinion

in Schlup v. Delo, 513 U.S. 298 (1995), namely, that the newly discovered

evidence must make it “more likely than not that no reasonable juror would

have found him guilty beyond a reasonable doubt.”           Id. at 327; see

Commonwealth v. Conway, 14 A.3d 101, 109 (Pa. Super. 2011).               This

standard requires a reviewing court “to make a probabilistic determination

about what reasonable, properly instructed jurors would do,” if presented

with the new evidence. Schlup, 513 U.S. at 329.

      Accordingly, the mandates in sections 9543.1(c)(3) and (d)(2) require

the PCRA court to assess a petitioner’s request for DNA testing in light of the

trial record to see if there is a reasonable possibility that the testing could

produce exculpatory evidence to establish Appellant's actual innocence.

Commonwealth v. Williams, 35 A.3d 44, 49-50 (Pa. Super. 2012)

(quoting Commonwealth v. Smith, 831 A.2d 1194, 1196 (Pa. Super.

2005), appeal denied, 905 A.2d 500 (Pa. 2006)).       In this case, the PCRA

court made the required assessment, reviewing the evidence presented at

trial, including the testimony of two of his co-conspirators (Rohn and Alicea)

detailing Swisher’s involvement and participation in the events leading to

and following the two murders. Trial Court Opinion, 6/25/2014, at 4. Based

upon its review, the PCRA court indicated that “it seems as though [Swisher]

has mistakenly presumed that there was not an overwhelming amount of

                                     -7-
J-S14014-15

evidence in the record to otherwise tie him to the crime,”        Id.    The PCRA

court concluded that Swisher “has made no averments which might

demonstrate any possibility that favorable DNA testing results would

establish his innocence.” Id. at 5.

      Based upon our own review of the certified record, we agree with the

PCRA court that Swisher has not presented a prima facie case by

demonstrating   that   the   DNA   testing   of   specific   evidence,   assuming

exculpatory results, would establish his actual innocence. In Heilman, this

Court rejected a petitioner’s argument that the absence of his DNA at the

scene of a crime could conclusively absolve him of culpability, stating that

“[i]n DNA as in other areas, an absence of evidence is not evidence of

absence.”   Heilman, 867 A.2d at 547.        Whether or not this maxim holds

true in all instances, it is certainly the case with respect to the cigarette

filters/butts found at the crime scene – since the absence of Swisher’s DNA

on them would prove, at most, that he did not smoke at the crime scene.

Similarly, with respect to the bed sheets, there is no direct testimony that

Swisher ever came into contact with them, and thus the absence of his DNA

would not prove his absence from the crime scene.             Even if the testing

revealed the bed sheets had on them the DNA of some unknown third party

(i.e., other than the conspirators or the victims), such evidence would not be

                                      -8-
J-S14014-15

exculpatory for Swisher, since it would not establish the presence of this

other person at the time of the crimes.1

     Finally, with respect to the ligatures used to tie up the victims, there

was testimony at trial (from Alicea) that Swisher tied up Luis Bermudez,

N.T., 11/29/2000, at 112, and thus the absence of Swisher’s DNA on those

ligatures could possibly provide some evidence that would contradict Alicea’s

testimony on this point. Even if Swisher could demonstrate that he did not

tie up Bermudez, however, this would fall far short of establishing a prima

facie case of his actual innocence – since there is considerable other

evidence in the record to prove Swisher’s participation in the conspiracy to

rob and kill the victims.   Two participants in the conspiracy (Alicea and

Rohn) testified at trial that Swisher drove the four conspirators to and from

the crime scene, that he was in the bedroom during the rape and murders,

that he fondled the breasts of Ivelisse Gonzalez while Rohn raped her, and

that he agreed to keep quiet about the entire episode (in exchange for

$100).

     In sum, the trial record in its entirety demonstrates that DNA testing

could not result in any reasonable possibility of exculpatory evidence to

prove Swisher’s actual innocence.

     Order affirmed.

1
  In his PCRA Petition, Swisher indicates that there was a stain on the bed
sheets that did not match the DNA of any known samples. PCRA Petition,
6/15/2012, at 5.

                                    -9-
J-S14014-15

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/2/2015

                          - 10 -


                      TO BE PUBLISHED IN THE OFFICIAL REPORTS

                           OFFICE OF THE ATTORNEY GENERAL
                                     State of California

                                DANIEL E. LUNGREN
                                    Attorney General
                      ______________________________________
                       OPINION                  :
                                                :    No. 98-103
                          of                    :
                                                :    June 1, 1998
                DANIEL E. LUNGREN               :
                   Attorney General             :
                                                :
              ANTHONY M. SUMMERS                :
                Deputy Attorney General         :
                                                :
     ______________________________________________________________________

   THE HONORABLE H. PETER KLEIN, COUNTY COUNSEL, COUNTY OF
MENDOCINO, has requested an opinion on the following question:

     Is a residential project built and owned by a county community development commission to
be used as low-income rental units exempt from a school district's levy of school impact fees?

                                          CONCLUSION

     A residential project built and owned by a county community development commission to
be used as low-income rental units is exempt from a school district's levy of school impact fees.

                                            ANALYSIS

     A school district is authorized to levy fees, called "school impact fees," on development
projects constructed in its territory as set forth in Education Code section 17620. Footnote No. 1
The fees are used to pay for school facilities made necessary by students moving into the district
because of the new developments. Section 17620 provides:

      "(a)(1) The governing board of any school district is authorized to levy a fee, charge,
dedication, or other requirement against any development project within the boundaries of the
district, for the purpose of funding the construction or reconstruction of school facilities, subject
to any limitations set forth in Chapter 4.9 (commencing with Section 65995) of Division 1 of
Title 7 of the Government Code. This fee, charge, dedication, or other requirement may be
applied to construction only as follows:
     "(A) To new commercial and industrial construction. . . .

     "(B) To new residential construction.

     ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

     "(2) For purposes of this section, 'development project' means any project undertaken for
the purpose of development, and includes a project involving the issuance of a permit for
construction or reconstruction, but not a permit to operate.

     ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." Footnote No. 2

     The question presented for resolution is whether one government agency (a school district)
may impose a fee upon another government agency (a county housing authority) when the fee is
a school impact fee. We conclude that the Legislature has not authorized the payment of a school
impact fee by a state or local government agency.

     The Constitution generally exempts "[p]roperty owned by a local government" from
property taxation. (Cal. Const., art. XIII, § 3, subd. (b).) Footnote No. 3 The rationale behind the
exemption "is to prevent one tax-supported entity from siphoning tax money from another such
entity; the end result of such a process could be unnecessary administrative costs and no actual
gain in tax revenues. [Citations.]" (San Marcos Water Dist. v. San Marcos Unified School Dist.
(1986) 42 Cal.3d 154, 161.)

     A school impact fee is not a "tax" for purposes of this tax exemption provision. Rather, it
constitutes a "special assessment." (See San Marcos Water Dist. v. San Marcos Unified School
Dist., supra, 42 Cal.3d at 161-162; Shapell Industries, Inc. v. Governing Board (1991) 1
Cal.App.4th 218, 234; J.W. Jones Companies v. City of San Diego (1984) 157 Cal.App.3d 745,
755.)

     Although the Constitution does not expressly exempt public agencies from the payment of
special assessments, a special assessment is impliedly treated in the same manner as a property
tax "unless there is a positive legislative authority therefor." (Inglewood v. County of Los
Angeles (1929) 207 Cal. 697, 704.) Accordingly, if the Legislature has expressly authorized
payment of a special assessment by public agencies, the agencies are liable for the assessment;
otherwise, they are not. (San Marcos Water Dist. v. San Marcos Unified School Dist., supra, 42
Cal.3d at 161, 166, 168.) Footnote No. 4

     The public agency that owns the land in question is a county community development
commission. The commission is a public agency operating under authority of state law to
provide housing for low-income residents of the county. (Health & Saf. Code, §§ 34100-34160.)
The commission qualifies as a "local government" for purposes of determining whether it would
be impliedly exempt from the levy of school impact fees "unless there is a positive legislative
authority therefor." (See The Housing Authority v. Dockweiler (1939) 14 Cal.2d 437.) The legal
issue to be resolved, therefore, is whether the Legislature has expressly authorized the imposition
of school impact fees upon public agencies.
    In analyzing this issue, we turn to the provisions of Government Code section 65995,
subdivision (d). It exempts certain developments from the levy of school impact fees as follows:

      "For purposes of Section 53080 and this chapter, 'residential, commercial, or industrial
development' does not include any facility used exclusively for religious purposes that is thereby
exempt from property taxation under the laws of this state, any facility used exclusively as a
private full-time day school as described in Section 48222 of the Education Code, or any facility
that is owned and occupied by one or more agencies of federal, state, or local government. . . ."
Footnote No. 5

By exempting facilities owned and occupied by government agencies, it may be argued that the
Legislature has implicitly authorized the imposition of school impact fees on new developments
such as the commission's project, which will be owned by the commission but will be occupied
by private individuals.

      We are compelled to reject the argument based upon recent judicial decisions. Significantly,
neither section 17620 nor its predecessor includes any legislative authorization for the imposition
of a special assessment upon a public agency. There is no express authorization to overcome the
implied general exemption from special assessments for public agencies.

     In San Marcos Water Dist. v. San Marcos Unified School Dist., supra, 42 Cal.3d 154, the
court considered a similar situation. It rejected the argument that a water district was impliedly
authorized to impose a special assessment against other public agencies. The court stated:

     "The water district's argument is that because . . . section [39613] permits the school district
to build its own sewer system or acquire rights in another system, and to pay for such projects
with money from the district's building fund (which is used for funding capital improvements),
therefore this section implicitly authorizes the school district to pay an assessment imposed on it
by the water district. But if the Legislature intended school districts to be subject to special
assessments for sewer systems, it undoubtedly would have said so directly. For example,
Education Code section 39609 expressly authorized school districts to 'appropriate money to pay
assessments, for the improvement of streets or other public places.' By contrast, Education Code
section 39613 contains no reference whatsoever to assessments.

      "The predecessor of Education Code section 39613 was enacted as an urgency measure in
1950 to allow school districts to use building funds to construct sewer systems either alone or in
conjunction with others, without regard to the proximity of the systems. According to section
39613, a school district can build its own sewer system or acquire ownership rights in a system
built with others. In addition, Education Code section 39011 authorizes or requires a school
district to pay for the installation costs when contracting with a water district for sewer service.
Neither statute authorizes or requires a school district to appropriate money to pay special
assessments. As we have previously explained, a special assessment may not be imposed on
property belonging to a public agency absent express legislative authorization. [Citation.]

     ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
     "The water district next argues that section 31101.5 of the Water Code, which became
effective in 1983, authorizes the water district to levy a special assessment for capital
improvements upon the school district. Section 31101.5 states: 'A district may supply sewage
and waste services to property not subject to district taxes at special rates, terms, and conditions
as are determined by the board for the services.' But this section uses the word 'services'; it does
not mention assessments and it does not mention fees for capital improvements. It simply allows
water districts to set rates for public agencies that are different than the rates for private
customers.

      "Other sections of the Water Code cited by the water district likewise provide no authority
for assessing property owned by public agencies. Section 31100 gives water districts the right to
contract with public agencies. Section 31101 permits water districts to charge for services and
facilities. None of these sections provides the express authority that is required for imposing a
special assessment on a public entity." (Id., at pp. 165-167, fns. omitted.)

      The court's reasoning in San Marcos is equally applicable to the present situation.
Government Code section 65995, subdivision (d), is an exclusion from the levy of school impact
fees, not an authorization to levy such fees. It is not contrary to the implied exemption from
special assessments afforded to all state and local governments. There is simply no express
legislative authorization for the payment of school impact fees by public agencies.

     As stated in San Marcos Water Dist. v. San Marcos Unified School Dist., supra, 42 Cal.3d
at 167: "Public entities are exempt from property taxes and special assessments in order to
preserve the balance in funding established by the Legislature and to avoid unnecessary
administrative costs." (See also Sacramento Mun. Utility Dist. v. County of Sonoma (1991) 235
Cal.App.3d 726, 736.)

    We conclude that a residential project built and owned by a county community development
commission to be used as low-income rental units is exempt from a school district's levy of
school impact fees.

                                                                                *****

Footnote No. 1
All references hereafter to the Education Code are by section number only.
Footnote No. 2
Government Code section 65995 establishes limits on the amount of the fees that may be levied.
Footnote No. 3
It also exempts from property taxation "[p]roperty owned by the State." (Cal. Const., art. XIII, § 3, subd. (a).)
Footnote No. 4
We note that school impact fees are not subject to the voter approval requirements of Proposition 218, which
became effective on November 6, 1996. Section 1 of article XIIID of the Constitution provides:
       ". . . Nothing in this article or Article XIIIC shall be construed to:

      ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

      "(b) Affect existing laws relating to the imposition of fees or charges as a condition of property development.
      ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

Footnote No. 5
Government Code section 53080 was repealed effective January 1, 1998. (Stats. 1996, ch. 277, §§ 7, 17.) Its
provisions were reenacted as section 17620, quoted above. The Legislature declared the reenactment to be a
restatement and continuation of existing law. (Stats. 1996, ch. 277, § 15.) Government Code section 65995 was not
amended to reflect the fact that the authority to impose school impact fees is now found in the Education Code.
However, Government Code section 9604 states:

       "When the provisions of one statute are carried into another statute under circumstances in which they are
required to be construed as restatements and continuations and not as new enactments, any reference made by any
statute, charter or ordinance to such provisions shall, unless a contrary intent appears, be deemed a reference to the
restatements and continuations."

Accordingly, we treat the reference to Government Code "Section 53080" as being a reference to Education Code
section 17620.


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                                                              No. 99-646

                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           2000 MT 171N

                                                         LARRY HANEY,

                                                    Plaintiff and Appellant,

                                                                      v.

                                                           JAMES OBIE,

                                                 Defendant and Respondent.

                      APPEAL FROM: District Court of the First Judicial District,

                                      In and for the County of Lewis and Clark,

                               The Honorable James E. Purcell, Judge presiding.

                                                  COUNSEL OF RECORD:

                                                            For Appellant:

                         Russell K. Jones, Attorney at Law, Spokane, Washington

                                                          For Respondent:

                                 James Obie, Attorney at Law, Helena, Montana

                                           Submitted on Briefs: May 25, 2000

                                                      Decided: July 6, 2000

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                                                                    Filed:

                              __________________________________________

                                                                    Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Plaintiff and Appellant Larry Haney (Haney) appeals from the judgment of the First
Judicial District Court, Lewis and Clark County, granting summary judgment in favor of
Defendant and Respondent James Obie (Obie).

¶3 The sole issue on appeal is whether Obie had the duty to calculate and ensure that
Haney received the precise number of days of credit for incarceration.

                                                        Standard of Review

¶4 Our standard of review in appeals from grants of summary judgment is de novo. See
Meyer v. Creative Nail Design, Inc., 1999 MT 74, ¶ 13, 294 Mont. 46, ¶ 13, 975 P.2d
1264, ¶ 13. To be granted summary judgment, the "moving party has the burden of
showing a complete absence of any genuine issue as to all facts considered material in
light of the substantive principles that entitle the moving party to judgment as a matter of
law and all reasonable inferences are to be drawn in favor of the party opposing summary
judgment." Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869 (citation
omitted).

¶5 The existence of a legal duty is a matter of law to be determined in the first instance by
the trial court. See Nautilus Ins. Co. v. First Nat'l Ins., Inc. (1992), 254 Mont. 296, 299,
837 P.2d 409, 411 (citation omitted). We review a district court's conclusion of law to
determine whether it is correct. See In re Marriage of Scott (1997), 283 Mont. 169, 173,
939 P.2d 998, 1000 (citations omitted).
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                                           Factual and Procedural Background

¶6 Haney filed a complaint against Obie in July, 1998, alleging that Obie was negligent in
his representation of Haney by "failing to request and secure for Larry Haney a numerical
calculation of credit for each day of incarceration prior to and after conviction, pursuant to
MCA 46-18-403(1)." Obie was Haney's court-appointed attorney when Haney's suspended
sentence was revoked in April, 1995 and Haney was sentenced to serve the remaining
portion of his term. The revocation of Haney's suspended sentence resulted in the District
Court's Order Revoking Defendant's Suspended Sentence and Amended Judgment and
Commitment filed April 5, 1995, and several amended orders filed September 5, 1995,
August 30, 1996, and December 10, 1996.

¶7 The August, 1996 Order, issued in response to a motion filed by attorney Jeff Renz,
clarified that Haney's various sentences were to run concurrently and noted that Haney
was "granted time spent on probation as well as time spent in jail." Renz's motion did not
address numerical credit for incarceration.

¶8 In October, 1996, Haney moved pro se for amendment of his sentences to "explicitly
[state] the exact number of days Defendant was incarcerated in the County Jail on all
charges and sentences." The District Court did not rule on Haney's motion until Deputy
County Attorney Clemens filed a motion in December, 1996, which included a full
accounting of Haney's jail time since 1989. The District Court ordered that Haney be
granted 144 days' credit for several periods of incarceration on the underlying offenses
from March, 1989 to March, 1995. Haney was released from Montana State Prison several
days later.

¶9 Haney's Complaint alleged that he was released from prison forty-two days late as a
result of Obie's negligence in failing to secure a numerical calculation of credit for
incarceration. On March 15, 1999, Obie moved for summary judgment. The question
before the District Court on the motion for summary judgment was "whose responsibility
is it to determine the precise number of days a Defendant is to be given credit for." The
court held that Obie did not have a duty to determine the precise number of days for which
Haney was to be given credit, and granted Obie's motion for summary judgment.

                                                                Discussion

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¶10 Did Obie have the duty to calculate and ensure that Haney received the precise
number of days of credit for incarceration?

¶11 Section 46-18-403(1), MCA, states in relevant part that "[a]ny person incarcerated on
a bailable offense and against whom a judgment of imprisonment is rendered must be
allowed credit for each day of incarceration prior to or after conviction . . . ." The credit
for incarceration is automatic, but the statute is silent as to who is responsible for the
administrative act of actually calculating and applying the credit.

¶12 Haney argues that Obie had the duty to calculate and ensure that Haney received the
precise number of days of credit for his incarceration based on the Rules of Professional
Conduct and Obie's past work on behalf of the Department of Corrections. We find no
such duty on either basis.

¶13 Haney alleges that Obie's duty arose from Rule 1.3 of the Rules of Professional
Conduct, which states that "[a] lawyer shall act with reasonable diligence and promptness
in representing a client." As the District Court noted, the case cited by Haney explicitly
states that "[t]he Rules of Professional Conduct do not establish substantive legal duties-
they neither create, augment nor diminish any duties." In re Kirsh (9th Cir. 1992), 973 F.2d
1454, 1461. There is no statutory duty imposed on an attorney to calculate and ensure that
a defendant receives numerical credit for incarceration and the Rules of Professional
Conduct do not create such a duty.

¶14 Further, Obie's "specialized knowledge" of Montana State Prison Procedure-that
prison officials would not make the calculation-does not create such a duty. Neither statute
nor case law impose on an attorney the duty to calculate and ensure that a defendant
receives numerical credit for incarceration. The credit for incarceration is automatic under
§ 46-18-403(1), MCA. The actual numerical calculation is an administrative act and is not
the responsibility of defense counsel.

¶15 The District Court's Order granting summary judgment in favor of Obie is affirmed.

                                               /S/ W. WILLIAM LEAPHART

                                                               We concur:

                                                        /S/ J. A. TURNAGE

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                                                     /S/ KARLA M. GRAY

                                                   /S/ JAMES C. NELSON

                                               /S/ WILLIAM E. HUNT, SR.

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707 N.W.2d 201 (2005)
PEOPLE
v.
MACK.
No. 129510.
Supreme Court of Michigan.
December 27, 2005.
Application for leave to appeal.
SC: 129510, COA: 253121.
On order of the Court, the application for leave to appeal the August 2, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.


374 F.Supp.2d 1333 (2005)
HEBEI NEW DONGHUA AMINO ACID CO., LTD., Plaintiff,
v.
UNITED STATES, Defendant.
SLIP OP. 05-70, Court No. 04-00409.
United States Court of International Trade.
June 15, 2005.
*1334 Hume & Associates PC, Washington, DC (Robert T. Hume) for Plaintiff.
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (David S. Silverbrand), Barbara J. Tsai, Attorney-Advisor, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for Defendant, of counsel.

OPINION
RESTANI, Chief Judge.
Plaintiff Hebei New Donghua Amino Acid Co., Ltd. ("New Donghua") challenges the decision of the United States Department of Commerce to rescind its new shipper review of New Donghua as an exporter of glycine into the United States. See Glycine from the People's Republic of China: Notice of Recision of Antidumping Duty New Shipper Review of Hebei New Donghua Amino Acid Co., Ltd., 69 Fed.Reg. 47,405 (Dep't Commerce Aug. 5, 2004) [hereinafter "Recision Notice"]. New Donghua claims that Commerce improperly rejected its lone U.S. sale as not bona fide, contesting both the statutory basis for Commerce's bona fide sales analysis and the evidentiary basis for its decision. Because Commerce's decision was in accordance with law and supported by substantial evidence, New Donghua's motion for judgment on the agency record is denied and judgment is entered for Defendant.

BACKGROUND
On March 29, 1995, Commerce published an antidumping duty order on imports of glycine from China, which currently imposes an antidumping duty of 155.89 percent on nearly all Chinese glycine imports to *1335 the United States. See Glycine from the People's Republic of China, 60 Fed.Reg. 16,116 (Dep't Commerce Mar. 29, 1995) (antidumping duty order).[1]
New Donghua's first sale of glycine to a customer in the United States, the sale at issue in the instant proceeding, entered on February 10, 2003 (referred to hereinafter as the "U.S. sale" or the "new shipper sale"). Pursuant to 19 U.S.C. § 1675(a)(2)(B) (2000), and 19 C.F.R. § 351.214(d), New Donghua filed a new shipper review request on March 26, 2003, certifying it was both an exporter and producer of glycine and did not export glycine to the United States during the original period of investigation. Section 1675(a)(2)(B) of title 19 enables a new shipper "to demonstrate that it should be accorded a dumping rate specific to itself, and not the `all-others' rate...." Tianjin Tiancheng Pharm. Co. v. United States, 366 F.Supp.2d 1246, 1247 (CIT 2005).
Commerce initiated a new shipper review to determine whether New Donghua was entitled to its own antidumping duty rate and to calculate a weighted average margin for New Donghua. See Notice of Initiation of Antidumping Duty New Shipper Review: Glycine from the People's Republic of China, 68 Fed.Reg. 23,962 (May 6, 2003) [hereinafter "Notice of Initiation"]. The period of review covered sales of glycine by New Donghua from March 1, 2002, through February 28, 2003 (the "POR").
I. NEW DONGHUA'S GLYCINE BUSINESS AND THE U.S. SALE
New Donghua began producing glycine in 2000. New Donghua Sections A, C, D Questionnaire Response (July 11, 2003), at A-3, P.R. Doc. 11, C.R. Doc. 2, Pl.'s Conf.App. at tab 1. As reported in its questionnaire responses to Commerce, New Donghua sold a small quantity of glycine to a customer in the United States on January 2, 2003. Id. at Ex. 1.[2] New Donghua describes the U.S. sale as a "test sale" in which the U.S. importer was attempting "to ascertain whether a dumping margin would apply to the sale so it could determine what prices it could sell glycine for in the United States market." Pl.'s Conf. Op. Br. at 4 (citing New Donghua First Supp. Questionnaire Response (Dec. 19, 2003), Supp  21, C.R. Doc. 5, Pl.'s Conf.App. at tab 3).
II. THE PRELIMINARY RESULTS OF THE NEW SHIPPER REVIEW
Commerce issued the preliminary results of the new shipper review on March 2, 2004. Notice of Preliminary Results of Antidumping Duty New Shipper Review: Glycine from the People's Republic of China, 69 Fed.Reg. 9,804 (Dep't Commerce Mar. 2, 2004) [hereinafter "Preliminary Results"]. The Preliminary Results calculated a preliminary dumping margin of 8.89 percent, based in part on adverse inferences made from New Donghua's failure to report factors of production data to the best of its ability. Preliminary Results, 69 Fed.Reg. at 9,808. For the purpose of calculating U.S. price, Commerce made a preliminary finding that New Donghua's single U.S. sale was bona fide  i.e., not commercially unreasonable  with the qualification that the bona fide sale issue would be considered further. Id. at 9,807.
In the memorandum explaining the preliminary bona fide sale finding, Commerce *1336 found a large differential between New Donghua's U.S. sale price and the average unit values ("AUVs") for U.S. imports of glycine from China over the three-year period from 2001 through November 2003 ($2.54) and U.S. glycine imports from all countries ($2.67). Mem. from Matthew Renkey to Barbara E. Tillman Re: Bona Fide Nature of the Sale in the New Shipper Review of Hebei New Donghua Amino Acid Co., Ltd. at 3 (Dep't Commerce Feb. 24, 2004) [hereinafter "Preliminary Bona Fides Memo"]. Commerce declined to make a preliminary not bona fide finding on the basis of these price comparisons, explaining that New Donghua's U.S. sale was for food grade glycine while the comparison AUVs did not differentiate among the different grades of glycine. See id.
Commerce remained concerned about the bona fide nature of the sale, however. It viewed the large price differential between the new shipper sale and the comparison AUVs as "significant." Id. Commerce noted "that the quantity of New Donghua's sale is low in comparison with other entries of glycine from the PRC, and is also low in comparison with the quantities of its other international sales to third country markets." Id. Commerce also remained "concerned about the fact that this merchandise has not been resold by the importer." Id.
III. THE RECISION OF THE NEW SHIPPER REVIEW
Ultimately, Commerce did not adopt the preliminary position it took in the Preliminary Results and Preliminary Bona Fides Memo. Instead, Commerce rescinded the new shipper review on August 5, 2004, citing three factors as leading to the conclusion that "New Donghua's single sale to the United States is not a bona fide commercial transaction":
A) the pricing of the sale is artificially high and otherwise commercially unreasonable;
B) the quantity of the single shipment is extremely low in comparison with other sales from the People's Republic of China (PRC); and
C) the importer has not resold the merchandise and has otherwise not acted in a commercially reasonable manner.
Mem. re: Bona Fides Analysis for Hebei New Donghua Amino Acid Co., Ltd.'s Sale in the New Shipper Review of Glycine from the People's Republic of China at 5 (Dep't Commerce July 23, 2004), Pl.'s Conf.App., Ex. 7 [hereinafter "Final Bona Fides Memo"]; see also Recision Notice, 69 Fed.Reg. 47,405.
Commerce explained its decision not to maintain a bona fide sale finding on the ground that the price differential "could not reasonably be accounted for solely by the difference between food and industrial grade glycine." Final Bona Fides Memo at 13. In reaching its conclusion as to price, Commerce compared New Donghua's U.S. sale price to (1) the weighted AUV of all Chinese glycine entries during the POR that were of the types covered by the antidumping duty order and not clearly aberrational, based on proprietary data in the United States Customs & Border Protection ("CBP") database;[3] (2) the weighted AUV of all Chinese imports of glycine during the POR based on public import statistics; and (3) the weighted AUV of U.S. imports of glycine from all countries during the POR based on publicly available U.S. import data. Id. at 11 (citing Preliminary Bona Fides Memo at 2 and attachments 2, 3). In reaching its conclusion as to quantity, Commerce compared New Donghua's U.S. sale quantity *1337 to quantities it sold to other markets during the POR and quantities of entries made by other Chinese glycine exporters during the POR. Final Bona Fides Memo at 16. In reaching its conclusion regarding the actions of the U.S. importer, Commerce relied on information provided by New Donghua. Id. at 17-18.

JURISDICTION
New Donghua timely filed a summons challenging Commerce's decision to rescind the new shipper review on August 13, 2004. New Donghua timely filed its complaint on August 26, 2004. The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a) and 28 U.S.C. 1581(c) (2004).

STANDARD OF REVIEW
As with other antidumping duty proceedings, the court reviews Commerce's determinations in new shipper reviews to determine whether they are "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i) (2000); Tianjin Tiancheng Pharm., 366 F.Supp.2d at 1249.

DISCUSSION
New Donghua contends that (1) Commerce lacked the authority to determine whether New Donghua's sales of glycine were bona fide, and (2) even if Commerce possessed such authority, Commerce misapplied its bona fide sale test.
I. COMMERCE HAS STATUTORY AUTHORITY TO CONDUCT A "TOTALITY OF THE CIRCUMSTANCES" BONA FIDE SALE TEST IN THE COURSE OF A NEW SHIPPER REVIEW
New Donghua challenges the bona fide sale test conducted by Commerce as an unreasonable interpretation of the statute. According to New Donghua, Commerce's practice is contrary to Congress' intent because, without any direction from the statute, Commerce wields the bone fide sale test like an anti-fraud test, imposing the maximum antidumping duties on new shippers whose transactions are deemed not bona fide. See Pl.'s Conf. Op. Br. at 17. New Donghua also challenges the act as unreasonably vague in its application, with no parameters to indicate in advance how Commerce will treat a sale. See id. at 17-18. Both arguments fail.
A. Commerce's Bona Fide Sale Test Is Consistent With Its Statutory Authority
The court analyzes New Donghua's challenge pursuant to the two-step analysis prescribed by Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first question is "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. If so, the court "must give effect to the unambiguously expressed intent of Congress." Id. at 843, 104 S.Ct. 2778. If not, the court addresses the second question of whether Commerce's interpretation "is based on a permissible construction of the statute." See id.; see also Koyo Seiko Co. v. United States, 258 F.3d 1340, 1346 (Fed.Cir.2001).
Under 19 U.S.C. § 1675(a)(2)(B), Commerce is required to conduct periodic administrative reviews "for new exporters and producers" who submit a properly documented request for review. See id. These reviews require Commerce to determine the normal value, export price, and resulting dumping margin for "each entry" of the subject merchandise. See 19 U.S.C. § 1675(a)(2)(A)(i), (ii). Although the term "each entry" seems all-inclusive, this court has recognized that it does not "compel inclusion of all sales, no matter how distorting or unrepresentative." American Permac v. United States, 16 C.I.T. 41, 44, 783 F.Supp. 1421, 1424 (1992). Thus, and *1338 as New Donghua concedes, the statute does not address specifically the issue of whether, in the course of reviews for new shippers, Commerce is authorized to determine whether the new shippers' sales into the United States are bona fide or commercially reasonable. Pursuant to the second step in the Chevron analysis, the issue, then, is whether Commerce has engaged in a permissible construction of the latent ambiguity in the statute's use of the term "each entry." This inquiry is principally to determine whether Commerce's construction was reasonable. See Fujitsu General Ltd. v. United States, 88 F.3d 1034, 1043 (Fed.Cir.1996). New Donghua "bear[s] the burden of showing that the agency's approach is arbitrary or otherwise unreasonable." Koyo Seiko, 258 F.3d at 1347.
Commerce has articulated the bona fide sale test in the course of its new shipper reviews. See, e.g., Freshwater Crawfish Tail Meat from the People's Republic of China, 68 Fed.Reg. 1,439, 1,440 (Dep't Commerce Jan. 10, 2003) (notice of final results and recision of new shipper review); Fresh Garlic from the People's Republic of China, 67 Fed.Reg. 11,283 (Dep't Commerce Mar. 13, 2002) (final results and recision of new shipper review). Commerce's reasonable interpretations of its statutory authority in the course of new shipper reviews are entitled to deference. See Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed.Cir.2001) ("statutory interpretations articulated by Commerce during its antidumping proceedings are entitled to judicial deference under Chevron.").[4]
Commerce's use of a "totality of the circumstances" bona fide sale test in new shipper reviews constitutes a permissible construction of the statute. The reasonable inference from the statutory term "each entry" is that it does not mandate the use of unrealistic, commercially unreasonable sales prices in the calculation of U.S. price. See Tianjin Tiancheng Pharm., 366 F.Supp.2d at 1249 ("[T]he ultimate goal of the new shipper review is to ensure that the U.S. price side of the antidumping calculation is based on a realistic figure...."); see also American Permac, 16 CIT at 42-43, 783 F.Supp. at 1423 ("Fair (apples to apples) comparison is the goal of the price comparisons required by the antidumping laws, as the courts have stated time and again.") (citing U.H.F.C. Co. v. United States, 916 F.2d 689, 697 (Fed.Cir.1990); Smith-Corona v. United States, 713 F.2d 1568, 1578 (Fed.Cir.1983); AOC International, Inc. v. United States, 13 CIT 716, 718, 721 F.Supp. 314, 317 (1989)). In accordance with the goal of ensuring a realistic U.S. price figure, it is reasonable that Commerce uses the bona fide sale test to exclude sales that are "not typical of normal commercial transactions in the industry." Tianjin Tiancheng Pharm., 366 F.Supp.2d at 1248. Accordingly, the court continues to recognize the bona fide sale test as a valid exercise of Commerce's authority. See, e.g., id., at 1248; Windmill Int'l Pte., Ltd. v. United States, 193 F.Supp.2d 1303, 1312 (CIT 2002); Am. Silicon Techs. v. United States, 24 CIT 612, 616, 110 F.Supp.2d 992, 995 (2000).
Apparently conceding a statutory gap, New Donghua argues that Commerce's statutory authority to conduct new shipper reviews is confined to preventing fraud. See Pl.'s Conf. Op. Br. at 20. As New Donghua cites no explicit statutory language *1339 to this effect, this argument implies that Commerce's duty to calculate antidumping margins based on "each entry" necessarily excepts fraudulent sales but not sales that are unrepresentative of commercial conduct and extremely distortive. Logic does not dictate such a conclusion. Commerce must calculate a realistic U.S. price so that a fair comparison may be made with normal value, and a commercially unreasonable sale may undermine this objective even if Commerce is unable to determine that such sale resulted from fraud. See Windmill, 193 F.Supp.2d at 1312. Accordingly, Commerce acts within its statutory authority when it excludes atypical and distortive transactions without establishing the civil or criminal law elements of fraud.
B. Commerce's Bona Fide Sale Test Is Not Unreasonably Vague
Next, New Donghua argues that Commerce's bona fide sale test "is unreasonable because there are no parameters." Pls' Op. Br. at 17. On the contrary, parameters exist. Because the bona fide sale test derives from a seemingly all-inclusive statutory term, Commerce's authority to exclude sales as not bona fide is limited to "exceptional circumstances when those sales are unrepresentative and extremely distortive." Am. Silicon Techs., 24 CIT at 616, 110 F.Supp.2d at 995 (quoting FAG U.K. Ltd., v. United States, 20 CIT 1277, 1281-82, 945 F.Supp. 260, 265 (1996)); see also FAG U.K., 20 CIT at 1282, 945 F.Supp. at 265 ("In essence, a sale is excluded only when its inclusion would lead to an unrepresentative price comparison, thus frustrating the `apples to apples' comparison goal of the antidumping laws."). In determining whether a sale is representative of a new shipper's commercial behavior, Commerce applies a "totality of circumstances" test focusing on whether or not the transaction is "commercially reasonable" or "atypical of normal business practices." Windmill, 193 F.Supp.2d at 1313; see also Tianjin Tiancheng Pharm., 366 F.Supp.2d at 1248. In evaluating whether or not a sale is "commercially reasonable," Commerce has considered the following factors, among others: (1) the timing of the sale, (2) the price and quantity; (3) the expenses arising from the transaction, (4) whether the goods were resold at a profit, (5) and whether the transaction was at an arm's length basis. See Windmill, 193 F.Supp.2d at 1310; Am. Silicon Techs., 24 CIT at 616, 110 F.Supp.2d at 995. Commerce's practice makes clear that it is highly likely to examine objective, verifiable factors to ensure that a sale is not being made to circumvent an antidumping duty order. Thus, a prospective new shipper is on notice that it is unlikely to establish the bona fides of a sale merely by claiming to have sold in a manner representative of its future commercial practices.
New Donghua apparently seeks either prospective guidance or "bright-line rules" regarding bona fide sales. Prospective guidance would conflict with the statutory requirement that antidumping duties be calculated on the basis of entries of subject merchandise, see 19 U.S.C. § 1675(a)(2)(A), a requirement reflected in the pertinent Commerce regulation. See 19 C.F.R. § 351.212(a) ("the United States uses a `retrospective' assessment system under which final liability for antidumping and countervailing duties is determined after merchandise is imported."). Similarly, to the extent that New Donghua seeks "bright-line rules" that would give clearer guidance than already exists, it makes the unreasonable demand that Commerce anticipate every circumstance under which any sale of any type of merchandise would be "unrepresentative and extremely distortive." See Am. Silicon Techs., 24 CIT at 616, 110 F.Supp.2d at 995. Even if such an enterprise were practicable and not contrary to law, the court doubts that the *1340 result would offer clearer guidance to a particular shipper of a particular good. See Tianjin Tiancheng Pharm., Slip Op. 05-29 at 32-33.[5]
II. COMMERCE PROPERLY APPLIED THE BONA FIDE SALE TEST
New Donghua contends that, even if Commerce had authority to apply a bona fide sale test considering the totality of the circumstances, Commerce lacked substantial record evidence to support its determination that New Donghua's sale was not bona fide. As noted above, Commerce based its determination on three factors: (1) the price was aberrationally high in comparison with Chinese prices and the world price; (2) the quantity of the sale was extremely low in comparison with other shipments of glycine from China; and (3) the importer's behavior was inconsistent with good business practices. See Final Bona Fides Memo at 5-21.
A. New Donghua's Sale Price Was Aberrationally High
Commerce determined that New Donghua's sale price was aberrational by comparing the New Donghua price to (1) the weighted AUV of all covered Chinese glycine entries during the POR that were not clearly aberrational, based on proprietary data in the CBP database; (2) the weighted AUV of all Chinese imports of glycine during the POR, based on public import statistics; and (3) the weighted AUV of U.S. imports of glycine from all countries during the POR, based on publicly available U.S. import data. Final Bona Fides Mem. at 11.[6] New Donghua's sale price was substantially higher than the three comparison values.[7] These price comparisons constitute substantial evidence for Commerce's conclusion that New Donghua's sale price was "substantially higher than any observed value." Id. at 11.
New Donghua challenges Commerce's findings as to price comparisons on several grounds. First, New Donghua argues that, in establishing a benchmark with the AUV of Chinese glycine prices based on proprietary import data, Commerce improperly excluded as aberrational unit values that were higher than New Donghua's price. New Donghua cites three examples of Chinese glycine sales during the POR in which the unit-values of were higher than New Donghua's price. However, the sales cited by New Donghua pertain to a non-glycine product or a type of glycine not subject to the antidumping duty order. See Rebuttal Brief of Petitioners Dow Chemical Company and Chattem Chemicals, Inc. (June 23, 2004) at 4 n. 11, C.R. Doc. 22. (hereinafter "Pet'rs Rebuttal Br.").[8] New Donghua does not challenge *1341 directly Commerce's methodology of excluding entries not covered by the antidumping duty order.
Regarding the prices actually used in the comparison, Commerce excluded only one entry for the POR of the relevant type.[9] This excluded entry exceeded the closest relevant type unit-value for an entry not originating with New Donghua by over 750 percent, making it an obvious outlier. Commerce reasonably excluded the sale as aberrational.
Second, New Donghua contends Commerce contradicted itself by finding New Donghua's price to be artificially high in the bona fides analysis after finding the price to be too low in the Preliminary Results antidumping duty calculations, wherein Commerce calculated an dumping margin of 8.89 percent for New Donghua. See Prelim. Results, 69 Fed.Reg. at 9,808. No contradiction exists, however. The inconsistency identified by New Donghua is based on mistaken comparisons between two different analyses, each with its own objective. See Tianjin Tiancheng Pharm., Slip Op. 05-29 at 15 n. 7. Commerce performs dumping calculations to identify and assess duties upon foreign merchandise that is, or is likely to be, "sold in the United States at less than its fair value." 19 U.S.C. § 1673. Numerous rules apply to dumping margin calculations that are irrelevant to the bona fide sale analysis. For instance, New Donghua's preliminary dumping margin was based, in part, upon adverse inferences made from New Donghua's failure to cooperate to the best of its ability. Prelim. Results, 69 Fed.Reg. at 9,805-06. In contrast, a bona fide sale analysis seeks to exclude those sales designed to appear less harmful than sales from other subject producers in the hope of securing a competitive advantage for the subsequent period of review. This distinction between dumping margin calculations and bona fide sales analyses was explained in Tianjin Tiancheng Pharm.:
the combination of a high "all others" rate and the [p]laintiff's high price compared to other import prices could mean two things: either [p]laintiff truly means to replicate the high price sale upon which it predicated the review, or, [p]laintiff will take advantage of one high price sale to secure a lower-than-average dumping margin, and then typically charge a far lower price (low enough to undercut the competition that has a higher dumping margin, but still high enough to make a hefty profit which would otherwise be unavailable). Considering that the latter is a far more profitable avenue, and that, because of the extended timelines of antidumping reviews, [p]laintiff could have more than two years to enjoy an extremely advantageous, and possibly predatory, market position predicated entirely on an atypical sale, the weight of the evidence is in Commerce's favor in holding that the scenario above is likely indicative of an atypical, or non-bona fide, sale. Moreover, given that the dumping margin calculation and the bona fide analysis address different concerns, there is nothing inherently contradictory in Commerce's finding that a price was low enough to be dumped, and yet so high when compared to other prices in the U.S. market as to be unlikely to be sustained in the future, especially where the motives for not sustaining the price are so clear.
at 1252 n. 7 (citation omitted, emphasis added). If New Donghua's argument were accepted, a firm intent on unfair competition would be free to manipulate the antidumping duty regime by selling at a price between normal value and the export prices of other subject firms and then lowering *1342 its price after obtaining an advantageous cash deposit rate. This is not to say that a new shipper seeking review of a single sale is destined to receive the country-wide rate; price alone would likely be an insufficient basis on which to exclude a transaction. Rather, the bona fides analysis encompasses factors beyond price to assess whether the sale(s) under review are indicative of future commercial behavior. See Final Bona Fides Memo at 4 ("Although single sales, even those involving small quantities, are not inherently commercially unreasonable, those factors taken together with other aspects of a transaction may support a conclusion that a transaction is not bona fide."); see also Issues and Decision Mem.: New Shipper Review of Clipper Manufacturing Ltd. in Fresh Garlic from the PRC: Final Results of Administrative Review and Recision of New Shipper Review, 67 Fed.Reg. 11,283 (Dep't Commerce March 13, 2002) (stating that, in bona fide sales analyses, Commerce examines "a number of factors, all of which may speak to the commercial realities surrounding an alleged sale of subject merchandise.").
Third, New Donghua argues that the use of "dumped" Chinese glycine import prices for comparison purposes is inconsistent with legislative history and precedent. Pl.'s Conf. Op. Br. at 24-25. To support its contention, New Donghua cites the conference report on the 1988 amendments to the Tariff Act of 1930, see 1998 U.S.C.A.A.N. 1547, 1623, Omnibus Trade and Competitiveness Act of 1988, Conf. Rep. to Accompany H.R. 3, H. Report No. 576, as well as precedent. See Kerr-McGee Chem. Corp. v. United States, 21 CIT 1353, 1366, 985 F.Supp. 1166, 1177 (1997); Tehnoimportexport, UCF America, Inc. v. United States, 16 CIT 13, 16-17, 783 F.Supp. 1401, 1405 (1992). These authorities do not pertain to Commerce's bona fide sales analyses; they refer to the requirement that Commerce avoid using dumped prices in the calculation of surrogate factors of production in non-market economy antidumping cases. As discussed above, there is no statutory basis for imposing the full spectrum of dumping margin calculation rules on Commerce's bona fide sale test. See Final Bona Fides Memo at 12 ("[T]he question being addressed is not what the U.S. price of glycine should be, but whether the price of glycine determined by New Donghua for a single sale is an artificial one, arrived at largely for the purposes of establishing a new cash deposit rate.").
Apparently, New Donghua would prefer its sale be compared with the AUVs of Chinese glycine that include antidumping duties. This position presumes that AUVs inclusive of dumping duties reflect realities in the U.S. market because all but one of the subject entries for the POR were subject to the same cash deposit rate of 155.59 percent ad valorem. Neither New Donghua's price nor the weighted AUV comparison prices for the POR, however, include the cash deposit paid. If Commerce were to compare the price of New Donghua's sale, which does not include the value of cash deposits paid, with weighted AUV data inclusive of cash deposits paid as a contingent liability, the result would be a distorted comparison of two different data types. Without running afoul of New Donghua's legislative intent argument, Commerce, of course, could add cash deposit values to New Donghua's price and the comparison prices, which would not alter the price differentials.
B. The Quantity of the Sale Was Extremely Low
The second factor underlying Commerce's determination is that the quantity of New Donghua's sale was found to be "atypical of the company's normal business practices (its sales to other markets were *1343 of significantly larger quantities), as well as the business practices of other Chinese exporters of glycine, which also tend to sell in larger quantities." Final Bona Fides Memo at 16.[10] Substantial record evidence exists for both conclusions.
Some of New Donghua's exports during the POR were made through an affiliate. As noted by New Donghua, the affiliate made three glycine shipments during the POR involving small quantities. See Pl.'s Conf. Op. Br. at 28.[11] These quantities contradict the parenthetical statement made in Commerce's conclusion, i.e., that New Donghua's "sales to other markets were of significantly larger quantities," but only if the statement is understood to include individual sales involving New Donghua's affiliate. This apparent contradiction is, by itself, insufficient to deprive Commerce of an evidentiary basis for its conclusion that the U.S. sale's quantity was atypical of New Donghua's normal business practices. As Commerce stated in the Final Bona Fides Memo, the quantity of New Donghua's U.S. sale is "very low when compared to its other international sales of glycine," and the company "made only one shipment to the United States during the POR." Final Bona Fides Memo at 16. New Donghua's affiliate made three shipments to a third country during the POR. Aside from these three shipments, all related individual shipment quantities to other markets were indeed significantly higher than the U.S. sale quantity. See New Donghua Add'l Information for Response to Fourth Supp. Questionnaire at Exs. 3, 4 (May 20, 2004). There is no basis for requiring Commerce to give more weight to an affiliate's behavior than the principal's.
Commerce's conclusion as to the U.S. sale's atypical quantity is also supported by comparisons to other Chinese glycine exporters' quantities. Commerce found New Donghua's U.S. sale quantity to be the "lowest quantity among glycine entries from China during the POR." Final Bona Fides Memo at 16.[12] New Donghua identifies three sales from the PRC by other firms involving relatively small quantities, but, similar to its flawed argument regarding price, these quantities do not pertain to types of entries covered by the antidumping duty order. See id.[13]
C. The Actions of New Donghua's U.S. Customer Indicate the Transaction Was Not Commercially Reasonable
Commerce's third basis for rescinding the review was the background and conduct of New Donghua's U.S. customer. Commerce found that the customer (1) "had no previous experience in the glycine business, nor in the chemicals business in general," (2) "paid far above the prevailing import price for glycine from China, and also far above the import price for glycine from all markets," (3) held the glycine so long that 75 percent of its 24-month shelf-life had expired, and (4) had no prospects for a sale at the time of Commerce's decision to rescind the review. Final Bona Fides Memo at 19-20. New Donghua does not contest these findings. Because these facts suggest that the new shipper sale's only purpose was to secure an advantageous cash deposit rate, they support Commerce's conclusion that the transaction was not conducted in a commercially reasonable manner.
New Donghua challenges Commerce's interpretation of the customer's post-sale *1344 behavior, describing as reasonable the customer's "express intention of obtaining the results of the new shipper review in order to set a proper resale price." See Pl.'s Conf. Op. Br. at 29 (citing New Donghua First Supp. Questionnaire Response (Dec. 19, 2003), Supp  20  21, Pl.'s Conf.App. at tab 3). Similarly, New Donghua's general position is that the circumstances of the sale  including price and quantity  are entirely consistent with its position that the U.S. sale was a test sale and should have been evaluated as such. Commerce acknowledged New Donghua's position, but invocation of the term "test sale" does not have a talismanic effect, negating all indications of an atypical transaction. When a purported test sale is under review, Commerce is not obligated to overlook evidence suggesting that the U.S. sale "was made solely for the purpose of establishing a new antidumping deposit rate, without regard to the commercial reasonableness of the sale." See Final Bona Fides Memo at 20. Indeed, the artificial appearance of the U.S. sale is New Donghua's fault:
In one-sale reviews, there is, as a result of the seller's choice to make only one shipment, little data from which to infer what the shipper's future selling practices would look like. This leaves the door wide to the possibility that the sale may not, in fact, be typical, and that any resulting antidumping duty calculation would be based on unreliable data.
Tianjin Tiancheng Pharm., 366 F.Supp.2d at 1263.
New Donghua attempts to support its test sale argument by citing Am. Silicon Techs., which upheld Commerce's decision to conduct a new shipper review on the basis of a test sale. See 24 CIT at 619, 110 F.Supp.2d at 998. In that case, however, Commerce was presented with verifiable indications of the bona fide nature of the test sale. The seller did not request a review, lessening concerns about the seller's motives for a small, high-priced sale. Id. The buyer was "an end-user of the silicon metal and did not resell the merchandise at a loss." Id. (contrasting the buyer's conduct with the unprofitable sale in Cut-to-Length Carbon Steel Plate from Romania, 63 Fed.Reg. 47,232 (Dep't Commerce Sept 4, 1998) (notice of recision of review)). The stated purpose of the test sale  to test the quality of the merchandise  was specific and germane to the buyer's business, which used the merchandise. See Am. Silicon Techs., 24 CIT at 619, 110 F.Supp.2d at 998.
Here, on the other hand, New Donghua made a single sale and then requested the new shipper review. The U.S. customer is not an end-user and has no previous experience with glycine or the chemicals business in general. As an aspiring middleman in the glycine business, it could reasonably be expected to seek a profitable resale. Its declared intention for not selling the merchandise  to wait for the final results of the review  is generic and consistent with a desire to obtain a favorable cash deposit rate before lowering prices.

CONCLUSION
The court realizes that when there are very high antidumping duty margins, it may be very difficult for any affected company to enter or reenter the U.S. market. Nonetheless, Commerce is not amiss in trying to avoid creating an unfair playing field and seeking evidence of a bit more of a genuine investment as a show of good faith by the new shipper. Otherwise, circumvention is too likely. On the other hand, the standard for what is a non-bona fide sale must remain relatively stringent, as Commerce's bona fide sales analysis merely fills a gap left by Congress with regard to the exceptional case.
*1345 Commerce's decision to rescind New Donghua's new shipper review was supported by substantial evidence and in accordance with the law. Accordingly, New Donghua's motion for judgment on the agency record is denied and judgment is entered for Defendant.
IT IS SO ORDERED.
NOTES
[1]  One Chinese exporter, Nantong Dongchang Chemical Industry Corp., has a separate antidumping duty rate of 18.60 percent. See Glycine from the Peoples [sic] Republic of China, 66 Fed.Reg. 13,284, 13,285 (Mar. 5, 2001) (amended final results of new shipper review).
[2]  [ ]
[3]  [ ]
[4]  Commerce's regulations for new shipper reviews are set forth in 19 C.F.R. § 351.214. These regulations, like the statute, do not discuss a bona fide sale test. See 19 C.F.R. § 351.214(b)(2)(iv)(C) (mandating only that a request for a new shipper review establish "[t]he date of the first sale to an unaffiliated customer in the United States.").
[5]  In Tianjin Tiancheng Pharm., the court noted that Commerce's practice is to evaluate the bona fide nature of a sale on a case-by-case basis: "[w]hile some bona fides issues may share commonalities across various Department cases, each one is company-specific and may vary with the facts surrounding each sale." 366 F.Supp.2d at 1263 (quoting Issues & Dec. Mem. to Final Results of the Antidumping Duty New Shipper and Administrative Reviews on Certain Preserved Mushrooms for the People's Republic of China  February 1, 2001 through January 31, 2002, (July 11, 2003), available at http://ia.ita.doc.gov/frn/summary/prc/XX-XXXXX-X.pdf). The court upheld Commerce's exclusion of a single sale as not bona fide: "Given the unusual sale price involved, it was not unreasonable for Commerce to look beyond the price to determine whether other characteristics of the sale were such as to demonstrate that the sale as a whole, was atypical." Slip Op. 05-29 at 33. Atypical or non-typical in this context means unrepresentative of a normal business practice. See Am. Silicon Techs., 24 CIT at 616, 110 F.Supp.2d at 995.
[6]  [ ]
[7]  [ ]
[8]  [ ]
[9]  [ ]
[10]  [ ]
[11]  [ ]
[12]  [ ]
[13]  [ ]


180 F.Supp.2d 235 (2002)
SEACO INSURANCE COMPANY, Plaintiff,
v.
Laura DAVIS-IRISH, Defendant.
No. CIV. 01-166-P-H.
United States District Court, D. Maine.
January 17, 2002.
*236 John S. Whitman, Esq., Richardson, Whitman, Large & Badger, Portland, ME, for Seaco Insurance Company, for plaintiff.
William D. Robitzek, Esq., Berman & Simmons, P.A., Lewiston, ME, for defendant.

ORDER
HORNBY, Chief Judge.
This declaratory judgment lawsuit is a controversy over the meaning of a "Business Auto Policy" issued by Seaco Insurance Company.[1] The named insured is Garrand & Company Inc. Policy at 2. Only one company-owned vehicle is listed, a 1998 Volvo. Id. at 5. The policy carries an endorsement for "Maine Uninsured Motorists Coverage." Id. at 17. It provides that Seaco "will pay all sums the `insured' is legally entitled to recover as compensatory damages from the owner or driver of an `uninsured motor vehicle.'" Id. It then has a section captioned "Who Is An Insured" that reads as follows:
B. WHO IS AN INSURED
1. You.
2. If you are an individual, any "family member".
3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, loss or destruction.
4. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured".
Id. at 17-18. The question here is whether a Garrand & Company employee, a passenger in a non-Company car, has uninsured motorist coverage under this Seaco policy. Laura Davis-Irish is the employee/passenger, and she was seriously injured while in the course of her employment with Garrand & Company by an uninsured motorist. Stipulation of Facts ("Stip.") ¶¶ 2-3. Paragraph 4 is obviously inapplicable. Paragraph 3 does not apply because Davis-Irish was not occupying the 1998 Volvo, the only "covered `auto,'" and the Volvo was not out of service. (Davis-Irish was in a non-Company car because it is Company policy that employees not use Company cars. Stip. ¶ 9.) The dispute is over paragraphs 1 and 2. By any ordinary use of the language, they do not provide coverage for Davis-Irish. According to the general definitions of the Business Auto Coverage, "[t]hroughout this policy the words `you' and `your' refer to the Named Insured shown in the Declarations." Policy at 6. Therefore, the "You" in this uninsured motorist endorsement, where Garrand & Company is the named insured under the policy, can only reasonably be understood as referring to Garrand & Company. Garrand & Company is a corporation, not an individual. Paragraphs 1 and 2, therefore, provide no uninsured *237 motorist coverage for Company employees, and there is no ambiguity about it.
Davis-Irish's major argument against this conclusion is that it will render the uninsured motorist coverage meaningless for a policy issued to a corporation. That is just not so. The Maine Uninsured Motorist Coverage endorsement is obviously a general purpose endorsement for use in a variety of policy formats in Maine, and is designed to produce different outcomes depending on whether the named insured is an individual or not. For a corporate policy, paragraph 3 would provide coverage when the Company car or a substitute was used. Paragraph 4 might apply in the same circumstances (i.e., the occupant of the covered car would be an insured and therefore someone else might get coverage under the circumstances described in paragraph 4  presumably damages for loss of society). The fact that paragraphs 1 and 2 alone will never result in uninsured coverage in a corporate policy proves nothing.[2] Davis-Irish also argues that because a corporation can act only through its officers and employees, it is reasonable to interpret the "you" in a corporate policy as including the officers and employees. That is not a reasonable reading of the language, and runs contrary to the thrust of Maine Law Court precedent. See, e.g., Langer v. U.S. Fidelity & Guaranty Co., 552 A.2d 20, 22 (Me.1988) (where State of Maine was named insured, wards of the state are not within "family coverage"); see also Smith v. Reliance Nat'l Indem. Co., No. 00-93-P-H, 2000 WL 1357523 (D.Me. Sept.18, 2000) (policy insuring Maine Conference of the United Church of Christ, a corporation, does not insure individual members of the Conference), aff'd No. 00-93-P-H (D.Me. Oct.13, 2000).[3]
Because I find no ambiguity in the policy and no uncertainty concerning the Law Court precedents, I DENY the motion to certify to the Maine Law Court. I find that there is no coverage under the Seaco policy. The Clerk shall accordingly enter judgment in favor of the plaintiff insurer and against the defendant.
SO ORDERED.
NOTES
[1]  The parties have presented the liability issue on stipulated facts. Although they have styled their arguments (motions and memoranda) as for summary judgment, I treat them as moving for judgment on the stipulated record. See Boston Five Cents Savings Bank v. Sec'y of Dep't of HUD, 768 F.2d 5, 11-12 (1st Cir. 1985).
[2]  Maine's Uninsured Motorist statute does not help the analysis. Davis-Irish has properly agreed that the statute does not mandate coverage, although she does argue that the statutory policies should lead the court in her direction in cases of ambiguity. Def.'s Mem. in Support of Summ. J. at 4 (Jan. 11, 2000). I find no ambiguity.

The parties have also debated the relevance of surrounding coverage. See, e.g., id. at 5. (Davis-Irish has obtained benefits from the insurer of the owner of the car in which she was a passenger and has a claim pending against her own auto insurance carrier.) I find no relevance in the availability or unavailability of surrounding coverage.
[3]  Apgar v. Commercial Union Ins. Co., 683 A.2d 497 (Me.1996), is not to the contrary. That case also involved a business automobile insurance policy that had the same definitions in its endorsement for uninsured motorist coverage. The important differences in Apgar, however, are that the Declarations Page of the so-called business coverage policy inexplicably listed the form of the named insured's business as "INDIVIDUAL" and listed the named insured's business as "PERSONAL USE." Id. at 499. The policy also carried an individual named insured endorsement that stated "[i]f you are an individual," the policy would be changed in certain other respects, including the definitions of "you" and "your." Id. The insurer had no explanation for the presence of the individual named insured endorsement. The statements on the Declarations page and the individual named insured endorsement therefore created ambiguities in the policy's coverage that required a trial to determine its meaning. Id. at 500. There is no such ambiguity here.


        NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               ______________________

               JOHN D'AGOSTINO,
                   Appellant

                          v.

      MASTERCARD INTERNATIONAL INC.,
                 Appellee

    ANDREI IANCU, UNDER SECRETARY OF
  COMMERCE FOR INTELLECTUAL PROPERTY
   AND DIRECTOR OF THE UNITED STATES
     PATENT AND TRADEMARK OFFICE,
                  Intervenor
            ______________________

                2018-1000, 2018-1001
               ______________________

   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
IPR2014-00543, IPR2014-00544.
                ______________________

                    JUDGMENT
               ______________________

   ROBERT GREENSPOON, Flachsbart & Greenspoon, LLC,
Chicago, IL, argued for appellant.

   ELIOT DAMON WILLIAMS, Baker Botts LLP, Palo Alto,
CA, argued for appellee. Also represented by ROBERT C.
SCHEINFELD, CHRISTOPHER PATRICK, New York, NY.

   COKE MORGAN STEWART, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA,
argued for intervenor. Also represented by THOMAS W.
KRAUSE, FRANCES LYNCH, FARHEENA YASMEEN RASHEED.
                ______________________

THIS CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

      PER CURIAM (O’MALLEY, TARANTO, and STOLL, Cir-
cuit Judges).
             AFFIRMED. See Fed. Cir. R. 36.

                    ENTERED BY ORDER OF THE COURT

September 6, 2018              /s/ Peter R. Marksteiner
      Date                     Peter R. Marksteiner
                               Clerk of Court


477 F.2d 598
Lovev.Rose
73-1169
UNITED STATES COURT OF APPEALS Sixth Circuit
4/18/73

1
M.D.Tenn.

AFFIRMED


117 A.2d 64 (1955)
W. Philip MUNSEY, Executor, U/W of Alfred L. Groves
v.
John GROVES.
Supreme Judicial Court of Maine.
September 19, 1955.
*66 James B. Perkins, Jr., Boothbay Harbor, for plaintiff.
John E. Wilson, Damariscotta, for defendant.
Before FELLOWS, C. J., and WILLIAMSON, WEBBER and BELIVEAU, JJ., and THAXTER, Active Retired Justice.
WEBBER, Associate Justice.
Plaintiff brought his bill in equity as Executor setting forth that his testator in his lifetime executed a deed of Maine real estate to defendant, which deed, the plaintiff averred, although duly recorded within a few days, was never delivered to the defendant by the decedent in his lifetime. The prayer of the bill was for injunction to restrain the defendant from disposing of the property. Service of notice in the usual form was made, so the parties stipulate, on the defendant in South Carolina, he being resident thereof. Thereafter counsel for defendant appeared specially and subsequently filed motion to dismiss for want of jurisdiction as to the defendant. This motion was denied and exception taken. The residuary legatee was permitted without objection to intervene as party plaintiff. Later defendant renewed his motion stating additional grounds all related to the lack of jurisdiction. This motion likewise was denied and exception reserved. Defendant has never entered a general appearance nor has he ever abandoned his protest with reference to jurisdiction. He has never pleaded to the merits nor has any hearing on the merits been had. The bill of exceptions informs us that the chief ground of the denial of defendant's motions was that the appearance and pleading through counsel, either specially or generally, to attack jurisdiction automatically gives the court jurisdiction of the person.
We must first consider whether the matter is prematurely before us. Ordinarily exceptions will not be entertained in the Law Court before a case in equity comes up for a final hearing. R.S.1954, Chap. 107, Sec. 26; Whitehouse, Equity Practice, Sec. 617, Page 647; Stevens v. Shaw, 77 Me. 566, 1 A. 743; City of Bath v. Palmer, 90 Me. 467, 38 A. 365. Where, however, it is deemed to be more in the interests of justice that the questions involved should now be determined, and the peculiar character of the questions here presented hardly permits of postponement if any benefit is to be derived from it by the moving party, exceptions may be entertained by the Law Court before final hearing. Stevens v. Shaw, supra; Flint v. Comly, 95 Me. 251, 49 A. 1044; Bean v. Central Maine Power Co., 133 Me. 9, 173 A. 498. Both counsel vigorously urge that here is a case properly within the exception to the usual rule of practice, and we deem it so.
It is not contended here that the service which was made upon the defendant while resident in South Carolina conferred upon the Maine Court any jurisdiction over the person of the defendant such as was requisite to the granting of the injunctive relief sought. See Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. The only issue is whether or not by subsequent action and conduct the defendant voluntarily submitted to the jurisdiction of the court. Devine v. Tierney & Findlen, 139 Me. 50, 27 A.2d 134.
It is true that in actions at law, the common law required that pleas to the jurisdiction which were in the nature of pleas in abatement had to be offered by the defendant in person rather than by attorney. Even in actions at law, however, if the jurisdictional failure was evident upon the face of the record, advantage of the failure could properly be taken by motion to dismiss filed by an attorney under special appearance. Louisville & N. R. Co. v. Industrial Board, 282 Ill. 136, 118 N.E. 483; Pratt v. Harris, 295 Ill. 504, 129 N.E. *67 277. See Smith v. Hunt, 91 Me. 572, 40 A. 698; Emmons v. Simpson, 116 Me. 406, 102 A. 179; Mansur v. Coffin, 54 Me. 314; Thomas v. Thomas, 96 Me. 223, 52 A. 642; Mace v. Woodward, 38 Me. 426; Bryant v. Bryant, 149 Me. 276, 100 A.2d 663.
The approved practice in equity is for defendant's counsel to appear specially and file a motion in writing to dismiss for want of jurisdiction over the person. "In either case, a motion seems to be the only safe form of pleading to employ in making a special appearance, and where the facts showing the failure of jurisdiction do not appear on the record, they should be set out in the motion and verified by affidavit." Whitehouse, Equity Practice (State and Federal), Vol. 1, Sec. 185, page 354. In Flint v. Comly, supra, 95 Me. at page 255, 49 A. at page 1046, our Court said: "If these nonresident defendants had desired to object to the jurisdiction of the court, they should have entered a special or conditional appearance. Such an appearance, made for the purpose of urging jurisdictional objections, is clearly recognized by all courts and works upon practice." (Emphasis supplied.) And at page 256 of 95 Me., at page 1046 of 49 A., "The rule is, that when a defendant appears solely for the purpose of objecting to the jurisdiction of the court over his person, such motion is not a voluntary appearance of defendant which is equivalent to service." The practice was followed and approved in the equity case of Devine v. Tierney, supra. So here the defendant cannot be deemed to have voluntarily submitted to the jurisdiction of the Maine Court by appearing specially by counsel and pressing a motion to dismiss for lack of jurisdiction of the person.
The plaintiff contends that defendant unreasonably delayed filing his motion to dismiss and should be treated as having waived his right to file. He calls attention to the fact that such delay may be fatal in actions of law because of the application of Rule 5 of the Revised Rules of the Supreme Judicial and Superior Courts. Snell v. Snell, 40 Me. 307; Mitchell v. Union Life Insurance Co., 45 Me. 104. We may observe in passing that even in actions at law however, there are exceptions to the application of the Rule in circumstances not unlike these. See Mace v. Woodward, supra; Richardson v. Rich, 66 Me. 249; Dow v. March, 80 Me. 408, 15 A. 26; Central Maine Power Co. v. Maine Central Railroad Co., 113 Me. 103, 93 A. 41. However, the plaintiff cites no case in which a similar limitation has been applied in equity practice and we are aware of none. The plaintiff here cannot attribute inactivity to the defendant alone. If he deemed, as he now contends, that the defendant had appeared and voluntarily submitted to the jurisdiction but had failed to answer, it was open to him to advance the cause by taking appropriate action under the provisions of the Statute (now R.S.1954, Chap. 107, Sec. 15). The plaintiff did not and cannot now complain if a period of time transpired without action by either party.
We think the rights of the defendant crystallized and were preserved by exception as matters stood when the court below first refused to dismiss the action for want of jurisdiction. The subsequent conduct and participation by defendant's counsel displayed no intention to waive the jurisdictional defect, but on the contrary the lack of jurisdiction was vigorously and consistently asserted at every stage of the proceedings. It has been said that once the point is saved by exception, and at least in the absence of any subsequent manifest intention to waive the jurisdictional issue, even a later participation upon the merits will not deprive a party of the benefit of his position upon the jurisdictional issue. Citizens' Savings & Trust Co. v. Illinois Central Railroad, 205 U.S. 46, 27 S.Ct. 425, 51 L.Ed. 703; Walling v. Beers, 120 Mass. 548; Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237; Whitehouse, Equity Practice, Sec. 294, page 335. As the last cited text writer stated in Section 276, page 322, "It must not be supposed, however, that service of such order of notice on defendant is in itself sufficient to give the court jurisdiction over such defendant if he fails to appear and submit himself to *68 the jurisdiction. If he is the sole defendant and fails to appear the suit cannot go on. * * * The notice is simply to enable him to appear if he so desires. It cannot drag him within the limits of the state or subject him to the jurisdiction of the court against his will." (Emphasis supplied.) We think the defendant was aggrieved by the action of the court below in denying the motions to dismiss.
The only question remaining is whether or not the bill should be dismissed only as to the defendant but retained for action upon the res. By a series of amendments the original plaintiff here has sought to convert this equitable action from one seeking in personam relief against the defendant to an action in rem seeking to remove an alleged cloud on title. In an appropriate case the court will sometimes dismiss the bill as to the defendant but retain it for hearing as an in rem proceeding. DuPuy v. Standard Mineral Co., 88 Me. 202, 33 A. 976. But here the present status of the action hardly warrants retention of the bill. There is apparent a misjoinder of parties plaintiff. The executor fails to allege sufficient interest in the real estate to justify action on his part in seeking to remove an alleged cloud on title. "Under the general rule that an executor or administrator has no title to, or control over, the realty of his decedent * * * he ordinarily may not bring an action to quiet, or remove a cloud from, the title to decedent's real estate, at least before he obtains a license to sell * * *." 33 C.J.S., Executors and Administrators, § 255, p. 1265; see also Phelps v. Funkhouser, 39 Ill. 401; Roffmann v. Roffmann, 384 Ill. 315, 51 N.E.2d 560; Hooker v. Porter, 271 Mass. 441, 171 N.E. 713; Averill v. Cone, 129 Me. 9, 149 A. 297; Crocker v. Smith, 32 Me. 244; Votolato v. McCaull, 80 R.I. 301, 96 A.2d 329.
As has been noted, the amendments already made and those which might be further required to convert this action into one for the removal of an alleged cloud have the effect of changing completely the equitable cause of action. It seems doubtful if the Justice below would have allowed the amendments, had he not considered that the defendant had already submitted to the jurisdiction. Whitehouse, Equity Practice, Sec. 411, page 440 states: "To strike out the entire substance and prayer of a bill and insert a new case by way of amendment, leaves the record unnecessarily encumbered with the original proceedings, increases expense and complicates the suit. It is far better to require the complainant to begin anew." Although the right of amendment is broad in equity and ordinarily rests within the discretion of the presiding justice, we deem this an appropriate situation in which to follow the suggestion that amendments which entirely change the cause of action in equity are not to be encouraged.
Exceptions sustained. Bill dismissed with costs to defendant but without prejudice to plaintiffs.
TAPLEY, J., did not sit.