              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Angel Rivera,                                      :
                               Petitioner          :
                                                   :
                        v.                         :   No. 574 M.D. 2018
                                                   :   Argued: December 10, 2019
Pennsylvania State Police and                      :
Commonwealth of Pennsylvania,                      :
                         Respondents               :

BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                   FILED: January 24, 2020

      Presently before the Court in our original jurisdiction is Angel Rivera’s
(Petitioner) Application for Summary Relief (Application) on certain counts
enumerated in his Petition for Review (Petition) against the Pennsylvania State
Police (PSP) and the Commonwealth of Pennsylvania. Petitioner seeks mandamus
relief or, in the alternative, declaratory or injunctive relief with regard to whether he
is required to register as a sexual offender under the most recent enactment of the
Sexual Offender Registration and Notification Act, Act of February 21, 2018, P.L.
27 (Act 10), 42 Pa. C.S. §§ 9799.10-9799.75, as amended by the Act of June 12,
2018, P.L. 140 (Act 29) (collectively, Act 101). Petitioner contends that he is entitled

      1
          As the parties, for simplicity, refer to the current law as “Act 10,” we will do the same.
to summary relief on his claim in the nature of a writ of mandamus directing PSP to
comply with a January 2018 order (Order) from the Court of Common Pleas of York
County (common pleas) vacating his registration requirements.           Alternatively,
Petitioner seeks summary relief on his request for declaratory or injunctive relief,
asserting that his registration requirements were completed prior to the enactment of
Act 10 and, therefore, Act 10 does not apply to him.

 I.   Factual background
      Based upon the Petition, PSP’s Answer and New Matter, and Petitioner’s
response thereto, the facts are as follows. In 1989, Petitioner pled guilty to a charge
of rape in New York and was sentenced to three to nine years of imprisonment.
Petitioner relocated to Pennsylvania sometime thereafter and was subject to sexual
offender registration requirements based upon his conviction in New York. The
Sexual Offender Registration and Notification Act (SORNA), former 42 Pa. C.S.
§§ 9799.10-9799.41, became effective in December 2012, and Petitioner was
convicted of failing to register as a sex offender under SORNA in 2013. Following
the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017), in which the Supreme Court determined SORNA violated the ex
post facto clauses of the United States and Pennsylvania Constitutions, Petitioner
filed a motion to vacate his conviction for failure to register, which common pleas
granted. Petitioner also filed a motion “to vacate his sex offender registration
requirements [(Motion to Vacate)], again in light of Muniz,” and common pleas
“granted this motion and vacated [Petitioner’s] sex offender registration
requirements,” in the Order. (Petition ¶ 11.) Act 10 became effective in February

                                          2
2018,2 and, by letter dated May 10, 2018, PSP notified Petitioner that he was
“obligated to register for the rest of his life pursuant to Act 10.” (Id. ¶ 13.) Petitioner
agrees with PSP that his “underlying [] triggering conviction has not been vacated,”
but contends he is not subject to Act 10 requirements because of the Order. (Answer
to New Matter ¶ 83.)
       In Count I of his Petition, Petitioner requests a writ of mandamus compelling
PSP to comply with the Order, which he contends terminated Petitioner’s sexual
offender registration requirements in their entirety. Alternatively, in Count II,
Petitioner requests declaratory and/or injunctive relief enjoining PSP from enforcing
Act 10 against him for two reasons: first, Act 10 applies only to those who have not
completed their registration requirements as of February 21, 2018, which Petitioner
had by virtue of the Order; and second, Act 10 is punitive and cannot be retroactively
applied.
       After the pleadings closed, Petitioner filed the instant Application, seeking
summary relief as to Count I in its entirety and as to Count II to the extent that he is
entitled to declaratory and/or injunctive relief because Act 10 does not apply to him
as an individual who has completed the registration requirements. Acknowledging

       2
          Through Acts 10 and 29, the newest version of the Sexual Offender Registration and
Notification Act was enacted in response to the Supreme Court’s decision in Muniz. Section
9799.51(b)(4) of Act 10, 42 Pa. C.S. § 9799.51(b)(4). The General Assembly modified subchapter
H to address registration requirements for individuals who committed offenses on or after
December 20, 2012, the effective date for SORNA. See Section 9799.11(c) of Act 10, 42 Pa. C.S.
§ 9799.11(c). Through subchapter I, the General Assembly also established, in Act 10, new
registration requirements for: (1) individuals who committed offenses between April 22, 1996,
and December 20, 2012, whose registration period had not expired; and (2) offenders who were
required to register under a pre-SORNA statute between April 22, 1996, and December 20, 2012,
whose registration period had not yet expired. See Section 9799.52 of Act 10, 42 Pa. C.S.
§ 9799.52. Although the parties disagree as to whether Petitioner’s registration is complete, their
arguments focus on subchapter I because Petitioner’s offense was committed prior to December
20, 2012.

                                                3
potential factual disputes between the parties on the punitive nature of Act 10, and
the pending case before the Supreme Court regarding that issue, Commonwealth v.
Lacombe, petition for allowance of appeal granted (Pa., No. 35 MAP 2018, filed
Sept. 26, 2019), Petitioner does not seek summary relief on his claim that he is
entitled to injunctive and/or declaratory relief for his averments regarding the
punitive nature of Act 10.

II.   Discussion
      This Court may grant an application for summary relief under Rule 1532(b)
of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1532(b), only if the
“party’s right to judgment is clear and no material issues of fact are in dispute.”
Gregory v. Pa. State Police, 185 A.3d 1202, 1205 n.5 (Pa. Cmwlth. 2018). For
summary relief purposes, the record “is the same as a record for purposes of a motion
for summary judgment,” and includes pleadings, depositions, answers to
interrogatories, admissions, affidavits, and reports signed by expert witnesses.
Summit Sch., Inc. v. Dep’t of Educ., 108 A.3d 192, 195-96 (Pa. Cmwlth. 2015).
Further, “[i]t is well established that testimonial affidavits . . . , even if not
contradicted, [are] insufficient to establish the absence of a genuine issue of material
fact because the credibility of the testimony is a matter for the factfinder.” Dep’t of
Transp. v. UTP Corp., 847 A.2d 801, 806 (Pa. Cmwlth. 2004). When ruling on an
application for summary relief, “we review the record in the light most favorable to
the nonmoving party, resolving all doubts as to the existence of disputed material
fact against the moving party.” Marcellus Shale Coal. v. Dep’t of Envtl. Prot., 216
A.3d 448, 458 (Pa. Cmwlth. 2019). With these principles in mind, we turn to each
of Petitioner’s bases for the requested summary relief.

                                           4
   a. Whether Petitioner is entitled to summary relief on his mandamus claim.
       Petitioner asserts that there are no factual disputes and his right to mandamus
relief is clear because the Order terminated his registration requirement. Petitioner
argues as follows.       Although the parties agree that common pleas terminated
Petitioner’s registration requirements in the Order, PSP now seeks to impose Act
10’s requirements. Therefore, the only question before this Court is a question of
law regarding whether PSP can force Petitioner’s registration in light of the Order,
which states that it grants Petitioner’s “Motion to Vacate Sex Offender Registration
Requirements” and that Petitioner’s “sex offender registration requirements are
vacated.” (Order, Petition, App. A.) According to Petitioner, Act 10 does not
invalidate this Order, and PSP cannot determine otherwise. As this Court did in
Sammons v. Pennsylvania State Police, 931 A.2d 784 (Pa. Cmwlth. 2007), wherein
we determined that PSP was bound to follow an order of a trial court expunging a
criminal record, we should direct PSP to follow the Order. Petitioner argues he has
a clear right to relief and no other adequate legal remedy. Accordingly, Petitioner
claims he is entitled to summary relief on the mandamus claim.3
       PSP responds that Petitioner misconstrues the Order and ignores the
underlying Motion to Vacate that prompted common pleas to enter the Order. PSP
argues as follows. The Motion to Vacate solely referenced and relied upon SORNA
and, therefore, the resulting Order applies only to the registration requirements of
SORNA. Further, because the Motion to Vacate was filed and the Order entered
before Act 10 was passed, common pleas could not have vacated Petitioner’s

       3
          Petitioner also relies upon Commonwealth v. Cheeseboro, 91 A.3d 714, 722 (Pa. Super.
2014), in which the Superior Court determined that PSP did not have standing to contest orders in
which courts of common pleas accepted negotiated plea agreements that did not require the
defendants to register under SORNA. Because there is no question regarding PSP’s standing here,
this case is not relevant to our determination of whether Petitioner is entitled to summary relief.

                                                5
registration requirements under a future statute. PSP contends the Order became
moot upon the passage of Act 10. Sammons is inapposite, because there was no
intervening act by the General Assembly to enact new law or amend existing law in
that case, as there is here. Because the enactment of Act 10 mooted the Order and
restored Petitioner’s registration requirements, PSP agues Petitioner has not
established a clear right to relief.
       Petitioner replies PSP is mistaken that the Motion to Vacate solely references
SORNA, asserting instead that it sought “vacatur of [Petitioner’s] registration
requirements under SORNA.” (Petitioner’s Reply Brief (Br.) at 2.) The premise for
the Motion to Vacate was “that no other registration schemes” applied to Petitioner
and, therefore, he had no requirement to register. (Id.) While common pleas could
not have anticipated the enactment of Act 10 at the time that it entered the Order,
Petitioner argues the Order remains valid unless and until it is modified or vacated.
       A writ of mandamus is issued “to compel official performance of a ministerial
act or mandatory duty,” but “cannot issue to compel performance of a discretionary
act or to govern the manner of performing” a required act. Fagan v. Smith, 41 A.3d
816, 818 (Pa. 2012) (internal quotation marks omitted). A writ of mandamus can be
issued only where the petitioner has “a clear legal right, the responding public
official has a corresponding duty, and no other adequate and appropriate remedy at
law exists.” Id. “[T]he purpose of mandamus is not to establish legal rights, but to
enforce those rights which are already established.” Clark v. Beard, 918 A.2d 155,
159 (Pa. Cmwlth. 2007).
       Relying upon this Court’s decision in Sammons, Petitioner contends that he is
entitled to mandamus to compel PSP to follow a valid court order vacating his
registration requirements. In that case, the petitioner sought a writ of mandamus

                                          6
ordering PSP to execute a trial court order granting the petitioner’s expungement
petition filed pursuant to the Criminal History Record Information Act (CHRIA).4
The petitioner served PSP with a certified copy of the trial court order granting the
expungement petition, but PSP declined to expunge the record, citing its statutory
duty under CHRIA to maintain records for persons convicted of crimes. The
petitioner wrote PSP again, asserting PSP had a ministerial duty to comply with the
trial court order. PSP disagreed, arguing that CHRIA provided PSP, not trial courts,
the discretion to expunge records for individuals over 70 years old like the petitioner.
The petitioner then sought mandamus relief in our original jurisdiction. PSP filed
preliminary objections in the nature of a demurrer, and the petitioner sought
summary relief to enter judgment in his favor.
      Finding no factual disputes and the petitioner’s right to relief being clear, we
overruled PSP’s preliminary objections and granted summary relief to the petitioner.
Sammons, 931 A.2d at 789. We interpreted the relevant sections of CHRIA and
determined that there was no support for PSP’s position that it alone had discretion
to expunge records for individuals over 70 years old; thus, courts could expunge
these records under CHRIA as well. We concluded PSP had a ministerial duty to
expunge the record pursuant to the trial court order, the petitioner had a clear legal
right to relief, and there was no remaining alternative for the petitioner to receive the
relief he requested. Id. Therefore, we held mandamus was warranted to compel PSP
to comply with the trial court order. Id.
      Although Petitioner, here, asserts that the question before us is simply a
question of law involving the enforcement of an order, such as that presented in
Sammons, we disagree. In Sammons, the parties agreed that the trial court had

      4
          18 Pa. C.S. §§ 9101-9183.

                                            7
granted the expungement petition, but disagreed as to the trial court’s authority to
do so. Therefore, in Sammons, the only dispute before us on the claim for summary
relief was purely legal, involving statutory interpretation. Here, however, the parties
do not agree on the factual circumstances surrounding the Motion to Vacate and the
Order. Petitioner relies upon the plain language of the Order, which states common
pleas “hereby GRANTS the [Petitioner’s] Motion to Vacate Sex Offender
Registration Requirements. Accordingly, the [Petitioner’s] sex offender registration
requirements are vacated.” (Order, Petition, App. A.) Based on this, Petitioner
argues that his registration requirements under any sexual offender registration
statute are, and remain, vacated. PSP denies that the Order vacated Petitioner’s
sexual offender registration requirements in perpetuity or that the Order extended to
future enactments of SORNA. To support this, PSP relies upon the Motion to
Vacate, which it attached to its brief, wherein Petitioner asserted, inter alia, that
SORNA was not legally binding on Petitioner in light of Muniz and retroactive
application of SORNA would be ex post facto. PSP further notes that Petitioner’s
Motion to Vacate was filed on October 26, 2017, approximately three months after
the Supreme Court decided Muniz, and the Order was issued in January 2018,
approximately one month prior to the enactment of Act 10. Thus, PSP contends that
the Order is limited to SORNA.
      PSP’s arguments and attachments to its brief create a genuine issue of material
fact that preclude Petitioner’s request for summary relief. Whether Petitioner is
entitled to a writ of mandamus to compel PSP to comply with the Order depends
upon resolution of the dispute regarding to what extent the Order vacated Petitioner’s
registration requirements and whether Act 10 restored Petitioner’s registration
requirements. Regardless of whether PSP has a mandatory duty to enforce a valid

                                          8
court order, we cannot decide whether PSP must enforce the Order while the parties
disagree about what the Order provides and the effect of Act 10. Until it is
determined whether common pleas’ Order applied, or could apply, only to
Petitioner’s registration requirements under SORNA and the effect on his
registration requirements under Act 10, this Court cannot determine that Petitioner
has a clear right to mandamus relief. Accordingly, we deny Petitioner’s Application
on this point.

   b. Whether Petitioner is entitled to summary relief on his claims for declaratory
      and/or injunctive relief.
      Petitioner argues as follows. Subchapter I of Act 10 cannot be imposed upon
him because his registration requirements were terminated by the Order. As set forth
in Section 9799.54(a)(4) of Act 10, subchapter I applies to registrants, such as
Petitioner, who committed the triggering offense outside of the Commonwealth, and
“as of February 21, 2018, ha[ve] not completed registration requirements.”
(Application at 7 (quoting 42 Pa. C.S. § 9799.54(a)(4)) (alteration added).)
Petitioner completed his registration requirements before February 21, 2018, by
virtue of the Order in January 2018, and subchapter I does not allow for the revival
of completed registration requirements. As a matter of statutory construction,
Section 9799.54(a)(4) is not ambiguous. The term “completed,” by its meaning in
ordinary usage, means concluded. Thus, through the Order, Petitioner’s registration
obligations were “completed” before Act 10 was enacted. Even if this provision is
viewed as ambiguous, any such ambiguity should be construed against the
Commonwealth and in favor of Petitioner, pursuant to the rule of lenity. Therefore,
Petitioner asks this Court to grant his Application on this claim.

                                          9
      PSP disagrees, maintaining that Act 10 applies to Petitioner because the Order
only vacated Petitioner’s registration requirements under SORNA. PSP further
argues as follows. Section 9799.54(a) of Act 10 divides registrants into two
categories – those who committed sexual offenses in the Commonwealth and those
who committed sexual offenses outside the Commonwealth.              Petitioner, who
committed the triggering offense outside the Commonwealth, is subject to
registration so long as he “has not completed registration requirements.” 42 Pa. C.S.
§ 9799.54(a)(4). Reading the phrase “not completed” in the context of Section
9799.54 as a whole, subsection (a)(4) refers to registration requirements in the
jurisdiction in which the triggering offense was committed. This is demonstrated by
Section 9799.54(a)(1), which provides that individuals who committed a sexually
violent offense within the Commonwealth are required to register if their period of
registration, “as of February 21, 2018, has not expired.” 42 Pa. C.S. § 9799.54(a)(1).
In contrast, Section 9799.54(a)(4) makes no reference to Pennsylvania, but refers
only to registration requirements of other jurisdictions.      Accordingly, Section
9799.54(a)(4) refers to individuals who have “not completed” their registration in
the jurisdiction where they were convicted. Petitioner pled guilty to rape, an offense
which required his lifetime registration in New York, and, therefore, his registration
is not complete and he is still subject to registration requirements pursuant to Act
10.
      Petitioner responds that he had no registration requirements in the months
preceding the enactment of Act 10, which PSP acknowledged by removing him from
the registry following the Order. Petitioner further argues that PSP’s statutory
interpretation of Section 9799.54(a)(4) is contrary to the plain text of the statute,
which is silent as to whether the phrase “has not completed registration

                                         10
requirements” refers to the registration requirements of another jurisdiction. 42 Pa.
C.S. § 9799.54(a)(4). Moreover, Petitioner asserts, upon a registrant’s relocation,
the registration requirements of another jurisdiction cease and, accordingly,
Petitioner was subject only to registration requirements in Pennsylvania, which were
vacated by the Order. Citing to the attachments to PSP’s brief, such as Petitioner’s
completed out-of-state sexual offender registration questionnaires, Petitioner notes
that New York no longer includes Petitioner on its sexual offender registry and
asserts “it is at best debatable whether [Petitioner] had any existing registration
obligations anywhere when Act 10 went into effect.” (Petitioner’s Reply Br. at 9.)
PSP’s attempt to impose new registration requirements on Petitioner now based
upon “vestigial requirements that may have existed” when Act 10 was enacted is
contrary to the plain language of Act 10 and contrary to the rule of lenity, which
requires that ambiguous provisions be construed against the government. (Id.)
      Section 9799.54(a)(4) of Act 10, which governs applicability of the
registration provisions, states:

      (a) Registration.-- The following individuals shall register with the
      [PSP] as provided in this subchapter:

      ....

      (4) An individual who was convicted of an offense similar to an offense
      set forth in section 9799.55 under the laws of the United States or one
      of its territories or possessions, [or] another state . . . who, as of
      February 21, 2018, has not completed registration requirements. The
      period of registration shall be as set forth in section 9799.56(b)(4)
      (relating to registration procedures and applicability) less any credit for
      time spent on a sexual offender registry of the United States or one of
      its territories or possessions, another state, the District of Columbia, the
      Commonwealth of Puerto Rico, a foreign nation or with the
      Pennsylvania State Police prior to February 21, 2018.

                                          11
42 Pa. C.S. § 9799.54(a)(4).
       Petitioner argues that the Order vacated his registration requirements in their
entirety in January 2018 and, therefore, he “completed registration requirements” by
February 21, 2018, and is entitled to summary relief. Id. We cannot agree for the
same reasons as set forth above. In short, there remains a dispute regarding what
Petitioner sought in the Motion to Vacate and what common pleas granted in the
Order, which precludes summary relief.
       However, PSP argues that Act 10 applies to Petitioner because Section
9799.54(a)(4) applies to registrants who have “not completed registration
requirements” in the jurisdiction in which they committed the triggering offense. Id.
Regardless of whether PSP’s interpretation of Section 9799.54(a)(4) is correct, there
are factual disputes regarding Petitioner’s obligation to register in any other
jurisdiction. PSP asserts Petitioner was a lifetime registrant in New York given the
nature of his offense. For this, PSP relies upon the sworn declaration of Trooper
Matthew Webb (Webb Declaration) of PSP’s Megan’s Law Section, in which
Trooper Webb states that his review of Petitioner’s file demonstrates that Petitioner
was required to register for life in New York and this lifetime registration
requirement applied under Megan’s Law III5 at the time of Petitioner’s relocation to
Pennsylvania.6 However, Petitioner disagrees, relying upon two attachments to the

       5
          Former 42 Pa. C.S. §§ 9791-9799.9. Megan’s Law III was found unconstitutional by the
Supreme Court in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013).
        6
          Trooper Webb asserts that the lifetime registration requirement at the time of Petitioner’s
relocation to Pennsylvania was pursuant to Megan’s Law III, which was the law in effect in 2007.
However, Petitioner avers in his Petition that he relocated in 1998 and was subject to registration
requirements under Megan’s Law I, Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), former
42 Pa. C.S. §§ 9791-9799.6, which was subsequently found unconstitutional in Commonwealth v.
Williams, 733 A.2d 593 (Pa. 1999). (Petition ¶¶ 5, 6.) As a result, it is also unclear at this stage
when Petitioner relocated and what his registration requirements may have been at that time.

                                                12
Webb Declaration. These attachments are completed questionnaires entitled “out-
of-state registration questions,” dated 2007 and 2012, which detail information
regarding Petitioner’s convictions and accompanying registration requirements in
New York. On the bottom of one questionnaire is a handwritten notation “[n]ot on
NY or nat[iona]l registry.” (PSP’s Br., Ex. A, Attachment A.) Therefore, the parties
disagree not only as to whether Petitioner is required to register in Pennsylvania
under Act 10 but also as to whether he is still subject to registration requirements in
New York, which could affect his requirement to register in Pennsylvania. We
cannot address PSP’s and Petitioner’s arguments regarding the statutory
construction of Section 9799.54 given these disputed facts. Accordingly, we deny
Petitioner’s Application with regard to his claim for declaratory and/or injunctive
relief that Act 10 does not apply to him by its terms.

   c. Whether the Commonwealth is a proper party to this action.
          Finally, PSP raises in its brief in opposition to the Application that the
Commonwealth is not a proper party because it is entitled to sovereign immunity on
these claims where Petitioner’s claims are in the nature of equitable and injunctive
relief.     Petitioner responds that he has no objection to the dismissal of the
Commonwealth as a party. Petitioner asserts that he named the Commonwealth as
a party “in an abundance of caution,” but if the Commonwealth is not a proper party,
Petitioner does not object to the Commonwealth’s dismissal. (Petitioner’s Reply Br.
at 10.)      Because Petitioner does not object and the Commonwealth has not
participated, we dismiss the Commonwealth as a party.

                                          13
III.   Conclusion
       There remain factual disputes between the parties as to the Order that
Petitioner relies upon as his basis for mandamus and declaratory and/or injunctive
relief regarding his registration requirements in Pennsylvania, as well as whether
Petitioner is still subject to registration requirements in New York. Because there
are material issues of fact remaining, Petitioner’s right to relief is not clear and
summary relief is not appropriate at this time. Accordingly, we deny Petitioner’s
Application. Further, because the parties agree that the Commonwealth is not a
proper party, we dismiss the Commonwealth as a party.

                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge

                                        14
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Angel Rivera,                            :
                         Petitioner      :
                                         :
                  v.                     :   No. 574 M.D. 2018
                                         :
Pennsylvania State Police and            :
Commonwealth of Pennsylvania,            :
                         Respondents     :

                                      ORDER

      NOW, January 24, 2020, Angel Rivera’s (Petitioner) Application for
Summary Relief is hereby DENIED. Because Respondent Pennsylvania State
Police asserts that the Commonwealth of Pennsylvania (Commonwealth) is not a
proper party and Petitioner has no objection to the Commonwealth’s dismissal, this
action is DISMISSED as to the Commonwealth.

                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge


713 S.W.2d 178 (1986)
Earl D. PONDER, Appellant,
v.
The STATE of Texas, Appellee.
No. 3-85-144-CR.
Court of Appeals of Texas, Austin.
June 25, 1986.
*179 Leon J. Grizzard, Austin, for appellant.
Ken Anderson, Dist. Atty., Georgetown, for appellee.
*180 Before POWERS, BRADY and CARROLL, JJ.
PER CURIAM.
Appellant was convicted of aggravated sexual assault. Tex.Pen.Code Ann. § 22.021(a)(4) (Supp.1986). Punishment, enhanced by a prior felony conviction in Oklahoma, was assessed by the jury at life imprisonment. Tex.Pen.Code Ann. § 12.42(c) (Supp.1986). We will affirm the judgment of conviction.
At approximately 7:30 a.m., Sunday, February 17, 1985, Travis County Deputy Sheriff J.W., a female, was assisting the Austin Police Department in the investigation of an abandoned, one-vehicle accident on Interstate Highway 35 in north Austin. Acting on a tip from a bystander, J.W. left the scene of the accident in her patrol car and drove south on IH 35 in search of the driver of the abandoned vehicle. She quickly spotted appellant walking beside IH 35 about one-half mile from the accident site. Appellant was carrying a suitcase and a garment bag and was trying to hitchhike. J.W. stopped her patrol car near appellant, radioed in her position and a description of appellant, left the patrol car, approached appellant, and asked him for identification. After appellant told her he had none, J.W. attempted to initiate a patdown search of him. Before she could begin, however, appellant produced a .25 caliber automatic pistol, disarmed her, forced her back into the patrol car, and ordered her to drive him from the area.
J.W. and appellant drove from Austin and to a rural area of Williamson County, finally stopping at an abandoned bridge near the intersection of State Highway 95 and F.M. 1660. Appellant then forced J.W. under the bridge, where he robbed her of $24.00 and, over the next two to three hours, sexually assaulted herorally, anally, and vaginallyat gunpoint. At the end of the ordeal, appellant handcuffed J.W. to a support beam under the bridge, gagged her with a piece of cloth cut from a red t-shirt, and fled the scene.
When J.W. failed to report in after she stopped to question appellant on IH 35, a massive air and land search for her and her presumed abductor was begun by central-Texas law enforcement authorities. Shortly after 11:00 a.m., a Department of Public Safety trooper spotted appellant walking beside Highway 95 near the intersection with F.M. 1660. The trooper stopped and questioned appellant, who identified himself as "James Whittiney." After a routine name check failed to turn up anything, the trooper released appellant.
At 11:25 a.m., Williamson County Deputy Sheriff Jim Stinnett stopped and subsequently arrested appellant as he walked in a northerly direction on Highway 95 about 200 yards north of the intersection with F.M. 1660. At approximately 3:00 p.m., J.W. was found and rescued by a helicopter search team. A subsequent examination of her patrol car by the Austin Police Department revealed appellant's fingerprints on the trunk and the inside rearview mirror. At trial, J.W. identified appellant as her assailant.
In grounds of error one and two, appellant contends the indictment violated Tex.Code Cr.P.Ann. art. 21.24 (Supp.1986) because it alleged two separate offenses (aggravated sexual assault and aggravated robbery), and that the trial court therefore erred in overruling his motions to quash the indictment and to compel the State to elect one of the two counts on which to proceed to trial. Appellant argues further that, even though the jury returned a single verdict of guilty, as instructed by the trial court, he was nonetheless prejudiced because "the jury knew that appellant was charged with two life-sentence offenses, rather than one."
It was long the rule in Texas that the State could allege in separate counts of a single indictment as many offenses arising from a single criminal transaction as it thought necessary in order to meet possible variations in the proof, provided that the accused could be convicted and punished for but one offense. See Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972); Vannerson *181 v. State, 408 S.W.2d 228 (Tex.Cr. App.1966). But in Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985), the Court of Criminal Appeals, interpreting for the first time art. 21.24 as amended effective January 1, 1974, held it is now improper to allege in a single indictment two or more non-property offenses, even if the offenses arise out of the same criminal transaction. Thus, the trial court erred in overruling appellant's motions.
Although we find error, we do not find prejudice to appellant's substantial rights as a result of the error. Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986). The sexual assault and robbery of J.W. were closely interwoven, and evidence as to one was admissible as "res gestae" of the other. Maynard v. State, 685 S.W.2d 60, 67 (Tex.Cr.App.1985); Archer v. State, 607 S.W.2d 539, 542 (Tex.Cr.App.1980). Further, the trial resulted in a single conviction. Ex parte Siller, 686 S.W.2d 617 (Tex. Cr.App.1985). Grounds of error one and two are overruled.
In his fourth ground of error, appellant argues the trial court erred in overruling his pretrial motion to suppress several items of evidence found during a warrantless, post-arrest, inventory search of appellant's person, suitcase, and garment bag.[1] Appellant argues the search was unlawful because it was subsequent to an unlawful "stop and frisk."
At a pretrial suppression hearing, Deputy Stinnett testified regarding the circumstances surrounding appellant's arrest. Stinnett related that on the morning of the offense, he participated in the search for the complaining witness, J.W. At 11:25 a.m., while he was on patrol, he observed appellant walking near the intersection of Highway 95 and F.M. 1660 in Williamson County. He noticed appellant matched two descriptions of suspects he received over his radio that morning, the first being the description radioed in by J.W. shortly before her disappearance, the second being the description of one Earl D. Ponder, date of birth November 18, 1964, a recently escaped felon from an Oklahoma prison. Consequently, he stopped his patrol car near appellant, who immediately started toward the car "in a fast walk, almost a run," with his left hand covered, protesting repeatedly that the highway patrol had already checked him out and released him. Alarmed by appellant's actions, Stinnett drew his service revolver and ordered appellant to assume the standard pat-down position, i.e. hands on the patrol car and feet widely spread. The pat-down search produced a large springblade knife and a loaded .25 caliber automatic pistol. After the pat-down, appellant stated his name was "James Whittiney" and gave his date of birth as November 18, 1964. Stinnett immediately realized the birthdate matched that of escaped Oklahoma felon Earl D. Ponder, so he placed appellant under arrest for unlawfully carrying a weapon. See Tex.Pen.Code Ann. §§ 46.05, 46.06 (1974 and Supp.1986).
When a police officer has an articulable, reasonable suspicion that someone may be involved in criminal activity, he may stop that person for investigation even though he does not have probable cause to arrest him. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Ramirez v. State, 672 S.W.2d 480, 481-482 (Tex.Cr.App.1984); Johnson v. State, 658 S.W.2d 623, 626 (Tex.Cr.App. 1983). If the police officer reasonably believes the person may be armed and dangerous, the officer may conduct a protective frisk of the person. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Ramirez v. State, supra at 482. In determining the legality of the stop and frisk, a reviewing court must take into account the totality of the circumstances facing the police officer at the time. U.S. v. Cortez, supra, 449 U.S. at 418-419, 101 S.Ct. at 695; Herrera v. State, 665 S.W.2d 497, 505 (Tex.App.1983, pet ref.).
*182 Stinnett's testimony was sufficient for the trial court to conclude the "stop and frisk" of appellant was lawful. Appellant's physical appearance, which matched the two descriptions broadcast over the radio, and his odd behavior on the morning in question, together with the circumstances of a missing, presumably disarmed deputy sheriff, were sufficient justification for the stop and subsequent frisk. Appellant's fourth ground of error is overruled.
In his third ground of error, appellant argues the trial court committed reversible error in admitting evidence of the loaded.357 caliber pistol found in his suitcase during the post-arrest inventory search. Appellant's theory is that the weapon had no relevance to any issue in the case and was admitted solely to prejudice the jury against him. The State, citing Rodgers v. State, 468 S.W.2d 438 (Tex.Cr.App.1971), argues the pistol was admissible as a circumstance surrounding appellant's arrest following flight.
Although the jury could reasonably conclude that the .357 caliber pistol was in appellant's suitcase at the time he committed the offenses charged, it is undisputed that appellant did not actually use that particular pistol in the commission of the offenses. The question is, then, whether the trial court clearly abused its discretion in determining that the probative value of the evidence outweighed the danger of unfair prejudice. Williams v. State, 535 S.W.2d 637, 639-640 (Tex.Cr.App.1976).
As a general rule, the State is entitled to show the circumstances surrounding the arrest of the accused, unless such evidence is inherently prejudicial and has no relevance to any issue in the case. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Cr.App.1985). In Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973), the defendant was convicted of robbery by assault, based on testimony by the victims that he and his companions had robbed them at pistol-point. A sawed-off shotgun found in the trunk of the car in which appellant and his companions fled the robbery, and in which they were travelling at the time of their arrest within hours of the offenses, was admitted in evidence. On appeal, the Court of Criminal Appeals held the trial court erred in admitting the shotgun in evidence because it was not shown to have been used during the robbery and was not relevant to any issue in the case, but further held the error to be harmless. In Ross v. State, 169 Tex.Cr.R. 313, 334 S.W.2d 174 (1960), the defendant was convicted for driving while intoxicated. The trial court allowed testimony that a .38 caliber handgun was found by arresting officers inside the car. On appeal, the Court of Criminal Appeals held that "the jury was entitled to know that the defendant on trial had control of a pistol as well as a motor vehicle while he was intoxicated. Proof of the circumstances surrounding the commission of an offense which form a part of the occurrence are admissible." 334 S.W.2d at 175. In Williams v. State, supra, the defendant was convicted of possession of marihuana. Evidence that a loaded pistol and other items were found in the defendant's suitcase soon after the arrest was admitted. The Court of Criminal Appeals held that "[t]he articles in question were found in appellant's possession at the time of the commission of the offense and of the arrest. They were circumstances surrounding the offense and the arrest, and were relevant ... to guilt.... No clear abuse of the trial court's discretion is shown." 535 S.W.2d at 640. Both Ross and Williams were recently cited with approval in Maddox v. State, supra. Given the holdings in these two cases, we are unable to say that the trial court abused its discretion in admitting the .357 caliber pistol in evidence.
In addition, the theory cited by the State appears sufficient to support admission of the pistol. The Court of Criminal Appeals has held repeatedly that when the accused flees the scene of a crime, a weapon in his possession at the time of arrest is admissible under the general doctrine which permits a full showing as to flight, even if the weapon is not the same as used in the crime for which the accused is on *183 trial.[2]Hicks v. State, 508 S.W.2d 400, 402 (Tex.Cr.App.1974); Rodgers v. State, supra at 440; Wilson v. State, 436 S.W.2d 542, 544 (Tex.Cr.App.1968); Churchill v. State, 317 S.W.2d 541, 542 (Tex.Cr.App. 1958). In order to show flight, the State must prove that the accused was "moving out or running" from the scene of the crime. Thompson v. State, 652 S.W.2d 770, 772 (Tex.Cr.App.1981); Jones v. State, 481 S.W.2d 900, 902 (Tex.Cr.App.1972).
As related above, the evidence shows that appellant fled the scene of a one-vehicle accident in north Austin. He subsequently kidnapped a deputy sheriff and, after using her patrol car to flee into a rural part of Williamson County, sexually assaulted her. He then fled the scene of the assault the only way he safely could, on foot. And before his arrest, he twice gave a false identification to law-enforcement officers. In our opinion, the evidence is sufficient to show that appellant was "moving out or running." Cf. Hart v. State, 682 S.W.2d 346 (Tex.App.1984, pet. ref.) (defendant's walking away from check-cashing center without check or cash is evidence of flight). Moreover, given the rule stated in Hicks, Rodgers, etc., supra, we do not deem it significant that appellant did not actually use the .357 caliber pistol in the commission of the offenses charged. It was sufficient that the pistol was in his possession at the time of the flight and arrest.
Even if the .357 caliber pistol was improperly admitted, the error was harmless beyond a reasonable doubt. The evidence of appellant's guilt is overwhelming, and we are persuaded there is no reasonable possibility that the admission of the second pistol, if error, contributed to the conviction. Bordelon v. State, 683 S.W.2d 9, 13 (Tex.Cr.App.1985). We are similarly persuaded the .357 caliber pistol did not materially contribute to the punishment assessed. Clemons v. State, 605 S.W.2d 567, 571 (Tex.Cr.App.1980). The offense committed by appellant was a particularly shocking one, all the more so since it involved a law-enforcement officer. Moreover, the jury was already aware the charged offense involved the use of a .25 caliber automatic pistol. Finally, the State proved at the punishment phase that appellant had been previously convicted in Oklahoma of aggravated robbery, and also presented three witnesses who testified to appellant's bad reputation with respect to obedience to the law. Appellant's third ground of error is overruled.
The judgment of conviction is affirmed.
NOTES
[1]  The items included loaded .25 and .357 caliber pistols and ammunition for both, a red t-shirt from which a piece of cloth had been cut, $47.00 in cash, two knives, and a small amount of marihuana.
[2]  The theory behind this rule is, apparently, that weapons possessed by a fugitive at the time of capture show he was evading arrest and was prepared to resist arrest, thus showing a consciousness of guilt.


182 F.Supp. 226 (1960)
REINES DISTRIBUTORS, INC., suing on behalf of itself and of all others similarly situated, Plaintiff,
v.
ADMIRAL CORPORATION, Admiral Credit Corporation, and Admiral Distributing Corp., Defendants.
United States District Court S. D. New York.
March 10, 1960.
*227 Shapiro & Hoeniger, New York City, for plaintiff, Malcolm A. Hoffmann, Berthold H. Hoeniger, Norman Solovay, New York City, of counsel.
O'Brien, Driscoll & Raftery, New York City, for defendants, George A. Raftery, William D. Friedmann, New York City, of counsel.
METZNER, District Judge.
On February 27, 1959, plaintiff, Reines Distributors, Inc., commenced this action based in part on alleged illegal price discrimination in violation of the antitrust laws. Subsequently, on or about March 19, 1959, but prior to serving their answer, the defendants, Admiral Corp. et al., commenced 41 separate actions in the New York state courts against Reines on notes and trade acceptances made by Reines to Admiral and on an open account between the parties. Then in this court Admiral asserted these claims as compulsory counterclaims under Rule 13 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Of the 41 actions commenced by Admiral, 39 have been discontinued by stipulation. Two are still pending. Reines moved in the state court for a stay of these two actions. The motion was granted by the Supreme Court at Special Term, but subsequently the Appellate Division reversed and vacated the stay. 9 A.D.2d 410, 194 N.Y.S. 2d 932 (Dec. 31, 1959). Application for leave to appeal granted subsequent to opinion, 10 A.D.2d 657, 197 N.Y.S.2d 446. Reines now moves in this court for an order enjoining Admiral from further prosecuting the state court actions.
In moving to restrain Admiral, Reines relies principally on (1) the policy of Rule 13(a) of the Federal Rules of Civil Procedure, and (2) the exclusive jurisdiction of the federal courts over antitrust suits, 15 U.S.C.A. § 15, and their power to prevent and restrain violations of the Antitrust Acts, 15 U.S.C.A. §§ 4, 26. Plaintiff asserts that aggregating the policies enunciated in Rule 13(a) and the antitrust laws, and further adding the alleged intent of the defendants to harass the plaintiff so as to prevent the suit in this court from reaching a determination, the sum total vests in this court the power to stay the state court proceedings "in aid of its jurisdiction." 28 U.S.C. § 2283.
Plaintiff realizes that the general prohibition against enjoining state court actions contained in 28 U.S.C. § 2283 is a formidable barrier to overcome to gain the relief sought here. Section 2283 provides that:
"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."
Section 2283 was formerly known as Section 265 of the Judicial Code and read as follows:
"The writ of injunction shall not be granted by any court of the United *228 States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy."
In Toucey v. New York Life Insurance Co., 1941, 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, the Supreme Court traced the long history of Section 265 dating back to 1793. The court said:
"Section 265 is not an isolated instance of withholding from the federal courts equity powers possessed by Anglo-American courts. As part of the delicate adjustments required by our federalism, Congress has rigorously controlled the `inferior courts' in their relation to the courts of the states." 314 U.S. at page 141, 62 S.Ct. at page 147.
The court pointed out that apart from five specific statutory exceptions to the rule embodied in Section 265 the only other exceptions are the "res" cases, and in this connection quoted from the case of Kline v. Burke Construction Co., 260 U.S. 226, 235, 43 S.Ct. 79, 83, 67 L.Ed. 226:
"The rank and authority of the [federal and state] courts are equal but both courts cannot possess or control the same thing at the same time, and any attempt to do so would result in unseemly conflict. The rule, therefore that the court first acquiring jurisdiction shall proceed without interference from a court of the other jurisdiction is a rule of right and of law based upon necessity, and where the necessity, actual or potential, does not exist, the rule does not apply. Since that necessity does exist in actions in rem and does not exist in actions in personam, involving a question of personal liability only, the rule applies in the former but does not apply in the latter."
In 1948, when Section 265 was amended and became Section 2283 of Title 28 U.S.C., Congress changed the exception which read "authorized by any law relating to proceedings in bankruptcy" to a generalized exception reading "as expressly authorized by Act of Congress". The amendment added two further exceptions: (1) "where necessary in aid of its jurisdiction", and (2) "to protect or effectuate its judgments".
In Amalgamated Clothing Workers of America v. Richman Bros., 1955, 348 U.S. 511, 75 S.Ct. 452, 99 L.Ed. 600, the court reviewed the amendments to Section 265 as found in Section 2283. The court said:
"By that enactment [Section 2283], Congress made clear beyond cavil that the prohibition is not to be whittled away by judicial improvisation." 348 U.S. at page 514, 75 S.Ct. at page 454.
The court further said, in discussing the argument that the restrictions of Section 2283 do not apply whenever it is shown that the state court is without jurisdiction over the subject matter and is attempting to invade a field pre-empted by Congress, that:
"No such exception has been established by judicial decision under former § 265. In any event, Congress has left no justification for its recognition now. This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions." 348 U.S. at pages 515, 516, 75 S.Ct. at page 455.
Neither of the two new exceptions spelled out in Section 2283 against interfering with state jurisdiction are available to this plaintiff. As the Reviser's notes to Section 2283 indicate, the words "in aid of its jurisdiction" were used to make clear the recognized power of the federal court to stay proceedings in state courts in cases removed to the district courts. The Reviser's notes also indicate that the words "to protect or effectuate its judgments" were used to prevent a party from relitigating in the state court issues already foreclosed by a *229 federal judgment. See also Avon Publishing Co. v. American News Co., D.C. S.D.N.Y.1956, 143 F.Supp. 516.
In the antitrust field where the federal courts have exclusive jurisdiction (General Investment Co. v. Lake Shore & Michigan Southern Ry. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244) and where the act provides for injunctive relief as a remedy for its violation (15 U.S.C.A. § 26), the cases do not sustain the plaintiff's contention and the proceedings in the state court have not been enjoined. Lyons v. Westinghouse Electric Corp., D.C.S.D.N.Y.1952, 109 F.Supp. 925, affirmed 2 Cir., 1953, 201 F.2d 510, certiorari denied 345 U.S. 923, 73 S.Ct. 781, 97 L.Ed. 1354; Red Rock Cola Co. v. Red Rock Bottlers, Inc., 5 Cir., 1952, 195 F.2d 406; Bascom Launder Corp. v. Telecoin Corp., D.C.S.D.N.Y.1950, 9 F.R.D. 677; Avon Publishing Co. v. American News Co., supra.
In United States v. Bayer Co., D.C.S.D. N.Y.1955, 135 F.Supp. 65, the injunction was issued against the state court proceeding because a judgment of the federal court had determined that the contract sought to be enforced in the state court was illegal. The necessity of the injunction was to protect or effectuate the judgment of the federal court.
In Kelly v. Kosuga, 1959, 358 U.S. 516, 79 S.Ct. 429, 3 L.Ed.2d 475, the Supreme Court held that a claim of illegality based on violation of the Sherman Act is not a defense to an action based on a contract to recover the purchase price of articles sold. The court said:
"Past the point where the judgment of the Court would itself be enforcing the precise conduct made unlawful by the Act, the courts are to be guided by the overriding general policy, as Mr. Justice Holmes put it, `of preventing people from getting other people's property for nothing when they purport to be buying it.'" 358 U.S. at page 520, 79 S.Ct. at page 432.
If an injunction were to issue on the basis of the antitrust laws, it would in effect nullify this decision. In the Bascom Launder case, supra, an injunction was denied even though a recovery by plaintiff in the federal court action might encompass damages which plaintiff may be required to pay under the state court judgment.
We come now to plaintiff's argument based on Rule 13(a) of the Federal Rules of Civil Procedure. That rule requires the defendant to set forth in his answer any counterclaim which he has against the opposing party "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." In discussing this phase of the question, it must be borne in mind that the respective parties seek judgments strictly in personam and it has been held in such situations that:
"* * * both a state court and a federal court having concurrent jurisdiction may proceed with the litigation, at least until judgment is obtained in one court which may be set up as res adjudicata in the other." Penn General Casualty Co. v. Commonwealth of Pennsylvania, 1935, 294 U.S. 189, 195, 55 S.Ct. 386, 389, 79 L.Ed. 850.
It is true that the defendants' claims must be pleaded under Rule 13(a) and they have done so in their answers. However, the fact that such counterclaims must be pleaded cannot oust the state court of jurisdiction. Since the federal courts, as indicated above, are loath to interfere with state court actions even in the face of what appears to be a specific grant of jurisdiction to the federal courts, it is utterly impossible to sustain plaintiff's contention on the general language of the rule. Certainly within the purport of the Amalgamated Clothing Workers of America case, supra, the freest use of the words "expressly authorized by Act of Congress" could not encompass the directive contained in the compulsory counterclaim rule.
*230 In Kline v. Burke Construction Co., supra, 260 U.S. at page 230, 43 S.Ct. at page 81, the court said:
"But a controversy is not a thing, and a controversy over a mere question of personal liability does not involve the possession or control of a thing, and an action brought to enforce such a liability does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case. The rule, therefore, has become generally established that where the action first brought is in personam and seeks only a personal judgment, another action for the same cause in another jurisdiction is not precluded."
The effect of Rule 13(a) in the type of situation under discussion has been passed upon by the courts both before and after the amendment to Section 265, which has been discussed above. In both of these cases it has been held that an injunction will not issue. Red Top Trucking Corp. v. Seaboard Freight Lines, D.C.S.D.N.Y.1940, 35 F.Supp. 740; Fantecchi v. Gross, D.C.E.D.Pa.1957, 158 F.Supp. 684. In the Red Top case an action was instituted in this court for a money judgment arising out of the alleged negligence of the defendant in an automobile collision case. Subsequently, the defendant brought an action against the plaintiff in the Municipal Court of the City of New York for damages arising out of the same mishap. A stay of the Municipal Court action was sought here and it was argued that the suit in the Municipal Court would be reached for trial before the suit in the district court and that the judgment obtained there would be res adjudicata in this court. It was also argued that the issuance of the injunction was necessary to prevent multiplicity of suits. The application for the stay was denied by Judge Knox. The same result was reached on a similar set of facts in the Fantecchi case. The same result must obtain on this motion.
In addition to the views set forth in the Red Top and Fantecchi cases, I would consider Rule 13(a) as simply a federal court housekeeping rule to expedite the courts' business. As such it could not possibly qualify as an exception within the intendment of Section 2283.
In light of Congressional particularization in Section 2283 and the failure in Rule 13(a) to provide for a stay of a subsequent state court action as is provided, for example, in the removal statute, 28 U.S.C. § 1446(e), this conclusion seems clear. It is confirmed by the policy enunciated in the opinions in the Toucey and Amalgamated cases discussed above. Comparing the policy of federal court noninterference with state court proceedings dating back to the Act of 1793 with the comparatively recent enactment of Rule 13(a), it can be assumed that the framers of the rules realized the balance that the federal courts would strike in the absence of an express contrary intention stated in either Section 2283 or Rule 13(a). The state courts are free to recognize the federal policy and grant a stay on the basis of comity. But in the absence of a Congressional mandate, the federal courts are not free to enforce the policy on them. (See quotation of the comments of Judge Clark, one of the drafters of the rules, in the Red Top Trucking Corp. case, supra, 35 F.Supp. at page 742.) Here the state court has felt that a stay was not warranted. And the granting of the relief that the plaintiff requests would create the type of needless friction which Section 2283 and its predecessors were enacted to prevent.
*231 The institution of the state court actions can in no way prevent the suit in this court, based on violations of the antitrust laws, from reaching a determination. See Avon Publishing Co. v. American News Co., supra, and the cases cited therein. While the existence of parallel proceedings in the state and federal courts, based on promissory notes and the like, presents multiplicity of suits, with inconvenience, or even harassment, as claimed by the plaintiff herein, a stay of the state court proceedings cannot issue on such grounds because of the explicit provisions of Section 2283 of Title 28 U.S.C., and the judicial interpretation of that section.
Motion denied.


767 F.2d 929
Burrowsv.Listerman
85-1539
United States Court of Appeals,Eighth Circuit.
6/11/85

1
W.D.Mo.

2
AFFIRMED *

3
---------------

* See Local Rule 14.


157 Cal.App.3d 489 (1984)
203 Cal. Rptr. 659
THE PEOPLE, Plaintiff and Respondent,
v.
CATHY RACHELLE REED, Defendant and Appellant.
Docket No. 13053.
Court of Appeals of California, Third District.
May 29, 1984.
*490 COUNSEL
Gerald E. Singer, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, W. Scott Thorpe and Shirley A. Nelson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SIMS, J.
Defendant pled guilty to mayhem (Pen. Code, § 203) and was sentenced to the upper term of six years in state prison. On appeal, she contends the trial court erred in citing viciousness as a circumstance in aggravation to support imposition of the upper term. We disagree and affirm.

*491 FACTUAL AND PROCEDURAL BACKGROUND
Defendant and her victim became involved in a barroom altercation, which touched off a scuffle over a ring defendant claimed had been stolen from her and given to the victim. In the course of the fight, defendant slashed the victim's face with a razor-sharp box cutter. The wound extended from the bridge of the victim's nose down the left side of her face to a point just below the jawline and required 70 stitches for closure. A permanent scar resulted.
Defendant ultimately pled guilty to violation of Penal Code section 203, mayhem.
In imposing the upper term for mayhem, the trial court stated the following on the record: "I am going to impose the higher term because the attack here, the crime, was especially vicious because the Defendant has an extensive previous record for dangerous  for violent criminal acts which clearly manifest dangerousness. She was on parole at the Youth Authority at the time she committed the present offense. She had failed on juvenile probation. She had failed on Youth Authority parole.
"There are some facts in mitigation. Her limited mental capacities, the fact that she was, to some extent, intoxicated at the time she committed the offense, the fact that, to some extent, the victim provoked the attack by oral provocations, and the fact that the  apparently the Defendant believed she had the right to take the ring from the hand of the victim, the facts  however, those facts in mitigation in my view are substantially outweighed by the facts in aggravation which I previously enumerated, and they justify the higher term, and public safety demands I think the higher term be imposed here."

DISCUSSION
(1a) Defendant's contention is the court erred by citing viciousness, according to her an element of the crime of mayhem, as an aggravating circumstance of her offense that justified imposing the upper term. She bases this claim of error on rule 441(d) of the California Rules of Court which prohibits the use of an element of a crime to support imposition of the upper term.
Rule 439(b) of the California Rules of Court permits a court to impose the upper term only if, considering the entire record of the case, circumstances in aggravation are established by a preponderance of the evidence and outweigh circumstances in mitigation. According to rule 421(a)(1) of *492 the California Rules of Court, a sentencing court may properly cite as a circumstance in aggravation the fact that a crime involved "acts disclosing a high degree of cruelty, viciousness, and callousness."
Defendant's claim rests entirely on her position that viciousness is an element of mayhem. Subjecting it to both legal and logical scrutiny, we conclude defendant's position is unsound.
We find no authority suggesting that in proving a defendant guilty of mayhem the prosecution must establish he acted viciously. Penal Code section 203 provides that one "who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." By definition, a person guilty of mayhem must act maliciously. But "maliciously" does not import viciousness; rather it imports "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law...." (Pen. Code, § 7, subd. 4.) (2) Therefore, except where mayhem is the underlying felony in a prosecution for felony murder, the prosecution need not prove a defendant specifically intended to maim his victim; it is sufficient that a defendant engages in unlawful conduct which foreseeably results in his victim's disfigurement. (See People v. Sears (1965) 62 Cal.2d 737, 744-745 [44 Cal. Rptr. 330, 401 P.2d 938], and authorities discussed therein; People v. Vasquez (1972) 29 Cal. App.3d 81, 87 [105 Cal. Rptr. 181].) (1b) Viciousness is not a mental element of mayhem and, where appropriate, may be cited as a circumstance in aggravation of mayhem.
Moreover, logical scrutiny of defendant's contention leads to a like conclusion. Broken down to its bare constituent parts, her argument runs as follows: premise one, every mayhem involves destructive violence; premise two, viciousness denotes destructive violence; and conclusion, every mayhem involves viciousness. If defendant means by her second premise to equate viciousness with destructive violence, that premise is unsound and thus her conclusion is invalid. Viciousness connotes moral depravity. (Webster's Third New. Internat. Dict. (3d ed. 1971) p. 2550.) Many acts which may be described as vicious do not involve violence at all but rather involve such acts as deceit or slander. (Ibid.) Likewise, experience tells us many destructively violent acts do not indicate viciousness but instead show frustration, justifiable rage, or self-defense. So viciousness and destructive violence may not for all purposes be equated with one another. It follows then that not every mayhem, a crime involving destructive violence toward another, may be labelled vicious. As such, viciousness is not inherent in every mayhem but when a court finds a particular act of mayhem was highly vicious it may treat such viciousness as an aggravating circumstance. (Cal. *493 Rules of Court, rule 421(a)(1); see People v. Karsai (1982) 131 Cal. App.3d 224, 239 [182 Cal. Rptr. 406]; People v. Dixie (1979) 98 Cal. App.3d 852, 856 [159 Cal. Rptr. 717].)
Here, defendant slashed her victim's face with a razorsharp box cutter creating a wound and permanent scar several inches long. The trial court could reasonably have found her act involved a high degree of viciousness.
(3) Even assuming, arguendo, the court improperly cited viciousness as an aggravating circumstance, its sentence choice was amply supported by the evidence. The other aggravating circumstances cited by the court are indisputable. We have no doubt defendant's frequent resort to stabbing those with whom she disagreed over the past eight years, including the instant offense, indicates she is a serious danger to society. (Cal. Rules of Court, rule 421(b)(1).) Defendant's record confirms the trial court's conclusion that she was an unquestionable failure on both juvenile probation as a minor and Youth Authority parole as an adult. (Cal. Rules of Court, rule 421(b)(4).) Also, defendant was on parole from the Youth Authority when she committed the instant crime. (Cal. Rules of Court, rule 421(b)(5).) So even assuming the court's finding of viciousness was error, the gravity of these other circumstances, viewed in light of the dearth of weighty mitigating factors, makes plain that a remand would not benefit defendant. (People v. Karsai, supra, 131 Cal. App.3d at p. 240; People v. Lambeth (1980) 112 Cal. App.3d 495, 501 [169 Cal. Rptr. 193].)
The judgment is affirmed.
Evans, Acting P.J., and Sparks, J., concurred.


27 A.3d 310 (2011)
CITY OF ERIE SCHOOL DISTRICT
v.
TRANSPORTATION INVESTMENT GROUP.
Nos. 1809CD10, 1980CD10.
Commonwealth Court of Pennsylvania.
August 4, 2011.

DECISION WITHOUT PUBLISHED OPINION
Vacated and Remanded.


              TENNESSEE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT KINGSPORT

Brandon Dugger,                                           )   Docket No.: 2015-02-0316
           Employee,                                     )
v.                                                        )   State File Number: 46631-2016
                                                          )
Employment Solutions, LLC,                                )   Judge Brian K. Addington
          Employer,                                       )
And                                                       )
                                                          )
Riverport Insurance Company,                              )
            Insurance Carrier.                            )

              EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS

     This matter came before the undersigned Workers' Compensation Judge on
November 8, 2016, on the Request for Expedited Hearing filed by the employee, Brandon
Dugger, under Tennessee Code Annotated section 50-6-239 (2015).

       The present focus of this case is whether Employment Solutions is responsible for
payment of medical and temporary disability benefits to Mr. Dugger. The central legal
issue is whether Mr. Dugger timely reported an injury by accident, triggering
Employment Solutions' responsibility to provide a panel of physicians. 1 For the reason
set forth below, the Court holds Mr. Dugger has submitted sufficient evidence from
which this Court could conclude he is likely to prevail at a hearing on the merits on the
central legal issue, thus he is entitled to medical benefits.

                                              History of Claim

      Employment Solutions is a staffing agency in Johnson City, Tennessee. By
agreement, the workers it places at client businesses remain its employees for a period of
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an Appendix.
time, a fact communicated to the workers it staffs. One of Employment Solutions' clients
is Gardner Paint.

       In January 2016, a supervisor at Gardner Paint, Rodney Conduff, discussed a job
opportunity at Gardner Paint with Mr. Dugger and informed Employment Solutions of its
interest in employing him. Mr. Conduff directed Mr. Dugger to contact Employment
Solutions. Mr. Dugger contacted Employment Solutions and discussed employment with
                2
Tony Carpenter. Mr. Dugger should have presented himself to Employment Solutions to
sign employment paperwork; however, he mistakenly presented to work at Gardner Paint
without completing the employment process with Employment Solutions. After
discovering the error, Mr. Conduti sent Mr. Dugger back to Employment Solutions that
same day, where Mr. Dugger successfully completed the employment paperwork3 and a
drug test.

       Mr. Dugger's work for Gardner Paint required travel. In March 2016, Gardner
Paint contracted for a job at Hutchinson Sealing in Wytheville, Virginia. The work
required Mr. Dugger and his co-workers to travel for an extended stay. Mr. Dugger and
the other employees rode in a company truck to the jobsite and stayed in a hotel in
Wytheville for the duration of the job.

        On Saturday, March 19, 2016, Mr. Dugger ran a floor-polishing machine as part of
his job duties. At approximately 5:30p.m., he injured his left arm when he reached out to
move a piece of machinery while operating the polisher. Mr. Dugger's arm became
caught between the polisher and the client's machine, causing him to feel a crush/snap in
his left arm. He felt immediate pain and noticed a bony protrusion near his left wrist. Mr.
Dugger immediately notified Floyd Bass Jr., his on-site Gardner Paint supervisor, of the
accident. Mr. Bass agreed to take Mr. Dugger to the hospital, but first drove him to the
hotel to collect his belongings.

      While walking toward the hotel, Mr. Dugger slipped in loose gravel and fell to the
ground, reaching out with his left arm. He experienced more pain in the injured arm. Mr.
Dugger then collected his personal items, and Mr. Bass took him to Wythe County
Community Hospital for treatment.

        When Mr. Dugger arrived at the hospital, he informed the medical providers that
he tripped in loose gravel in a hotel parking lot and fell onto his outstretched arm. (Ex. 5
at 16, 19.) X-rays indicated that Mr. Dugger sustained a left ulnar styloid fracture. /d. at
12. Dr. Kevin Fox discharged Mr. Dugger with a five-day work release and instructions
to follow up with an orthopedic physician. /d. at 1.

2
   The parties did not inform the Court of Mr. Carpenter's job title.
' Mr. Dugger signed Employment Solutions paperwork that required him to report all work-related injuries
requiring medical treatment "to [his] supervisor" on the date of injury; otherwise, he could be responsible for
incurred costs for treatment.

                                                      2
                               Facts Re: Report of Injury, Per Mr. Dugger

       Mr. Dugger testified that he could not call Employment Solutions when he
returned home the following day, because it was a Sunday, and the office was closed. On
Monday, March 21, 2016, Mr. Dugger called Employment Solutions to report the
accident. He spoke to "Mike," 4 but was told "I screwed myself and get better."

                        Facts Re: Report of Injury, Per Employment Solutions

        During the hearing, Adam Phillips, staffing manager at Employment Solutions,
testified that Mr. Dugger did not notify him of the accident. Rather, Mr. Conduff with
Gardner Paint called him on March 19, 2016, and advised that Mr. Dugger informed him
of an injury to his left ann. According to Mr. Conduff, however, Mr. Dugger advised that
he injured his arm "on his own time," and that his condition was not work-related.
Consequently, Employment Solutions took no further action with regard to Mr. Dugger's
left arm condition.

        Two months later, in May 2016, Mr. Dugger's friend, Stephanie Steele, called
Employment Solutions on two occasions seeking information regarding its workers'
compensation insurance carrier and how to file a claim. She did not mention Mr. Dugger.
Employment Solutions did not provide the information to Ms. Steele, because it had no
relationship to her. After the second call, Mr. Dugger took the phone and requested the
workers' compensation information. Given the apparent confusion, his call was
transferred to the company owner, Mike Phillips, who spoke with Mr. Dugger about the
work accident, injury, and Mr. Dugger's request for medical treatment.

       Mike Phillips testified he could not remember the exact date Mr. Dugger called
about his injury, but that it was two or three weeks after the injury, and not two months
afterwards. Mr. Phillips also testified that Mr. Conduff had earlier called about Mr.
Dugger's injury, as noted above.

                          Facts Re: Mr. Dugger's Treatment and Work Status

       Mr. Dugger sought treatment with several medical providers after his intitial
treatment at Wytheville Hospital. Mr. Dugger submitted a five-day off-work slip he
received from First Assist Urgent Care dated April I, 2016, but did not supply any
treatment notes supporting the excuse.

       According to the limited medical records submitted at the Expedited Hearing, Mr.
Dugger next treated with Dr. Kent Lord on May 27, 2016. Dr. Lord noted Mr. Dugger
exhibited decreased range of motion in his left wrist. While he also recorded that Mr.

4
    Mike Phillips is the owner of Employment Solutions.

                                                          3
Dugger suffered an injury "2 months ago," Dr. Lord added, "his radiographic changes are
chronic and have been in process for far longer than 2 months." (Ex. 8 at 7.) Dr. Lord
prescribed physical therapy, and in his referral note, the doctor diagnosed Mr. Dugger
with "Post-traumatic osteoarthritis, left wrist" and "wrist DJD likely SLAC wrist with
recent acute injury. Now with significant stiffness, pronator contracture." !d. at 3. Mr.
Dugger testified Dr. Lord performed surgery on his left arm on June 26, 2016, and that he
underwent physical therapy. The parties did not supply any exhibits concerning Mr.
Dugger's ongoing treatment, surgery, or work status following his May 27, 2016
appointment with Dr. Lord.

       Mr. Dugger filed a Petition for Benefit Determination seeking medical and
temporary disability benefits on June 23, 2016. (T.R. 1 at 1.) The parties did not resolve
the disputed issues through mediation, and the Mediating Specialist filed a Dispute
Certification Notice. (T.R. 2.) Mr. Dugger filed a Request for Expedited Hearing on
October 4, 2016, with an attached affidavit. (T.R. 3.)

        At the hearing, Mr. Dugger argued that he injured his left arm at work on March
19, 2016, both at the Hutchinson plant and in the hotel parking lot. He reported his injury
two days later, but Employment Solutions .told him he reported it too late to secure
workers' compensation benefits. As a result, he asserted that he reasonably sought
unauthorized medical treatment, for which Employment Solutions should be required to
reimburse him. He also requested weekly tempo.rar disability benefits at the rate of
          5
$362.83 from the date of injury to present, in audition to reasonable ongoing medical
treatment for his injury. Mr. Dugger also asserted that he did not act dishonestly when he
initially reported to work for Gardner Paint without first completing the paperwork for
Employment Solutions. He explained that he made an honest mistake and simply
understood that he should present at Gardner Paint at the beginning of the day. When his
error was discovered, he promptly reported to Employment Solutions and successfully
completed the employment process, including a drug test.

       Employment Solutions asserted that, according to word it received from Gardner
Paint, Mr. Dugger's injury was not work-related. Further, Mr. Dugger did not
immediately contact Employment Solutions following his injury, but waited either two to
three weeks or two months to provide notice of the injury, which constituted inadequate
notice and resulted in prejudice to Employment Solutions. Moreover, Employment
Solutions argued it had no obligation to investigate the matter when Mr. Conduff
informed it that Mr. Dugger claimed his injury was not work-related.

      Employment Solutions also challenged Mr. Dugger's credibility. It argued that
Mr. Dugger acted dishonestly when he initially presented to work at Gardner Paint and
claimed he was told to do so without first completing Employment Solutions' hiring

5
    The Cour1 detennined the compensation rate from the provided wage statement.

                                                         4
process. It argued Mr. Dugger wrongfully told Mr. Conduff he could complete
Employment Solutions' employment process and documentation after completing the
work day.

       Employment Solutions argued that Mr. Dugger sought medical attention on his
own in an attempt to avoid a drug test, which, according to company policy, would have
been administered promptly upon his initial treatment at Wytheville Hospital, if he had
asserted a work injury. Lastly, Employment Solutions contends that, because there is no
medical causation statement linking Mr. Dugger's injury to a work accident, the Court
must deny his request for medical and temporary benefits.

                       Findings of Facts and Conclusions of Law

       As the injured employee seeking benefits, Mr. Dugger has the burden of proof on
all essential elements of her claim. Scott v. Integrity Staffing Solutions, No. 2015-01-
0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd.
Aug. 18, 20 15). Mr. Dugger need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief at an expedited hearing. McCord
v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). However, at an
expedited hearing, he has the burden to come forward with sufficient evidence from
which the trial court can determine that he is likely to prevail at a hearing on the merits.
!d.

       To be compensable under the Workers' Compensation Law, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-1 02(14) (20 15). The term "injury" is defined as "an injury by accident ... arising
primarily out of and in the course and scope of employment, that causes death,
disablement or the need for medical treatment of the employee." !d. An injury is
accidental only if the injury is caused by a specific incident, or set of incidents, arising
primarily out of and in the course and scope of employment. Tenn. Code Ann § 50-6-
102(14)(a) (2015).

       Mr. Dugger alleged a left-arm injury ansmg from two specific work-related
incidents that occurred at the Hutchinson Sealing plant and his hotel parking lot on March
19, 2016. Employment Solutions did not offer Mr. Conduff as a witness at the hearing.
Rather, it only offered his hearsay testimony to dispute the work-related nature of Mr.
Dugger's accident. Although Mr. Dugger did not object to the hearsay testimony, the
Court accredits his in-person testimony over the hearsay testimony of Mr. Conduff.

       Moreover, the Court determines that Mr. Dugger's left arm injury occurred either
while he engaged in floor polishing or when he fell at the hotel. As a traveling employee,
the course of Mr. Dugger's employment is expanded. The Tennessee Supreme Court has

                                             5
held, "[A]n employee whose work entails travel away from the employer's premises is
generally considered to be within the course of his or her employment continuously
during the trip, except when there is a distinct departure on a personal errand." McCann
v. Hatchett, 19 S.W.3d 218, 221 (Tenn. 2000). If the injury occurred while Mr. Dugger
polished the floor, his injury would be compensable. Likewise, under the traveling
employee doctrine, if his injury occurred when he fell at the hotel, it would also be
compensable.

       Furthermore, the Court finds that Mr. Dugger provided actual notice of the work
accident to Employment Solutions within the thirty-day time period prescribed in Tenn.
Code Annotated section 50-6-20l(a)(l) (2015). He immediately reported the accident to
his Gardner Paint supervisor, Mr. Bass, who was the only supervisor available at that
location. Also, even by Mr. Phillips' own account, Mr. Dugger provided actual notice of
the injury by phone to him no later than two to three weeks following the March 19,2016
accident. In light of the above, the Court finds that a work accident occurred and that Mr.
Dugger timely reported it to Employment Solutions.

       Mr. Dugger requested temporary disability and medical benefits, including
reimbursement for the unauthorized medical treatment he obtained to this point. Mr.
Dugger presented limited medical evidence in this matter. The medical records point to a
broken left ulna, but the records from Dr. Lord also point to pre-existing, possibly
degenerative medical issues with Mr. Dugger's left arm. Although Mr. Dugger testified
he had no prior problems with his left arm, the medical evidence appears otherwise at this
point. Further, no physician has rendered a causation opinion. Other than in the most
obvious cases, expert medical testimony on the issue of causation is required to prove a
compensable injury. See Willis v. Allstaff, No. 2015-TN Wrk. Comp. App. Bd. LEXIS 42,
at *26-28 (Tenn. Workers' Comp. App. Bd. Nov. 9. 2015). While the provided
information tends to show a compensable work injury to Mr. Dugger's left arm, Dr.
Lord's statement that "radiographic changes are chronic and have been in process for far
longer than 2 months" potentially casts doubt on causation.

       Nevertheless, the Court finds Mr. Dugger timely provided notice of his alleged
injury to Employment Solutions. His claim remains valid at this point. Moreover, the
Court finds that the evidence presented is sufficient to establish Mr. Dugger is likely to
prevail at a hearing on the merits on the issue of entitlement to a panel of physicians.

      Given the evidence presented, the Court holds that Employment Solutions must
provide Mr. Dugger with an appropriate panel of physicians in accordance with
Tennessee Code Annotated section 50-6-204 (20 15). The Court reserves all issues
concerning temporary disability benefits and reimbursement for past medical expenses,
pending the determinations of the authorized treating physician.

                                            6
IT IS, THEREFORE, ORDERED as follows:

   1. Employment Solutions shall provide Mr. Dugger with a panel of physicians in
      accordance with Tennessee Code Annotated section 50-6-204 (2015). The parties
      shall supply said physician with medical records to date.

   2. At this time, the Court reserves the issues of payment for past temporary disability
      benefits and reimbursement of unauthorized medical expenses incurred by Mr.
      Dugger.

   3. This matter is set for Initial (Scheduling) Hearing on December 19, 2016, at 10:00
      a.m. Eastern.

   4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
      (2015). The Insurer or Self-Insured Employer must submit confirmation of
      compliance      with     this    Order    to    the    Bureau    by     email    to
      WCCompliance.Program@tn.gov no later than the seventh business day after
      entry of this Order. Failure to submit the necessary confirmation within the period
      of compliance may result in a penalty assessment for non-compliance.

   5. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471.

       ENTERED this the 16th day of November, 2016.

                                  Is/ Brian K. Addington
                                  Judge Brian K. Addington
                                  Court of Workers' Compensation Claims

I11itial (Scheduling) H aring:

       A Scheduling Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call toll-free at 855-543-5044 to
participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Eastern Time (ET).

                                            7
Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is practicable.
      Failure to timely pay the filing fee or file the Affidavit of Indigency m
      accordance with this section shall result in dismissal of the appeal.

   5. The parties, having the responsibility of ensuring a complete record on appeal,
      may request from the Court Clerk the audio recording of the hearing for the
      purpose of having a transcript prepared by a licensed court reporter and filing it
      with the Court Clerk within ten calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
      the evidence within ten calendar days of the filing of the Expedited Hearing
      Notice of Appeal. The statement of the evidence must convey a complete and
      accurate account of what transpired in the Court of Workers' Compensation
      Claims and must be approved by the workers' compensation judge before the
      record is submitted to the Clerk of the Appeals Board.

   6. If the appellant elects to file a position statement in support of the interlocutory
      appeal, the appellant shall file such position statement with the Court Clerk within
      five business days of the expiration of the time to file a transcript or statement of
      the evidence, specifYing the issues presented for review and including any
      argument in support thereof. A party opposing the appeal shall file a response, if
      any, with the Court Clerk within five business days of the filing of the appellant's

                                            8
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.

                                     9
                                              APPENDIX

Exhibits:
   1. Wage Statement;
   2. Form C-32 Notice of Denial of Claim for Compensation;
   3. Employment Solutions assignment sheet;
   4. Written Statement of Floyd Bass (For Identification Only);
   5. Medical Records-Wythe County Community Hospital;
   6. Medical Records-Rural Health Services;
   7. Medical Record-First Assist Urgent Care;
   8. Medical Records-Dr. Kent Lord;
   9. Medical Bills (For Identification Only); and,
   10. Employment Solutions Policy Sheet.

Technical record: 6
   1. Petition for Benefit Determination, June 23, 20 16;
   2. Dispute Certification Notice, September 6, 20 16;
   3. Request for Expedited Hearing, October 4, 20 16; and,
   4. Employer's Position Statement, November 3, 2016.
   5.

                                    CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order for
     Medical Benefits was sent to the following recipients by the following methods of
     service on this the_ day of November, 2016.

    Name                           Certified Mail Via Email Service Sent To:
    Brandon Dugger,                      X           X      155 Sugar Hollow Road
    Self-Represented                                        Roan Mountain, TN 37687
    Employee                                                brandondugger@_hotmail.com
    Ryan Sarr, Esq.                                  X      rsarr@morganakins.com
    Attorney for
    Employment Solutions

                                                          Is/ Penny Shrum
                                                          Penny Shrum, Clerk of Court
                                                          WC.CourtCierk@tn.gov

6
  The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.

                                                     10


 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.

 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 MICHELLE L. PINO, f/k/a,
 8 MICHELLE L. JARAMILLO,

 9          Petitioner-Appellee,

10 v.                                                                           NO. 30,838

11 ADRIAN JARAMILLO,

12          Respondent-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
14 John M. Pasternoster, District Judge

15 Victoria W. Doom
16 Las Vegas, NM

17 for Appellee

18 Leverick & Musselman
19 Elizabeth A. Musselman
20 Taos, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 VIGIL, Judge.
1       Summary dismissal was proposed for the reasons stated in the notice of

2 proposed summary disposition. No memorandum opposing summary dismissal has

3 been filed and the time for doing so has expired.

4       DISMISSED.

5       IT IS SO ORDERED.

6                                              _______________________________
7                                              MICHAEL E. VIGIL, Judge

8 WE CONCUR:

 9 _________________________________
10 RODERICK T. KENNEDY, Judge

11 _________________________________
12 LINDA M. VANZI, Judge

                                           2


978 F.2d 707
Bedellv.Lord
NO. 91-2475
United States Court of Appeals,Second Circuit.
Sept 29, 1992

1
Appeal From:  N.D.N.Y.

2
AFFIRMED.


(2008)
In re: FORD MOTOR CO. SPEED CONTROL DEACTIVATION SWITCH PRODUCTS LIABILITY LITIGATION.
MDL No. 1718.
United States Judicial Panel on Multidistrict Litigation.
June 6, 2008.

TRANSFER ORDER
JOHN G. HEYBURN II, Chairman.
Before the entire Panel: Plaintiffs in four actions pending, respectively, in the Middle District of Florida, the Northern District of Georgia, the Southern District of Georgia, and the Eastern District of North Carolina, as listed on Schedule A, have moved pursuant to Rule 7.4, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001), asking the Panel to vacate its orders conditionally transferring the actions to the Eastern District of Michigan for inclusion in. MDL No. 1718. Defendant Ford Motor Co. (Ford) opposes the motions.
After considering all argument of counsel, we find that these actions involve common questions of fact with the actions in this litigation previously transferred to the Eastern District of Michigan, and that transfer of these actions to the Eastern District of Michigan for inclusion in MDL No. 1718 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. We further find that transfer of these actions is appropriate for reasons that we set out in our original order directing centralization in this docket. In that order, we held that the Eastern District of Michigan was a proper Section 1407 forum for actions involving allegations that certain Ford vehicles were equipped with defective or defectively-installed speed control deactivation switches. See In re Ford Motor Co. Speed Control Deactivation Switch Products Liability Litigation, 398 F.Supp.2d 1365 (J.P.M.L.2005).
Plaintiffs in the Florida action can present their motion to remand the action to state court to the transferee judge. See, e.g., In re Ivy, 901 F.2d 7 (2d Cir.1990); In re Prudential Insurance Company of America Sales Practices Litigation, 170 F.Supp.2d 1346, 1347-48 (J.P.M.L.2001).
Plaintiffs in the Georgia and North Carolina actions argue against transfer that, inter alia, these actions should be excluded because they involve facts independent of MDL No. 1718 and because transfer will unduly delay resolution of the actions. Based upon the Panel's precedents and for the following reasons, we respectfully disagree with these arguments. Transfer under Section 1407 has the salutary effect of placing related actions before a single judge who can formulate a pretrial program that (1) allows discovery with respect to any individual issues to proceed concurrently with pretrial proceedings on common issues, In re Ephedra Products Liability Litigation, 314 F.Supp.2d 1373, 1375 (J.P.M.L.2004); and (2) ensures that pretrial proceedings will be conducted in a streamlined manner leading to the just and expeditious resolution of all actions to the overall benefit of the parties.
Should the circumstances regarding any action in MDL No. 1718 develop such that the transferee judge determines that continued inclusion of a claim or action no longer remains advisable, and accordingly the transferee court deems Section 1407 remand of any claim or action appropriate, procedures are available whereby this may be accomplished with a minimum of delay following a suggestion of remand to the Panel by the transferee judge. See Rule 7.6, R.P.J.P.M.L., 199 F.R.D. at 436-38.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A are transferred to the Eastern District of Michigan and, with the consent of that court, assigned to the Honorable Bernard A. Friedman for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket.

SCHEDULE A
MDL No. 1718  In re Ford Motor Co. Speed Control Deactivation Switch Products Liability Litigation
Middle District of Florida

Janet Bramlage, et al. v. Ford Motor Co., C.A. No. 6:08-17
Northern District of Georgia

State Farm. Mutual Automobile Insurance Co., etc. v. Ford Motor Co., C.A. No. 1:07-3222
Southern District of Georgia

John Shaver, Jr., et al. v. Ford Motor Co., C.A. No. 2:08-22
Eastern District of North Carolina

Frank Harris v. Ford Motor Co., C.A. No. 5:08-7