613 N.W.2d 748 (2000)
241 Mich. App. 133
In the Matter of Bianca Monyai GILLIAM, Constance Latrice Gilliam, Cortes Deshawn Gilliam and Chanell Chachet Gilliam, Minors.
Family Independence Agency, Petitioner-Appellee,
v.
Loyzes Gilliam, Sr., Respondent-Appellant, and
Ina Ray Gilliam, a/k/a Ina Ray Mixon, Respondent.
Docket No. 218044.
Court of Appeals of Michigan.
Submitted January 19, 2000, at Detroit.
Decided May 12, 2000, at 9:20 a.m.
Released for Publication July 26, 2000.
*749 Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Judy Hartsfield, Assistant in Charge, and Larry W. Lewis, Assistant Attorney General, for petitioner.
Marcia J. Covert, Detroit, for Loyzes Gilliam, Sr.
Before: BANDSTRA, C.J., and HOLBROOK, JR., and FITZGERALD, JJ.
HOLBROOK, JR., J.
Respondent father appeals as of right from the family court order terminating his parental rights to his minor children under M.C.L. § 712.19b(3)(c)(i), (3)(g), and (3)(j); MSA 27.3178(598.19b)(3)(c)(i), (3)(g), and (3)(j). We reverse and remand.
In February 1996, petitioner, Family Independence Agency, filed the initial petition in this matter asking for the court to assume jurisdiction over the four minor children. Petitioner alleged that the children had suffered smoke inhalation after a fire broke out in respondent mother's apartment. The petition asserted that at the time of the fire, the children had been left alone in the apartment by respondent mother. The petition also alleged that respondent father, who was separated from respondent mother at the time of the fire, had indicated that he did not have a suitable home for the children and was not able to plan for them at that time. A supplemental petition was filed in July 1998. This later petition contained new and different allegations. Specifically, the supplemental petition alleged that respondent father had tested positive for cocaine use twice in 1996 and for cocaine or amphetamine use on eight occasions in 1998 and that he had failed to attend parenting classes and drug abuse therapy.[1]
Two witnesses were called by petitioner at the termination hearing. Esther Ryans, who worked at Evergreen Counseling Service (hereinafter Evergreen), testified that several drug screens submitted by respondent father had come back positive. Respondent father's hearsay objection to this testimony was overruled by the trial court. Ryans admitted that she did not know how the tests were conducted or what their accuracy rate was and that respondent father had consistently questioned the accuracy of the testing procedures and results obtained. The second witness was Kristin White, a therapist with Evergreen, who had been working with the children since 3 July 1997. White testified that some of the children had anxiety about visiting with respondent father because of his inability to control his anger. Respondent father's hearsay objection to this testimony was also overruled by the court. Ultimately, the court concluded that because of respondent father's possible substance abuse and anger management problems, the children would be at risk if they were returned to him.
*750 Respondent father first contends that the trial court abused its discretion in admitting hearsay testimony concerning possible drug abuse and the children's anxiety over visiting with him. We agree. The rules of evidence apply at the adjudicative phase of a child protective proceeding. MCR 5.972(C)(1). However, the rules of evidence do not apply at the dispositional phase of the proceeding. MCR 5.973(A)(4)(a). Instead, "[a]ll relevant and material evidence ... may be received and may be relied on to the extent of its probative value, even though such evidence may not be admissible at trial." Id. If termination is sought on the basis of one or more circumstances "new or different" from those that led to the original assumption of jurisdiction, "[l]egally admissible evidence must be used to establish the factual basis of parental unfitness sufficient to warrant termination of parental rights." MCR 5.974(E)(1).
The primary factors relied on by the trial court for terminating respondent father's parental rights were an ongoing substance abuse problem and problems with anger management. Neither of these circumstances was related to the court's initial assumption of jurisdiction. Accordingly, these matters were required to be proved by legally admissible evidence. Id.; In re Snyder, 223 Mich.App. 85, 88-91, 566 N.W.2d 18 (1997). However, only inadmissible hearsay evidence was presented to establish both of these new and different circumstances. MRE 801. The drug abuse allegation was supported by drug screen results testified to by Ryans, while White's testimony was the only evidence presented relative to the issue of how respondent father's alleged anger management problems may have affected the children. Given that no legally admissible evidence was presented to establish these new circumstances, we conclude that the erroneous admission of this hearsay testimony was not harmless.
Accordingly, we conclude that reversal is warranted. At the hearing regarding the supplemental petition, any allegations of new or different circumstances from those that justified the original assumption of jurisdiction must be established with legally admissible evidence. Because of our disposition of this issue, we need not address respondent father's claim that insufficient evidence was introduced to support the termination of parental rights.
Finally, we will address the concurring judge's criticisms of In re Snyder. While we sympathize with our brethren's comments regarding the type of evidence that should be relied on by a court when faced with terminating a parent's fundamental interest in the care, custody, and management of the parent's children, we do not agree that In re Snyder misconstrues the relevant court rules. We believe that the In re Snyder analysis of the plain language and interplay of the relevant court rules was correct.
We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction.
FITZGERALD, J., concurred.
BANDSTRA, C.J., (concurring).
I agree with the majority that this matter must be reversed under the core holding of In re Snyder, 223 Mich.App. 85, 566 N.W.2d 18 (1997), that legally admissible evidence is required in termination proceedings brought on the basis of new or different circumstances unrelated to the offense that led the court to take jurisdiction. I write separately to question the scope of language found within Snyder concerning matters that were not critical to its outcome.
Snyder says that whenever the basis for the court taking jurisdiction is related to the basis for seeking termination, legally admissible evidence need not be introduced to establish the basis for termination. Snyder, supra at 90, 566 N.W.2d 18. However, the rules require legally admissible evidence to support termination if it is sought at the initial dispositional hearing, without regard to whether the bases for jurisdiction and for termination *751 are related to one another. MCR 5.974(D)(3). Similarly, it is at least arguable that all forms of termination proceedings require legally admissible evidence to establish the statutory basis for termination. 5 Martin, Dean & Webster, Michigan Court Rules Practice, pp. 759-760 (legally admissible evidence must be introduced to support the grounds for termination in cases brought under MCR 5.974[D], MCR 5.974[E], and MCR 5.974[F]). On the other hand, there is commentary that would lead to the conclusion that legally admissible evidence is not required in termination proceedings under MCR 5.974(F). Note following MCR 5.993, Mich. Ct. R., p. R. 5.9-61; Staff Comment relative to order entered March 27, 1989, Mich. Ct. R., p. 5.9-65; see also 5 Martin, Dean & Webster, Michigan Court Rules Practice, pp. 813, 819 (when the basis for termination of rights is provided in a supplemental petition, and does not allege a new or different circumstance, the basis for termination may be proved by material and relevant evidence; when new or different circumstances are alleged, bases for termination must be proved by legally admissible evidence); Newman, Evidentiary Rules and Standards of Proof in Child Neglect and Abuse Cases, 75 Mich. BJ 1165, 1167 (1996) (when a supplemental petition is filed under MCR 5.974(F), the evidentiary standard is relaxed to allow all relevant and material evidence to the extent of its probative value.)
In my view, although any relevant and material evidence may be used in determining whether it is in the best interests of the child to terminate parental rights, only legally admissible evidence may be used when determining whether the statutory basis for termination has been established. In other words, I find the evidentiary standards found in subsections 1 and 2 of MCR 5.974(E) to be applicable in all termination contexts. I would not limit those standards as applying only where circumstances "new or different" from those supporting jurisdiction are alleged in support of termination. To the extent that MCR 5.974(F)(2) permits the court to consider "evidence ... not ... admissible at trial," that evidence may only be considered on the "best interests" question.
In a similar vein, I question the statement in Snyder that "termination ... solely on the basis of evidence not admissible in ordinary civil proceedings would be improper." Snyder, supra at 91, 566 N.W.2d 18. This implies that termination would be proper even if some legally inadmissible evidence was also considered by the court, as long as some legally admissible evidence was considered. As I see it, termination may or may not be proper if supported by such a combination of evidence, depending on whether the legally admissible evidence was itself sufficient to establish a statutory basis for the termination. It is possible that Snyder concluded only that termination is improper as a matter of law whenever it is based exclusively on legally inadmissible evidence. Under this reading of Snyder, impropriety might or might not be found in cases where both legally admissible and inadmissible evidence formed the basis for a decision that the statute was satisfied. In those cases, a harmless error analysis could be employed to determine the effect the legally inadmissible evidence had on that decision.
My interpretation of the rules derives in part from the need for procedural protections against the drastic sanction that termination of parental rights represents. Parents have a fundamental liberty interest in the care, custody, and management of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). "If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs." Id., see  Lassiter v. Dep't of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Interpreting the rules to require that a statutory basis for termination must be shown by evidence that is legally admissible is particularly warranted in consideration of the fact that, once this hurdle is overcome, termination *752 is mandated absent a finding that it is not in the best interests of a child. MCL 712A.19b(5); MSA 27.3178(598.19b)(5). The statute itself requires "clear and convincing evidence" before a court is empowered to terminate rights. It seems inconsistent for the statute to require that petitioner show by clear and convincing evidence that termination is justified, while the rules allow the use of legally inadmissible and, thus, potentially unreliable evidence to satisfy this standard. The evidentiary rules should not undermine the procedural protections afforded by the statute.
In any event, parental rights are important, and the rules regarding the type of evidence that must be used before a court is authorized to terminate those rights should be clear. The provisions of MCR 5.974 are, at best, confusing; at worst, they establish admissibility standards that are irrationally inconsistent from one parental termination context to another. I encourage the Supreme Court to consider amendments to address this problem.
NOTES
[1]  Drug testing, parenting classes, and therapy were some of the conditions set forth in the parent-agency treatment plan. Petitioner agreed at the termination hearing not to pursue other allegations of abuse.


                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

SKYLER D. JONES,                     NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-3313

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 19, 2016.

An appeal from the Circuit Court for Bay County.
Elijah Smiley, Judge.

Paolo G. Annino, Supervising Attorney, FSU Public Interest Law Center,
Tallahassee, Justin Karpf, Certified Legal Intern, FSU Public Interest Law Center,
Tallahassee, Donna Duncan of Sanders and Duncan, P.A., Apalachicola, for
Appellant.

N. Adam Tebrugge, ACLU Foundation of Florida, Inc., Tampa; Nancy Abudu,
ACLU Foundation of Florida, Inc., Miami; Sonya Rudenstine, Gainesville; Karen
Gottlieb, FIU College of Law, Miami, Amicus Curiae.

Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney
General, Tallahassee, for Appellee.

PER CURIAM.

      AFFIRMED.

ROBERTS, C.J., LEWIS and RAY, JJ., CONCUR.


933 So.2d 539 (2006)
RIVERA v. STATE.
No. 5D05-3313.
District Court of Appeal of Florida, Fifth District.
July 5, 2006.
Decision without published opinion. Affirmed.


227 Pa. Superior Ct. 377 (1974)
Kaper
v.
Kaper, Appellant.
Superior Court of Pennsylvania.
Argued November 13, 1973.
April 3, 1974.
*378 Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, CERCONE, and SPAETH, JJ. (SPAULDING, J., absent.)
Frances O. Tennant, with her Paul H. Titus, and Kaufman & Harris, for appellant.
No appearance entered nor brief submitted for appellee.
OPINION BY WATKINS, P.J., April 3, 1974:
This is an appeal from the order of the Court of Common Pleas, Family Division, of Allegheny County directing the defendant-appellant, Richard Kaper, to pay for the support of a minor child in the custody of the plaintiff-appellee mother, Marjorie Kaper, the sum of $50.00 monthly.
The parties are separated since July, 1972. The mother lives in North Carolina and the child, Mary Elizabeth Kaper, was seven years of age at the time of *379 the hearing. There are four other unmarried children all of whom resided with the father at the time of the hearing. Three of these children were still in school. The father, a barber, has provided for the support of these three children and made payments on the joint obligations of the parties in regard to the jointly owned family home. Both parties have filed for divorce.
The problem presented by this appeal is the failure of the court below to take into consideration the income of the mother and the needs of the child. He relied on Yeats v. Yeats, 168 Pa. Superior Ct. 550, 79 A. 2d 793 (1951), stating in his opinion: "Neither the separation or divorce of a child's father from the child's mother has any effect upon the father's obligation to provide reasonable maintenance for the child, since the duty on the part of the father is a continuing one which exists independently of the continuity of the marital status between the father and the mother."
This is true, but the mother's income and her needs for the support of the child are equally relevant in a support action. This is especially true since the adoption of the amendment known as the "Equal Rights Amendment", Pennsylvania Constitution, Article 1, Paragraph 27.
This Court has indicated that the "Equal Rights Amendment" admits of "no exception" for rights in the area of domestic relations. Commonwealth ex rel. Wiegand v. Wiegand, 226 Pa. Superior Ct. 278, 310 A. 2d 426 (1973).
However, even considering the impact of this amendment and its effect on domestic relations the respective incomes of the mother and the father must be taken into consideration in reaching a decision.
The case is remanded to the court below for a rehearing of the matter to determine the income and assets of the mother and the needs of the child before a final order for support is entered.


417 F.2d 1338
Matt KOEHL, Individually and as head of The American NaziParty and on behalf of the Estate of George LincolnRockwell, and George Lincoln Rockwell, Inc., a Virginiacorporation and The American Nazi Party, aka NationalSocialist White Peoples Party, individually and as custodianof the remains of George Lincoln Rockwell, Appellants.v.Stanley R. RESOR, Individually and as Secretary of the Armyof the United States of America, and Robert S.McNamara, Individually and as Secretaryof Defense of the UnitedStates, Appellees.
No. 13474.
United States Court of Appeals Fourth Circuit.
Argued Nov. 6, 1969.Decided Nov. 24, 1969.

Herbert A. Rosenthal, Jr., Washington, D.C., and Philip J. Hirschkop, Alexandria, Va.  (Cohen, Hirschkop, Hall & Jackson, Alexandria, Va., Lawrence Speiser, Ralph Temple, Washington, D.C., and David M. Weitzman, Falls Church, Va., on brief), for appellants.
Stephen R. Felson, Atty., Department of Justice (William D. Ruckelshaus, Asst. Atty. Gen., and Robert V. Zener, Atty., Department of Justice, and Brian P. Gettings, U.S. Atty., on brief), for appellees.
Before SOBELOFF, WINTER and BUTZNER, Circuit Judges.
PER CURIAM:

1
The judgment appealed from is affirmed on the opinion of the District Court.  296 F.Supp. 558 (E.D.Va.1969).

2
Affirmed.


              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT

STEVE CRUZ,                                 )
                                            )
             Appellant,                     )
                                            )
v.                                          )         Case No. 2D15-124
                                            )
STATE OF FLORIDA,                           )
                                            )
             Appellee.                      )
                                            )

Opinion filed November 13, 2015.

Appeal from the Circuit Court for
Hillsborough County; Daniel Perry, Judge.

Howard L. Dimmig, II, Public Defender,
and Brooke Elvington, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cerese Crawford Taylor,
Assistant Attorney General, Tampa, for
Appellee.

PER CURIAM.

             Steve Cruz appeals the sentences he received after he admitted to

violating his community control in two separate cases. On May 6, 2014, he entered

negotiated guilty pleas in each case to be sentenced as a youthful offender to
concurrent terms of community control followed by probation. See § 958.04, Fla. Stat.

(2013). In case 13-CF-17933, Mr. Cruz was charged with four felony counts and

pleaded guilty as charged to each. On count I, armed burglary of a dwelling, a first-

degree felony punishable by life, he was sentenced as a youthful offender to two years

of community control followed by three years of probation. On count II (grand theft of a

motor vehicle, a third-degree felony), count III (grand theft of $300-$5000, a third-

degree felony), and count IV (grand theft of a firearm, a third-degree felony), he was

sentenced as a youthful offender to two years of community control followed by two

years of probation, all concurrent with count I. In case 14-CF-432, Mr. Cruz was

charged with three felony counts. He pleaded guilty as charged to count I, burglary of

an unoccupied dwelling, a second-degree felony, and was sentenced as a youthful

offender to two years of community control followed by three years of probation,

concurrent with all counts in case 13-CF-17933. On count II of case 14-CF-432, grand

theft from a dwelling, he received a sentence of time served in exchange for his guilty

plea. The State entered a nolle prosequi on count III of case 14-CF-432, grand theft of

a motor vehicle.

              On November 6, 2014, the Department of Corrections filed an amended

affidavit of violation of community control alleging that Mr. Cruz committed various

violations of the terms of his community control. The circuit court accepted Mr. Cruz'

admission to two of these violations and sentenced him to six years in prison as a

youthful offender on all seven counts from both criminal cases. Mr. Cruz now appeals,

arguing that his sentences on five counts were illegal.

                                            -2-
              We review the legality of a sentence as a pure issue of law that is subject

to de novo review. Wardlaw v. State, 832 So. 2d 258, 259 (Fla. 2d DCA 2002); Ray v.

State, 68 So. 3d 346, 347 (Fla. 1st DCA 2011); Flowers v. State, 899 So. 2d 1257, 1259

(Fla. 4th DCA 2005). On the record before us, it is apparent that reversal is merited on

five counts. In case 13-CF-17933, the sentences of six years in prison as a youthful

offender on counts II, III, and IV were erroneous, as the State concedes, because the

maximum permissible sentence on each of these third-degree felony counts was five

years in prison. See § 958.14, Fla. Stat. (2013); State v. Milbry, 476 So. 2d 1281, 1281-

82 (Fla. 1985). Furthermore, in case 14-CF-432, the trial court reversibly erred in

sentencing Mr. Cruz to six years in prison as a youthful offender on counts II and III,

given that, as part of Mr. Cruz' original negotiated probationary plea, Mr. Cruz pleaded

to time served on count II, and the State entered a nolle prosequi on count III. As the

State again concedes, the circuit court lacked jurisdiction to impose any sentence on

either of these counts. See, e.g., Reynolds v. State, 28 So. 3d 979, 980 (Fla. 2d DCA

2010).

              Reversed and remanded for resentencing consistent with this opinion.

CASANUEVA, LaROSE, and LUCAS, JJ., Concur.

                                           -3-


664 F.2d 1332
PPG INDUSTRIES, INC., Plaintiff-Appellant,v.INDUSTRIAL LAMINATES CORPORATION, Defendant-Appellee.
No. 81-3187

Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Jan. 7, 1982.
William N. Faller, Baton Rouge, La., for plaintiff-appellant.
Michael A. Patterson, Baton Rouge, La., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Louisiana.
Before CLARK, Chief Judge, RUBIN and SAM D. JOHNSON, Circuit Judges.
CLARK, Chief Judge:

1
The sole issue in this diversity case involving defective construction materials is which prescriptive period is applicable to plaintiff's cause of action under Louisiana law.  We agree that the action was properly treated as one in redhibition calling for a one-year period.

2
Plaintiff PPG Industries, Inc. was a subcontractor for the construction of a building in Baton Rouge, Louisiana.  As part of its contract with the general contractor, PPG agreed to install spandrel panels on the curtain wall of the building.  PPG contracted in turn with the defendant, Industrial Laminates Corporation, for a supply of spandrel panels meeting certain specifications.  Industrial Laminates manufactured and delivered the panels to the job-site where they were installed by PPG.  After installing the panels and paying the contract price for them, PPG discovered that the panels were delaminating.  Industrial Laminates acknowledged this failure and sent replacement panels, the last of which was received in March 1976.  PPG removed the defective panels and installed the replacement panels.  Upon completion of the contract in March 1977 the owner of the building, pursuant to a release and agreement with PPG, withheld $51,487.29 from PPG because of construction losses associated with the defective panels.  One year later, on March 8, 1978, PPG filed suit against Industrial Laminates seeking $51,487.29 for the sum withheld by the owner, $23,000.00 for the extra labor cost incurred in replacing the defective panels, and $25,512.31 for interest lost on all the funds withheld by the owner over the duration of these events.1  The district court granted summary judgment for defendant, holding that the cause of action under Louisiana law was one in redhibition,2 and therefore barred by a one-year period of prescription.  La.Civ.Code Ann. art. 2534 provides that a redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.  This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser, ibid.  Louisiana law imputes such knowledge to the manufacturer.  E. g. Phillipe v. Browning Arms Co., 395 So.2d 310, 318 n.15 (La.1981) (on rehearing).  The one year period does not begin to run in such cases until the discovery of the vice.  La.Civ.Code Ann. art. 2546.  Cotton States Chemical Co. v. Larrison Enterprises, Inc., 342 So.2d 1212, 1214-15 (La.App.1977).  In any case, the one year period does not begin to run until the seller abandons his attempts to repair.  E. g. Weaver v. Fleetwood Homes of Mississippi, 327 So.2d 172, 176-77 (La.App.1976).  Here, the defect was discovered in 1973.  However, Industrial Laminates continued efforts to repair until March, 1976.  Thus, if this is an action in redhibition, the action would have prescribed March 1977, a year before suit was filed.

3
On appeal the plaintiff urges two main points: (1) that the suit is founded on an express warranty contained in the purchase order3 so that the ten-year prescriptive period to an action for breach of contract applies; and (2) that PPG's action is one for indemnity from Industrial Laminates, and as such is governed by the ten-year prescription for actions in quasi-contract.

4
PPG relied heavily on Delta Refrigeration Co. v. Upjohn Co., 432 F.Supp. 124 (W.D.La.1977), aff'd 575 F.2d 879 (5th Cir. 1977), cert. denied, 439 U.S. 984, 99 S.Ct. 574, 58 L.Ed.2d 655 (1978), for its argument that a suit founded on an express warranty is one for breach of contract and not redhibition.  In Delta Refrigeration the plaintiff sued the manufacturer of a polyurethane spray foam used for building insulation upon discovering that the foam's flame and heat resistance was not as great as that represented by the manufacturer's advertisements.  The complaint in that action was held not time barred as a redhibitory action:

5
Here, Upjohn represented that its CPA 425 was flame-retardant and self-extinguishing, claims which the facts of this case show are not so, and were held to be misleading and unfair ...  The thrust of plaintiff's claim is to recover, not for a hidden defect, a redhibitory vice; instead, it is to be awarded damages for breach of the express warranties Upjohn made when it sold the chemicals.  Therefore, the proper prescriptive period is founded in La.  R.C.C. art. 3544-ten years-not the one-year period provided by Art. 2534.4

6
432 F.Supp. at 127.  The district court in the present case declined to follow Delta Refrigeration.  It reasoned that under a correct interpretation of Louisiana law there is no difference to prescription of an action in redhibition whether it is predicated upon an express warranty or on the warranty implied by law in all sales.  The district court misapprehended the holding in Delta Refrigeration to be broader than it is.  However, the legal reasoning expressed in Delta Refrigeration and that used by the district court in this case can be harmonized.

7
The district court correctly stated that the presence of an express warranty does not convert an action for redhibition into an action for breach of contract, nor does it alter the one-year prescription for redhibitory suits.  Indeed, the Louisiana statutes explicitly recognize that breach of an express warranty gives rise to an action in redhibition where the declaration by the seller as to the product's qualities forms the principal motive for the purchase.  La.Civ.Code Ann. art. 2529.  So too, the courts in Louisiana have held unequivocally that actions based on a breach of warranty against defects are to be brought in redhibition instead of as a breach of contract.  See Molbert Bros. Poultry & Egg Co. v. Montgomery, 261 So.2d 311, 314 (La.App.1972) and cases cited therein.  See also Austin v. North American Forest, 656 F.2d 1076, 1083 (5th Cir. 1981).  Delta Refrigeration does not challenge this fundamental Louisiana law nor does it hold that where an action in redhibition involves an express warranty the prescription period for breach of contract applies.  Rather the district court there held and we affirmed that the action simply wasn't one in redhibition since it did not seek to recover for a hidden, or redhibitory defect.  432 F.Supp. at 127.  There was no allegation that the foam was defectively manufactured.  Rather the facts showed that even "state of the art" foam did not possess the requisite flame-retardant qualities.  On this basis the court apparently reasoned that the foam contained no defect and hence redhibition would not lie.5

8
Had the court in Delta Refrigeration concluded that the claim was one in redhibition but that the presence of an express warranty somehow superceded the one-year prescription, we would have faced the question the district court thought it was facing.  However, Delta Refrigeration does not contain the vice which the defendant and court below attribute to it.

9
That this action is one in redhibition under Louisiana law is easily discerned.  Redhibition is the remedy when the defect in the thing sold renders it absolutely useless or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased the thing had he known of the vice.  La.Civ.Code Ann. art. 2520.  See Ark.-La.-Tex.  Builders & Realty, Inc. v. Hoge, 344 So.2d 90 (La.App.1977); Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App.1979); Womack and Adcock v. 3M Business Products Sales, Inc., 316 So.2d 795 (La.App.1975).  The following are examples of redhibitory vices: a cracked engine block, Leson Chevrolet Co. v. Barbier, 173 So.2d 50 (La.App.1962) (1967); termite damage, Pursell v. Kelly, 139 So.2d 12 (La.App.1962), aff'd 244 La. 323, 152 So.2d 36 (1963); an inadequate building foundation, Sterbcow v. Peres, 222 La. 850, 64 So.2d 195 (1953); a contaminated popsicle, Roniger v. Borden, Inc., 309 So.2d 756 (La.App.1975).  Without question the district court correctly concluded that the delamination of the spandrel wall panels, which were only valuable if they stayed intact, fits squarely into the definition of redhibition under Louisiana law.

10
PPG cites, besides Delta Refrigeration, several Louisiana cases where express contractual obligations supposedly mandated application of the prescriptive period for breach of contract.  These cases are likewise easily distinguishable.  In Weathermaster Parts & Service, Inc. v. McCay, 242 So.2d 306 (La.App.1970), McCay had bought an air conditioner manufactured by the Trane Company which carried a warranty obligation to replace the compressor during the second through fifth year after installation.  The original compressor failed after 27 days, and a new one was installed by Weathermaster Parts which then sued McCay for the installation cost for this second compressor.  McCay brought a third party action against Trane demanding reimbursement of the cost of the second installation.  The court held that the prescriptive period for breach of contract governed this third party action.  The inapplicability of this case can be readily seen.  The third party action did not seek to avoid the sale of the original compressor due to a hidden defect, but was concerned solely with a collateral matter, namely the cost of installation of the second compressor.  Also, Trane did not plead the one-year prescription for redhibition but rather pled the general one year tort prescription.  There is no suggestion that the issue of redhibition was faced by the court.

11
S. H. Hanville Lumber and Export Co. v. C-B Lumber Co., 52 So.2d 61 (La.App.1951) cited by PPG is inapplicable because there the plaintiff's complaint was not that the defendant's lumber contained a hidden defect, but that the defendant sent grade "D" lumber instead of grade "C".  Where the plaintiff's claim is based on the defendant's failure to supply the correct type of material, rather than a defect in the material itself, an action for breach of contract will lie, Victory Oil Co. v. Perret, 183 So.2d 360, 363 (La.App.1966).  Here PPG received the correct type of material.

12
PPG argues that since the panels were not readily separable and could not be returned to the seller in avoidance of the sale, redhibition will not lie because the statute envisions the return by the buyer of movable or separable objects.  This argument is without merit.  Redhibition encompasses those situations where the product cannot be returned.  Molbert Bros. Poultry & Egg Co. v. Montgomery, 261 So.2d 311, 314 (La.App.1972); Frank Brigsten, Inc. v. Swegel, 258 So.2d 579 (La.App.1972).  For example, in Frank Brigsten the buyer was not required to return defective bricks which had already been installed.

13
PPG's second major contention, that this is a suit for indemnity and as such is governed by a ten-year prescription period, is disposed of by the case on which PPG purports to rely, Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422, 427 (1967).  There, the Supreme Court of Louisiana stated that the prescriptive period applicable to actions in redhibition would apply to that part of the action for indemnity between a buyer and its seller.  The claims which were held not to be time barred in Minyard were those between parties which were not in a buyer-seller relationship.  205 So.2d at 427.

14
PPG's argument that it could not have ascertained within a year the extent to which it would be owed indemnity from Industrial Laminates is a compelling one.  No doubt in any construction project such as this it would oftentimes be unrealistic, or at least inconvenient, to expect a subcontractor like PPG to file an action against its materialman in advance of a suit against or a final settlement with the prime contractor or owner.  Yet suit can be, and frequently is, filed after the occurrence of an event giving rise to an injury before the full extent of the damage is known.  For example, the plaintiff who has a tort claim for damages for personal injury must sue within one year in Louisiana, La.Civ.Code Ann. art. 2315.  The reason for the short prescriptive period in redhibitory actions is the practical necessity to determine promptly and certainly whether the article sold did or did not have the vices claimed.  Victory Oil v. Perret, 183 So.2d 360, 363 (La.App.1966).  But whether the one year prescription in such a context as the present case is unjust is a matter for the Louisiana legislature or its courts to decide.  The present state of the law clearly mandates dismissal of PPG's claim as time barred.

15
PPG's other argument, that Industrial Laminates is a contractor, or should stand in the shoes of the contractor so that the ten-year prescription period applicable to contractors, La.Civ.Code Ann. art. 2762 should apply, is wholly without merit.

The judgment of the district court is

16
AFFIRMED.

1
 For two years prior to correction and replacement the owner had withheld $145,000.00 from PPG because of the defective panels

2
 Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the vice.  La.Civ.Code Ann. art. 2520

3
 The purchase order required the architect's approval, and further stated:
"Seller guarantees that the product covered by this order shall be of merchantable quality and fit for the use intended and guarantees the products for the number of years indicated in the block at right."  The block on the purchase order was not completed to indicate any duration.

4
 This court affirmed the district court without opinion.  575 F.2d 879 (5th Cir. 1977)

5
 However, Louisiana has held that redhibition lies even where the absence of a stated quality does not constitute a defect if the quality which it supposedly contained (such as flame-retardance) was the principal motive for the buyer's purchase.  Fusilier v. Ardoin, 266 So.2d 531 (La.App.1972); Reiners v. Stran-Steel Corp., 317 So.2d 657 (La.App.1975)


Filed 9/3/13 P. v. Magana CA3
                                                 NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                           THIRD APPELLATE DISTRICT
                                                                 (Yuba)
                                                                    ----

THE PEOPLE,

                     Plaintiff and Respondent,                                                        C071066

          v.                                                                           (Super. Ct. No. CRF11559)

CHRISTIAN CARRILLO MAGANA,

                     Defendant and Appellant.

          Defendant Christian Carrillo Magana pled no contest to rape by force. (Pen.
Code,1 § 261, subd. (a)(2).) In exchange, four related counts and enhancements were
dismissed. Defendant was sentenced to state prison for a stipulated upper term of eight
years, awarded 164 days of custody credit and 24 days of conduct credit (§ 2933.1), and
ordered to pay fines and fees including a sex crime fine (§ 290.3) in the amount of $1,140
including unspecified penalty assessments.
          Defendant timely filed a notice of appeal but did not seek a certificate of probable
cause. Thereafter, defendant filed two more notices of appeal, each seeking a certificate
of probable cause. One request was granted and the other denied. The issues raised in
this appeal do not require a certificate of probable cause.

1         Undesignated statutory references are to the Penal Code.

                                                                     1
       Defendant contends (1) he is entitled to one additional day of custody credit and
(2) the abstract of judgment must be amended to itemize the components of the $1,140
sex crime fine and penalty assessments. The People concede both contentions. We
agree. Accordingly, we modify the judgment to add one day of custody credit and
remand the case to the trial court to determine the sex crime fine and penalty assessments
that constitute the aggregate $1,140 amount and amend the abstract of judgment to list,
with the statutory basis, the fines and fees.
                                           FACTS
       The facts of defendant’s offense are not at issue and need not be set forth in this
opinion.
                                       DISCUSSION
                                                I
                                       Custody Credit
       Defendant contends, and the People concede, the judgment must be modified to
award him 165 days of custody credit. We accept the People’s concession.
       Defendant was in custody from his arrest on October 17, 2011, through his
sentencing on March 29, 2012, a period of 165 days.2 Accordingly, we modify the
judgment to award him 165 days of custody credit.
                                                II
                         Sex Crime Fine and Penalty Assessments
       Defendant contends, and the People concede, the abstract of judgment must be
amended to itemize the components of the $1,140 sex crime fine and penalty
assessments. We accept the People’s concession.

2      The error appears to have originated with the probation report’s assertion that
defendant was entitled to 123 days of custody credit, rather than 124, as of the original
sentencing date of February 17, 2012.

                                                2
       Section 290.3, subdivision (a), authorizes a base sex crime fine in the amount of
“three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars
($500) upon the second and each subsequent conviction, unless the court determines that
the defendant does not have the ability to pay the fine.” In this case, the trial court did
not specify the amount of the base fine or identify the penalty assessments that resulted in
the aggregate $1,140 fine. Further, the probation report only refers to a $1,140 fine
pursuant to section 290.3.
       “Although we recognize that a detailed recitation of all the fees, fines and
penalties on the record may be tedious, California law does not authorize shortcuts. All
fines and fees must be set forth in the abstract of judgment.” (People v. High (2004)
119 Cal.App.4th 1192, 1200.) On remand, the trial court shall determine the sex crime
fine and penalty assessments that constitute the aggregate $1,140 amount and amend the
abstract of judgment to “separately list, with the statutory basis, all fines, fees and
penalties imposed.” (Id. at p. 1201.)
                                        DISPOSITION
       The judgment is modified to award defendant 165 days of custody credit. As so
modified, the judgment is affirmed. The trial court is directed to determine the sex crime
fine and penalty assessments and prepare an amended abstract of judgment that
separately lists, with the statutory basis, all fines, fees, and penalties imposed upon
defendant.

                                                        HOCH             , J.

We concur:

         RAYE             , P. J.

       MURRAY             , J.

                                               3


921 A.2d 235 (2007)
398 Md. 512
Frederick GREEN
v.
CARR LOWERY GLASS COMPANY, INC., et al.
No. 104, Sept. Term, 2006.
Court of Appeals of Maryland.
April 13, 2007.
*236 David E. Fink, Baltimore, for petitioner.
Joan P. Adelman, Towson, for respondents.
Argued before BELL, C.J., RAKER, CATHELL, HARRELL, BATTAGLIA, GREENE, and WILNER, ALAN, M., (Retired, specially assigned), JJ.
RAKER, J.
We are called upon in this case to interpret certain provisions of the Workers' Compensation Act, Maryland Code (1999, 2006 Cum.Supp.), § 9-101 et seq. of the Labor and Employment Article.[1] We must decide whether a claimant whose hearing has been damaged within the frequencies established in § 9-505 as a result of his occupation is entitled to have hearing aids provided by his employer/insurer, even though he does not meet the criteria for monetary compensation under § 9-650. We shall hold that petitioner is not eligible for medical benefits, i.e. hearing aids, under § 9-660 unless he is eligible for compensation under § 9-505 and § 9-650.
Petitioner, Frederick Green, was employed by the Carr Lowery Glass Company for over thirty years as a mold shop worker. On August 3, 2004, he filed a claim with the Workers' Compensation Commission (hereinafter "Commission"), alleging that "years of exposure to loud glass machine[s] caused loss of hearing." Dr. Brian Kaplan, a physician affiliated with Ear, Nose & Throat Associates in Baltimore, evaluated petitioner's hearing on October 19, 2004.[2] Dr. Kaplan's evaluation stated as follows:
"Mr. Green does have a mild to severe high frequency sensorineural hearing loss. His Maryland Compensation Formula for hearing loss is zero percent. However, this pattern of hearing loss is consistent with that caused by significant environmental noise exposure. This noise exposure and hearing loss is likely also the cause of the factors for his bilateral tinnitus. He is a good hearing aid candidate given the degree of loss and discrimination scores. The cost of hearing aids is $5,125.00. I have recommended good hearing protection in the future when in loud environments and will plan on seeing him back on an as needed basis."
According to Dr. Kaplan's audiogram, petitioner suffered some hearing loss in the range of frequencies between 2000 and 3000 hertz.
The Commission held a hearing on January 28, 2005 to determine whether petitioner sustained an occupational disease arising out of and in the course of employment, and whether petitioner was entitled to hearing aids, as recommended by Dr. Kaplan. By written order, on February 10, 2005, the Commission denied petitioner's claim, finding that petitioner "did not sustain an occupational disease of binaural hearing loss arising out and in the course of employment as alleged to have occurred *237 on February 25, 2003, and . . . that the [hearing aids] issue is moot."
Green filed a petition for judicial review, and both parties moved for summary judgment. On May 27, 2005, after hearing arguments by the parties, the Circuit Court for Baltimore City issued an oral opinion. The court concluded, "it is required that the claimant meet the standard of § 9-650 before being entitled to medical benefits." By written order on May 31, 2005, the court granted summary judgment in favor of the employer/insurer, denied petitioner's motion for summary judgment, and affirmed the decision of the Commission.
Green filed a timely appeal with the Court of Special Appeals. The Court of Special Appeals reviewed the contested statutory provisions, § 9-505 and § 9-650, and concluded that an inquiry of the legislative history was unnecessary because the statutory language is sufficiently clear. Green v. Carr, 170 Md.App. 502, 514, 907 A.2d 845, 851 (2006). The intermediate appellate court noted also that the language of § 9-505 is "much too broad to function independently and serve as the sole basis for compensation, medical expenses, or otherwise." Id. at 517, 907 A.2d at 853. Instead, the court held that § 9-505 establishes that occupational deafness due to industrial noise in certain frequencies is a compensable condition, and that one who suffers occupational deafness is entitled to compensation and benefits if he or she also meets the requirements in § 9-650. Id. at 518-19, 907 A.2d at 854.
This Court granted Green's petition for writ of certiorari to address the following question:
"Is a Claimant whose hearing has been damaged as a result of his occupation and who meets the criteria for benefits under Labor & Employment Article § 9-505 entitled to have hearing aids provided by the Employer/Insurer, despite the fact that he does not meet the criteria for monetary compensation under Labor & Employment Article § 9-650?"
Green v. Lowery, 396 Md. 12, 912 A.2d 648 (2006).
The question of whether a trial court's grant of summary judgment was proper is a question of law subject to de novo review on appeal. Cochran v. Norkunas, 398 Md. 1, 919 A.2d 700 (2007). In reviewing a grant of summary judgment under Md. Rule 2-501, we independently review the record to determine whether the parties properly generated a genuine dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Md. Rule 2-501(f); see Hill v. Knapp, 396 Md. 700, 711, 914 A.2d 1193, 1199 (2007). In the case sub judice, there is no genuine dispute of material fact.
We first recount briefly the history and statutory framework of Maryland's Workers' Compensation Act, as related to hearing loss in particular. Workers' compensation encompasses two main categories of compensable events: accidental personal injury and occupational diseases. §§ 9-501, 9-502; Means v. Baltimore County, 344 Md. 661, 664, 689 A.2d 1238, 1239 (1997); see also Yox v. Tru-Rol, 380 Md. 326, 330-36, 844 A.2d 1151, 1153-57 (2004) (providing a detailed history of Maryland's Workers' Compensation Act). Today, an employee's hearing loss may fall into either category, depending on whether the employee experienced a sudden traumatic event or was exposed repeatedly to loud noises. See Yox, 380 Md. at 332, 844 A.2d at 1154. This was not always the case, however.
As first enacted in 1914, the Workers' Compensation Act provided compensation *238 only for accidental injuries that arose out of and in the course of employment, and an employee was not required to show that his or her disability resulted in a loss of wages or earning capacity. Yox, 380 Md. at 330-31, 844 A.2d at 1153-54. Thus, an employee who suffered the total loss of hearing in both ears due to a one-time accident that created a loud blast, for example, would have received compensation. See Belschner v. Anchor Post, 227 Md. 89, 92, 175 A.2d 419, 420-21 (1961). Compensation for hearing loss as an occupational disease, however, was not provided until 1951. See Yox, 380 Md. at 332, 844 A.2d at 1154. At that time, claims for occupational disease related to hearing loss were not compensable unless the employee showed that he or she was no longer able to work in the occupation that produced the disability. See Belschner, 227 Md. at 92-93, 175 A.2d at 422; Yox, 380 Md. at 333-33, 844 A.2d at 1154-55.
In 1967, the Legislature amended the Workers' Compensation Act to create a separate provision dealing specifically with occupational disease hearing loss. Yox, 380 Md. at 333-34, 844 A.2d at 1155. The new provision, § 25A of Article 101, provided that "occupational deafness shall be compensated according to the terms and conditions of this section" and set forth a testing methodology for determining eligibility for compensation. 1967 Md. Laws, Chap. 155; Crawley v. General Motors Corp., 70 Md.App. 100, 104, 519 A.2d 1348, 1350, cert. denied, 310 Md. 147, 528 A.2d 473 (1987). The new provision stated that only hearing losses in the range of 500, 1000, and 2000 cycles per second were compensable, and provided that, "[i]f the losses of hearing average 15 decibels or less in the three frequencies, such losses of hearing shall not then constitute any compensable hearing disability." 1967 Md. Laws, Chap. 155; Crawley, 70 Md.App. at 104, 519 A.2d at 1350; see also Yox, 380 Md. at 334, 844 A.2d at 1155-56 (summarizing compensability criteria). We have recognized that the intent of the Legislature in enacting the new provision was "not only to provide technical criteria for measuring occupational loss of hearing but also to make such loss compensable without regard to inability to work or loss of wages." Yox, 380 Md. at 335, 844 A.2d at 1156 (quoting Crawley v. General Motors Corp., 70 Md.App. 100, 107, 519 A.2d 1348, 1352 (1987)). Thus, we held that the statute provided that an employee may be eligible for occupational disease compensation due to work-related hearing loss without a showing of disablement, i.e., loss of wages or inability to perform regular work. Yox, 380 Md. at 335, 844 A.2d at 1156; Crawley, 70 Md.App. at 101, 519 A.2d at 1349.
As part of the Legislature's general code revision process in 1991, the Workers' Compensation Act, Art. 101, was repealed and recodified as Title 9 of the Labor and Employment Article. Yox, 380 Md. at 335, 844 A.2d at 1156. The new statute split the former provisions regarding occupational hearing loss between subtitle 5, dealing with the entitlement to and liability for compensation, and subtitle 6, dealing with benefits. §§ 9-501 et seq.; Yox, 380 Md. at 335, 844 A.2d at 1156. It is the 1991 codification of the statute that is at issue in this case.
Our focus is primarily on three sections of the Workers' Compensation Act, located in two of the subtitles of Title 9: § 9-505, which defines occupational deafness; § 9-650, which sets forth the criteria for calculating the percentage of hearing loss; and § 9-660, which provides for medical benefits. For clarity, we set forth the full text of these sections below. As additional context, we include also all of the text in Part VII of Subtitle 6, entitled "Occupational Deafness."
*239 Subtitle 5, "Entitlement to and Liability for Compensation," contains Section 9-505, entitled "Occupational deafness." Section 9-505 states as follows:
"(a) In general.  Except as otherwise provided, an employer shall provide compensation in accordance with this title to a covered employee for loss of hearing by the covered employee due to industrial noise in the frequencies of 500, 1,000, 2,000, and 3,000 hertz.
"(b) Short-term employer.  An employer is not liable for compensation for occupational deafness under subsection (a) of this section unless the covered employee claiming benefits worked for the employer in employment that exposed the covered employee to harmful noise for at least 90 days."
Subtitle 6 of Title 9 is entitled "Benefits" and consists of several Parts. Part I addresses general provisions, for example, while Part VII concerns occupational deafness and Part IX provides for medical benefits. Part VII starts with § 9-649, entitled "Scope of part." Section 9-649 states as follows:
"A covered employee who suffers from occupational deafness shall be paid compensation in accordance with this Part VII of this subtitle."
Section 9-650, entitled "Calculation of percentage of hearing loss," provides:
"(a) Measurement instruments.  (1) Hearing loss shall be measured by audiometric instrumentation that meets the following criteria: (i) ANSI 3.6-1996; (ii) ANSI S3.43-1992; and (iii) ANSI 3.39-1987 or any ANSI standard that supersedes the previous calibration or measurement criteria. (2) Measurements shall be conducted in a sound room that meets the ANSI 3.1-1991 criteria for maximum permissible ambient noise for audiometric test rooms. (3) Behavioral psychoacoustic measurements shall be obtained with instrumentation that utilizes insert earphones, as referenced in ANSI 3.6-1996. (4) Electro-diagnostic measurements such as auditory evoked potentials, acoustic emittance measurements, or distortion product otoacoustic emissions may be obtained to determine the nature and extent of workplace hearing loss. (5) Audiologic results shall be used in conjunction with other information to evaluate a claimant's compensable hearing loss.
"(b) Calculation  Average thresholds of hearing.  (1) The percentage of hearing loss for purposes of compensation for occupational deafness shall be determined by calculating the average, in decibels, of the thresholds of hearing for the frequencies of 500, 1,000, 2,000, and 3,000 hertz in accordance with paragraph (2) of this subsection. (2) The average of the thresholds in hearing shall be calculated by: (i) adding together the lowest measured losses in each of the 4 frequencies; and (ii) dividing the total by 4.(3) To allow for the average amount of hearing loss from nonoccupational causes found in the population at any given age, there shall be deducted from the total average decibel loss determined under paragraphs (1) and (2) of this subsection one-half of a decibel for each year of the covered employee's age over 50 at the time of the last exposure to industrial noise.
"(c)(1) If the average hearing loss in the 4 frequencies determined under subsection (b) of this section is 25 decibels or less, the covered employee does not have a compensable hearing loss. (2) If the average hearing loss in the 4 frequencies determined under subsection (b) of this section is 91.7 decibels or more, the covered employee has a 100% compensable hearing loss. (3) For every decibel that the average hearing loss exceeds 25 *240 decibels, the covered employee shall be allowed 1.5% of the compensable hearing loss, up to a maximum of 100% compensable hearing loss at 91.7 decibels.
"(d) Binaural percentage of hearing loss.  The binaural percentage of hearing loss shall be determined by: (1) multiplying the percentage of hearing loss in the better ear by 5; (2) adding that product to the percentage of hearing loss in the poorer ear; and (3) dividing that sum by 6.
"(e) Amplification device; bone conduction thresholds.  (1) In determining the percentage of hearing loss under this section, consideration may not be given to whether the use of an amplification device improves the ability of a covered employee to understand speech or enhance behavioral hearing thresholds. (2)(i) In determining a workers' compensation claim for noise-related hearing loss, audiologic data shall use both bone conduction and air conduction results. (ii) If a conductive loss is present, the bone conduction thresholds for each ear, rather than the air conduction levels, shall be used to calculate a claimant's average hearing loss."
Section 9-651, entitled "Extent of Liability," states as follows:
"(a) In general.  Except as provided in subsection (b) of this section, an employer is liable for the full extent of the occupational deafness of a covered employee if: (1) the employment of the covered employee by the employer has contributed to any extent to the occupational deafness of the covered employee; and (2) the employer otherwise is liable under this section and § 9-505 of this title.
"(b) Limitation on liability.  An employer is liable only for the part of the deafness attributable to the employment by the employer if the employer establishes by competent evidence, including the results of a professionally controlled hearing test, the extent of the deafness of the covered employee that existed before exposure to harmful noise in the employment of the employer."
Finally, § 9-660, located in Part IX "Medical Benefits" of Subtitle 6 and entitled "Provision of medical services and treatment," states as follows:
"(a) In general.  In addition to the compensation provided under this subtitle, if a covered employee has suffered an accidental personal injury, compensable hernia, or occupational disease the employer or its insurer promptly shall provide to the covered employee, as the Commission may require: (1) medical, surgical, or other attendance or treatment; (2) hospital and nursing services; (3) medicine; (4) crutches and other apparatus; and (5) artificial arms, feet, hands, and legs and other prosthetic appliances.
"(b) Duration.  The employer or its insurer shall provide the medical services and treatment required under subsection (a) of this section for the period required by the nature of the accidental personal injury, compensable hernia, or occupational disease.
"(c) Award or order  Not to reopen case or change previous award.  Except as provided in § 9-736(b) and (c) of this title, any award or order of the Commission under this section may not be construed to: (1) reopen any case; or (2) allow any previous award to be changed."
As we have often stated, the cardinal rule of statutory interpretation is to ascertain and to effectuate the intent of the Legislature. Department of Human Resources v. Howard, 397 Md. 353, 918 A.2d 441 (2007). In ascertaining legislative intent, we first examine the plain language *241 of the statute, and if the plain language of the statute is unambiguous and consistent with the statute's apparent purpose, we give effect to the statute as it is written. Id. The ordinary and popular understanding of the English language dictates interpretation of terminology within legislation. See Deville v. State, 383 Md. 217, 223, 858 A.2d 484, 487 (2004).
If a statute has more than one reasonable interpretation, it is ambiguous. See Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 1114 (2005). Ambiguous or equivocal statutory language requires us to consider not only the ordinary meaning of words, but also to interpret how that language relates to the overall meaning, setting, and purpose of an act. See Mayor & Town Council of Oakland v. Mayor & Town Council of Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006). We resolve any ambiguity in light of the legislative history, prior case law, and statutory purpose. Department of Health and Mental Hygiene v. Kelly, 397 Md. 399, 918 A.2d 470, 481 (2007). We avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense. See Gwin v. MVA, 385 Md. 440, 462, 869 A.2d 822, 835 (2005); Moore, 388 Md. at 453, 879 A.2d at 1115. We presume also that the Legislature has acted with full knowledge of prior legislation, and we construe the statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory. Oakland, 392 Md. at 316, 896 A.2d at 1045.
Before this Court, petitioner argues that the Court of Special Appeals erred by holding that a claimant with work-related hearing loss is not entitled to a hearing aid under § 9-505 solely because he is not also eligible for monetary benefits under § 9-650. Petitioner concedes that he is not eligible for monetary benefits under § 9-650, but he argues that provision of medical benefits is a separate analysis to that of monetary compensation because § 9-660 says, "in addition to the compensation provided under this subtitle" and compensation is defined as only monetary compensation. Petitioner further asserts that § 9-505 establishes liability for "occupational deafness" even where the level of injury does not rise to the threshold for monetary benefits under § 9-650. Thus, petitioner asserts that he is entitled to reasonable medical expenses under § 9-660 because he suffered a hearing loss within the ranges set forth in § 9-505.
Respondent replies that petitioner does not become eligible for any type of workers' compensation benefits unless the claim is deemed compensable under both § 9-505 and § 9-650. Respondent argues further that § 9-505 and § 9-650 are complementary parts of the same test for determining benefits in occupational deafness cases, and that § 9-505, standing alone, does not create an entitlement to benefits.
Our analysis begins with § 9-505. Section 9-505(a) starts with the words "in general" and is located in a subtitle that establishes the main categories of injuries that are compensable under the Workers' Compensation Act.[3] Section 9-505(a) states that, "[e]xcept as otherwise provided, an employer shall provide compensation in accordance with this title to a covered employee for loss of hearing . . . due to industrial noise in the frequencies of 500, 1,000, 2,000, and 3,000 hertz." § 9-505(a) (emphasis added). Section 9-505(b) requires that an employee claiming benefits *242 have worked for the employer and been exposed to loud noises for at least 90 days. § 9-505(b). This general language in § 9-505 establishes minimal requirements for an occupational deafness claim. The section establishes certain frequencies where a loss of hearing may, in accordance with Title 9, constitute occupational deafness. Section 9-505 also acknowledges that occupational deafness is an occupational disease, regardless of a person's inability to work or loss of wages. See Yox, 380 Md. at 335-36, 844 A.2d at 1156-57 (reiterating that the 1967 amendments to the Workers' Compensation Act were intended to make occupational hearing loss, as distinguished from other occupational diseases, compensable without regard to disablement).
Section 9-505 sets forth only general requirements for making an occupational deafness claim. The language of § 9-505 does not provide any specific criteria for determining the extent of an employee's hearing loss. Nor does § 9-505 detail how to calculate a worker's entitlement to occupational deafness related compensation.[4] Moreover, nothing in the language of § 9-505 explicitly states that an employer shall provide medical benefits to covered employees with hearing loss in the named frequencies. Instead, the language of § 9-505 relies on qualifying language, "[e]xcept as otherwise provided, an employer shall provide compensation in accordance with this title," to direct the reader to additional details. § 9-505(a). The word "title" refers to the entire Act, which includes subtitle 6, where sections on calculation of percent hearing loss, § 9-650, and medical benefits, § 9-660 are set forth. Because of the qualifying language and the general language used in § 9-505, we do not read § 9-505 to independently establish employer liability for compensation or medical benefits if a covered employee suffers hearing loss in the identified frequencies. An employee must also qualify for compensation and benefits under § 9-650 and § 9-660.
Section 9-650, entitled "Calculation of percentage of hearing loss," provides precise testing procedures for determining the extent of a worker's hearing loss. The threshold of hearing loss that must be met in § 9-650 is calibrated such that any hearing loss experienced due to aging is deducted from the overall calculation of loss. § 9-650(b)(3). Moreover, § 9-650 states that a covered employee does not have a compensable hearing loss if the average hearing loss in the four frequency ranges is 25 decibels or less. § 9-650(c)(1). In requiring an average hearing loss of more than 25 decibels, the Legislature determined that a certain threshold of loss be met in order to warrant compensation. See Yox, 380 Md. at 328, 844 A.2d at 1152. As we stated in Yox:
"We shall hold that an occupational deafness disablement occurs when the *243 hearing loss is sufficient to become compensable under § 9-650. A claim for workers' compensation benefits based on occupational deafness must therefore be filed within two years from the time the hearing loss reaches that level of compensability and the employee has actual knowledge that the loss was caused by his/her employment."
Id. (emphasis added). The criteria in § 9-650 presumably establish a threshold that is lower than whatever level of hearing loss constitutes "disablement," because occupational hearing loss was meant to be compensable without regard to "disablement." See Yox, 380 Md. at 335-36, 844 A.2d at 1156-57. We note, however, that the Legislature did not set a threshold such that any hearing loss attributed to work is compensated  an individual must have an average loss of more than 25 decibels in the named frequencies. § 9-650(c)(1).
The Court of Special Appeals correctly noted that § 9-505 does not establish criteria to calculate hearing loss. Judge J. Frederick Sharer, writing for the panel, recognized that § 9-505 lacks any accounting for age-related hearing loss. Judge Sharer stated as follows:
"Were [§ 9-505] to be the whole of the test, nearly every employee of a certain age, at every task, will have suffered a compensable disablement. It is a fact that the human aging process is accompanied by some degree of hearing loss in a substantial percentage of the population. To accept [petitioner's] reasoning, our holding would entitle nearly every worker in an industrial setting to compensation in the nature of medical expenses, including hearing aids, even in the absence of a § 9-650 calculation of occupational hearing loss. Under that scenario, the § 9-650(b)(3) provision, providing for deduction for `the average amount of hearing loss from nonoccupational causes to be found in the population at any given age' would be rendered meaningless."
Green, 170 Md.App. at 517, 907 A.2d at 853. We agree. Section 9-650 provides the technical criteria for measuring occupation hearing loss, and § 9-505 lacks such criteria because it references what is already established in § 9-650. The two sections are complementary, and a covered employee must comply with both to be eligible for benefits.
Petitioner concedes that he is not eligible for compensation under § 9-650, but argues that he is entitled to a hearing aid under § 9-660, "Provision of medical services and treatment." We do not find support for petitioner's assertion. Section 9-660 governs the provision of medical benefits for all forms of workers' compensation claims. Section § 9-660 begins with the words "in general" and then states "[i]n addition to the compensation provided under this subtitle, if a covered employee has suffered an accidental personal injury, compensable hernia, or occupational disease the employer or its insurer promptly shall provide" medical treatment and services. § 9-660(a) (emphasis added). Subsection (b) also requires the employer or its insurer to provide the medical treatment and services "for the period required by the nature of the accidental personal injury, compensable hernia, or occupational disease." § 9-660(b).
The language of § 9-660 makes provision of medical benefits contingent, through the use of the word "if," on the employee actually suffering an occupational disease, compensable hernia, or accidental injury. As noted above, we have held that an occupational deafness claim, as an occupational disease, occurs when the hearing loss is sufficient to become compensable under § 9-650. Yox, 380 Md. at 328, 844 A.2d at 1152. Because petitioner *244 concedes that he is not eligible for compensation under § 9-650 and therefore concedes also that he is not suffering an occupational deafness disease, we hold that he is not eligible for medical benefits under § 9-660.
Petitioner's assertion that § 9-505 establishes liability to provide medical benefits for occupational deafness even where the level of injury does not rise to the threshold for monetary benefits under § 9-650 fails. There is no evidence in the language of the statute that two separate thresholdsone for compensation and one for medical benefits  exist. The provision of medical benefits under § 9-660 is a separate consideration to that of monetary compensation, but the analysis of hearing loss related medical benefits relies on the calculation of percent hearing loss in § 9-650. Medical services and treatment are to be provided in addition to compensation if a covered employee has suffered an occupational disease, and the only way to determine if the employee may make an occupational deafness claim is to follow the methodology set forth in § 9-650. See Yox, 380 Md. at 328, 844 A.2d at 1152. The language in § 9-505 stating that "loss of hearing by the covered employee due to industrial noise in the [specified] frequencies" does not establish liability for medical benefits because it is general and lacks specific criteria.
Petitioner asserts that § 9-651 provides further evidence that § 9-505 was intended to have a meaning independent from § 9-650. We disagree. Petitioner relies on language in § 9-651 stating that an employer is liable if, amongst other things, "the employer otherwise is liable under this section and § 9-505 of this title." § 9-651(a)(2). Petitioner suggests that, because § 9-651 does not specifically refer to § 9-650, satisfaction of § 9-650 is not required to establish a claim for medical benefits under § 9-660 if the employee meets the criteria set forth in § 9-505. Petitioner makes no new argument by relying on the language of § 9-651. Even though § 9-651 does not explicitly refer to § 9-650, § 9-505 references § 9-650 by requiring that compensation be provided "in accordance with this title." § 9-505(a). The language of § 9-651 does not support petitioner's assertion that § 9-505 establishes an independent ground for medical benefits, nor does § 9-505 establish an independent ground.
Considering the statute as a whole, it is inconsistent that the calculation of compensation in accordance with § 9-650 would include specific audiometric instrumentation methodology while provision of medical benefits under § 9-660 would not rely on similarly detailed requirements. As the Court of Special Appeals noted, calculation of hearing loss, especially considering the need to account for age-related hearing loss, is complicated and "the statute is, by necessity, complex." Green, 170 Md.App. at 517, 907 A.2d at 853. The Legislature intended to "set forth a technical set of criteria for when occupational deafness would be compensable." Yox, 380 Md. at 334, 844 A.2d at 1155. Section 9-505 is important in the statutory scheme because it sets forth the general criteria for entitlement and liability as a result of work-related hearing loss, and because it references other sections in Title 9. Based on the language and structure of the Workers' Compensation Act, we hold that a covered employee is entitled to medical benefits under § 9-660 for occupational deafness only if the hearing loss is compensable under both § 9-505 and § 9-650.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
NOTES
[1]  All subsequent statutory references herein shall be to the Labor & Employment Article, Md.Code (1999, 2006 Cum.Supp.), unless otherwise indicated.
[2]  Petitioner selected Dr. Kaplan to perform the evaluation. The parties do not dispute Dr. Kaplan's medical conclusions regarding petitioner's condition.
[3]  The categories include accidental personal injury, occupational disease, hernia, and occupational deafness. §§ 9-501  9-505.
[4]  Petitioner argues that medical expenses are excluded from the definition of "compensation" as it is used in § 9-505. Although the term "compensation" is defined in § 9-101(e) as "the money payable under this title to a covered employee or the dependents of a covered employee," including funeral benefits, we have previously acknowledged that compensation may have a broader meaning that includes medical benefits. See Holy Cross Hosp. v. Nichols, 290 Md. 149, 160, 428 A.2d 447, 452-53 (1981) (noting that compensation for which the Uninsured Employers' Fund was responsible included medical benefits, but holding that a "compensation award" which sought to be changed or modified does not include a request for medical benefits); cf. Vest v. Giant Food Stores, Inc., 329 Md. 461, 467-68, 620 A.2d 340, 343 (1993) (stating that definition of compensation in § 9-101(e) is broad and encompasses most forms of payment to employees provided under the statute, but it excludes the payment of medical expenses). Regardless of the definition of "compensation" as it is used in § 9-505, our holding is the same.


103 F.Supp. 971 (1952)
KENNY et al.
v.
UNITED STATES et al.
Civ. No. 1153-51.
United States District Court D. New Jersey.
March 26, 1952.
*972 Harold Krieger, Jersey City, N. J., for plaintiffs.
C. H. Johns, Washington, D. C., for Interstate Comm. Commission.
William A. Roberts, Washington, D. C., for Hudson & Manhattan R. R.
William J. Hickey, Special Asst. to Atty. Gen., Roger Yancey, Asst. U. S. Atty., Newark, N. J., for the United States.
Before HASTIE, Circuit Judge, and SMITH and HARTSHORNE, District Judges.
SMITH, District Judge.
This is a civil action under Sections 2321 to 2325, inclusive, of Title 28 U.S.C., 28 U.S.C.A. §§ 2321 to 2325. The jurisdiction of the Court is based upon the provisions of Section 1336 of Title 28 U.S.C., 28 U.S. C.A. § 1336. The plaintiffs seek: first, to set aside and annul an order heretofore entered by the Interstate Commerce Commission; and second, to enjoin the operation of a tariff filed by the Hudson & Manhattan Railroad Co., and the collection of fares thereunder. The action is before the *973 Court on the record made at the hearing before the Commission.
The defendants challenge the right of the plaintiffs to maintain this action. It appears from the record that several, if not all, of the plaintiffs have a real interest in the controversy and have a right to maintain the action; the others have a right to intervene therein. 28 U.S.C.A. § 2323. We, therefore, believe it unnecessary to discuss the question. It is our opinion that the case can, and should, be decided on the merits.
The Hudson & Manhattan Railroad Co., hereinafter identified as the Railroad, is engaged exclusively in the transportation of passengers; it handles no package, freight or express matter, except certain mail. It operates a rapid transit system between terminals in the cities of New York, N. Y., and Jersey City and Hoboken, N. J., and maintains stations at intermediate points between these terminals. The service which it renders may be described as a "local interstate service."[1] The lines and basic services of the Railroad are fully described in the Report of the Commission.
Pursuant to the provisions of the "Interstate Commerce Acts" 49 U.S.C.A. § 1 et seq., and the regulations promulgated thereunder, the Railroad filed with the Commission a passenger tariff establishing a fare of twenty cents, an increase of five cents, for interstate transportation between points in the cities of New York, N. Y., and Jersey City and Hoboken, N. J. The tariff was published and filed on April 11, 1951, and by its terms was to become effective on May 13, 1951; this procedure was in compliance with Section 6(3) of the said Act. Thereafter the City of Jersey City and twelve other municipalities filed a formal protest.
Pursuant to the authority vested in it by Section 15(7) of the Act, 49 U.S.C.A. § 15(7), the Commission suspended the operation of the tariff for a period of seven months, the maximum permitted by statute, and initiated an investigation "concerning the lawfulness" of the fares established therein. (Suspension Orders entered on May 11 and May 25, 1951). Thereafter the proceeding was assigned for hearing before a designated examiner. The hearings, conducted on June 26, 27, 28 and July 16, 17, 18 and 19, were finally concluded on July 20, 1951. The proceeding was assigned for oral argument and was heard by the Commission on October 31, 1951 on the record made before the examiner. The decision of the Commission was reported and filed on December 3, 1951, and on that date it entered an order vacating the suspension and discontinuing the proceeding. The present action followed.
The principal grounds urged by the plaintiffs in support of this action are stated in Point One and Point Two of their brief. It is charged in the former that "the Commission has failed so manifestly in the exercise of its powers and responsibilities as to present a case of arbitrariness and statutory ultra vires." It is charged in the latter that the Commission's order "is arbitrary and ultra vires because it rests upon a total misconception by the Commission of the regulatory tasks which faced it in this case."
A careful study of the arguments advanced under Point One discloses that the principal complaint is that the Commission "made a determination of justness and reasonableness without proper findings, and on the basis of findings which are inadequate both on the face of its report and as tested by the record." The contention appears to be that the Commission failed to make the basic findings essential under the law to support its order and that its approval of the tariff was therefore arbitrary and not in accordance with the law. This contention is without merit.
We concede that the law imposes upon the Commission a duty to find and adequately state the basic facts upon which it has proceeded. United States v. Chicago, M., St. P. & P. R. Co., 294 U.S. 499, 504-506, 55 S.Ct. 462, 79 L.Ed. 1023; United States v. Baltimore & O. R. Co., 293 U.S. 454, 463, 55 S.Ct. 268, 79 L.Ed. 587; Florida v. United States, 282 U.S. 194, 215, 51 S.Ct. 119, 75 L.Ed. 291. An adequate statement *974 of fact is essential to the proper and intelligent review by the court of a proceeding conducted by the Commission; the sufficiency of such a statement, however, should be measured by the limits of the statutory power invoked, here the jurisdiction "to prescribe just and reasonable" rates and fares. Ibid. This jurisdiction is defined in Sections 15 and 15a of the Act, 49 U.S.C.A. §§ 15 and 15a, particularly subdivisions (1) and (7) of the former and subdivision (2) of the latter.
The statutory standards which the Commission must apply in the exercise of its jurisdiction are defined by Section 15a(2), supra, as follows: "In the exercise of its power to prescribe just and reasonable rates the Commission shall give due consideration, among other factors, to the effect of rates on the movement of traffic by the carrier or carriers for which the rates are prescribed; to the need, in the public interest, of adequate and efficient railway transportation service at the lowest cost consistent with the furnishing of such service; and to the need of revenues sufficient to enable the carriers, under honest, economical, and efficient management to provide such service." A proposed tariff may be approved as lawful only if it is determined to be "just and reasonable" in the light of these factors. It should be noted, however, that the statute does not exclude the consideration of "other factors."
The statute reserves to the carrier a primary right to establish tariffs but vests in the Commission the authority to determine their "lawfulness." United States v. Chicago, M., St. P. & P. R. Co., supra, 294 U.S. 506 and 510, 55 S.Ct. 462; Skinner & Eddy Corp. v. United States, 249 U.S. 557, 564, 565, 39 S.Ct. 375, 63 L.Ed. 772; Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U.S. 88, 92, 33 S.Ct. 185, 57 L.Ed. 431. This power is specifically defined by Section 15(7), supra. The burden is upon the carrier to prove not only that the proposed tariffs are "just and reasonable" but also that they are lawful. Ibid. The proposed tariffs may be approved as "just, reasonable and not unlawful" only if they meet the statutory requirements. A tariff initiated by the carrier pursuant to the provisions of the Act "must be upheld as lawful unless adequate reasons are presented for setting it aside." United States v. Chicago, M., St. P. & P. R. Co., supra, 294 U.S. 510, 55 S.Ct. 467.
The report of the Commission must be examined in the light of these established principles and its sufficiency must be tested by the statutory criteria. United States v. Chicago, M., St. P. & P. R. Co., supra. It is our opinion that the report, when thus examined and tested, is adequate. It contains a comprehensive recital of the ultimate facts upon which the Commission proceeded and an adequate statement of the reasons which prompted its action.
The Commission found and concluded that the "evidence as a whole indicates (1) that respondent is in need of an immediate substantial increase in revenue, which can be obtained only through substantially higher fares; (2) that the proposed fares do not exceed maximum reasonable fares; (3) that respondent's facilities are efficiently and economically operated, and their continued operation is necessary to the large majority of protestants; (4) that numerous improvements and economies have been and are being made by respondent in its operations; (5) that the principal expenses which the proposed fares are to offset are those resulting from the increased costs of labor, materials, and supplies which have occurred since 1948; that the evidence upon which the present fares were authorized was based upon financial and operating conditions for that year; and (6) that under the proposed fares respondent's revenues will be substantially increased." The Commission further found and concluded "(1) that respondent's aggregate operating revenues are less than its reasonable expenses, and (2) that the proposed local interstate fares are just and reasonable and not otherwise unlawful."
These ultimate findings and conclusions are supported by the additional, subsidiary findings of fact stated in the report. The subsidiary findings of fact are germane to the ultimate facts found by the commission. They cover: (1) the value of the carrier's *975 properties; (2) the earning record and financial condition of the carrier; (3) the efficiency of management and operation; (4) the nature and extent of the service rendered and the need therefor; (5) the approximate cost per passenger for the service rendered; (6) the schedule of operations and the nature and extent of the traffic; (7) the increase in passenger accommodations and the consequent increase in car mileage; (8) the income, past and expected, from railway operations; (9) the income from sources other than railway operations; (10) the improvement program undertaken by the carrier and the necessity therefor; (11) the increase in the basic rates of wages and the effect thereof on the cost of operations; (12) the increase in the cost of materials and the effect thereof on the cost of operations; (13) the diversion of passenger traffic experienced by the carrier in past years and occasioned by the growth and availability of other means of transportation, to wit, other carriers and private automobiles; (14) the prospective loss of traffic reasonably ascribable to public resistance to the proposed increase; (15) the increase in revenue which may be expected from the proposed fare increase notwithstanding such public resistance; and (16) the need of the carrier for further revenue if it is to maintain an efficient railway operation.
It is our opinion, after a careful examination and study of the entire record, including the exhibits, that there was ample evidence to support the findings of fact stated by the Commission in its report. The arguments of the plaintiffs, as we understand them, necessarily invite "the court to substitute its judgment for that of the Commission upon matters of fact within the Commission's province. This is not the function of the court." Interstate Commerce Comm. v. Atchison, T. & S. F. R. Co. (Los Angeles Switching Case), 234 U.S. 294, 314, 34 S.Ct. 814, 820, 58 L. Ed. 1319. It is settled that an order of the Commission, adequately supported by findings of fact, is conclusive unless it appears that (1) it is unjust and unreasonable in its consequences; (2) it is based upon a mistake of law; (3) it is not supported by substantial evidence; or (4) the Commission acted arbitrarily and exceeded its statutory powers. Interstate Commerce Commission v. City of Jersey City, 322 U.S. 503, 512, 513, 64 S.Ct. 1129, 88 L.Ed. 1420; Virginian Railway Co. v. United States, 272 U.S. 658, 663, 665, 666, 47 S.Ct. 222, 71 L.Ed. 463; Western Paper Makers' Chemical Co. v. United States, 271 U.S. 268, 271, 46 S.Ct. 500, 70 L.Ed. 941; Skinner & Eddy Corp. v. United States, supra, 249 U.S. 562, 39 S.Ct. 375. See also The Administrative Procedure Act, 5 U.S.C.A. § 1009(e); Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 487, et seq., 71 S.Ct. 456, 95 L.Ed. 456. The report of the Commission and the order entered thereon appear to be free of any such defects.
The general principle by which this Court must be guided was succinctly stated by the Supreme Court in the case of Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 78 L.Ed. 1260. It is therein stated, 292 U.S. at pages 286 and 287, 54 S.Ct. at page 694: "The structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the commission by training and experience is qualified to form. (Citation omitted.) It is not the province of a court to absorb this function to itself. (Citations omitted.) The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body."
The statement made by the Supreme Court in earlier litigation, Interstate Commerce Commission v. City of Jersey City, supra, seems apposite in the present case. It is therein stated, 322 U.S. at pages 522 and 523, 64 S.Ct. at page 1138: "The Interstate Commerce Commission has responsibility for maintaining an adequate system of wartime transportation. It is without power to protect these essential transportation agencies from rising labor and material costs. It can decide only how such unavoidable costs shall be met. They can in whole or in part be charged to increased fares, or they can be allowed to result in defaults and receiverships and reorganizations, *976 or they may be offset by inadequate service or delayed maintenance. All of these considerations must be weighed by the Commission with wartime transportation needs as well as avoiding inflationary tendencies as a public responsibility. The need for informed, expert and unbiased judgment is apparent. The problem is intricate, the carrier is one of peculiar characteristics, its wartime traffic is of varying density, with peaks and rush hours, the rates and carrying capacities of competitors by bus and ferry are involved in any estimate of traffic diversions or probable effects of rates. What rates are required to meet actual and proper operating expenses, what revenue must be available to avoid defaults and sustain credit, what divisions should be made on interchanged traffic are as complex problems in rate-making as can readily be imagined. The delicacy of the Commission's task in wartime is no reason for allowing greater scope to judicial review than we are willing to exercise in peacetime. * * * The scope of proper judicial review does not expand or contract, depending on what party invokes it. It is as narrow now as it was when appealed to by the Company. Cf. Hudson & Manhattan R. Co. v. United States, 313 U.S. 98, 61 S.Ct. 884, 85 L.Ed. 1212."
It is further contended that the Commission did not have before it sufficient evidence upon which to found "a rate base." This contention seems to be fully answered by the Supreme Court in the opinion filed in the earlier litigation. It is therein stated, 322 U.S. at pages 512 and 513, 64 S.Ct. at page 1134: "`Moreover, the Commission's order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order under the Act carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.' Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 288 [88 L.Ed. 333]. The Commission considered that it had, and we find no reason to doubt that it had, the evidence before it that was needful to the discharge of its duty to the public and to the regulated railroad. `With that sort of evidence before them, rate experts of acknowledged ability and fairness, and each acting independently of the other, may not have reached identically the same conclusion. We do not know whether the results would have been approximately the same. For there is no possibility of solving the question as though it were a mathematical problem to which there could only be one correct answer. Still there was in this mass of facts that out of which experts could have named a rate. The law makes the commission's finding on such facts conclusive.'" (Emphasis by the Court.)
We turn to the charge made in Point Two, to wit, that the order "is arbitrary and ultra vires because it rests upon a total misconception by the Commission of the regulatory tasks which faced it in this case." The argument appears to be that the proper exercise of the statutory power to prescribe "just and reasonable rates" required the Commission to undertake an independent investigation under Section 19a of Title 49 U.S.C., 49 U.S.C.A. § 19a. It is interesting to note that the brief cites no authority in support of this argument. We have examined the statute and we find therein no such requirement.
We see no reason to discuss at length the many provisions of Section 19a because they would not seem to be pertinent to the issues here raised. We observe, however, that subdivision (i) provides: "All final valuations by the commission and the classification thereof shall be published and shall be prima facie evidence of the value of the property in all proceedings under this chapter as of the date of the fixing thereof, and in all judicial proceedings for the enforcement of this chapter, and in all judicial proceedings brought to enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission." (Emphasis by the Court.)
It is apparent from an examination of the Act, and particularly Section 15(7) thereof, that the Commission may not found a "just and reasonable rate" on the basis *977 of its own valuation without having afforded the carrier not only the opportunity to be heard on such valuation but also the opportunity to offer evidence to refute it. The published valuation may be considered as prima facie evidence in the proceeding but it is clearly not conclusive.
The procedure which must be followed is prescribed by Section 15(7) of the Act, supra. The pertinent provisions of this section read as follows: "Whenever there shall be filed with the commission any schedule stating a new individual * * * rate, fare, or charge, * * *, the commission shall have, and it is * * * given, authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, fare, (or) charge, * * *." The statute clearly contemplates that the interested parties, both the carrier and protestants, shall be afforded an adequate opportunity to be heard on the merits of the controversy; nothing more would seem to be required. The right to be heard must be interpreted as embracing the right to present evidence.
It cannot be seriously contended that the plaintiffs in the instant case were not accorded a full and complete hearing. The record before the Commission includes more than 900 pages of testimony and 63 exhibits, most of which contain statistical data. The protestants were granted an adequate opportunity to present their objections to the proposed tariff and to offer evidence in support thereof.
The plaintiffs further contend that the failure of the Commission "to serve a proposed report" violated the procedural requirements of Section 8(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1007 (a). The pertinent provisions of this Act read as follows: "Whenever the agency makes the initial decision without having presided at the reception of the evidence, such officers (designated examiner) shall first recommend a decision except that in rule making * * * (1) in lieu thereof the agency may issue a tentative decision or any of its responsible officers may recommend a decision or (2) any such procedure may be omitted in any case in which the agency finds upon the record that due and timely execution of its functions imperatively and unavoidably so requires." (Emphasis by the Court.)
Section 2(c) of the said Act, 5 U.S.C.A. § 1001(c) defines "rule making" as "agency process for the formulation, amendment, or repeal of a rule." This section defines "rule" as "the whole or any part of any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy * * * and includes the approval or prescription for the future of rates, * * *." (Emphasis by the Court.) Section 15a(1) of the Interstate Commerce Acts, 49 U.S.C.A. § 15a(1), defines the term "rates" as "rates, fares, and charges, and all classifications, regulations, and practices relating thereto." These statutory definitions must be read in pari materia.
We are of the opinion that the exceptions embodied in the Administrative Procedure Act, hereinabove quoted, were intended to permit the omission of a preliminary report or tentative decision where, as here, the law imposes upon the agency the duty to proceed expeditiously. Section 15(7) of the Interstate Commerce Acts, supra, provides: "the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible." This section further provides that if the proceeding "has not been concluded and an order made within the period of suspension, the proposed change of rate, fare, charge, * * * shall go into effect at the end of such period". These provisions require expeditious action, especially where, as here, the proposed tariff is suspended and a hearing thereon ordered.
We are of the further opinion that the Commission properly exercised the discretionary power vested in it by the provisions of the Administrative Procedure Act hereinabove quoted. It appears upon examination of the record that the hearings before the examiner were concluded at 12:30 a. m., *978 on July 20, 1951, and that the participants were permitted thirty days, until August 20, to file briefs. The time for filing briefs was thereafter extended until September 10, at the request of counsel for the plaintiffs. The participants were notified that the matter was listed for oral argument before the Commission on October 4, 1951. The oral argument was then twice adjourned, once on the application of counsel for the plaintiffs. The oral argument was held on October 31, and the report of the Commission was filed on December 3, 1951. It would appear from this recital of the history of the proceeding that further delay would have hampered the Commission in the discharge of its functions.
The record in this case was voluminous, and it would seem that the Commission had a right to make the initial decision without awaiting a tentative decision and recommendation by the examiner, provided, of course, "that due and timely execution of its functions imperatively and unavoidably" so required. The final report filed in this proceeding stated: "No proposed report was served in this proceeding for the reasons that due and timely execution of our functions imperatively and unavoidably requires that there be no such report." The present record will not support a determination by this Court that the action of the Commission was arbitrary.
The error, if any, was a procedural one to which no objection was interposed by counsel for the plaintiffs. The designated examiner advised counsel at the conclusion of the hearing on July 20 that no proposed report would be filed in the proceeding. The record discloses that no objection was interposed upon his being so advised. The objection is here made for the first time and, therefore, should be dismissed as without merit. Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 91 L.Ed. 136; United States v. Hancock Truck Lines, 324 U.S. 774, 779, 65 S.Ct. 1003, 89 L.Ed. 1357. It may be inferred that counsel for the plaintiffs, by his failure to object and his subsequent conduct, acquiesced in the procedure followed by the Commission.
We have considered the other arguments advanced by the plaintiffs but we deem it unnecessary to decide the questions they raise. The complaint will be dismissed for the reasons herein stated. The defendants will prepare and submit to the Court, on notice to the plaintiffs, a proper order for judgment.
NOTES
[1]  It also renders a local intrastate service between intermediate stations.