278 S.E.2d 566 (1981)
Bonnie Faye LOWERY
v.
Walter M. NEWTON, Jr., M. D. and Pinehurst Surgical Clinic, P. A.
No. 8016SC962.
Court of Appeals of North Carolina.
June 2, 1981.
*569 McLeod & Senter by Joe McLeod and William L. Senter, Fayetteville, for plaintiff-appellee.
*570 Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James D. Blount Jr. and Nigle B. Barrow Jr., Raleigh, for defendants-appellants.
HILL, Judge.
Defendants contend in their first assignment of error that the trial court erred in denying their motion for judgment notwithstanding the verdict.
Plaintiff's complaint alleged negligence arising out of the performance of professional medical services. In order to withstand defendants' motion for a directed verdict, plaintiff must offer evidence which establishes the following elements: (1) the standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages. Failure to establish sufficient evidence on any one element entitles the defendant to a directed verdict. See Prosser, Law of Torts, § 30. Also see G.S. 90-21.12.
Defendants contend that the standard of care in medical malpractice actions is established in part by G.S. 90-21.12 and requires the introduction of expert medical testimony. This statute became law in 1975 and provides as follows:
§ 90-21.12. Standard of health care.In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.
Admittedly, the phrasing of the questions to Dr. Keranen to establish the standard of care did not follow the statute verbatim. Dr. Keranen testified that the removal of the tumor under the circumstances was a failure on the part of Dr. Newton to exercise that degree of care, professional skill, and judgment which a reasonable and prudent physician would have exercised under the same or similar circumstances, in the same or similar community. To contend that the substitution of "under the same or similar circumstances" in lieu of "with similar training and experience" is significant, places form over substance. Such technical error is harmless. However, the breach of the standard of care is clearly established by Dr. Keranen's testimony that the best treatment for the tumor was to leave it alone and that if such surgery was required, it should have been done by a neurosurgeon.
Defendants argue in their next assignment of error that plaintiff has failed to establish defendant Newton's negligence as a proximate cause of plaintiff's injuries. Defendants contend that not only is it incumbent upon plaintiff to show that she currently suffers from a condition caused in part by the alleged negligent act of defendant Newton but also to offer evidence that she would never have developed her present condition as a result of the pre-existing condition's having run its natural course of development, absent the intervention of the negligent act of the defendant. We do not agree. An injured person is entitled to recover all damages caused by defendant's negligence. When plaintiff's pre-existing physical or mental condition is aggravated or activated by a subsequent act, defendant Newton is liable to the extent that his wrongful act proximately and naturally aggravated or activated plaintiff's pre-existing condition. See Potts v. Howser, 274 N.C. 49, 161 S.E.2d 737 (1968).
Defendants point out that plaintiff at one time had been a quadraplegic, had eight operations on her neck as a result of the disease process, and that her left side was weaker than her right side. Defendants overlook the real damage plaintiff suffered as a result of the operationparalysis of her arm and shoulder. We find nowhere in the record any evidence that prior existing conditions, running a normal course, *571 would have resulted in injuries which plaintiff sustained as a result of damage done by defendant Newton in surgery. Plaintiff has no obligation to negate a remote possibility of loss of use of her arm and shoulder. The cases cited by defendants are all distinguishable. This assignment of error is overruled.
Next, defendants bring forth seventeen assignments of error based upon thirty-eight duly preserved exceptions to the introduction of various portions of the testimony, contending this Court should reverse the judgment of the trial court and remand the case for a new trial. We have considered all of the assignments and discuss below a representative few.

ERRORS IN THE INTRODUCTION OF EXPERT TESTIMONY
Defendants argue that Dr. Keranen was not competent to testify regarding the standard of care established in the defendant Newton's field of practice. Dr. Keranen was tendered as a medical expert, specializing in the field of neurological surgery.
In malpractice cases the applicable standard of care must be established by other practitioners in the particular field of practice or by other expert witnesses equally familiar and competent to testify to that limited field of practice. Whitehurst v. Boehm, 41 N.C.App. 670, 677, 255 S.E.2d 761 (1979). Defendants contend Dr. Keranen could not testify as an expert, but rather that a plastic surgeon should have been used to establish the standard of care in the instant case. We disagree.
There is some overlapping in the various areas of health care. Dr. Keranen testified that he was graduated from Duke Medical School and did a year of surgical internship at Duke Hospital. Thereafter, he did a rotating internship at Duke University where he performed general surgery and plastic surgery among other things. Dr. Keranen testified that he rotated from one type of surgery to another. Thereafter, he went to a neurological residency at the University of Vermont. He was tendered as a medical expert, specializing in the field of neurological surgery.
The overriding area of medical care before us is surgerynot plastic surgery alone or neurological surgery alone. The operation involved some expertise by the surgeon in both areas. The prior experience and training of Dr. Keranen as a general surgeon and plastic surgeon is sufficient to qualify him to testify as an expert for the purpose of establishing the standard of care and breach thereof required in the case before us. This assignment of error is overruled.
Next, defendants contend the trial court erred in allowing Dr. Keranen to testify as to his opinion of the failure of Dr. Newton to meet the standard of care, the cause of injury, and his opinion as to the injury's permanence without first revealing the factual basis for his opinion. It is well settled that an expert may not state his opinion based upon facts not within his personal knowledge without first requiring the examiner properly to propound a hypothetical question. Todd v. Watts, 269 N.C. 417, 152 S.E.2d 448 (1967). Succinctly stated, the rule is that the expert must base his opinion upon facts within his own knowledge, or upon a hypothesis of the finding by the jury of certain facts recited in the question. Summerlin v. R.R., 133 N.C. 550, 554, 45 S.E. 898 (1903).
We note from the record that Dr. Keranen had been plaintiff's attending physician on a regular basis since 1971 and had seen her during the month immediately preceding the operation by defendant Newton. Dr. Keranen also saw plaintiff during the week after the operation. It is apparent that Dr. Keranen was testifying from his personal knowledge of the physical condition of his patient. Admittedly, some of the questions could have been more aptly stated, but deviation from the norm was harmless error.
At trial, plaintiff's counsel asked Dr. Keranen if he had an opinion as to the cause of the paralysis which he found in plaintiff's left shoulder and arm when he *572 examined her on 10 May 1976. This question was material in order to establish proximate cause. The defendants contend the trial judge erred in allowing plaintiff's counsel to ask Dr. Keranen what actually caused the injury, rather than questioning the witness as to what could have caused the injury. We find no error. When an expert witness testifies as to facts based upon his personal knowledge, he may testify as to his opinion.
"[I]f the expert has a positive opinion on the subject, he should be able to express it without the `could' or `might' formula." Taylor v. Boger, 289 N.C. 560, 565, 223 S.E.2d 350 (1976), citing Mann v. Transportation Co. and Tillett v. Transportation Co., 283 N.C. 734, 198 S.E.2d 558 (1973).
Defendants next point to several exceptions where the trial court allowed Dr. Keranen to express his opinion on certain matters which the defendants contend were irrelevant and misleading to the jury. Defendants further contend the trial court erred in refusing to strike part of Dr. Keranen's testimony when subsequent testimony revealed the first testimony inadmissible. Defendants also contend the court erred in allowing Dr. Keranen to express his opinion as to failure to meet the degree of care which a reasonable and prudent physician would have exercised and his opinion as to the permanency of plaintiff's condition. We have examined these assignments of error and find them to be without merit.

VARIOUS ERRORS IN THE INTRODUCTION OF EVIDENCE
Defendants argue the court permitted plaintiff's counsel to lead witnesses. It is elementary that leading questions are not allowed on direct examination as a general rule. However, the general conduct of a trial is within the trial judge's discretion. The form of the questions was harmless.
The trial court permitted plaintiff to testify regarding her earnings from employment in 1969 and 1970 and prior to the initial onset of her paralysis. Plaintiff testified that she earned the minimum wage at that time. This was the only evidence that plaintiff ever had any earnings. Defendants contend such evidence was too remote and prejudicial. See Fox v. Army Store, 216 N.C. 468, 470, 5 S.E.2d 436 (1939). There is a distinction between loss of specific wages from a particular job or specific lost profits, and impaired capacity to earn wages in general. See Johnson v. Lewis, 251 N.C. 797, 112 S.E.2d 512 (1960). Therefore, even assuming the evidence of employment of plaintiff some six years before the operation herein was too remote as evidence of reduced earnings, nevertheless, it is admissible as evidence of loss of earning capacity. Plaintiff further testified as to her interest in decoupage as prospective employment. Plaintiff's testimony was proper and admissible.
Upon cross-examination of the plaintiff, the following testimony was elicited:
Q. But until the time he [Keranen] operated on your arm in August of 1976, he never told you that your arm was permanently disabled, did he?
A. He told me Dr. Newton didn't have any business doing it.
Counsel for defendants moved to strike the answer as totally unresponsive, and the motion was denied. The defendants contend the testimony was hearsay and unresponsive. Assuming such testimony was hearsay and unresponsive, it is harmless in view of the fact that the record discloses that similar testimony occurs elsewhere. Defendants lost no substantial right, and no grounds exist for granting a new trial. G.S. 1A-1, Rule 61.
Defendants raise several other questions under the heading set out in this subsection. We have examined them and find them to be without merit.
Defendants argue the trial court erred in stating the evidence and instructing the jury on the issues of liability and damages. Defendants contend in the first section of their brief that there is no competent evidence of the standard of care, any breach of the standard of care, or that any *573 alleged breach was a proximate cause of the alleged injuries. We have heretofore examined these assignments of error and found them to be without merit.
Defendants further argue that the trial court erred in its instructions to the jury that the liability of the defendants could be based upon a failure of the defendants to "possess a degree of professional learning, skill, and ability as others similarly situated ...." Defendants refer again to the language in G.S. 90-21.12, which phrases the test as "... with similar training and experience situated in the same or similar communities ...." Defendants argue that since the enactment of this statute in 1975 only a literal interpretation of the wording will suffice. We do not agree. It is the concept expressed by the words of the statute which controls. The words "similarly situated" can easily encompass not only geographic location, but also standing within a profession. No quarrel is present as to any limitations imposed by the geographic location.
The jury had before it evidence of the qualificationseducational and otherwiseof Dr. Newton. The trial judge in his charge said ... "remembering that for you to find negligence it must be shown either that the defendant did not possess a degree of professional learning, skill and ability as others similarly situated, or that he did not possess or that he did not exercise reasonable care and diligence in the application of his knowledge and skills in the plaintiff's case, or that he did not use his best judgment in the treatment and care of his patient." The charge of the judge was adequate to instruct the jury as to its duty in the case. To conclude otherwise would again place form over substance.
Defendants argue the trial judge erred in his charge by referring to the "field" of surgery of the defendants, when the same was not relevant. The qualifications of both Dr. Keranen and Dr. Newton, including the care offered plaintiff, had been admitted previously. Likewise, throughout the record reference is made to "neurologist" and "plastic surgeon" without objection. Nothing said by the trial judge by referring to the "fields" of practice could have misled the jury.
Defendants further argue that the trial court erred in its charge by allowing a recovery for future damages because there was no evidence to support a reasonable apportionment of the future injuries between the effects of the pre-existing condition and the effects of the surgical injury. Defendants contend the ruling in Potts v. Howser, 274 N.C. 49, 54, 161 S.E.2d 737 (1968), is controlling:
"[W]here the wrongful act does not cause a diseased condition but only aggravates and increases the severity of a condition existing at the time of the injury, the injured person may recover only for such increased or augmented sufferings as are the natural and proximate result of the wrongful act, or, as otherwise stated, where a pre-existing disease is aggravated by the wrongful act of another person, the victim's recovery in damages is limited to the additional injury caused by the aggravation over and above the consequences, which the pre-existing disease, running its normal course, would itself have caused if there had been no aggravation by the wrongful injury."
The case before this Court is distinguishable. Here, the surgery resulted in total loss of use of the arm and partial loss of use of the shoulder. There is no evidence before the court that the operation aggravated or increased the severity of the pre-existing condition.
Defendants have gleaned the record and brought forth 24 assignments of error. We have examined all of them. Some we have overruled. Some have constituted error; but where error exists, we have determined it to be harmless. In like manner, we have examined the cross-assignments of error brought forward by the plaintiff and find no error exists in the ruling by the trial judge on plaintiff's question. The parties are not entitled to a perfect trialonly a fair trial. Defendants received that.
No Error.
*574 HARRY C. MARTIN, J., concurs.
MORRIS, C. J., concurs in the result.


549 Pa. 75 (1997)
700 A.2d 431
Donna M. KING, Appellee,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (K-MART CORPORATION), Appellant.
Supreme Court of Pennsylvania.
Argued October 15, 1996.
Decided September 19, 1997.
*76 Patricia A. Mattern, Philadelphia, Gregory J. Davis, Ft. Washington, Dennis K. Barnes, Philadelphia, for K-Mart Corp.
Kenneth M. Rodgers, Philadelphia, for Donna King.
David S. Hawkins, Sudbury, Ontario, CN, for W.C.A.B.
Daniel K. Bricmont, Pittsburgh, for Amicus-P.T.A. Trial Lawyers.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.

OPINION
ZAPPALA, Justice.
This case involves an employer's petition to terminate workers' compensation benefits due to the claimant's complete recovery, where a previous petition based on the same grounds was denied. Commonwealth Court held that the second petition "must fail by reason of issue preclusion," because the employer failed to demonstrate that the claimant's *77 condition had changed after the denial of the first termination petition. King v. Workmen's Compensation Appeal Board (K-Mart Corporation), 664 A.2d 1087, 1091 (Pa.Cmwlth.1995). We reverse.
Donna King injured her back on January 16, 1980, while working for K-Mart Corporation. Pursuant to a Notice of Compensation Payable, K-Mart began paying benefits for total disability at the rate of $121.00 per week. In July of 1983, K-Mart filed a petition to terminate benefits, asserting that King was no longer disabled. In support of its petition, K-Mart presented the deposition testimony of Dr. John T. Williams, who had examined King on July 14, 1983, and was unable to find any cause or explanation for her complaints of pain. He offered the opinion that King was able to return to her normal work duties. King presented the deposition testimony of Dr. Ronald B. Greene, who had examined her on February 17, 1984. He described King's condition as chronic coccydynia[1] and opined that she was permanently disabled from working. In July of 1987, the referee denied the termination petition based on his finding that Greene's testimony was more persuasive than Williams's.
In February of 1990, K-Mart filed a second petition to terminate. In support of this petition, K-Mart presented the deposition of Dr. Marc Manzione, who had examined King on August 8, 1989, and found no objective physical basis for King's complaints of pain. King presented the deposition of Dr. Andrew Newman, who examined her on May 3, 1990, and the earlier deposition of Dr. Greene. King also testified herself, as did her husband.
On June 18, 1993, the termination petition was granted. The referee found Dr. Newman's testimony less credible than Dr. Manzione's, and therefore accepted Dr. Manzione's conclusions and rejected Dr. Newman's. He found that, "As of the date of Manzione's examination, Ms. King was fully recovered from her work-related injury. Any disability that she suffered from was the result of some other cause and not related to her *78 work injury." The referee rejected King's argument that because of the result of the earlier petition K-Mart was barred by res judicata from bringing this petition.
On appeal, the Workmen's Compensation Appeal Board affirmed. The Board agreed with the referee that this termination petition was not barred by res judicata, and determined that there was substantial competent evidence, in the form of Dr. Manzione's testimony, to support the finding that King's disability from her work-related injury had ceased.
On further appeal, Commonwealth Court reversed. The court's opinion contained a review of the doctrine of res judicata derived from its decision in Hebden v. Workmen's Compensation Appeal Board (Bethenergy Mines), 142 Pa. Cmwlth.176, 597 A.2d 182 (1991). The court acknowledged that this Court had reversed the order in that case, 534 Pa. 327, 632 A.2d 1302 (1993), but explained that our decision, while agreeing with the discussion of res judicata, indicated that an employer, in proceedings to modify or terminate benefits, may not relitigate the original diagnosis. Unfortunately, the remainder of the Commonwealth Court opinion gave no indication of the reason for the citation to Hebden or the part it played in the analysis and decision of this case. It is thus unclear whether the court found our decision in Hebden controlling in this case, or whether the court was merely reiterating the language of its own decision in Hebden with respect to the doctrine of res judicata, finding our decision inapplicable but discussing it simply as the later history of the cited case. We find our Hebden decision entirely inapplicable.
The claimant in Hebden was awarded workers' compensation benefits by a referee upon a finding that he had coal worker's pneumoconiosis. The employer later sought modification. In the course of explaining their opinion that the claimant was not disabled, the employer's medical experts testified that the claimant had bronchial asthma, not pneumoconiosis. One of these doctors conceded on cross-examination that if the claimant did not have pneumoconiosis at the time the doctor examined the claimant, he would not have had it *79 previously. This coincided with the claimant's physician's testimony that pneumoconiosis is irreversible.
Nevertheless, the referee accepted the employer's experts' testimony that the claimant did not have pneumoconiosis and terminated benefits, a decision that was affirmed by the Board and the Commonwealth Court. In reversing, we determined that the unrefuted testimony that pneumoconiosis is irreversible precluded the employer from asserting and the referee from finding that the claimant did not have the disease.
Here, despite Dr. Greene's testimony in the first proceeding that characterized King's injury as "permanent," and Dr. Newman's testimony in the second proceeding that in his own experience he had never had a coccydynia patient get better, there is no basis in this record for characterizing coccydynia as irreversible. The testimony of Dr. Manzione suggested that coccydynia "generally responds to conservative treatment" that protects the area of the coccyx from direct pressure, and that injections and surgery may be employed to relieve the pain. Thus at the very least, K-Mart produced evidence that the condition King had been diagnosed with was changeable.
K-Mart did not argue and its witness did not suggest that King never suffered a work-related back injury. With respect to both the first and second termination petitions, K-Mart argued only that King was no longer disabled on account of that injury. Nor did K-Mart in the second termination proceeding either explicitly or implicitly challenge the referee's conclusion in the first proceeding that King was still disabled in 1983.
Plainly, our decision in Hebden has no bearing on the analysis of this case. Indeed, our opinion in that case recognized that
the Workmen's Compensation Act at Section 413 (77 P.S. § 772) expressly provides that an award may be terminated based upon changes in the employee's disability. But that raises the logical question of whether an employee's disability is changeable in a given case. If it is, an employee's *80 condition may be re-examined at a later time to see if he is still disabled or not. If it is not, an attempt to re-examine the employee's condition is merely a disguised attempt to relitigate what has already been settled. We think the latter is what occurred here.
534 Pa. at 331, 632 A.2d at 1304. (First two emphases in original, latter emphasis added). In contrast, the former is what occurred in this case.
Entirely apart from the confusing references to Hebden, the Commonwealth Court's opinion here can be read to suggest that where an employer has been unsuccessful once in demonstrating a change in the claimant's condition, its burden in a later proceeding is not merely to show that the disability has changed or ceased. Rather, the employer must show that the claimant's condition changed after the earlier proceeding. Such is not the case.
Commonwealth Court observed that, "Like Dr. Williams, Dr. Manzione also opined that Claimant is no longer disabled and that he could find no explanations for her complaints of pain." The court then noted that on cross-examination Dr. Manzione "admitted" that King's medical condition remained unchanged from the time the first termination petition was filed. 664 A.2d at 1090.[2] The court presented in detail the referee's findings with regard to the first petition, then repeated *81 that K-Mart's witness "stated that there was no change in Claimant's condition since the initial termination petition was filed." Id. Finally, the court held that the second termination petition failed due to issue preclusion, once again observing that "Employer failed to demonstrate any change in Claimant's condition after the . . . dismissal of the initial termination petition by the referee." Id. at 1091.
Section 413 of the Workers' Compensation Act, 77 P.S. § 772, provides that a referee
may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award . . . upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased. . . . Such modification, reinstatement, suspension, or termination shall be made as of the date upon which it is shown that the disability of the injured employe has increased, decreased, recurred, or has temporarily or finally ceased. . . .
We can find no reason that the nature of the proof in a second or later termination proceeding should differ from that in a first proceeding. The issue in each instance is whether the claimant's disability had changed or ceased as of the time specified in that proceeding. Of necessity, an employer's second termination petition will involve evidence similar to that presented in the first for in each case the employer believes it has marshalled sufficient proof, generally in the form of medical opinion, that the claimant's disability has ceased. A decision that the claimant's condition had not changed as of an earlier time should have no effect on a later attempt to demonstrate that the condition has changed as of a later time.
In this case, the referee observed King during her testimony, reviewed the deposition testimony of Drs. Manzione, Newman, and Greene, and determined that King's disability had ceased as of the time Dr. Manzione examined her in 1989. Because his conclusion is supported by substantial evidence in the record, the Commonwealth Court erred in *82 reversing. Accordingly, the order of the Commonwealth Court is reversed and the order of the Workmen's Compensation Appeal Board is reinstated.
NEWMAN, J., did not participate in the consideration or decision of this case.
CAPPY, J., files a Concurring Opinion in which CASTILLE, J., joins.
CAPPY, Justice, concurring.
I concur in the result reached by the Majority. I write separately to emphasize that, contrary to the Majority's assertions, the Workers' Compensation Act (the "Act") requires that a party seeking to alter benefits, based upon a change in physical disability, must prove that there has been a change in physical condition since the last legal proceeding addressing the nature and extent of the injury. I concur with the Majority because in this case, I believe that this requirement has been satisfied. Further, I write to suggest that the timing of repeat termination petitions should be of critical importance to a determination of whether a party seeking the termination of benefits is proceeding in good faith, and, thus, whether benefits should be terminated.
Prior case law has consistently interpreted the Act as requiring evidence of a change in condition from an earlier determination and sets forth compelling reasons for such a requirement. This court in Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987) made clear that an employer who seeks to modify a claimant's benefits "on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition." (Emphasis supplied). This burden of production requires evidence of a change in condition since the last disability determination. See Cerny v. Schrader & Seyfried, 463 Pa. 20, 342 A.2d 384 (1975); Mancini v. Workmens Compensation Appeal Board, 64 Pa.Cmwlth. 484, 440 A.2d 1275 (1982); Airco-Speer Electronics v. Workmen's Compensation Appeal Board, 17 Pa.Cmwlth. 539, 333 *83 A.2d 508 (1975); Banks v. Workmen's Compensation Appeal Board, 15 Pa.Cmwlth. 373, 327 A.2d 404 (1974); E.R. Reed Contractor Co. v. Workmen's Compensation Appeal Board, 7 Pa.Cmwlth. 580, 300 A.2d 847 (1973).
The reason for such a requirement is perhaps best stated by the learned Judge Glenn E. Mencer in Banks v. Workmen's Compensation Appeal Board, 15 Pa.Cmwlth. at 377, 327 A.2d at 406, "[a]bsent the requirement of showing a change in disability, a disgruntled employer (or claimant) could repeatedly attack what he considers an erroneous decision of a referee by filing petitions for modification based on the same evidence as infinitum, in the hope that one referee would finally decide in his favor."
In the case sub justice K-Mart offered a change in condition since the 1983 termination petition proceedings by presenting expert medical testimony of the 1989 examination of Ms. King and the expert's conclusion that Ms. King's subjective complaints of pain, at the time of the second examination, were unfounded. Thus, the Act's requirement of proving a change in condition since the last determination regarding the extent of the claimant's injury was met.
Further, I believe that consideration of the timing of the filing of repeat termination petitions is critical to protect a party from vexatious litigation. While the Act allows a party to seek modification of benefits based upon a change in physical condition at any time, this court noted in Kachinski that, "the viability of this system depends on the good faith of the participants." Kachinski, 516 Pa. at 252, 532 A.2d at 380. Penalty provisions of the Act, such as section 440, 77 P.S. § 996, which allow for the assessment of attorneys fees and costs against an insurer which contests, without a reasonable basis, a compensation claim, are consistent with requiring parties to proceed in good faith. More specifically, prior case law has focused on the time between the filing of petitions as indicia of whether a claim for modification was brought in good faith. Cf Airco-Speer; Banks.
*84 I suggest that a determination of whether a party is proceeding in good faith, and, thus, whether benefits should be terminated, must include as a primary element of consideration, the timing of the filing of repeat termination petitions. I submit that a reasonable period of time must pass between the filing of termination petitions. While what constitutes a "reasonable" period of time will differ with the facts and circumstances of each case, I believe that only in rare cases should a petition to terminate benefits, which is filed within the same year as a previous petition, lead to a termination of a claimant's benefits. This respite would help to prevent vexatious litigation, promote judicial economy, and establish respect for judicial judgments, thus, ensuring the "viability of the system." Kachinski.
In this case K-Mart satisfied its burden of establishing a change in condition since the latest legal proceeding addressing Ms. King's physical disability and filed its second termination petition after a reasonable period of time; therefore, I concur in the result reached by the Majority.
CASTILLE, J., joins in this Concurring Opinion.
NOTES
[1]  The coccyx is the end of the spinal column, colloquially referred to as the tailbone. Coccydynia refers to pain in the area around the coccyx.
[2]  Commonwealth Court supported this conclusion by reference to a portion of Dr. Manzione's deposition where the following exchange occurred:

Q: [by the claimant's attorney] . . . is it your opinion that there was a change in her medical condition from July 1983 [when the first termination petition was filed] until you saw her August 8, 1989 . . . ?
A: According to this report the patient was having the same complaints then as when I saw her in 1989. So, in that sense I don't think much has changed.
The court did not note that counsel prefaced the question by directing Dr. Manzione's attention to Dr. Williams's report from July of 1983, or that K-Mart's counsel objected to the question for this very reason.
More importantly, the court seems to have ignored the qualification that Dr. Manzione placed on his answer, i.e., that not much had changed in the sense that King had the same complaints of pain in 1989 as she had in 1983. Dr. Manzione's testimony when viewed in its entirety offered no opinion as to King's medical condition in 1983 or at any time other than when he examined her.


399 So.2d 859 (1979)
Anthony O'Hara JOHNSON
v.
STATE.
6 Div. 915.
Court of Criminal Appeals of Alabama.
May 22, 1979.
Rehearing Denied June 26, 1979.
*861 Robert W. Gwin, Jr., Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
BOWEN, Judge.
The defendant was indicted and convicted under the Alabama Death Penalty Act for robbery when the victim is intentionally killed. Alabama Code Section 13-11-2(a)(2) (1975). Punishment was fixed at death by electrocution. Both at trial and on appeal the defendant is represented by court appointed counsel.
In sentencing the defendant the trial judge made written findings of fact from the trial. Those findings are correct and accurately state the evidence introduced against the defendant. There was no defense presented. The trial judge found:

*862 "The indictment in this case charges the defendant, Anthony O'Hara Johnson, with having committed a robbery wherein William Albert Farmer was the victim, and with having intentionally killed William Albert Farmer in the course of this robbery. The evidence taken on the trial of this case showed that the defendant, who was twenty years old at the time of the robbery, and a companion, who was twenty-four years old at the time of the robbery, had robbed William Albert Farmer on March 30, 1978, in downtown Birmingham and killed him.
"William Albert Farmer owned and operated a jewelry store located at 1902 First Avenue, North, Birmingham, Jefferson County, Alabama, and it was at this location that the robbery took place.
"Just before the robbery, the defendant and his companion went into the store next door where a record player and stereo were being played and asked the clerk to turn the music up. This request was made by the defendant.
"Very shortly thereafter, the defendant and his companion proceeded into the Farmer Jewelry Store and robbed and killed Mr. Farmer, and ransacked the jewelry store of watches, rings and other items of jewelry.
"The companion proceeded out on the sidewalk and offered the occupant of an automobile, which was parked at the curb, ten dollars to drive him and his friend away from that location, and the occupants of the automobile refused and left.
"There was a witness there on the sidewalk, who was talking to the occupants of the automobile, who heard and reported the conversation. She saw the defendant then come out of the store and proceed behind his companion who had walked around the corner and was boarding a bus. The defendant also boarded the bus which proceeded north on 19th Street.
"The witness on the sidewalk summoned a policeman who appeared nearby on a three-wheel motorcycle, who came to the scene and put out a police call which resulted in the bus being stopped and the defendant removed from the bus. The proceeds of the robbery were found nearby, on the bus, and they, as well as the gun, were removed by the police.
"There was a witness seated on the bus who identified the defendant as the man who sat in a particular seat with the two bags of loot under his arm and who reported the conversation between the defendant and his companion wherein the companion suggested that the defendant put his arm over the bags so that no one could see what they had. One of the bags had one or more holes in it. This witness further reported that the companion had a billfold and was counting money in the billfold, and was instructed by the defendant not to be counting the money until they got where they were going.
"A billfold with the victim's identification, as well as driver's license, were found in the two bags of loot. When the police stopped the bus some six blocks north of the scene of the robbery, the defendant and his companion jumped up and ran to a seat in the back of the bus, leaving the bags of loot unattended where the defendant had originally kept them.
"When the police boarded the bus, asking questions generally as to who had the bags of loot, no one would reply, but from the direction of the eyes of the people seated nearby, as well as the fact that the defendant was perspiring heavily, the officer was led to arrest the defendant. His companion was not apprehended.
"The scene of the robbery was properly secured by the police and was turned over to the evidence technicians who made pictures and lifted a number of fingerprints from within the jewelry store, which were found to be the fingerprints of the defendant.
"The body of William Albert Farmer was laying on the floor. He was lying on his stomach and on the right side of his face. His right arm was doubled back under his head as if he was using it for a pillow. *863 His left arm was in a raised position, joining the right hand with the hand and fingers of the left hand lying over the right hand. His hands were placed in such a manner as to appear as if he had been using his right hand as a partial pillow. There was a twenty-two caliber bullet wound in the center of the back of his neck at the base of the brain.
"An autopsy was performed and fragments of the bullet were removed and were examined by the toxicologist, but were not sufficient on which to base a ballistics comparison with the gun found in the bag with the loot, which had been in the possession of the defendant."

I
Initially, the defendant maintains that from the record it cannot be determined whether he was tried in accordance with Alabama Code Section 13-11-8 (1975). That statute dictates the requirements for appointed counsel in death cases and reads as follows:
"Each person indicted for an offense punishable under the provision of this chapter who is not able to afford legal counsel must be provided with court appointed counsel having no less than five years' prior experience in the active practice of criminal law."
Nowhere in the record or in the defendant's brief on appeal is it alleged that his counsel was not qualified. The defendant simply contends that the record does not prove or show he was qualified, and that absent such proof his conviction cannot stand. We disagree.
The record discloses that the trial judge determined that the appointed counsel, Hon. Robert W. Gwin, Jr., was qualified to represent the defendant.
"THE COURT: ... He (Gwin) complies, both in experience and ability, as well as legally and technically with the requirements for such a representation.

"So, I am going to ask Mr. Gwin to accept that appointment.
"I have discussed it with you. Squire, and I understand that you are willing to take this appointment, is that correct?
"MR. GWIN: Yes, sir.
"THE COURT: So, the Court does, at this point, rule the defendant to be indigent, under the circumstances, and appoints
Mr. Gwin." (Emphasis added).
The language of the statute does not require the record to show that appointed counsel has at least five years' prior experience in the active practice of criminal law; it simply requires that the indigent accused be provided such counsel. Alabama Code Section 13-11-8 (1975). That the defendant in this matter was, in fact, provided with counsel meeting the statutory requirements is not questioned. Absent some tangible indication that the requirements of the statute were not met this Court cannot summarily rule, as a matter of law, that the statute was not complied with. Though not controlling, we deem it significant that appellate counsel was the defendant's appointed trial counsel.
This Court remanded the case of Jacobs v. State, 371 So.2d 429, Ala.Cr.App., (1977) for an evidentiary hearing to determine whether appointed counsel met the statutory requirements for appointed counsel in a death case. There appointed counsel testified on motion for new trial that he was not qualified. Those facts and that issue are not presented in this case.

II
The defendant next alleges the trial court erred to reversal by admitting at the sentencing hearing, over objection, the grand jury testimony of Sergeant Howard Felts and Marie Merrill, the victim of a prior robbery committed by the defendant. The defendant further objected to certain portions of Sergeant Felts' testimony at the hearing concerning what Mrs. Merrill had told him about the facts of the prior robbery. The defendant submits that both the grand jury testimony and Sergeant Felts' testimony relative to what Mrs. Merrill said concerning the past offense are violative of the hearsay rule. He further contends that the State did not show Mrs. Merrill's unavailability *864 to appear at the hearing as a witness and maintains that his opportunity for cross examination was thwarted.
Basically, the evidence elicited at the sentencing hearing revealed that the prior robbery had been conducted in a similar manner to the present offense. The defendant, along with two others, entered the Spidel Gem Company, a jewelry store in downtown Birmingham, at 1:15 P.M. on October 23, 1973, and robbed Mrs. Merrill of assorted costume jewelry and rings. During the course of that robbery the defendant shot Mrs. Merrill in the head; however, she survived the wound. Sergeant Felts stated that Mrs. Merrill later "looked at him (defendant) and stated that he was the one that had had the gun and the one that did the shooting".
Alabama Code Section 13-11-3 (1975) defines what evidence is admissible at the sentencing hearing to aid the court in determining whether to sentence the defendant to death or to life imprisonment without parole. In pertinent part it reads:
"In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements; provided further, that this section shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama."
(Emphasis added).
The evidence in question was not secured in violation of the United States or Alabama Constitution. The evidence was not illegal and the defendant's constitutional rights were at all times protected. That the defendant had been involved in a prior robbery where great violence had been perpetrated against the victim in an almost identical fashion is certainly of probative value and a relevant factor for the trial court to consider at the sentencing hearing. According to Section 13-11-3 the trial court need not be concerned with whether this evidence would be admissible under the exclusionary rules of evidence. If the evidence has probative value it may be received, "provided the defendant is accorded a fair opportunity to rebut any hearsay statements". Alabama Code Section 13-11-3 (1975).
The question this court must resolve is whether the defendant was given a fair opportunity to rebut the hearsay statements. Sergeant Felts' testimony concerning what Mrs. Merrill said in his presence was hearsay evidence. Mrs. Merrill was not called by the State. The reason given by the district attorney for her absence was that he had called her and "(s)he stated to me that she was afraid to come in and testify because offor several things which have occurred as a result of this incident.... She appeared to be quite upset and nervous about it, and I just thought that it would be best thatfrom what attitude she took and how upset she was, I did not pursue her attendance further."
The record indicates that the defendant was given sufficient opportunity to rebut any hearsay statements made at the sentencing hearing. On two occasions during the hearing the trial court, in response to the defendant's objections, offered to have an instanter subpoena served on Mrs. Merrill compelling her appearance, thus providing the defendant with the opportunity to cross examine Mrs. Merrill and in that manner to rebut any statement attributed to her. On both occasions the defendant declined the trial court's offer. Defense counsel specifically stated that he had talked to Mrs. Merrill and did not have any intention of calling her as a witness in the sentencing hearing.
The trial court was not obligated to do more than provide a fair opportunity for rebuttal. It more than adequately complied with the statute. In addition, the defendant could have called other witnesses to *865 rebut the hearsay or could have thoroughly cross examined Sergeant Felts himself concerning the hearsay. Neither of those routes was pursued.
Thus, we conclude that the trial court did not err in admitting the grand jury testimony and Sergeant Felts' testimony concerning the prior robbery committed by the defendant. This information was relevant for the trial judge to consider in deciding what sentence to impose and the defendant was accorded a fair opportunity to rebut any hearsay statements.

III
The defendant alleges there was a fatal variance between the indictment and verdict. This allegation has no merit. The indictment, omitting its formal parts, is set out below:
"ANTHONY O'HARA JOHNSON, Alias ANTHONY O'HARRY JOHNSON, Alias ANTHONY O'HENRY JOHNSON, whose name is to the Grand Jury otherwise unknown, feloniously took one man's wallet of the value of FIVE DOLLARS, one ladies diamond ring of the value of ONE HUNDRED EIGHTY-FIVE DOLLARS, one ladies wedding ring set of the value of TWO HUNDRED DOLLARS, one man's diamond ring of the value of ONE HUNDRED NINETY DOLLARS, one ladies birthstone ring of the value of FORTY-FIVE DOLLARS, and one man's ring of the value of ONE HUNDRED THIRTY-FIVE DOLLARS, the personal property of William Albert Farmer, from his person and against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same, and the said defendant in the course of the aforesaid robbery, did intentionally kill William Albert Farmer by shooting him with a pistol, and that said offense took place subsequent to March 7, 1976, ..."
This indictment was read in its entirety by the court to the jury during the court's oral charge. After deliberations the jury returned a verdict which read: "We, the jury, find the defendant guilty as charged in the indictment and fix his punishment at death." Thus, there was no variance between the indictment and verdict. Lindsay v. State, 29 Ala.App. 25, 191 So. 474, cert. denied, 238 Ala. 374, 191 So. 475 (1939); Smith v. State, 35 Ala.App. 580, 50 So.2d 791 (1951). The jury, by bringing back the general verdict of guilty, in full compliance with the trial judge's instructions, convicted the defendant of the very crime charged in the indictment. Ex parte Clements v. State, 370 So.2d 723, (Ala.1979).

IV
It is also maintained that the following portion of the trial court's oral charge erroneously informed the jury that the defendant was charged with murder:
"Now, this defendant, Anthony O'Hara Johnson, is charged with murder under what is referred to as the Alabama Death Penalty Statute, which became effective March 7, 1976."
Although the trial court's instructions were not objected to, this Court is obligated to review the entire proceedings, including the court's oral charge, for plain error. The new plain error rule, Rule 45A, ARAP, provides:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant. (Adopted 10-2-78, eff. 12-1-78.)"
In deciding whether the defendant's substantial rights have been adversely affected we must look to the entire context of the court's oral charge to determine whether plain error exists which would merit reversal. When reviewing the propriety of a trial court's jury charge, this Court must consider the charge as a whole, in its totality, without isolating statements, which individually may appear prejudicial, from the *866 context in which they were made. Gosa v. State, 273 Ala. 346, 139 So.2d 321 (1962); Johnson v. State, 81 Ala. 54, 1 So. 573 (1886); Van Antwerp v. State, 358 so.2d 782 (Ala.Cr.App.), cert. denied, Ex parte Van Antwerp, 358 So.2d 791 (Ala.1978).
After reading the indictment and explaining to the jury its duty of fixing the defendant's punishment at death if it believed him guilty, the trial court read that portion of its oral charge which is now alleged to be error. Immediately after that portion, however, the court continued:
"Under this statute, there are several different categories which call for the death penalty if the jury verdict is guilty.
"The category of the offense for which the defendant is being tried is this: That where the defendant, while in the course of committing a robbery intentionally kills the victim of the robbery, that is, the person who is being robbed, then there is but one punishment upon a finding of guilty, and that is death in the electric chair.
"The elements in this case that you must find from the evidence, beyond a reasonable doubt, in order to convict this defendant of this offense and fix his punishment at death are these: that he did commit a robbery against William Albert Farmer, and, while in the course of committing that crime of robbery, he did intentionally kill William Albert Farmer. If you believe that beyond a reasonable doubt from the evidence and so find, then you should find the defendant guilty of the charge in the indictment and fix his punishment at death."
The court then explained the law concerning co-conspirators and the elements of robbery to the jury, after which the court further charged:
"In order for the jury to find the defendant guilty, you must find from the evidence, beyond a reasonable doubt and to a moral certainty that the defendant committed the robbery as charged in the indictment, and that in the course of such robbery he intentionally killed William Albert Farmer, not accidentally and not inadvertently, but intentionally.
"It is not sufficient if the death occurred incidentally in the commission, or the attempt to commit a robbery. The defendant must have committed the act of killing intentionally and willfully, and that means governed by the will and that he intended to kill William Albert Farmer and that he did kill him.
"To determine the intent, you are to take into consideration all of the evidence of all of the surrounding facts and circumstances in determining whether the necessary intent was present, and this is true as to any element of this offense where intent is a necessary ingredient.
"Now, if you are not convinced from the evidence beyond a reasonable doubt and to a moral certainty that the defendant robbed William Albert Farmer and that in such robbery he intentionally killed him, then you must find the defendant not guilty.
"The absence of your being convinced from the evidence beyond a reasonable doubt and to a moral certainty as to either of these elements of the offense would necessitate finding the defendant not guilty.
"On the other hand, if, after a full and fair consideration of all the evidence in the case, you are convinced from that evidence beyond a reasonable doubt and to a moral certainty that the defendant intentionally killed William Albert Farmer while he was robbing him, then it would be your duty to return a verdict finding the defendant guilty as charged in the indictment, and, in that event, it would be your further duty to fix his punishment at death."
Thus, when the court's oral charge is considered as a whole, it is clear the jury was properly instructed that the defendant was charged with a robbery where the victim was intentionally killed, as charged in the indictment. The court's instructions were neither erroneous nor confusing. The use of the word "murder" in the instructions when viewed in the light of the entire charge could not have prevented the jury *867 from understanding the crime with which the defendant was charged. Any error in its use was at most harmless. Rule 45, ARAP. None of the language condemned in Clements, supra, or Jacobs, supra, is present in the instant case. In summary, the court's oral charge comported with the indictment and was proper.

V.
Two sentencing hearings were conducted in this cause, the first on August 25, 1978, and the second on November 21, 1978. At the August sentencing hearing the trial court originally determined that one of the aggravating circumstances for this particular robbery when the victim was intentionally killed was that the capital felony was committed for pecuniary gain under Alabama Code Section 13-11-6(6) (1975). However, upon review of the Alabama Supreme Court's decision in Ex parte Cook v. State, 369 So.2d 1251, (Ala.1978), the sentencing judge, in order to prevent error, withdrew that aggravating circumstance from his consideration in imposing the death sentence. The Supreme Court in Cook, supra, held that the aggravating circumstance of "a capital felony committed for pecuniary gain" was not to be applied to robbery, but was meant to "cover a variety of crimes committed with the hope of financial benefit, ranging from `murder-for-hire' to an heir killing his benefactor to gain his inheritance". Thus, the August 25th judgment and sentence were set aside, and the aggravating circumstance enumerated in Section 13-11-6(6) specifically removed from consideration.
At the November hearing the proceedings were reopened for further evidence and additional evidence was presented by the defendant. The sentencing judge considered this in addition to the evidence previously introduced at the August hearing. No further evidence was presented by the State. With the exclusion of the aggravating circumstance above stated, the sentencing judge adopted its original findings from the sentencing hearing.
"On the hearing held this date, to aid the Court in determining whether to sentence the defendant to death or to life imprisonment without parole, the Court finds from the evidence that the defendant was twenty years old at the time of the commission of this offense and that his companion was twenty-four years old.
"The Court finds that on the 23rd day of October, 1974, when this defendant was sixteen years old, the defendant and one or more black males, robbed the Spidel Gems Company, which was located at 119 Twentieth Street, North, Birmingham, Jefferson County, Alabama, approximately one block from where the Farmer Jewelry Company is located.
"The Court has examined the sworn testimony of witnesses before the grand jury in that case and finds that during this robbery, the defendant told the young, female clerk that `this is a stick-up', and that when she turned to go to the back of the store he shot her in the head, but that the bullet did not break the skull.
"Sergeant Felts who investigated that robbery testified that the bullet went under the skin and proceeded about one inch, and then exited without doing any serious damage.
"On August 22, 1974, the defendant pleaded guilty to the robbery and assault with intent to murder for the Spidel Gem Company robbery and shooting, and was sentenced to serve a term of imprisonment in the penitentiary for ten years in the robbery case, for two years in the assault with intent to murder case, and at this same time pleaded guilty to a burglary charge and was sentenced to a term of two years imprisonment in the penitentiary.
"Probation was denied and he served in the penitentiary on these charges until August 8, 1977, which was approximately eight months before the robbery of the Farmer Jewelry Store at which time he was paroled, and was on parole when the present offense was committed.
"His fingerprints were also found at the scene of the Spidel Gem Company robbery.

*868 "The defendant offered testimony from the defendant's mother and grandmother, which indicates that the defendant was a product of a broken home and was shuttled back and forth between his mother and father until he was somewhere between the ages of nine and fourteen years, and that he was confined in a detention home for some reason which apparently stemmed from a fight which he had been in.
"At this present hearing, the defendant was present and was represented by an attorney, Honorable Robert W. Gwin, Jr., and the Court heard evidence offered by both the State and the defendant's attorney, as well as arguments of the State and arguments of the defense counsel.
"The Court finds the following aggregating circumstances to be present in this case:
"1. This offense was committed by the defendant while he was on parole from a sentence of imprisonment for a crime of violence which was committed in a manner similar to the offense in the present case.
"2. The present capital felony was committed while the defendant was engaged in and accompanied by another person in the commission of the robbery.
"3. This capital felony was committed for the purpose of avoiding or preventing a lawful arrest for the purposes of getting rid of the victim so that he could not identify the defendant.
"4. This capital felony was committed for pecuniary gain. (This the trial court `ruled out and repudiated' on August 25, 1978.)
"5. This capital felony was especially heinous and atrocious and appears to be an outright execution. The mitigating circumstances are as follows:
"a. The defendant was twenty years old and his alleged companion was twenty-four years old at the time of the commission of this capital felony. However, the Court further finds that the defendant is a person who has spent his life in the streets, which has been topped off by almost three years in the State penitentiary, and there is nothing to indicate that the defendant was a relatively minor participating partner. To the contrary, he appears to be the leader and the stronger of the two persons.
"b. Although no one saw which participant pulled the trigger on the gun which killed Mr. Farmer, the bag identified as the bag which the defendant carried from the store was the bag in which the only pistol was found, and, as stated before, the defendant appeared to be the dominant actor.
"The Court finds that the defendant, Anthony O'Hara Johnson, intentionally killed William Albert Farmer while the defendant was perpetrating a robbery and that he so killed his victim for the purpose of avoiding or preventing a lawful arrest.
"The Court further finds that this capital felony was especially heinous, atrocious and cruel, and that it was similar to a robbery and shooting committed by the defendant at the Spidel Gem Company in 1974. The Court further finds that this individual killed the victim in the course of this robbery with all the indications of an execution, since the evidence showed that the wound from the back of Mr. Farmer's head was a loose contact wound, as well as due to the position of Mr. Farmer's body, his hands, and his head immediately after the killing.
"After considering all of the evidence presented on the trial of this case, as well as the evidence and arguments presented on the hearing this date, the Court finds no reason to change the verdict of the jury which fixed the punishment at death."
The findings of the court are both proper and in accordance with §§ 13-11-4, 13-11-6, and 13-11-7 of the 1975 Alabama Code. Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977), affirmed, 361 So.2d 640 (Ala.1978).

A
The sentencing judge adduced that the defendant was "the leader and the *869 stronger of the two persons" and was the dominant actor in the offense. This finding is supported by and may be inferred from the evidence of the defendant's active and major role in the 1974 robbery and shooting, from the fact that it was the defendant who requested the neighboring store employee to turn up the music only minutes before Mr. Farmer was shot, from the fact that the pistol was found in the bag carried by the defendant, and from the fact that it was the defendant who told his accomplice not to count the money on the bus. Such a finding is not based on "total speculation" as the defendant argues.

B
Alabama Code Section 13-11-6 (1975) lists as an aggravating circumstance the fact that the capital felony "was especially heinous, atrocious or cruel". These words were defined in State v. Dixon, 283 So.2d 1, 9 (Fla.1973); Alford v. State, 307 So.2d 433, 444 (Fla.1975).
"Again, we feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital feloniesthe conscienceless or pitiless crime which is unnecessarily torturous to the victim."
These definitions were adopted by this Court in Jacobs v. State, 361 So.2d 607, 633 (Ala.Cr.App.1977), affirmed, 361 So.2d 640 (Ala.1978).
While this intentional killing was not cruel or atrocious within the meaning set forth above, we do find that the planned and deliberate execution of Mr. Farmer was shockingly evil and therefore heinous. Consequently the sentencing judge acted within his discretion in finding this aggravating circumstance present.

C
As another aggravating circumstance the sentencing judge found that:
"3. This capital felony was committed for the purpose of avoiding or preventing a lawful arrest for the purposes of getting rid of the victim so that he could not identify the defendant."
Alabama Code Section 13-11-6(5) (1975) lists as an aggravating circumstance the fact that:
"(5) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody."
Although it has been argued, as does the defendant, that this aggravating circumstance has reference to and concerns only the protection of police officers rather than potential identification witnesses, Jacobs v. State, 361 So.2d at 638 (Judge Bookout in a specially concurring opinion), the Alabama Supreme Court has not specifically ruled on this issue. Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977), was affirmed without reference to this issue in the majority opinion. Ex parte Jacobs, 361 So.2d 640 (Ala.1978). Chief Justice Torbert, concurring in part, dissenting in part, noted that the facts did not support a finding that the "capital felony was committed for the purpose of avoiding or preventing a lawful arrest...". "That circumstance applies only in the case where the defendant commits a capital felony to resist an actual, lawful arrest by an authorized individual." Jacobs, 361 So.2d at 648.
The aggravating circumstances contained in Alabama's Death Penalty Act are identical to those in the Florida Act. Jacobs, 361 So.2d at 633. In Washington v. State, 362 So.2d 658, 665-666 (Fla.1978), the Supreme Court of Florida found that the evidence justified the findings that the homicides were committed for the purpose of avoiding or preventing a lawful arrest (1) where one of the victims was buried in a shallow grave *870 in the defendant's backyard despite the fact that the defendant surrendered to the authorities (although only after his two accomplices were arrested at his residence and he had learned that he was also sought by the police); (2) where there was "every indication" from the evidence that the defendant attempted to kill the victim's three sisters-in-law as well as the victim[1]; and (3) where the participants, after killing a third victim, wrote matters on the walls of the house in order to leave the impression that the victim was murdered by a homosexual lover. The court found that the action described in this last circumstance "could only have been calculated to serve as a device to mislead police authorities and thereby avoid detection". Washington, 362 So.2d at 666. The majority opinion further noted that although it is true that in some instances subsection (e) (Ala.Code § 13-11-6(5) (1975)The capital felony was committed for the purpose of avoiding or preventing a lawful arrest) could apply to any robbery or murder situation where the victim was intentionally killed, the subsection would not be invariably applicable.
"Appellant additionally submits that Section 921.141(5)(e) should be taken in conjunction with the finding under subsection (d) [capital felony committed while defendant engaged in committing robbery and kidnapping] and subsection (f) [capital felony committed for pecuniary gain] of Section 921.141(5). He suggests that when the three subsections are read together it is apparent that under any kidnapping/homicide or robbery/homicide situation all these provisions would invariably be applicable. An analogy is sought to be drawn with Provence v. State, supra[2]. Although it is true that in some instances the three analytical concepts could combine automatically in the described situations we cannot say as in Provence that circumstances (e) always occurs in a robbery/murder-kidnapping/murder situation. For example, a homicide can occur in connection with a robbery or kidnapping solely because the victim attempts to resist the crime which precipitates an altercation during which the victim is killed. In recognition of this we have heretofore affirmed death sentences in cases where the subsection (e) aggravating circumstance has been found in combination with a subsection (d) aggravating circumstance involving robbery as well as kidnapping. Meeks v. State, 339 So.2d 186 (Fla.1976) (robbery); Knight v. State, supra [338 So.2d 201, Fla.1976] (kidnapping)." Washington, 362 So.2d at 666. (Footnote added)
In Washington, only one concurring Justice argued that the "avoid or prevent lawful arrest" aggravating factor is reserved "for cases such as those in which the defendant participates in a `shoot-out' with apprehending law enforcement officers, and possibly others in the same genre but not now as clearly identifiable". Washington, 362 So.2d 667-668.
In Meeks v. State, 339 So.2d 186 (Fla.1976), the defendant and his accomplice, after robbing a Jr. Food Store employee, forced the employee and a customer to lie on the floor on their stomachs. Although *871 the store employee did not die from her wounds, she was unable to say that the defendant actually fired the shots. The accomplice testified that the defendant fired all the shots into the bodies of the store employee and the customer.
In its findings of fact the trial judge stated:
The Court also finds, as an aggravating circumstance, that the capital felony was committed with the motive of avoiding and preventing arrest, was committed for pecuniary gain and to hinder the enforcement of law. Fla.Stat. 921.141(6)(e)(f)(g)."[3]

* * * * * *
"Upon consideration, it was at the time of sentencing and is now, some hours later as the sentence of death is justified in writing, the inescapable conclusion of the undersigned that sufficient aggravating circumstances exist in the facts to justify the death penalty. The murder of the victim by the defendant was for the express purpose of executing the victim to prevent his identifying the defendant, so that the defendant could flee after having committed robbery at gunpoint for pecuniary gain which robbery was witnessed by the victim and to prevent the lawful arrest of the defendant and thus this conscienceless murder was designed to hinder the enforcement of laws." Meeks, 339 So.2d at 190, 191. (Emphasis added).
In Meeks, although the Florida Supreme Court did not address the specific issue as it did in Washington, the court found that "the aggravating and mitigating circumstances surrounding the appellant's commission of this truly senseless crime convince us that the death penalty is justified". Meeks, 339 So.2d at 192.
Here the trial court found that the defendant executed Mr. Farmer "for the purpose of getting rid of the victim so that he could not identify the defendant". This was justified under Florida's construction of the particular aggravating circumstance under review. We adopt the construction of the Florida Court on its interpretation and meaning of the aggravating circumstance that "(T)he capital felony was committed for the purpose of avoiding or preventing a lawful arrest". Hence the finding of the trial court was proper.
The record before this Court displays the conscientious and diligent efforts of the sentencing judge to consider any matter relevant or probative in sentencing the defendant. The defendant was given ample opportunity to present evidence in mitigation of the heinous crime he committed. We find no error in the sentencing procedures.

VI
The constitutionality of the Alabama Death Penalty Act was upheld in Jacobs, supra.
We have searched the record for any error which might have prejudiced the defendant. We have applied the "Plain Error Rule". We are impressed with the cautious and watchful manner in which the trial judge conducted the trial and sentencing hearing. The defendant received a fair trial. The judgment of the trial court is affirmed.
AFFIRMED.
HARRIS, P. J., and TYSON and DeCARLO, JJ., concur.
BOOKOUT, J., concurs specially.
*872 BOOKOUT, Judge, concurring specially:
I concur in the result reached by the majority and likewise concur in most of what is stated in the majority opinion. However, I disagree on two points which do not affect the result reached in the instant case but which will probably affect other cases. Those two issues concern aggravating circumstances which I hope the Alabama Supreme Court will resolve.
The majority correctly states that the Alabama Supreme Court in Cook, supra, prohibits "pecuniary gain" from being used as an aggravating circumstance where the charge is robbery when the victim is intentionally killed by the defendant. As our Supreme Court said, this in effect condemns the defendant twice for the same act stealing money. In my opinion, the same rationale expressed in Cook, supra, applies to using the circumstance that the "capital felony [was committed] in the course of a robbery" to aggravate the offense of capital robbery. The two are the same thing, and thus the defendant is being condemned twice for the same actrobbery. Therefore, aggravating circumstance number two listed by the trial court is inappropriate in the instant case, in my opinion. This in effect is finding that the crime charged was committed while the defendant was engaged in the crime charged.
I likewise believe that aggravating circumstance number three listed by the trial court is inappropriate. In this regard I do not concur with the majority opinion adopting the construction of the Supreme Court of Florida on the aggravating circumstance: "The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody."
That aggravating circumstance refers to avoiding or preventing a "lawful" arrest or "effecting an escape" from custody. In my opinion, that wording was added to the statute to protect peace officers. It is to deter "shoot-outs" with arresting officers or in escapes after arrests.
As stated in my special concurrence in Jacobs, supra, it appears that the words "lawful arrest" are significant in that a person in Alabama may resist, with force, an unlawful arrest. Green v. State, 238 Ala. 143, 189 So. 763 (1939). It should be noted that the legislature included escapes from custody along with the provision concerning lawful arrests. This reinforces my reasoning that the entire circumstance was an apparent attempt by the legislature to protect officers of the law from being murdered while attempting to make a lawful arrest or while having a prisoner in custody. If protecting potential witnesses was the intent of that section, the legislature would merely have said that killing a potential witness would be an aggravating circumstance.
It is elementary that criminal statutes are strictly construed in favor of the persons sought to be subjected to their operation. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). Such statutes reach no further in meaning than their wording. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952). The wording of the aggravating circumstance in question is clear and unambiguous to me. I do not believe that the wording concerning the preventing of a lawful arrest or effecting an escape from custody should be so broadened by construction as to include indirect or collateral effects. The indirect or collateral effect of many murders would be the lessening of the probability that the murderer would be identified and subsequently arrested. However, the problem the legislature was addressing in that section was the peril faced by peace officers in making lawful arrests or preventing escapes from custody. Such a peril is both immediate and direct during the course of an arrest or custody.
The continued broadening and expanding of aggravating circumstances to cover any and every situation which arises during the course of a murder will eventually lead the United States Supreme Court to find unconstitutional applications of the new death penalty statute. The judgment of the trial court is supported by aggravating circumstance number one and number five. The other aggravating circumstances listed in *873 the trial court's order were unnecessary to support its judgment and it is likewise unnecessary for this court to go on record adopting the very broad construction of the Supreme Court of Florida on an aggravating circumstance which is not crucial to the affirmance of the trial court's judgment.
NOTES
[1]  In stating its findings the trial judge noted:

"Not only was the victim in this case stabbed and shot to death, but her three elderly sisters-in-law were also shot and stabbed in an effort by the defendant to eliminate all of the witnesses to his crimes. This was clearly for the purpose of avoiding detection and thereby preventing his arrest for these crimes."
Washington, 362 So.2d at 663.
[2]  Provence v. State, 337 So.2d 783 (Fla.1976), held that in applying the statute which enumerates the aggravating circumstances in capital felonies to cases of robbery-murder, the fact that the defendant had a pecuniary motive at the time of the murder constitutes only one aggravating factor, despite the fact that the statute provides in separate subsections that the commission of a capital felony in the course of a robbery is an aggravating circumstance, West's F.S.A. § 921.141(5)(d) and that the commission of a capital felony for pecuniary gain is also an aggravating circumstance. West's F.S.A. § 921.141(5)(f). This is analogous to the Alabama Supreme Court's holding in Ex parte Cook, 369 So.2d 1251 (Ala. 1978), that the aggravating circumstance that the capital felony was committed for pecuniary gain does not apply to a capital offense of robbery wherein the victim is intentionally killed.
[3]  Fla.Stat. 921.141(5)(e) is identical to Ala.Code § 13-11-6(5) (1975): "The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody."

Fla.Stat. 921.141(5)(f) is identical to Ala.Code § 13-11-6(6) (1975): "The capital felony was committed for pecuniary gain."
Fla.Stat. 921.141(5)(g) is identical to Ala.Code § 13-11-6(7) (1975): "The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws."


971 F.Supp. 1162 (1997)
James HALL, Plaintiff,
v.
GIBSON GREETINGS, INC., Defendant.
No. C-1-96-1161.
United States District Court, S.D. Ohio, Western Division.
July 30, 1997.
Martin McHenry, Jacobs, Kleinman, Seibel & McNally, Cincinnati, OH, for James Hall.
Brian Paul Gillan, Robert J. Reid, Dinsmore & Shohl, Cincinnati, OH, for Gibson Greetings, Inc.

ORDER
SPIEGEL, Senior District Judge.
This matter is before the Court on Defendant's Motion to Dismiss (doc. 3) to which Plaintiff responded (doc. 4) and Defendant replied (doc. 6).

BACKGROUND
Plaintiff, James Hall ("Hall"), is a former employee of Defendant, Gibson Greetings, Inc. ("Gibson"). On December 15, 1994, Gibson terminated Mr. Hall as part of a work-force reduction. On June 12, 1995, Mr. Hall *1163 sued Gibson and Gregory Ionna, Gibson's Vice President of Sales and Marketing, in Hamilton County Court of Common Pleas (Case No. A199502994) alleging age discrimination, promissory estoppel, breach of contract and fraud arising out of Gibson's decision to terminate him.
Gibson and Mr. Ionna moved for summary judgment. The trial court heard oral argument. On June 11, 1996, the trial court granted summary judgment for Gibson on the age discrimination and fraud claims but denied summary judgment on the promissory estoppel and breach of contract claims. The trial court granted summary judgment for Mr. Ionna on all claims.
Prior to trial on the merits of the remaining claims, Mr. Hall dismissed his state court action without prejudice pursuant to Ohio Civil Rule 41(A)(1). Mr. Hall filed in Federal District Court for the Southern District of Ohio the next day asserting claims for breach of contract, promissory estoppel, negligent misrepresentation and fraud against Gibson, but not Mr. Ionna, arising out of its decision to terminate Mr. Hall.
Gibson has now moved to dismiss Mr. Hall's fraud claim. Gibson argues that Mr. Hall is precluded by Judge Ney's Entry in Case No. A9502994 granting summary judgment for Gibson on Mr. Hall's fraud claim under the doctrine of res judicata. Gibson has submitted the Judge Ney's Entry as an exhibit to its Motion to Dismiss. Because Gibson relies on materials outside of the pleadings, the Court will treat its motion as a motion for summary judgment. See Fed. R. Civ. Pro. 12(b) ("If, on the motion ... to dismiss for failure ... to state a claim upon which relief can be granted, matters outside the pleading are presented ..., the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....").

DISCUSSION
"Res judicata, or claim preclusion ... is the doctrine ... by which a final judgment on the merits in an action precludes a party from bringing a subsequent lawsuit on the same claim or cause of action or raising a new defense to defeat a prior judgment. It precludes not only relitigating a claim or cause of action previously adjudicated, it also precludes litigating a claim or defense that should have been raised, but was not, in a claim or cause of action previously adjudicated." Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 660-61 (6th Cir.1990) (citation omitted). Under the full faith and credit statute (28 U.S.C. § 1738), a federal court must give the same preclusive effect to a prior state court judgment as would a state court in the State which rendered the judgment. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1331-32, 84 L.Ed.2d 274 (1985). Accordingly, we must look to the law of Ohio to determine the preclusive effect of the previous Entry of the Hamilton County Court of Common Pleas.
Under Ohio law, the doctrine of res judicata applies where there has been a final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, conclusive of rights, questions and facts in issue as to the parties and their privies. Quality Ready Mix, Inc. v. Mamone, 35 Ohio St.3d 224, 227, 520 N.E.2d 193 (1988). For res judicata to apply: (1) the judgment in the prior suit must be final; (2) the prior judgment must be rendered on the merits; and (3) both lawsuits must be based on the same "claim" or "cause of action." Norwood v. McDonald, 142 Ohio St. 299, 305, 52 N.E.2d 67 (1943); In re Hoff, 187 B.R. 190, 194 (S.D.Ohio 1995).
In this instance, the Judge Ney granted summary judgment for Gibson on two of four claims in Mr. Hall's Complaint in the Hamilton County Court of Common Pleas action. Before trial, Mr. Hall voluntarily dismissed his case and then refiled his action in federal court asserting claims arising out of the same factual allegation including the fraud claim which the Court of Common Pleas had earlier granted summary judgment.
There appears to be no dispute that Judge Ney's Entry in Case No. A199502994 (the "Order") granting Gibson summary judgment on Mr. Hall's fraud claim was decided on the merits and involved the same claim or *1164 cause of action brought here. The Parties, however, dispute whether the Order was sufficiently final so as to have preclusive effect. We must decide whether an order granting summary judgment on some but not all of the claims in a case is a final order for purposes of res judicata.
In general, an order granting summary judgment which terminates a party's action is an adjudication on the merits with preclusive effect. A-1 Nursing v. Florence Nightingale Nursing, 97 Ohio App.3d 623, 627, 647 N.E.2d 222 (1994). Furthermore, "[a] judgment may be final in a res judicata sense as to part of an action although the litigation continues as to the rest.'" Phung v. Waste Management, Inc., 71 Ohio St.3d 408, 412, 644 N.E.2d 286 (1994) (quoting 1 Restatement (Second) of Judgments § 13, cmt. e (1982)). However, an order which adjudicates one or more but fewer than all claims or determines the rights of one or more but than all the parties in an action must meet the requirements of O.R.C. § 2505.02 and Ohio Civil Rule 54(B)[1], if applicable, in order to be a final appealable order. Chef Italiano Corp. v. Kent State University, 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989).
In Ohio, a final order is defined in O.R.C. § 2505.02, which provides:
An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial.
O.R.C. § 2505.02. In order to be final, an order must fit in one of the three categories outlined in O.R.C. § 2505.02. General Electric Supply Co. v. Warden Electric, Inc., 38 Ohio St.3d 378, 528 N.E.2d 195 (1988). "`[T]he entire concept of `final orders' is based upon the rationale that the court making an order which is not final is thereby retaining jurisdiction for further proceedings. A final order, therefore, is one disposing of the whole case or some separate and distinct branch thereof.'" Noble v. Colwell, 44 Ohio St.3d 92, 94, 540 N.E.2d 1381 (1989) (quoting Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306, 272 N.E.2d 127 (1971)).
The state court judgment for Gibson on Mr. Hall's fraud claim is not a final order pursuant to O.R.C. § 2505.02 or Rule 54(B). First, the Order is not a final order under the applicable portion of O.R.C. § 2505.02. An order granting summary judgment is covered by the first category of judgments in § 2505.02 (i.e., an order which affects a substantial right which determines the action and prevents judgment). See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989) (applying first category for determining whether granting partial summary judgment was final order). "A substantial right is a ... `legal right entitled to enforcement and protection by law[.]'" Id. (quoting In re Estate of Wyckoff, 166 Ohio St. 354, 358, 142 N.E.2d 660 (1957)). Granting summary judgment for Gibson on Mr. Hall's claim for recover under a theory of fraud qualifies as an order affecting a substantial right because it prevents him from pursuing the fraud claims. See id. (holding that dismissal of two claims in plaintiff's complaint affected a substantial right because it prevented pursuing an action on those claims). However, the effect of the Entry of summary judgment did not determine the action or prevent judgment because Mr. Hall had two claims remaining against Gibson. See id. at 89, 541 N.E.2d 64 (finding that order dismissing two of four claims did not determine the action or prevent judgment because plaintiff's other claims remained outstanding); Sparks v. Edingfield, No. 94-CA-78, 1995 WL 141625 at *1-2 (Ohio Ct.App. Mar. 31, 1995) (holding res judicata was not applicable to defendant's immunity defense dismissed on summary judgment in previous action which was later voluntarily dismissed because it did not determine the action or prevent judgment on plaintiff's claim). Accordingly, although an *1165 interlocutory order granting partial summary judgment affects a substantial right it is not a final order because it does not determine the action.
Secondly, pursuant to Rule 54(B), the Order is considered an interlocutory order subject to revision by the trial court any time before entry of judgment on all claims. Ohio R. Civ. Pro. 54(B).
Absent a Civ. R. 54(B) certification that there is no just reason for delay, the summary judgment remained an interlocutory order because it was subject to revision by the trial court while the liability claim remained pending. The subsequent notice of voluntary dismissal did not determine the liability claim because it was not an adjudication of the merits. The notice merely dismissed the action in which the liability claim was presented, and in doing so dissolved all interlocutory orders made by the court in that action, including the summary judgment from which this appeal is taken.
Sparks, 1995 WL 141625 at *1.
The general rule in Ohio is that the voluntary dismissal of an action dissolves any interlocutory orders entered prior to dismissal.[2]Central Mut. Ins. v. Bradford-White Co., 35 Ohio App.3d 26, 28, 519 N.E.2d 422 (1987) (citing Krug v. Bishop, 9 Ohio Dec. Reprint 250, 252 (1877)); Menti v. Joy, No. 6507, 1994 WL 581524 at *3 (Ohio Ct.App. Oct. 20, 1994). Thus, the previously entered orders do not have res judicata effect. See De Ville Photography, Inc. v. Bowers, 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959) ("Where an action or proceeding is dismissed without prejudice, rulings preceding the final judgment or decree of dismissal are, as a general proposition, not capable of becoming res judicata."). Plaintiff then remains free to commence another action against the defendant raising the same issues. Board of Health v. City of St. Bernard, 19 Ohio St.2d 49, 52, 249 N.E.2d 888 (1969); Central Mut. Ins., 35 Ohio App.3d at 28, 519 N.E.2d 422.
Accordingly, the Entry of partial summary judgment on Mr. Hall's fraud claim against Gibson in the state court action was not a final order under either O.R.C. § 2505.02 or Rule 54(B) and consequently, not a bar to Mr. Hall's subsequent suit in federal court on the fraud claim.
Gibson argues that the Sixth Circuit's holding in Employees Own Federal Credit Union v. City of Defiance, 752 F.2d 243 (6th Cir.1985), that a plaintiff cannot avoid res judicata merely by voluntarily dismissing his state court action. In Employees Own, plaintiff filed a civil rights action in state court contending that the defendants' refusal to extend water service to it violated its right to due process under the United States Constitution. The trial court granted defendants' motion to dismiss finding that plaintiff had no property interest in water service under Ohio law. The trial court, however, did not enter judgment but allowed plaintiffs twenty days to amend their complaint. Plaintiff instead voluntarily dismissed its state court action and refiled in federal court. No journal entry was prepared or entered in the state court action. The Sixth Circuit found that the voluntary dismissal of an action prior to submission of a journalized judgment entry did not avoid the effects of res judicata. The Sixth Circuit determined that the detailed memorandum opinion of the state trial court was a final judgment "sufficiently firm to be accorded preclusive effect." Id.
The situation presented here is readily distinguishable from the situation in Employees Own. Employees Own involved a detailed memorandum dismissing the plaintiff's only claim. Thus, the only action remaining for the court to conclude the case was a journal entry of judgment. By contrast, Judge Ney's Entry was not a detailed memorandum and disposed of only two of four claims against Gibson. The case still had to proceed *1166 to trial on those remaining issues before the Entry would be a final appealable order. Accordingly, we conclude that the Sixth Circuit's holding in Employees Own does not preclude Mr. Hall from refiling his fraud claim originally brought in state court.

CONCLUSION
Accordingly, the Court DENIES Defendant's Motion to Dismiss.
SO ORDERED.
NOTES
[1]  Rule 54(B) of the Ohio Rules of Civil Procedure defines when a judgment in a case involving multiple claims or multiple parties case is final or interlocutory.
[2]  Rule 41(A) of the Ohio Rules of Civil Procedure gives either party in an action an absolute right to voluntarily dismiss its cause of action at any time prior to actual commencement of trial. Conley v. Jenkins, 77 Ohio App.3d 511, 516, 602 N.E.2d 1187 (1991). This right to dismiss an action "applies even where a plaintiff files the notice of dismissal after learning that the court intends to journalize an adverse decision." Id. at 517, 602 N.E.2d 1187. Thus, after a voluntary dismissal, the parties are in the same position they would have been if no action had been filed. Zimmie v. Zimmie, 11 Ohio St.3d 94, 464 N.E.2d 142 (1984).


3 A.3d 1098 (2010)
PAVEY
v.
KALISH.
No. 628, 2009.
Supreme Court of Delaware.
August 23, 2010.
Decision Without Published Opinion Reversed and Remanded.


337 S.C. 294 (1999)
523 S.E.2d 457
Jane DOE and Mary Roe, Petitioners,
v.
SOUTH CAROLINA STATE BUDGET AND CONTROL BOARD, OFFICE OF INSURANCE SERVICES, INSURANCE RSERVE FUND; Gary Wayne Roberson, in his individual and official capacities; John Short, in his individual and official capacity as Chief of Police; Joe Gebbia, in his individual and official capacities; and the City of Tega Cay, Defendants, of whom South Carolina State Budget and Control Board, Office of Insurance Services, Insurance Reserve Fund, is, Respondent.
No. 25020.
Supreme Court of South Carolina.
Heard June 8, 1999.
Decided November 22, 1999.
*295 J. Marvin Mullis, Jr., Frank A. Barton, both of Law Offices of Mullis & Barton, of Columbia; and A. Philip Baity, of Fort Mill, all for petitioners.
Andrew F. Lindemann, William H. Davidson, II, both of Davidson, Morrison and Lindemann, P.A., of Columbia, for respondent.
*296 PER CURIAM:
We granted certiorari to review the Court of Appeals' decision in Doe v. South Carolina Budget and Control Bd., 329 S.C. 214, 494 S.E.2d 469 (Ct.App.1997). We affirm.
Petitioners brought a declaratory judgment action to determine whether sexual assaults committed against them by Tega Cay Police Officer Roberson were covered under two separate insurance policies, an automobile liability policy and a general tort liability policy. The circuit court granted respondent's summary judgment motion, and the Court of Appeals affirmed. Doe, supra.
Each petitioner was stopped by Roberson at night on suspicion of driving under the influence, and offered the option of being arrested or having sex with him. Petitioner Doe agreed to meet Roberson at a secluded location, and once there she was forced to perform oral sex on him in his parked cruiser and then to engage in intercourse on the hood of his car. Roberson then drove Doe to another location where they exited the cruiser and engaged in sexual activities in a parked bus.
Roberson stopped petitioner Roe and seated her in his cruiser. After she agreed to sex in return for not being arrested, Roe either drove herself to a golf course or was driven to the golf course in the cruiser by Roberson.[1] Once, there, Roberson first forced Roe to perform oral sex on him while seated in the parked cruiser, and then they had intercourse.
In State Farm Fire & Casualty Co. v. Aytes, 332 S.C. 30, 503 S.E.2d 744 (1998), decided after the Court of Appeals issued its Doe opinion, we restated the test for determining when an individual's personal injuries arise out of the "ownership, maintenance, or use" of an automobile such that they are covered by an automobile insurance policy. Aytes sets forth a three part test:
1. There exists a causal connection between the vehicle and the injury; and

*297 2. No act of independent significance breaks the causal link; and
3. The vehicle is being used for transportation at the time of the assault.
In this context, causal connection means:
a. the vehicle was an "active accessory" to the assault; and
b. something less than proximate cause but more than mere site of the injury; and
c. the "injury must be foreseeably identifiable with the normal use of the automobile."
It is clear that Doe and Roe cannot meet the Aytes requirements. For example, the cruiser was not being used for transportation at the time of the assaults, it was not an "active accessory", and the petitioners' acceptance of Roberson's offers were acts of independent significance which broke any causal link. We agree with the Court of Appeals that respondent was properly granted summary judgment on the automobile liability coverage claims.
We also granted certiorari to review the holding granting respondent summary judgment on petitioners' general liability policy claims. We affirm, finding as did the circuit court and the Court of Appeals that Roberson's actions were not within "the scope of his ... official duties," and thus not covered by this policy.
For these reasons, the decision of the Court of Appeals is
AFFIRMED.
NOTES
[1]  The factual allegations in Roe's complaint are inconsistent. The method of transportation to the golf course does not affect our analysis of the coverage issue.


96 F.3d 1445
Brownv.Miska*
NO. 95-40758
United States Court of Appeals,Fifth Circuit.
Aug 29, 1996
Appeal From:  S.D.Tex., No. CA-V-94-067

1
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2