UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                           WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                     Sergeant First Class RONDELL A. HILLIARD
                            United States Army, Appellant

                                        ARMY 20170377

                                Headquarters, Fort Bragg
                             Michael Hargis, Military Judge
                     Colonel Jeffrey C. Hagler, Staff Judge Advocate

For Appellant: Major Todd W. Simpson, JA; Captain Joshua B. Fix, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Hannah E. Kaufman, JA; Lieutenant Colonel Karen J. Borgerding, JA (on
brief).

                                        17 January 2019

                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

       In May of 2015, appellant began regularly having sex with his sixteen-year-
old biological daughter. About two years later, appellant’s misconduct was
discovered when his daughter became pregnant and his wife discovered his
misdeeds. 1 Appellant’s daughter testified that the sexual acts were not consensual
and involved coercion, threats and physical violence. A military judge convicted
appellant, contrary to his pleas, of two specifications of sexual assault and one

1
  As appellant is both the father and grandfather to his daughter’s baby, we will
avoid confusion by referring to the victim as appellant’s daughter, and the child as
appellant’s granddaughter.
HILLIARD—ARMY 20170377

specification of adultery in violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 934 (2012) (UCMJ). 2

       Appellant appeals his conviction and assigns three errors. 3 We address in
depth appellant’s claim that the military judge allowed, over appellant’s objection,
the government to introduce evidence that he had beat his daughter on prior
occasions. We agree with appellant that the military judge erred, but do not find the
error to have prejudiced appellant.

                             LAW AND DISCUSSION

       At trial the government sought to introduce evidence that appellant had hit his
daughter on prior occasions. The defense objected. The military judge overruled
the objection, but allowed a recess for the defense to interview appellant’s daughter
prior to cross-examination.

2
  The military judge sentenced appellant to be dishonorably discharged from the
Army, confined for sixteen years, and to be reduced to the grade of E-1. The
convening authority reduced appellant’s sentence by ten days at action.
3
   Appellant first claims the military judge applied the wrong law in determining the
mens rea necessary to find appellant guilty of sexual assault. See generally Elonis
v. United States, 135 S. Ct. 2991 (2015). The central holding in Elonis is applicable
only in cases where it is necessary to separate wrongful conduct from innocent
conduct. Id. at 2010-11. We do not decide whether a father having sex with and
impregnating his biological daughter is “wrongful” for purposes of Elonis when the
incestuous nature of the relationship was uncharged. Rather, we find that in this
judge alone trial where: (a) the judge made no relevant misstatements of the law; (b)
the defense made no motions preserving the issue they now appeal; (c) the defense
did not request special findings; and (d) after reviewing the entire record, there was
no error that materially prejudiced appellant’s substantive rights.

Appellant also claims the military judge erred in not suppressing the results of a
DNA test. Three different DNA tests all came to the same result - appellant was the
father of his daughter and granddaughter. The first test was questionably conducted.
For the second test, the military judge rejected appellant’s claim that the results
should have fallen within appellant’s attorney-client privilege. The government only
introduced the results of the third test. The military judge’s findings that the third
test was independent of any claim of privilege regarding the second test are not
clearly erroneous.

                                          2
HILLIARD—ARMY 20170377

                                 A. Was there error?

       Military Rule of Evidence [Mil. R. Evid.] 404(b) allows the government to
introduce evidence of an accused’s prior acts for certain purposes. So that we can
get to the heart of the issue, we briefly make the following threshold conclusions of
law and fact.

      First, evidence that appellant hit his daughter on prior occasions was logically
relevant 4 to show why, in the context of a parental sexual relationship, his daughter
did not consent to the sexual acts.

       Second, to be admissible under Mil. R. Evid. 404(b), the government must
notify the accused of its intent to use the evidence “before trial.” The military judge
may excuse the lack of notice for “good cause.”

       Third, the government did not answer the military judge’s repeated questions
as to whether they had provided the required notice to the defense. From this
intransigence, it is a reasonable inference that notice was not provided. We so infer,
and find as fact that no notice was provided.

      Fourth, we assume that the evidence, except for the issue of notice, was
otherwise admissible under Mil. R. Evid. 404(b) to show both that appellant’s
daughter did not subjectively consent, and to demonstrate appellant’s intent and
awareness of the lack of consent. 5

       Fifth, both parties agree on appeal that the defense team was not surprised by
the allegation that appellant had previously hit his daughter. More specifically,
descriptions of the prior assaults were contained in the government’s pretrial
discovery to the defense team and the defense did not claim that they were unaware
of the accusations.

      With these threshold issues resolved, we must next determine whether there
was good cause to excuse the government’s failure to provide timely notice.

      At trial, the government’s only stated excuse for why it did not provide notice
was a mistaken belief that the evidence did not fall within Mil. R. Evid. 404(b). The
government did not offer support for its bare assertion. For example, the trial

4
    See Mil R. Evid. 401-402.
5
  Neither the parties nor the military judge articulated whether the proffered
testimony would be admissible under the test established in Untied States v.
Reynolds, 29 M.J. 105, 109 (C.M.A. 1989).

                                           3
HILLIARD—ARMY 20170377

counsel did not point to case law that he had reasonably relied on. The government
did not point to any reliance on pretrial rulings by the judge. Nor was the lack of
notice due to the evidence being newly discovered.

       On appeal, the government asserts that the trial counsel’s disclosure of the
daughter’s pretrial statements to the defense, “can provide a basis upon which a
military judge can find good cause [to excuse] a lack of pretrial notice.” The
government relies on two unpublished cases from our sister courts in support. 6 We
respectfully disagree.

       There is a difference between when a rule requires disclosure of evidence and
when a rule requires notice. Compare Mil. R. Evid. 304(d) (requiring disclosure of
an accused’s pretrial statements) with Mil. R. Evid. 807(b) (requiring notice of
intent to use residual hearsay exception). An accused should never be surprised
when the government seeks to admit the pretrial statements by the accused that were
previously disclosed to the defense. However, the defense should expect that a
witness’s hearsay statement will be inadmissible when they have not received notice
under the residual hearsay exception and no other hearsay exception applies.

       Or, put another way, there are two different ways a party can be unfairly
surprised at trial. Whether or not the party is aware of the existence of the
“surprise” evidence, the party may nonetheless be surprised by the admissibility of
the evidence. Certainly, a party can be surprised when the opposing party offers
evidence that they were unaware of and which should have been provided in
discovery. But, when the rules of evidence require notice as a condition to
admissibility, a party can reasonably expect that absent such notice (and good cause)
the evidence will not be admissible. Appellant correctly argues that if the
requirements for notice are not enforced, the effect would be to allow a type of trial
by ambush. Trial by ambush is highly disfavored in the military. See United States
v. Trimper, 28 M.J. 460, 468 (C.M.A. 1989); United States v. Adens, 56 M.J. 724,
735 (Army. Ct. Crim. App. 2002).

       The military judge did not specifically state whether or not there was good
cause to excuse the lack of notice; and having reviewed the record we see none.
Instead, the military judge sought to cure the lack of notice by providing the defense
counsel a recess and the opportunity to interview appellant’s daughter prior to cross-
examination.

6
  See United States v. Gerhardt, ACM 37946, 2013 CCA LEXIS 736 at *16 (A.F.
Ct. Crim. App. 14 Aug. 2013); United States v. Reeder, NMCCA 9800702, 2005
CCA LEXIS 211 at *6-8 (N.M. Ct. Crim. App. 30 Jun. 2005).

                                          4
HILLIARD—ARMY 20170377

        As we discuss below, by providing the defense additional time before cross-
examination, the ruling helped ensure that appellant was not prejudiced by the lack
of notice. However, curing prejudice is not the same as preventing an error from
occurring in the first instance. If, absent good cause, a rule requires a party to
provide notice prior to admitting evidence, upon timely objection it is error to admit
the evidence if there is neither notice nor good cause. Harmless error is still error. 7
In a trial, both parties may plan the presentation of their case on the assumption that
each party will be held to the rules. For example, when the defense files no motions
under Mil. R. Evid. 412, and the rule requires pretrial notice, the government may
plan the presentation of its case under the assumption that evidence of the victim’s
sexual behavior or sexual predisposition will not be admitted. See United States v.
Schelmetty, ARMY 20150488, 2017 CCA LEXIS 445 (Army Ct. Crim. App. 30 June
2017).

   In the absence of both notice and good cause, it was error to admit testimony that
appellant had previously hit his daughter over the defense objection.

                       B. Was appellant prejudiced by the error?

    Although we find error, we do not find prejudice for several reasons.

    First, the erroneously admitted evidence touched on whether appellant had ever
previously hit his daughter in moments unrelated to any sexual assault. However,
there was unobjected to and admissible testimony that appellant used physical
violence and coercion to compel his daughter’s submission to his sexual acts.
Appellant’s daughter testified that eighty percent of the time appellant wanted sex
she would voice her opinion that “this is wrong, and I didn’t want to do it anymore.”
In response, appellant told her he would “stop when I feel like it.” On two
occasions, after voicing her non-consent more forcefully appellant used physical
violence, to include hitting her in the face to cause her submission. In the context of
the trial, the erroneous testimony added little to the government’s case and was
submerged underneath the far more probative (and admissible) testimony that
appellant used physical violence directly connected to the sexual assaults.

    Second, as mentioned above, the military judge offered a recess for the defense
to interview appellant’s daughter. The defense did not need the additional time and
did not take the military judge up on his offer.

   Third, at trial, the defense did not claim any specific prejudice from the
erroneous ruling. The defense did not claim, for example, that they had prepared

7
  And it goes without saying that judges cannot intentionally commit harmless
errors.

                                           5
HILLIARD—ARMY 20170377

their case in reliance that the evidence was not admissible; that with additional time
they could have objected to the admission of the evidence under Reynolds; 8 that they
were deprived of the ability to call witnesses to rebut the testimony; or, anything at
all. That is, while we can imagine a case where the defense had detrimentally relied
on the lack of notice to the prejudice of the accused, this is not that case.

       Fourth, this is a case where the victim was both a minor and the daughter of
the accused. “To recognize that a parent or authority figure can exert a moral,
psychological, or intellectual force over a child is merely to recognize the obvious.”
United States v. Palmer, 33 M.J. 7, 10 (C.A.A.F. 1991) (emphasis in original).
While lack of consent is an element of sexual assault under Article 120, UCMJ, and
as such must be proven by the government, the analysis is different when the victim
is the minor child of the accused. See, e.g., Dep’t of Army, Pam. 27-9, Legal
Services: Military Judge’s Benchbook, para. 3-45-1 n.7 (10 Sep. 2014) (instruction
on constructive force for a child in Article 120, UCMJ, cases). Within the context
of the case as a whole, the erroneously admitted evidence did not contribute to the
verdict.

                                   CONCLUSION

        The findings of guilty and the sentence are AFFIRMED.

        Judge SALUSSOLIA and Judge ALDYKIEWICZ concur.

                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:

                                           MALCOLM
                                           MALCOLM H.  H. SQUIRES,
                                                          SQUIRES, JR.
                                                                   JR.
                                           Clerk of Court
                                           Clerk of Court

8
    29 M.J. 105, 109 (C.A.A.F. 1989).

                                          6


180 B.R. 47 (1995)
In re CHADWICK BAY HOTEL ASSOCIATES LIMITED PARTNERSHIP, Debtor.
Bankruptcy No. 94-12560 B.
United States Bankruptcy Court, W.D. New York.
March 24, 1995.
*48 Zalkin, Rodin & Goodman (Andrew D. Gottfried, Neil E. Herman, Scott D. Talmadge, of counsel), New York City, for Banque Indosuez.
Saperston & Day, P.C. (Raymond L. Fink, Jeffrey E. Reed, of counsel), Buffalo, NY, for debtor.
CARL L. BUCKI, Bankruptcy Judge.
Banque Indosuez is the holder of a mortgage which encumbers the debtor's leasehold interest in property in Dunkirk, New York, on which the Sheraton Harborfront Inn is now located. The debtor, Chadwick Bay Hotel Associates, acquired this interest in 1989 from the Dunkirk Industrial Development Agency. The Sheraton Inn was to represent the first phase of the Upland Site Development for the Harborfront Revitalization Project for the City of Dunkirk. Subsequent phases of this project were never completed. Perhaps as a result, the hotel failed to achieve the levels of profitability that were originally projected. In June 1994, the debtor defaulted on the obligations owed to Banque Indosuez. This mortgagee then commenced a foreclosure action in state court on September 6, 1994. Later that same day, Chadwick Bay Hotel Associates filed a petition under Chapter 11 of the Bankruptcy Code. Wishing to continue its foreclosure proceeding, Banque Indosuez has brought the present motion for stay relief.
This Court has heard three full days of testimony and argument relative to the value of the mortgagee's collateral and its eligibility for stay relief. At issue are the provisions of 11 U.S.C. § 362(d)(2), which requires that this Court grant such relief
with respect to a stay of an act against property . . . if
(A) the debtor does not have an equity in such property; and
(B) such property is not necessary to an effective reorganization.
The lien of Banque Indosuez secures an obligation of more than $4,000,000. In addition, the New York Job Development Authority holds a second mortgage to secure an indebtedness which exceeds $165,000, and the City of Dunkirk holds a disputed third mortgage in the amount of $2,750,000. The debtor constructed the hotel in 1989 at an original cost of more than ten million dollars. Although the property remains in excellent physical condition, all parties concede that it has declined substantially in value. The mortgagee's appraiser estimated the collateral to have a value of $1,500,000, while the debtor's expert calculated its worth at $3,550,000. This Court believes that the debtor's appraisal is excessive, primarily because it is based upon overly optimistic projections of future net income and because it utilizes capitalization rates that are too high. An exact valuation is not necessary at this time, however, because neither appraisal recognizes any equity for the debtor in the collateral. Even if the property were assigned a full value of $3,550,000, undisputed liens far exceed that amount.
Having demonstrated an absence of equity, Banque Indosuez is entitled to some form of stay relief if it can satisfy the second condition of section 362(d)(2), that the property *49 not be necessary to an effective reorganization. As the debtor's primary asset, the Harborfront Inn is unquestionably needed if the debtor is to develop a plan to reorganize as an operating entity. But such need alone is not determinative, as it would render section 362(d)(2) meaningless in virtually all cases involving a vital asset of the debtor. Rather, the standard is that which the Supreme Court stated in its decision in United Savings Ass'n v. Timbers of Inwood Forest, 484 U.S. 365, 375-76, 108 S.Ct. 626, 633, 98 L.Ed.2d 740 (1988)[1]:
What [section 362(d)(2)] requires is not merely a showing that if there is conceivably to be an effective reorganization, this property will be needed for it; but that the property is essential for an effective reorganization that is in prospect. This means, as many lower courts, including the en banc court in this case, have properly said, that there must be "a reasonable possibility of a successful reorganization within a reasonable time."
As to this issue, subdivision (g) of section 362 squarely imposes the burden of proof upon the debtor. The question now presented, therefore, is whether Chadwick Bay Hotel Associates has fulfilled that burden to demonstrate the reasonable probability of a timely reorganization.
During the early stages of a Chapter 11 proceeding, courts will give greater deference to a debtor's assertions that an effective reorganization is in prospect. See, e.g., In re Missouri Flats Associates, 86 B.R. 634 (Bankr.E.D.Cal.1988), and In re Ashgrove Apartments of DeKalb County, Ltd., 121 B.R. 752 (Bankr.S.D.Ohio 1990). This is not to say that burdens of proof change at any point in the reorganization process. Rather, it is a recognition that Chapter 11 is a powerful tool to resolve financial problems and offers unique opportunities to negotiate outstanding disputes. In many instances, the passage of time indicates an inability to capitalize upon that opportunity and evidences a decreasing likelihood of a successful reorganization. The proximate filing of a petition, however, creates no presumption of reorganizability. Even when a secured creditor seeks stay relief shortly after a bankruptcy filing, the debtor retains the burden to show that an effective reorganization is in prospect. Although status as a Chapter 11 debtor will itself evidence an opportunity to reorganize, facts and circumstances may indicate a minimal likelihood for success, even before that impression is reinforced by delays in presentment of a plan.
Every reorganization proceeding is unique and presents distinct challenges for achieving plan confirmation. In each case, the Court must assess the key variables which may impact upon the confirmation process. In the context of these variables, the Court must determine whether the debtor has sustained its burden to show that within a reasonable period of time, it can present a confirmable plan.
Prior to its bankruptcy filing, Chadwick Bay Hotel Associates was unable to meet income projections and consequently defaulted on its obligations to Banque Indosuez. It is not the purpose of the present hearing to determine the cause of the debtor's revenue shortfall. Rather, it suffices to note that the debtor attaches blame to the City of Dunkirk and to that municipality's failure to complete subsequent phases of the Harborfront Revitalization Project. For this reason, the debtor commenced an action in state court to recover $6.6 million in damages from the City. The debtor has removed this action to the Bankruptcy Court, where it is now pending. Meanwhile, the City and its Industrial *50 Development Authority remain substantial but disputed creditors in this case. In addition to other unsecured claims, the city holds a third mortgage in the amount of $2,750,000.
In the present case, any confirmable plan must somehow address at least three variables: income, the resolution of claims that the City of Dunkirk may assert against the Debtor, and the liquidation of the debtor's claims against the City. As to income, the feasibility of any plan will unquestionably hinge on the debtor's ability to generate sufficient revenues in excess of current expenses. Income projections alone, however, are insufficient to establish the feasibility of a plan. In addition, the plan proponent must show the sufficiency of available income to address probable liabilities. Thus implicated is the second key variable, namely, a resolution of the debtor's liability to the City of Dunkirk. The potential magnitude of these claims dictates that the plan deal with them in some fashion, though not necessarily through a final settlement of amounts due. Furthermore, 11 U.S.C. § 1129(a)(7) imposes a Chapter 7 test for plan confirmation, that each non-consenting impaired claimant receive or retain at least as much as if the debtor were liquidated. No plan could satisfy the Chapter 7 test without dealing in some fashion with the third variable, it being the liquidation of what may be the debtor's largest asset, its action against the City of Dunkirk.
Counsel for the debtor argues that only five months have transpired since his client's bankruptcy filing, that the debtor is only now realizing the benefits of a new management company that was selected in July 1994, and that the debtor's hotel is a highly seasonal business, with its peak activity occurring during summer months. Contending that the debtor requires the passage of a full business cycle in order to assess its reorganization options, counsel seeks a continuance of the stay until the end of 1995.
It is not the function of this Court to develop or to suggest a reorganization plan which might have a realistic possibility of confirmation. This task is generally reserved to the debtor during the first 120 days of the reorganization process and, thereafter, to the debtor, creditors, equity security holders, and certain committees and trustees. 11 U.S.C. § 1121. Consistent with this function, the debtor carries the burden on the present motion to show that a realistic plan is in prospect. Although counsel's argument seeks to address plan feasibility from the perspective of income, it fails to deal with the other key variables that will impact upon the confirmation process. Specifically, the debtor offers no proposal regarding its disputes with the City of Dunkirk.
The debtor commenced its litigation with the City of Dunkirk only after Banque Indosuez had declared a default on the outstanding bonds. Now in its early stages, this complex litigation offers no promise of any prompt resolution. It may well be that a resolution is not required for confirmation of a plan. The debtor, however, suggests no plan provisions which might address these disputes, whether by means of settlement or by means of a reservation of rights in continuing litigation, or otherwise. In response to the Court's inquiry, counsel merely indicated that perhaps a settlement might be achieved during the coming months. Surely, the secured creditor deserves a more concrete indication of a timetable for treatment of its secured rights. Under United Savings Ass'n v. Timbers of Inwood Forest, 484 U.S. at 382, 108 S.Ct. at 636, Banque Indosuez is not entitled to interest prior to plan confirmation. Rather, the protection of its secured claim must come from its entitlement to stay relief unless the debtor can demonstrate a "reasonable possibility of a successful reorganization within a reasonable time." Id. at 376, 108 S.Ct. at 633. Chapter 11 does not grant debtors a license to hold the rights of secured creditors in indefinite abeyance. Although those rights are stayed to allow the refinement and confirmation of a plan, the continuation of that stay assumes that a confirmable plan is at hand. This Court will not compel Banque Indosuez to await the outcome of uncertain litigation between the debtor and the City of Dunkirk. Having failed even to suggest an appropriate plan treatment for the interests of the City of Dunkirk, the debtor has not met its burden, as defined under United Savings Ass'n v. Timbers of Inwood Forest, id., to show that a successful reorganization is reasonably in prospect.
*51 Section 362(d) requires that this Court grant stay relief when, as here, a secured creditor satisfies the conditions of the second subdivision of that section. The statute, however, accords broad discretion as to the form of appropriate stay relief, which may include "terminating, annulling, modifying, or conditioning such stay." Banque Indosuez urges a complete lifting of the automatic stay. On the other hand, the debtor proposes to make "adequate protection" payments[2] totalling $120,000 during the current calendar year.
The essence of the debtor's proposal is to reimburse Banque Indosuez for the delay in confirmation of a plan to repay its secured claim. For this type of proposal to be meaningful, the debtor must satisfy two requirements: the payment must be feasible and must roughly equal interest at a fair rate of return on the value of the secured claim. On the present facts, these two requirements play against each other and mutually preclude their simultaneous fulfillment. To the extent that this Court were to accept the appraisal of Banque Indosuez that its collateral has a value of $1,500,000, the offer to pay $120,000 per year might be reasonable. However, this appraisal is based upon an income analysis which indicates an inability to complete the proposed payment. On the other hand, the competing appraisal of $3,550,000 is based upon income that is amply sufficient to make this payment. In this instance, however, the sum of $120,000 is insufficient to reimburse Banque Indosuez for delay in providing repayment of its larger secured claim.
The value of property is inherently related to the income that can derive from its use. An increase in projected income may enhance the debtor's ability to pay, but it will also increase the property value which the debtor proposes to protect. At any value between those that the parties have suggested, the debtor's offer is either insufficient, or not feasible, or both. In the absence of a viable alternative that can safeguard the interests of Banque Indosuez, this court will lift the automatic stay to permit commencement of foreclosure proceedings.
As noted earlier, section 362(d) gives to this Court broad discretion to fashion an appropriate form of stay relief. Whenever collateral is essential to the activity of an ongoing business, stay relief may impinge upon interests other than those of the secured creditor. For example, in timing the scheduling of a foreclosure sale, it may be appropriate to balance secured rights against other contractual obligations. Perhaps an inconsequential delay of the foreclosure sale might avoid substantial liability for breach of agreements to allow use of the facilities for weddings, conventions, conferences, or other purposes. Proper planning may minimize the risk of losses which might result from a precipitous or untimely termination of business activity. This Court is also mindful of the rights of innocent third parties, particularly those for whom a slight accommodation may avoid untoward damage or embarrassment. The present record is inadequate to permit a consideration of all relevant factors. Accordingly, the parties are directed to negotiate the terms of an order lifting the stay to permit foreclosure proceedings. Upon submission of this order, counsel should be prepared to show that it incorporates reasonable protections for innocent contractees.[3] If the parties are unable to reach agreement as to such an order within thirty days, they shall advise the Court, which will then draft its own order after such further hearings as may be warranted at that time.
So ordered.
NOTES
[1]  Debtor's counsel creatively argues that the Supreme Court's recitation of this standard is mere dicta that is unnecessary to its ultimate holding that interest does not accrue on undersecured obligations during the effective period of the automatic stay. See In re Rassier, 85 B.R. 524 (Bankr.D.Minn.1988). This court disagrees. As stated in the Timbers decision, "[s]tatutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme. . . ." 484 U.S. at 371, 108 S.Ct. at 630. In his decision, Justice Scalia sought to reconcile "a series of provisions in the Bankruptcy Code dealing with the rights of secured creditors." Id. at 371, 108 S.Ct. at 630. Inasmuch as a reconciliation of the statutory scheme was essential to his reasoning and holding, the elements of that resolution are binding upon this court. Moreover, even if that resolution were dicta, this court finds the reasoning of Justice Scalia to be compelling, and would follow it in any event.
[2]  Under United Savings Ass'n v. Timbers of Inwood Forest, 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988), a debtor need not make adequate protection payments on account of an undersecured obligation. The Court will interpret the debtor's offer of adequate protection as a suggestion that any stay relief be in the form of an order conditioning that stay upon payment of an annual sum of $120,000.
[3]  These protections may include notice to hotel clients, arrangements for operating post-foreclosure, plans for referral to substitute facilities, or agreement as to a schedule for early cancellation or cover of outstanding commitments.


J-S50017-17

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

JOHN J. LYNCH                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

STEWART SMITH AND PETER SMITH

                                                       No. 3511 EDA 2016

                   Appeal from the Order February 18, 2016
            In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): November Term 2015, No. 4081

BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY MOULTON, J.:                         FILED OCTOBER 02, 2017

      John J. Lynch appeals, pro se, from the February 18, 2016 order

entered in the Philadelphia County Court of Common Pleas granting

preliminary objections filed by Stewart and Peter Smith (“the Smiths”). We

affirm.

      The trial court set forth the following factual history:

          [Lynch] alleges that [the Smiths] are liable for the actions
          of [] Andrew Gittelmacher. Mr. Gittelmacher is not named
          as a defendant in this case. [Lynch’s c]omplaint alleges
          that [he] settled an unrelated premises liability case
          against [the Smiths] filed in the Philadelphia Municipal
          Court. In that case, [Lynch] asserted that his car had
          been ruined by sugar while being parked at the same
          property at issue in this case, 9351 Old Bustleton Avenue[,
          Philadelphia County.] Mr. Gittelmacher was named as a
          [d]efendant in that case.

             In this case, [Lynch] alleges that . . . Peter Smith
          “failed to control” Gittelmacher after Gittelmacher offered
          money to a Mr. Rasheed Reid, also not a defendant in this
J-S50017-17

           case, to “assault and eject” [Lynch]. [Lynch]’s [c]omplaint
           further alleges that Gittelmacher sprayed [Lynch] with
           WD40 [lubricant spray] and “verbally assaulted” him on
           June 13, 2015. [Lynch] also asserts that Gittelmacher
           “would harass and annoy” [Lynch] and that [the Smiths]
           did not “stand up and speak out or stop” Gittelmacher.
           The [c]omplaint alleges [Lynch]’s income has been
           severely impacted by Gittelmacher. Nowhere does the
           [c]omplaint assert that Gittelmacher was acting on behalf
           of or as an agent or employee of [the Smiths]. Indeed no
           relationship whatsoever is alleged between Gittelmacher
           and the [Smiths].

Opinion, 4/6/16, at 2.

       On December 1, 2015, Lynch filed the above-referenced complaint.

On December 29, 2015, the Smiths filed preliminary objections, based on

insufficient specificity and in the nature of a demurrer for failure to state a

cause of action upon which relief could be granted. On January 14, 2016,

Lynch responded to the preliminary objections1 and, on January 20, 2016,

filed a supplement to that response. On February 18, 2016, the trial court

sustained both of the Smiths’ preliminary objections.2       On February 26,

____________________________________________

       1
         Lynch attached an “amended complaint” to his response. However,
the docket reveals that Lynch never filed an amended complaint with the
trial court.

       2
        The trial court’s order did not indicate whether it dismissed Lynch’s
complaint with or without prejudice, see Order, 2/18/16, which raises an
issue as to whether the trial court’s order was final under Pennsylvania Rule
of Appellate Procedure 341 and therefore appealable under section 742 of
the Judicial Code. However, because the trial court sustained the Smiths’
preliminary objection in the nature of a demurrer, we conclude that the trial
court dismissed Lynch’s complaint with prejudice because “an order granting
preliminary objections in the nature of a demurrer is a final order and is,
(Footnote Continued Next Page)

                                           -2-
J-S50017-17

2016, Lynch filed a notice of appeal with the Commonwealth Court. Upon

Lynch’s application, on October 25, 2016, the Commonwealth Court

transferred the appeal to this Court.

      Lynch’s sole issue on appeal is as follows:

           Should the matter be reversed, and remanded because the
           complaint although made in [l]ong hand did comply with
           Pa. Rule of Civil Procedure 1019(c) in pleading the
           performance or occurrence of conditions precedent, it is
           sufficient to aver generally that all conditions precedent
           have been p[er]formed or have occur[r]ed, which [Lynch]
           did do concerning the assaults, and batteries of his person
           while working on the premises.

Lynch’s Br. at 6 (unpaginated) (suggested answer omitted).

      Lynch argues that the trial court improperly sustained the Smiths’

preliminary objections.        Our standard of review on such matters is well

settled:

           [O]ur standard of review of an order of the trial court
           overruling or granting preliminary objections is to
           determine whether the trial court committed an error of
           law. When considering the appropriateness of a ruling on
           preliminary objections, the appellate court must apply the
           same standard as the trial court.

              Preliminary objections in the nature of a demurrer test
           the legal sufficiency of the complaint. When considering
           preliminary objections, all material facts set forth in the
           challenged pleadings are admitted as true, as well as all
           inferences reasonably deducible therefrom. Preliminary
           objections which seek the dismissal of a cause of action
           should be sustained only in cases in which it is clear and
                       _______________________
(Footnote Continued)

therefore, appealable to this Court immediately.”       D’Elia v. Folino, 933
A.2d 117, 121 (Pa.Super. 2007).

                                            -3-
J-S50017-17

           free from doubt that the pleader will be unable to prove
           facts legally sufficient to establish the right to relief. If any
           doubt exists as to whether a demurrer should be
           sustained, it should be resolved in favor of overruling the
           preliminary objections.

Haun v. Community Health Sys., Inc., 14 A.3d 120, 123 (Pa.Super.

2011) (internal citations and quotations omitted).                With respect to

preliminary objections for insufficient specificity in a pleading, this Court has

stated that:

           [t]he pertinent question under [Pennsylvania] Rule [of Civil
           Procedure] 1028(a)(3) is whether the complaint is
           sufficiently clear to enable the defendant to prepare his
           defense, or whether the plaintiff’s complaint informs the
           defendant with accuracy and completeness of the specific
           basis on which recovery is sought so that he may know
           without question upon what grounds to make his defense.

Rambo v. Greene, 906 A.2d 1232, 1236 (Pa.Super. 2006) (internal

quotations omitted).

       Lynch asserts that the Smiths “are liable to [him] for failure to take

action to prevent their silent partner[,] Andrew Gittelmacher[,] from

assaulting[] and battering [Lynch].” Lynch’s Br. at 11 (unpaginated). Lynch

asserts that the Smiths, to whom he refers in his brief as business owners, 3

are “duty bound, obligated, and absolutely responsible for the safety and

security of all other persons on the premises.” Id. In short, Lynch argues

that the Smiths had a duty to control Gittelmacher, who Lynch refers to as

____________________________________________

       In his complaint, Lynch did not refer to the Smiths as “business
       3

owners,” nor did he refer to Gittelmacher as a “silent partner” of the Smiths.

                                           -4-
J-S50017-17

the Smiths’ “silent partner,” and who Lynch further alleges the Smiths knew

to have violent tendencies. We disagree.

     A review of Lynch’s complaint shows that not only did Lynch fail to

plead when (or in some instances, where) these alleged assaults occurred,

he also failed to allege that Gittelmacher was acting as an agent or

employee on behalf of the Smiths.      Rather, the complaint merely asserts

that Lynch brought causes of action for “termination of [his] part time

mechanical work at 9351 Old Bustleton Avenue . . . [and for the Smiths’]

failure to provide a safe environment at the times [he] was on location doing

mechanical work.”      Compl. at 1.     Further, Lynch’s incoherent factual

averments lend no support to these claims, instead listing a series of

incidents between Lynch, Gittelmacher, and Rasheed Reid. See id. at 2-5.

We agree with the trial court’s conclusions that Lynch’s complaint “provides

no specific assertions as to what occurred or why there was a duty to

defend” and “does not state any cognizable legal claim.” Opinion, 4/6/16, at

3. Accordingly, we also conclude that the trial court appropriately sustained

the Smiths’ preliminary objections.

     Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/2/2017

                                      -5-


Order entered November 17, 2017

                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                     No. 05-17-00960-CR

                     MARCOS EVANGELISTO ESCOBAR, Appellant

                                               V.

                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 363rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F17-00354-W

                                           ORDER
       We REINSTATE this appeal.

       On November 6, 2017, we abated this case for a hearing to determine whether appellant

is entitled to court-appointed counsel in this appeal. On November 15, 2017, April Smith filed a

docketing statement in which she states she is appointed counsel for appellant. We DIRECT the

Clerk to list April Smith as appointed counsel for appellant and to transmit all future

correspondence to her at P.O. Box 870550, Mesquite, Texas 75187-0550.

       In the docketing statement, counsel indicates she has requested the reporter’s record and

that appellant is indigent. The clerk’s record and reporter’s record are due December 1, 2017.

                                                      /s/   LANA MYERS
                                                            JUSTICE


575 P.2d 481 (1978)
98 Idaho 883
Leslie W. PETERSON, Plaintiff-Respondent,
v.
CONIDA WAREHOUSES, INC., a Connecticut Corporation, Defendant-Appellant.
No. 12128.
Supreme Court of Idaho.
February 23, 1978.
Daniel A. Slavin, Stephan, Slavin & Eaton, Twin Falls, for defendant-appellant.
Bert Larson, Parry, Robertson, Daly & Larson, Twin Falls, for plaintiff-respondent.
SHEPARD, Chief Justice.
This is an appeal from a judgment following trial entered in favor of plaintiff-respondent Leslie W. Peterson and against Conida Warehouses, Inc., defendant-appellant, for the value of a portion of a bean *482 crop grown on Peterson property. It was delivered to Conida under the provisions of an agreement between Conida and third-party defendants Grimms who were tenant farmers on the Peterson property. We affirm.
Essentially two questions are presented for decision. The first is whether an earnest money agreement for the purchase of the Peterson farm vested some type of title in the Grimms which validated the transfer of the otherwise landlord's share of the crop of beans to Conida. Also presented is the question of whether in the absence of any land title in the Grimms, they nevertheless were able to transfer title to Peterson's share of the bean crop.
On September 6, 1972, the Grimms and Peterson entered an earnest money agreement contemplating the purchase of the Peterson property. The Grimms made a $4,000 earnest money payment and the total purchase price was agreed as $280,000, but no terms of the payment thereof were set forth. That agreement also made no provision in regard to taxes, rents, insurance, interest, date of possession or broker's commission. Obtention of an FHA loan was clearly contemplated and was a condition of the agreement.
During October or November of 1972, Peterson and Jim Grimm discussed the financing of the agreement which was expected from Farmers Home Administration and since Grimm's lease on other property had expired, it was agreed that Grimm would then take possession of the Peterson property. Grimm did so take possession, did the fall work on the farm and expended certain monies in improvements. During 1973 the Grimms continued to occupy and operate the Peterson farm and some time during April, May or June the Grimms and Peterson, after they determined that the FHA money would not be forthcoming, terminated the earnest money agreement and the $4,000 paid thereon was returned to the Grimms. The Grimms and Peterson then entered into a rental agreement for the Peterson farm wherein the seed and other farm expenses were to be shared on a basis of 60 percent contributed by the Grimms and 40 percent by Peterson. In return therefor, the crops would be shared on the same 60 percent to the Grimms and 40 percent to Peterson.
In the meantime and without the knowledge of Peterson, the Grimms and Conida entered into an agreement whereunder Grimms would receive seed beans which they would plant and the bean crop therefrom would be delivered to Conida at the rate of $10 per hundredweight. At the time of that agreement, Jim Grimm told the Conida field man that he, Grimm, was buying the Peterson property. During that negotiation the Conida representative made no further inquiry regarding the terms of the property acquisition nor did he see the earnest money agreement. There is no indication that the Conida representative made any effort to contact Peterson, make any inquiry regarding the real property transaction or Grimm's authority to sell the crop.
During the middle of September the Grimms harvested and delivered the bean crop to Conida and advised Conida of the Peterson-Grimm 60-40 crop sharing agreement. Peterson did not become aware of the Grimm-Conida agreement until December 1973 when Peterson and the Grimms were settling their account. In January 1974, Conida sent Peterson two checks representing what Conida claimed to be the Peterson interest in the bean crop, i.e., 40 percent at $10 per hundredweight. One check was for "pink" beans and the second for "bonus" beans (small white beans). Peterson cashed the check for the bonus beans, but returned the check for the pink beans to Conida with a request that Conida issue a warehouse receipt for the pink beans. Conida did not issue the requested warehouse receipt and on May 9, 1974, Peterson again wrote Conida requesting that Conida sell the Peterson share of the pink beans at the then current market price and if the market price was less than $50 per hundredweight, Conida was to first consult with Peterson's attorney. Conida did not comply with Peterson's request and did not sell the pink beans.
*483 Peterson brought action to recover the value of his share of the bean crop. Conida answered and filed a third-party complaint against the Grimms for indemnification of whatever loss Conida might suffer in the Peterson action. Following trial, judgment was rendered in favor of Peterson and against Conida for the market value of Peterson's pink beans. The trial court held that Peterson's cashing of the bonus beans check constituted a sale and Peterson's recovery thereon was denied. No appeal was taken from that portion of the judgment and no issue exists on appeal. The trial court further denied Conida's claim against the third-party defendant Grimms for indemnification. Although appeal was taken from that portion of the judgment, it was settled and dismissed.
Appellant Conida first argues that by virtue of the execution of the earnest money agreement between Peterson and the Grimms, equitable title to the farm passed to the Grimms and they therefore had the capacity to enter into a binding contract for the disposition of the crops grown thereon. The trial court held to the contrary in its decision on the motion to amend the findings and conclusions. That holding of the trial court is clearly supported by the record. The earnest money agreement itself was so unsettled, ambiguous and devoid of necessary terms and conditions as to be unenforceable and it conferred no rights on the Grimms. See Matheson v. Harris, 96 Idaho 759, 536 P.2d 754 (1975); Luke v. Conrad, 96 Idaho 221, 526 P.2d 181 (1974); C.H. Leavell & Co. v. Grafe & Assocs., Inc., 90 Idaho 502, 414 P.2d 873 (1966). The trial court held that the Grimms and Peterson entered into the earnest money agreement on a contingency basis, i.e., that if the desired financing for the Grimms was unavailable, the Grimms would occupy the farm on a tenant basis with a share crop arrangement. Since financing did not become available, the Grimms occupied the farm as tenants on a share crop basis. That holding is sustained by the evidence and will not be disturbed.
Appellant Conida argues that notwithstanding the landlord-tenant relationship between Grimm and Peterson and the lack of any land title in Grimm, Grimm was nevertheless able to contract with Conida for the disposition of Peterson's share of the bean crop. As recognized by the trial court, such theory is directly contrary to the law of this state as expressed in Washburn-Wilson Seed Co. v. Alexie, 54 Idaho 727, 35 P.2d 990 (1934). There, as here, "Appellant relies upon D.M. Ferry and Co. v. Smith, 36 Idaho 67, 209 P. 1066, which on the face of it unquestionably and squarely supports its position. The action there being between a landlord basing his claim on a crop share lease, as respondent does here, and the seed company" on a contract declared by the court to be one of the bailment with the lessee. 54 Idaho at 729, 35 P.2d at 990-91. The Court in Washburn-Wilson held that D.M. Ferry & Co., supra, had been overruled and that under a crop share lease the landlord and tenant are cotenants in the crop and "* * * one tenant in common may not in any way dispose of the share or interest of any other cotenant without such other cotenant's consent * * *." 54 Idaho at 730, 35 P.2d at 991.
In Washburn-Wilson a landlord-tenant relationship existed on a crop sharing basis. The tenant contracted with a seed company for the furnishing of seed, with the crop thereon to be delivered to the seed company. A dispute arose between the seed company and the landlord as to the ownership of the landlord's share of the crop as determined by the landlord-tenant agreement. The Court held "Respondent [landlord] herein being a co-owner of any crops to be grown upon his land, his cotenant, the lessee, could made no contract with appellant [seed company] affecting his title to such one-third interest * * *." Id.
Hence, we determine that Washburn-Wilson is on all fours with the case at bar and is controlling. We decline appellant's invitation to overrule Washburn-Wilson. Appellant argues that Washburn-Wilson has been overruled or at least modified by Kent v. Campbell, 80 Idaho 57, 324 P.2d 398 (1958). Insofar as indicated by the opinion *484 in Kent, no landlord-tenant (cotenant) relationship existed and the dispute there existed between a seed company and growers who admittedly were in privity with the seed company through the execution of seed and crop agreements. Since no problem of privity existed in Kent v. Campbell, supra, that Court correctly gave no attention to Washburn-Wilson and such case was not even discussed much less overruled.
The decision of the trial court was correct in all respects and is affirmed. Costs to respondents.
McFADDEN and DONALDSON, JJ., concur.
BAKES, J., concurs in result.
BAKES, Justice, concurring specially:
I do not see how the Court can conclude that Washburn-Wilson Seed Co. v. Alexie, 54 Idaho 727, 35 P.2d 990 (1934), is controlling without overruling Kent v. Campbell, 80 Idaho 57, 324 P.2d 398 (1958). The theory in Kent was that the bailor seed company, by its bailment contract, had retained title to the beans that it provided to the bailee-farmer and to the crops produced from the beans as a result of the bailee's farming efforts. Under this theory, no agreement between the bailee and his landlord for division of the crop grown could in any way take away the bailor-seed company's title. Unless the Kent reasoning is modified to accommodate competing claims there is no way that a sharecrop landlord can obtain title to a crop that is the subject of a bailment agreement such as that involved in this case. What the majority has done here is to create such a policy exception to the Kent rule in favor of landlords (and perhaps in subsequent litigation other lien claimants) without actually expressly saying so.
In my view, the bailment theory accepted in Kent should be rejected by this Court, not merely sidestepped as we have done in this case. I agree with Justice Bistline that it is stretching the concept of bailment beyond its breaking point to assert that one may deliver beans to another to plant them and harvest the crop and still retain title to the crop produced by the planting.
When new value is added to the personal property of one person by the labors of another, the law of accession determines which party has title to the product of the materials and labor. See R. Brown, The Law of Personal Property § 6.1 (3d ed. W. Raushenbush 1975). "According to the famous Digest of the Emperor Justinian, `If the new object can be reduced to the materials of which it was made, it belongs to the owner of the material; if not, it belongs to the person who made it.'" Id. § 6.2 at 50. More recently, courts have looked not only at changes in the character of the property, but also at the proportionate contributions of labor and material to the value of the resultant product. See id. at 51.
Applying these tests to the bailment of seeds to a farmer, it is apparent that the seed company should not retain title to the resultant crop. The crop cannot be reduced to the same seeds from which it grew, and it will ordinarily be worth infinitely more than were the seeds. The farmer's land, water, fertilizer and labor produces a product so transformed and so enhanced that title to the resultant crop should belong to the farmer. The seed company, of course, would retain contractual rights against the farmer. However, these rights do not give the seed company any claim to the crop itself, particularly as against the rights of a sharecrop landlord, whose proprietary interest would arise concurrently with that of his farmer-tenant.
BISTLINE, J., concurs.
BISTLINE, Justice, specially concurring.
Both parties have treated the Grimms-Conida contract as a "bailment," both in the trial court and in this Court where we have properly decided the appeal on the theories on which the action was tried. It should be noted, however, that the word "bailment" does not appear in the written agreement. Equally missing are the words "bailee" and "bailor." Nonetheless, Conida purported to contract on the basis that title to all seed *485 beans and to all the crops which grew from the same remained in Conida, with Grimms to be docked $1.00 per hundredweight for each specific percentage graded below the minimum of a U.S. No. 1.
While I have little trouble in agreeing that this is not a sale, to my mind it does not necessarily follow that it is a bailment. To indulge in the fiction of calling a bailment that which is not a bailment does very little to promote jurisprudence as a science. My vote for affirmance, therefore, should not be construed as implying any conviction that the arrangement between Grimms and Conida was a bailment. Obviously, once those seed beans were planted, it was impossible for the Grimms to return the "bailed goods," which, in my view, is always the right of a bailee. Industrial Leasing Corp. v. Thomason, 96 Idaho 574, 532 P.2d 916 (1974).
The tradition of referring to seed contracts as "bailments" appears to have originated in Idaho in the case of D.M. Ferry & Co. v. Smith, 36 Idaho 67, 209 P. 1066 (1922). In that case, the Court upheld the seed company's claim, as bailor, to ownership of all the crop in question as against the claim of a landlord who was by written lease entitled to one-half of all crops grown on his land, and who had not participated at all in the lessee-bailee's contract with the seed company. In so concluding, the Idaho Supreme Court relied heavily upon a Montana case, decided just one year earlier, involving the same seed company, D.M. Ferry & Co. v. Forquer, 61 Mont. 336, 202 P. 193, 29 A.L.R. 642 (1921). It was the Montana court which first observed such a contract as being one founded in bailment; the Idaho court merely fell into line, without making any independent analysis of the legal status which existed between the lessee and the seed company. The Montana holding was somehow molded out of language found in Coggs v. Bernard, 2 Ld. Raym. 909, 92 Eng. Reprint, 107, 5 Eng. Rul. Cas. 247 (1702), wherein, as the Montana court observed,
Chief Justice Holt classified the different kinds of bailments, and, among other things, said: "The fifth sort is when goods or chattels are delivered to be carried or something is to be done about them for a reward to be paid by the person who delivers them to the bailee who is to do the thing about them." D.M. Ferry & Co. v. Forquer, 61 Mont. 336, 202 P. at 195.
Even so, the Montana court, in evident realization that it was on tenuous ground in applying 18th century English law of common carriers to Montana seed contracts, quickly added:
It may be that Chief Justice Holt, in thus expounding the common law, did not have in contemplation a seed contract of the character of the one before us, but it is the malleability of the common law, its adaptability to changed conditions, that is its distinguishing characteristic and greatest virtue, and it may be asserted with confidence that the modern law of bailments finds justification in the rules announced in Coggs v. Bernard, in whatever varied form they may be promulgated. Id.

In Washburn-Wilson Seed Co. v. Alexie, 54 Idaho 727, 35 P.2d 990 (1934), the Court continued to uphold the validity of Idaho's Ferry Co. bailment doctrine as still "defining the rights between the seed company and the party contracting with it." The Ferry Co. case was overruled only so far as necessary to hold that a landlord is co-owner of any crops to be grown upon his land, and that his cotenant (his lessee), bailment contract or no, can "make no contract with [the seed company] affecting his [the landlord's] title to such one-third interest."[1]
I submit that it is unrealistic to continue to indulge in the fiction that a bean, which is irretrievably planted in the ground, and whose very existence as a bean ceases as it turns into a plant, may be the subject of a bailment, entitling the supplier of the bean *486 to claim all the beans produced from that plant. The parties essentially have entered into a joint venture, with the seed company supplying the seed beans, and the grower, here the Grimms, supplying the land in which the beans may be planted, together with all the labor which goes into planting, cultivating, harvesting, and hauling to the warehouse. The Idaho court, in our Ferry Co. case, in quoting from the Montana Ferry Co. case, came close to the right answer where it spoke of "a share of the net proceeds of the adventure." 36 Idaho at 73, 209 P. at 1067. Here the grower's share was agreed upon at so much per hundredweight, which seems to be what he was to receive for services rendered in the adventure, and not, by any stretch of the imagination, as compensation for storing the beans one inch apart in rows in the ground.
NOTES
[1]  This doctrine was derived from the intervening case, Devereaux Mtg. Co. v. Walker, 46 Idaho 431, 268 P. 37 (1928).


     Case: 14-11339      Document: 00513322644         Page: 1    Date Filed: 12/28/2015

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                FILED
                                                                             December 28, 2015
                                      No. 14-11339
                                                                               Lyle W. Cayce
                                                                                Clerk
TODD WAYNE SUMMERS,

                                                 Plaintiff-Appellant

v.

UNITED STATES FEDERAL BUREAU OF PRISONS, (BOP), JORGE
PARTIDZ, M.D., ROBERTO ACOSTA, HSA; BRIAN ALEXANDER, PA; A.
SINAVSKY, M.D.; JANE DOE, MDC Los Angeles; UNITED STATES OF
AMERICA,

                                                 Defendants-Appellees

                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:13-CV-138

Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Todd Wayne Summers, federal prisoner # 11515-091, filed a complaint
in which he asserted a claim under the Federal Tort Claims Act (FTCA), as
well as claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).                   The action
concerned the medical treatment provided to Summers, which culminated in

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-11339    Document: 00513322644     Page: 2   Date Filed: 12/28/2015

                                 No. 14-11339

colon surgery. The magistrate judge (MJ) dismissed Summers’s claims as
frivolous and denied his motion to proceed in forma pauperis (IFP) on appeal,
certifying that the appeal was not taken in good faith. By moving for IFP
status in this court, Summers is challenging the MJ’s certification. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      A review of Summers’s filings reveals no argument that the MJ erred in
dismissing his § 1983 and Bivens claims. Although pro se briefs are afforded
liberal construction, even pro se litigants must brief arguments in order to
preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). As
Summers fails to identify any error in the MJ’s analysis as to these claims, it
is the same as if he had not appealed these issues. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Summers challenges the district court’s determination that his FTCA
claim was time barred. “[W]here it is clear from the face of a complaint filed
in forma pauperis that the claims asserted are barred by the applicable statute
of limitations those claims are properly dismissed” as frivolous. Gartrell v.
Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). The limitations period for an FTCA
claim is, as relevant here, six months after the mailing of the denial by the
agency presented with the claim. See 28 U.S.C. § 2401(b).
      The BOP mailed its denial of Summers’s administrative tort claim on
January 29, 2013. Thus, in order to be timely, Summers was required to file
his FTCA claim in the district court on or before July 29, 2013. See § 2401.
      In determining that the FTCA claim was untimely the MJ looked to the
date that Summers’s complaint was received by the district court, August 9,
2013. Summers contends, however, that he deposited his complaint for mailing
on July 24, 2013, and that the FTCA claim was timely filed under the prison
mailbox rule. Pursuant to the prison mailbox rule, a pro se prisoner is deemed

                                       2
    Case: 14-11339    Document: 00513322644     Page: 3   Date Filed: 12/28/2015

                                 No. 14-11339

to have filed a document in federal court when he deposits it in the prison mail
system. Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998).
      It cannot be said that it is “clear from the face of [the] complaint” that
Summers’s FTCA claim is barred by the applicable statute of limitations.
Gartrell, 981 F.2d at 256. Whether the facts ultimately establish a claim
against the United States under the FTCA is not a question to be answered at
this stage of the proceedings. See Howard v. King, 707 F.2d 215, 220-21 (5th
Cir. 1983).   Accordingly, Summers’s motion to proceed IFP on appeal is
granted, and the judgment is vacated with respect to the dismissal, as time
barred, of Summers’s FTCA claim. The FTCA claim is remanded for further
proceedings. The judgment is affirmed with respect to all other issues.
      IFP MOTION GRANTED; AFFIRMED IN PART, VACATED AND
REMANDED IN PART.

                                       3


412 Pa. Superior Ct. 261 (1992)
603 A.2d 208
John J. FIFFICK, an individual, Appellant,
v.
GAF CORPORATION, in its own right and as Successor-in-Interest to the Ruberoid Company, Raymark Industries, Inc., in its own Right and as Successor-in-Interest to Raybestos Manhattan, Inc., the Celotex Corporation, in its own Right and Successor-in-Interest to the Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Keene Corporation, in its own Right and as Successor-in-Interest to Baldwin Hill Co., Baldwin-Ehret Hill, Inc., Ehret Magnesia Manufacturing Company and to the Insulation Division of Mundet Cork Company, to Mundet Company and to Keene Building Products, Eagle-Picher Industries, Inc., Owens-Corning Fiberglas Corporation, Owens-Illinois, Inc., Garlock, Inc., Pittsburgh Corning Corporation, Armstrong World Industries, Inc., in its own Right and as Successor-in-Interest to Armstrong Cork Co. and Armstrong Contracting and Supply Co., H.K. Porter Company, Inc., in its own Right and as Successor-in-Interest to Southern Textile Company, Formerly Southern Asbestos Company, Fibreboard Corporation, in its own Right and as Successor-in-Interest to Fibreboard Paper Products Corporation, Pabco, Plant Rubber & Asbestos Works, and Plant Asbestos Co., A.P. Green Refractories Company, Dresser Industries, Inc., and its Division Harbison Walker Refractories, Kaiser Aluminum & Chemical Corporation, and its Division Kaiser Refractories, and North American Refractories Company, Appellees.
Superior Court of Pennsylvania.
Submitted September 23, 1991.
Filed February 12, 1992.
*262 Janice M. Savinis, Pittsburgh, for appellant.
Daniel P. McDyer, Pittsburgh, for Gaf Corp., appellee.
Jane Charlton, Pittsburgh, for Raymark Industries, appellee.
William R. Haushalter, Pittsburgh, for Keene Corp., appellee.
Patrick R. Riley, Pittsburgh, for Owens-Corning, appellee.
*263 John L. Vitsas, Pittsburgh, for Owens-Illinois and H.K. Porter appellees.
John A. Bacharach, Pittsburgh, for Garlock, appellee.
Robert M. Owsiany, Pittsburgh, for Dresser Industries, appellee.
Michael A. Martin, Pittsburgh, Kaiser Aluminum, appellee.
Charles S. Warren, Pittsburgh, for North American Refractories, appellee.
Before WIEAND, POPOVICH and MONTGOMERY, JJ.
WIEAND, Judge:
In this case to recover damages for injuries allegedly resulting from exposure to asbestos, the trial court held that plaintiff's evidence was insufficient to show that he had been exposed to asbestos products manufactured by Owens Corning Fiberglas Corporation and, therefore, entered summary judgment in favor of said defendant. The plaintiff, John J. Fiffick, has appealed. After careful review of the record, we affirm.
From 1947 until his retirement in 1985, Fiffick labored in various capacities at the Wheeling-Pittsburgh Steel Plant in Monessen. In November, 1988, he filed an action against numerous manufacturers and distributors of asbestos products, alleging pulmonary and emotional injuries caused by exposure to airborne asbestos fibers at his place of employment. After discovery, Owens Corning filed a motion for summary judgment based on Fiffick's inability to establish exposure to any asbestos product which it had manufactured or sold. The trial court, following argument and upon consideration of affidavits, discovery depositions and answers to interrogatories, granted the motion for summary judgment.
A motion for summary judgment is properly granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, *264 show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Pa.R.C.P. 1035(b). In Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989), the Court said:
In passing upon a motion for summary judgment the court must examine the record in the light most favorable to the nonmoving party.... It is not part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried.... Any doubt must be resolved against the moving party.... The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings.... The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 288, 515 A.2d 980, 981 (1986) (citations omitted).
Once a motion for summary judgment is made and is properly supported, however, the nonmoving party may not simply rest upon the mere allegations or denials in his or her pleadings. Pa.R.C.P. 1035(d). In such a case, Rule 1035(d) requires that "by affidavits or as otherwise provided in this rule, [the nonmovant] must set forth specific facts showing that there is a genuine issue for trial." The purpose of Rule 1035(d) "`is to assure that the motion for summary judgment may "pierce the pleading" and to require the opposing party to disclose the facts of his claim or defense.'" Roland v. Kravco, Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986) (quoting Goodrich Amran [sic] 2nd § 1035(d):5 at 460 (1976) (emphasis added by Roland court), appeal denied, 517 Pa. 599, 535 A.2d 1058 (1987). Thus, once the motion for summary judgment has been properly supported, the burden is upon the non-movant to disclose evidence that is *265 the basis for his or her argument resisting summary judgment. Id., 355 Pa.Superior Ct. at 501, 513 A.2d at 1034.
Id., 391 Pa.Superior Ct. at 346-347, 571 A.2d at 402 (footnotes omitted).
In an asbestos exposure case, summary judgment is properly entered in favor of a defendant when the plaintiff is unable to produce evidence from which a jury can find that the defendant's products were the cause of the plaintiff's injuries. In Eckenrod v. GAF Corporation, 375 Pa.Super. 187, 544 A.2d 50 (1988), allocatur denied, 520 Pa. 605, 533 A.2d 968 (1988), the Superior Court said:
In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer's product. Wible v. Keene Corporation, No. 86-4451 Slip op. (E.D.Pa. August 19, 1987) [available on WESTLAW, 1987 WL 15833]; Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983) aff'd 349 Pa.Super. 610, 503 A.2d 44 (1985). Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product's use. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985).
Id., 375 Pa.Superior Ct. at 191, 544 A.2d at 52. See also: Bushless v. GAF Corp., 401 Pa.Super. 351, 357, 585 A.2d 496, 499 (1990); Samarin v. GAF Corp., supra, 391 Pa.Super. at 351, 571 A.2d at 404.
In the instant case, James DeRocco, another steelworker, stated that a product known as Kaylo and manufactured by Owens Corning had been purchased and used at the steel plant in Monessen. However, he could not say when or where the Kaylo was used. This was important because in 1972 Owens Corning discontinued the use of asbestos in the *266 manufacture of Kaylo. After 1972, the product was free of all asbestos.
The plaintiff's own testimony also fails to disclose that he was ever exposed to asbestos fibers emanating from Kaylo manufactured by appellee. Although plaintiff, in his deposition testimony, said that he had worked periodically within one to twenty-five feet of pipecoverers and that he had inhaled dust generated by the workers' manipulation of asbestos materials, he could only place himself in proximity to Kaylo in the late 1970s and early 1980s. As we have already observed, however, the Kaylo manufactured and sold by Owens Corning after 1972 contained no asbestos.
The plaintiff-appellant argues that a jury could infer exposure to asbestos from DeRocco's testimony because, according to expert testimony, asbestos fibers drift far from their point of origin after they have been released into the air. On this basis, he argues that some of the asbestos fibers from Kaylo must have been inhaled prior to 1972. A similar argument was made in Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d Cir.1990). In a careful and well reasoned analysis of the evidence and correct application of Pennsylvania law, the Court concluded that expert testimony of fiber drift was valuable in assisting a plaintiff in meeting the Eckenrod standard, but that by itself it was insufficient to satisfy the quantum of evidence required by Eckenrod. The Robertson Court said:
Of the three Eckenrod requirements, regularity, frequency and proximity, the fiber drift theory bears on proximity alone; it sheds no light on how often a particular product was used, nor does it establish how often a particular worker was present in an area into which fibers may have drifted. It is only when regularity and frequency are established that testimony implicating fiber drift and proximity becomes relevant.
. . . .
Our reading of Pennsylvania case law and the law in other jurisdictions bearing on causation in asbestos cases *267 convinces us that competent factually based expert testimony regarding fiber drift may be offered by a plaintiff where it rests on a properly laid foundation showing the frequency with which a defendant's product was used, the area in which it was used and the regularity of a plaintiff's employment within a zone covered by the reach of fiber drift. While the fiber drift theory may be useful in extending the zone of proximity, it cannot, standing alone, allow a plaintiff to circumvent the other requirements of Eckenrod.

Robertson v. Allied Signal, Inc., supra at 383 (footnote omitted).
Here, there was no evidence of when appellee's product had been used, where it had been used, or how frequently it had been used. There also was no evidence that the plaintiff-appellant had worked at or near a place where appellee's asbestos product had been used or manipulated. The motion for summary judgment could not be defeated by a mere showing that Owens-Corning's product had been present in a large steel plant at unspecified times and in unquantifiable amounts. Therefore, the entry of summary judgment by the trial court was proper. Appellant failed to show that he had been exposed to a product containing asbestos which had been manufactured by Owens-Corning.
Judgment affirmed.
POPOVICH, J., files a concurring statement.
POPOVICH, Judge, concurring.
I concur in the result. However, in my view, it was unnecessary to consider whether the Eckenrod standard was met in this case. As stated by the majority, the only evidence that the product Kaylo was present at the steel plant in Monessen was the deposition testimony of James DeRocco, another steelworker. His testimony was that Kaylo, manufactured by Owens Corning, was purchased and used at the plant. The majority points out that while Kaylo was still produced during the time of the appellant's *268 exposure to asbestos, it was free of all asbestos after 1972. There is no evidence that the purchase of the Kaylo product by the plant was made prior to 1972 or that the Kaylo used at the plant was in fact the Kaylo containing asbestos or the Kaylo which did not contain asbestos.
We therefore agree that appellant's allegations against Owens Corning cannot withstand appellee's motion for summary judgment but do so without necessity of reaching the Eckenrod analysis.