Filed 5/14/19; Certified for Publication 6/5/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LAOSD ASBESTOS CASES B287831 

 (JCCP No. 4674)

JIMMY METTIAS et al.,

Plaintiffs and Appellants,

v.

THE PEP BOYS MANNY MOE & 

JACK OF CALIFORNIA et al.

Defendants and Respondents.

 

 (Los Angeles County

 Super. Ct. No. BC538462)

APPEAL from a judgment of the Superior Court of Los Angeles 

County, James H. Kaddo, Judge. Affirmed.

Dean Omar Branham, Benjamin H. Adams, Ka’Leya Q. Hardin; 

Farrise Law Firm, Simona A. Farrise and Sharon J. Arkin for Plaintiffs 

and Appellants.

Dentons US, Lisa L. Oberg, Jennifer J. Lee, Frank K. Berfield, 

Emily K. Ayers and Jules S. Zeman for Defendants and Respondents.
2

Philip and Febi Mettias, husband and wife, died from 

complications associated with mesothelioma (Philip in 2013, Febi in 

2014), a cancer caused by asbestos exposure. Their adult children, 

plaintiffs Nancy Basta, Jimmy Mettias, and Mark Mettias, brought the 

instant wrongful death action against various defendants. By the time 

of trial, only two defendants remained, Honeywell International, Inc. 

(Honeywell) and The Pep Boys—Manny, Moe & Jack (Pep Boys). 

Plaintiffs pursued causes of action for strict product liability (premised 

on failure to warn and design defect/consumer expectation theories) and 

negligence. As here relevant, plaintiffs’ theory at trial was that Philip 

performed perhaps as many as 24 brake repairs on the family Chrysler 

Lebaron in the late 1980’s using asbestos-containing Bendix brake pads, 

which were made by Honeywell and which he purchased at the Pep 

Boys store located in Victorville, California. Plaintiffs presented expert 

testimony that Philip’s exposure to asbestos from those repairs, and 

Febi’s exposure from laundering the clothes he wore while making those 

repairs, contributed to their contracting mesothelioma. 

The jury returned a special verdict in favor of Honeywell and Pep 

Boys. Plaintiffs appeal the verdict solely as to Pep Boys.1 They make 

two contentions: (1) the trial court erred in not giving CACI Nos. 400 

and 401, which are general negligence instructions, in addition to CACI 

Nos. 1220, 1221, and 1222 which are negligence instructions specifically 

 

1 Appellants filed a notice of appeal as to the judgment in favor of 

Honeywell, but in their opening brief raised no issues as to Honeywell, and 

we granted Honeywell’s motion to dismiss the appeal as to it.
3

adapted for alleged negligence by (among others) a supplier of a 

defective product; and (2) certain misstatements by the court in reading 

the instructions to the jury prejudiced the outcome. We disagree with 

their contentions and affirm.

BACKGROUND

Evidence2

Philip and Febi, along with their older son Jimmy and daughter 

Nancy, moved from Cleveland to Apple Valley, California, during the 

summer of 1986 or 1987. They drove in their family car, a Chrysler 

Lebaron, which Philip had purchased new. Jimmy had just finished 

kindergarten; he started first grade after arriving in Apple Valley. The 

Lebaron was the only family car for about four years, until Philip 

bought a second car, a Ford Taurus. 

According to the Vehicle Manufacturer’s Association 

specifications, the Chrysler Lebaron for model years 1984-1987 (the 

years that would encompass the model purchased by Philip) had 

original asbestos-containing rear brakes supplied by Bendix. One of 

 

2 Because we resolve this case largely on the absence of substantial 

evidence to support plaintiffs’ request for general negligence instructions, we 

base our evidentiary summary on plaintiff’s evidence. We note that Pep Boys 

produced significant defense evidence (none of which is referenced in 

appellant’s briefing) tending to prove that it was unlikely Philip contracted 

mesothelioma from his brake repairs, and that Philip and Febi had been 

exposed to crocidolite asbestos for many years before emigrating to the 

United States from Egypt (they lived in an area in Cairo near an operating 

asbestos-pipe factory which had a documented unusually high rate of 

mesothelioma). 
4

plaintiffs’ expert witnesses, Dr. William Longo, an engineer, testified 

that the Lebaron would require that or similar brand asbestoscontaining rear brakes as replacements. 

Honeywell manufactured Bendix brakes and supplied them to, 

among other retailers, Pep Boys. According to Joel Cohen, the

corporate representative for Honeywell, Bendix brakes contained 

asbestos until 1983.3 Dr. Longo testified that he examined various sets 

of Bendix brake drums manufactured in different unspecified years. 

Each set of brakes tested contained chrysotile asbestos contaminated 

with trace amounts of tremolite asbestos. He did not know if those 

brakes were manufactured before or after 1987. 

Pep Boys Senior Vice President Joe Cirelli testified that Pep Boys 

sold Bendix brake products, although he could not recall the first time 

he saw a Bendix product at a Pep Boys’ store. Lilia Magana, a longtime employee at the Pep Boys store on Washington Boulevard in Los 

Angeles, testified that her store sold Bendix brakes from 1983 to 1994. 

Magana did not recall ever seeing an asbestos warning on the boxes of 

Bendix brakes, and she was not informed that brakes sold by Pep Boys 

contained asbestos. 

In the years from 1987 to 1989, while the Mettias family was 

living in Apple Valley, Jimmy Mettias was six to seven years old. 

During that period, he witnessed his father performing what he later 

(as an older child) learned was brake work on the Lebaron. His father 

 

3 He also testified that beginning in 1973, Honeywell put an asbestos 

warning on the brake cartons. 
5

would use his breath to blow out the brake area and wipe it with a rag 

to see if the brakes needed to be changed. This process would create 

some dust. If the brakes needed changing, he would remove old brakes 

and install new ones. Before putting the new brakes on the car, he 

would use sand paper to sand them for a couple of minutes. The 

sanding created dust that his father appeared to breath. He believed 

that his father changed the brakes “at least a couple of times a year,” 

though at his deposition he testified that he remembered only three 

brake jobs on the Lebaron from approximately 1987 to 1989. 

At that young age, Philip did not go with his father to get 

replacement brakes and he did not know the brand of brakes his father 

purchased and used. However, beginning in the early 1990’s, Jimmy 

began accompanying his father to the Pep Boys store on Seventh Street

in Victorville to buy automotive parts, including brakes. According to 

Jimmy, Philip would ask for Bendix brakes. Jimmy saw the boxes that 

the brakes came in, and did not see any warnings on the boxes or the 

brakes. 

Mark Mettias, the Mettiases’ youngest son (born in 1990), testified 

that starting in 2002, he witnessed his father do brake repairs on the 

family’s vehicles, including the Lebaron (he remembered a total of seven 

vehicles during that period). The repairs occurred “frequently,” that is, 

he felt “like every few months.” In the process, his father would remove 

and sand the brake pads. Mark accompanied his father to the Pep Boys 

store in Victorville to buy car parts. His father would always ask for 

Bendix brake products. He could not say how many times he witnessed 
6

his father buy brake products, except “more than once,” perhaps “two or 

three times.”

Febi Mettias did the family’s laundry, including washing the 

clothing that Philip wore while doing the brake work on the family 

vehicles. In video testimony played at trial, Febi testified that she 

washed the laundry “[e]very other day” and had “a habit to shake the 

clothes” putting them in the washing machine. After shaking the 

clothes out, she could see dust in the air and feel the dust on her hands. 

She also cleaned the laundry area after the laundry was complete, using 

a towel and a broom, which also created dust. 

Plaintiffs’ counsel posed a hypothetical question to their medical 

expert, Dr. Barry Horn, premised on the following assumed facts: 

(1) plaintiffs’ family Lebaron had two rear wheel brake drums, 

containing a total of four brake shoes of an asbestos-containing design, 

(2) Philip repaired the brake shoes twice a year, beginning in summer 

1987 and ending in December 1989, resulting in a total of 24 brake shoe 

replacements, and (3) during the repair work he sanded the shoes using 

sandpaper creating dust. Based on these assumptions, Dr. Horn opined 

that the brake repairs Philip performed were a substantial factor in 

causing his mesothelioma, because in doing the repairs he was exposed 

to free asbestos fibers created by the sanding. Assuming that Febi 

laundered the clothing Philip wore (shaking them before putting them 

in the washer) and the rags he used during that work, Dr. Horn also 

opined that Febi was exposed to asbestos fibers, which was a 

substantial factor in causing her mesothelioma. 
7

Verdict

The jury returned a special verdict in favor of Honeywell and Pep 

Boys. On plaintiff’s strict liability (failure to warn) claim, the jury 

found that “the defendants’ asbestos-containing products ha[d] potential 

risks that were known or knowable in light of the scientific and medical 

knowledge that was generally accepted in the scientific community on 

or after 1987.” But the jury found that “the potential risks of 

defendants’ asbestos-containing products [did not pose] a substantial 

danger to persons using or misusing defendants’ products in an 

intended or reasonably foreseeable way.” On plaintiffs’ design defect 

claim, the jury answered “No,” to the question whether “defendants’ 

asbestos-containing products fail[ed] to perform as safely as an ordinary 

consumer would expect when used or misused in an intended or 

reasonably foreseeable way.” Finally, on plaintiff’s negligence claim, 

they answered “No” to the question whether the defendants were 

negligent. 

DISCUSSION

CACI Nos. 4.00 and 4.01

Plaintiffs contend that the trial court erred in denying their 

request to instruct the jury pursuant to CACI Nos. 400 and 401. 

According to plaintiffs, at trial they pursued two theories of negligence 

against Pep Boys. The first was liability premised on Pep Boys’ 

negligence as a supplier of Bendix asbestos-containing brake pads and 

shoes used by Philip in home break repairs. That theory was covered by 

CACI Nos. 1220 (Negligence–Essential Factual Elements), 1221 
8

(Negligence–Basic Standard of Care), and 1222 (Negligence–

Manufacturer or Supplier–Duty to Warn). The trial court granted their 

request to give those instructions.4 Their second theory, they maintain, 

 

4 The parties have not provided us with copies of the written instructions 

given by the court. We rely on the record of the court’s oral instructions. 

Pursuant to CACI No. 12.20, the court instructed: “Plaintiffs claim that 

Philip Mettias and Febi Mettias were harmed by Defendants’ negligence and 

that they should be held responsible for that harm. To establish this claim, 

the plaintiffs must prove all of the following: 

“1. That the defendants manufactured or sold the products;

“2. That the defendants were negligent in manufacturing or selling the 

products;

“3. That Philip Mettias and Febi Mettias were harmed; and

“4. That the defendants’ negligence was a substantial factor in causing 

Philip Mettias’ and Febi Mettias’ harm and the plaintiffs’. [sic]” 

Pursuant to CACI No. 12.21, the court instructed: “A manufacturer or 

seller is negligent if it fails to use the amount of care in manufacturing or 

selling the products that a reasonably careful manufacturer or seller would 

use in similar circumstances to avoid exposing others to a foreseeable risk of 

harm. [¶] In determining whether the defendants used reasonable care, you 

should balance what [the defendants] knew or should have known about the 

likelihood and severity of potential harm from the product against the burden 

of taking safety measures to reduce or avoid the harm.” 

Pursuant to CACI No. 1222, the court instructed: “Plaintiffs claim that 

the defendants were negligent by not using reasonable care to warn about the 

product’s dangerous condition or about facts that made the product likely to 

be dangerous. To establish this claim, the plaintiffs must have proved all of 

the following: [¶] 1. That defendants manufactured or sold the product; [¶] 

2. That the defendants knew or reasonably should have known that the 

product was dangerous or was likely to be dangerous when used or misused

in a reasonably foreseeable manner; [¶] 3. That defendants knew or 

reasonably should have known that users would not realize the danger; [¶] 

4. That the defendants failed to adequately warn of the danger; [¶] 5. That 

a reasonable manufacturer or seller under the same or similar circumstances 

would have warned of the danger; [¶] 6. That Philip and Febi Mettias were 

harmed; and [¶] 7. That defendants’ failure to warn was a substantial factor 

in causing Philip Mettias’ and Febi Mettias’ harm.” 
9

was a general negligence theory based on a duty of care other than as a 

supplier of Bendix brakes, for which they requested, but were denied, 

the pattern instructions for general negligence, CACI Nos. 400 and 

401.5

Plaintiffs contend that they were entitled to CACI Nos. 400 and 

401. They are mistaken. It is of course true that “a litigant is entitled 

to instructions on every theory advanced by him which finds support in 

the evidence.” (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 543-544, 

overruled on different grounds in Soule v. General Motors Corp. (1994) 8 

Cal.4th 548, 574.) But here, the only viable theory of negligence was 

that Pep Boys violated its duty of due care as a supplier of Bendix 

brakes. As to Philip, the evidence tended to show that from 1987 

through 1989, Philip performed brake repairs on the family’s Chrysler 

Lebaron using replacement asbestos-containing Bendix brakes 

purchased at Pep Boys. In doing the repairs, he was exposed to free 

asbestos fibers created by sanding the brake pads, and that exposure 

 

5 CACI No. 400 states the elements of negligence: “[Name of plaintiff] 

claims that [he/she] was harmed by [name of defendant]’s negligence. To 

establish this claim, [name of plaintiff] must prove all of the following: [¶] 

1. That [name of defendant] was negligent; [¶] 2. That [name of plaintiff] 

was harmed; and [¶] 3. That [name of defendant]’s negligence was a 

substantial factor in causing [name of plaintiff]’s harm.”

CACI No. 401 states the basic standard of care: “Negligence is the 

failure to use reasonable care to prevent harm to oneself or to others. [¶] A 

person can be negligent by acting or by failing to act. A person is negligent if 

he or she does something that a reasonably careful person would not do in the 

same situation or fails to do something that a reasonably careful person 

would do in the same situation. [¶] You must decide how a reasonably 

careful person would have acted in [name of plaintiff/defendant]’s situation.”
10

was a substantial factor in causing his mesothelioma. Likewise, as to 

Febi, the evidence of Pep Boys’ alleged negligence was tied to Philip’s 

brake repairs (and Pep Boys’ duty as a supplier of the Bendix brakes 

Philip used), namely, that her laundering the clothes and rags Philip 

used in doing the repairs exposed her to asbestos fibers, and that 

exposure was a substantial factor in causing her mesothelioma. 

This evidence, supporting instructions based on Pep Boys’ duty of

care as a supplier of asbestos-containing Bendix brakes, was the precise 

theory covered by CACI Nos. 1220, 1221, and 1222. “A party is entitled 

upon request to correct, nonargumentative instructions on every theory 

of the case advanced by him which is supported by substantial evidence. 

The trial court may not force the litigant to rely on abstract 

generalities, but must instruct in specific terms that relate the party's 

theory to the particular case.” (Soule v. General Motors Corp., supra, 8 

Cal.4th at p. 572, italics added.) That is what the trial court did here–

instruct in specific terms relating to the theory of negligence support by 

the evidence. 

In their opening brief, plaintiffs fail to explain precisely why, on 

the evidence presented, they were entitled not only to CACI Nos. 1220, 

1221, and 1222, but also to CACI Nos. 400 and 401. Plaintiffs simply 

review some of the evidence they presented in general fashion, and 

assert in conclusory terms that “[w]hile some of this evidence may have 

equally supported the Mettias family’s product liability theory of 

recovery against Pep Boys, it also supported a theory of recovery based 

on general negligence.” But they do not articulate a cognizable theory 
11

based on the evidence under which Pep Boys owed a duty of care to 

them that was not encompassed by CACI Nos. 1220, 1221, and 1222. 

Not until their reply brief do they attempt to articulate the 

specific evidence which they contend mandated the giving of CACI Nos. 

400 and 401. They assert that they produced evidence tending to show 

not simply that Pep Boys was negligent in permitting Philip and Febi to 

be exposed to asbestos without adequate warnings and precautions 

based on Philip’s purchase and installation of Bendix brakes. They 

contend that they produced evidence that Philip was exposed to 

asbestos when he was physically present in the Victorville Pep Boys 

store. But the evidence they point to is clearly insufficient to justify 

general negligence instructions. 

They cite evidence that the Victorville store had service repair 

facilities where employees performed brake repairs. However, there 

was no evidence at trial that Philip was exposed to asbestos fibers 

migrating into the retail area from any repairs in the service bays. 

Moreover, we note that plaintiffs fail to mention Jimmy’s testimony 

that when he went with Philip to the Pep Boys store, they would pick 

up parts and leave, a process of perhaps ten to fifteen minutes in the 

store. They did not stay there longer. 

Next, plaintiffs rely on testimony by Lilia Magana and Dr. 

William Longo regarding the return of used brake cores. Magana, who 

worked at the Pep Boys store on Washington Boulevard in Los Angeles, 

not the Victorville store, testified that customers would return used

products to the Los Angeles store, including brake cores, for a cash 

refund. All such products were returned in the box. In her store, the 
12

box would be handed to the cashier, who would put it in an open bin 

behind the customer service counter where they were kept. Customers 

were not allowed anywhere near the bin. Dr. Longo testified that used 

cores have the potential of releasing significant amounts of asbestos 

“especially if they are manhandled in some manner.” He was asked 

whether he had an opinion whether used cores contained in boxes 

brought back to the store had “the potential of releasing significant 

amounts of asbestos” if “dumped in a box without a lid.” He replied:

“[t]he second part, yes. It’s unclear how much . . . release you are 

having in the box while you are carrying them, but if they’re dumped 

into a container with other shoes, yes.”

This evidence does not support a general negligence theory based 

on asbestos exposure while Philip was present in the store. There was 

no evidence that the Victorville Pep Boys had an open bin for storing 

boxes containing used cores behind the counter as did the Los Angeles 

store in which Magana worked. Moreover, even if it can be assumed 

that the Victorville store handled returned cores in the same way as the 

Los Angeles store, Magana testified that the bin was not located in an 

area where customers would be anywhere near it. Moreover, she did 

not testify that the boxes were simply “dumped” in the bin (an essential 

fact to Dr. Long’s opinion). She testified that the cashier would “put 

them in a bin.” Further, even if the returned boxes of cores at the 

Victorville store were simply “dumped,” Dr. Longo’s opinion that there 

was a potential to release significant amounts of asbestos was not 

evidence that such a release ever occurred, or that Philip was ever 

exposed to such a release during his brief stays in the store. Finally, 
13

there was no evidence that even if Philip was exposed to asbestos fibers 

while in the Victorville store, such exposure was a substantial factor in 

causing his and Febi’s mesothelioma.

In short, there was no evidence to support a theory of negligence 

against Pep Boys other than its alleged violation of its duty of care as a 

supplier of asbestos-containing brakes. 

Assuming for the sake of argument that the trial court should 

have instructed pursuant to CACI Nos. 400 and 401, it is not 

reasonably probable that a different result would have been reached. 

(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim).) 

Plaintiffs’ evidence against Pep Boys, even on the theory that it was a 

supplier of asbestos containing brakes, was exceedingly weak. 

Plaintiffs make no attempt to demonstrate how, on the entire record, 

including the significant defense evidence (which they do not even

mention in the context of potential prejudice; see fn. 2 , ante) the result 

would have been any different if CACI Nos. 400 and 401 had been 

given. The actual findings made by the jury bely any notion of 

prejudice. On plaintiff’s strict liability claims, the jury found: (1) that 

“the potential risks of defendants’ asbestos-containing products [did not 

pose] a substantial danger to persons using or misusing defendants’ 

products in an intended or reasonably foreseeable way”; and (2) that 

“defendants’ asbestos-containing products [did not] fail to perform as 

safely as an ordinary consumer would expect when used or misused in 

an intended or reasonably foreseeable way.” And the jury also made a 

general finding that Pep Boys was not negligent. On the instructions 

given, that finding meant that the jury concluded Pep Boys did not 
14

breach a duty of care in supplying Bendix brake products (CACI Nos. 

1220, 1221) and that Pep Boys did not breach a duty of care by any 

failure to warn (CACI No. 1222). Given these findings and the evidence 

presented, we are at a loss to see how instructing on a general 

negligence theory might have changed he result. Any error in failing to 

instruct using CACI Nos. 400 and 401 was harmless.

Misstatements in Oral Instructions

Plaintiffs contend that the court’s oral reading of certain 

instructions was erroneous and prejudicial. The contention is meritless.

On plaintiffs’ strict product liability claims, the trial court 

instructed pursuant to modified versions of CACI No. 1203 (design 

defect-consumer expectation test) and CACI No. 1205 (failure to warn). 

As to the element of causation in the first reading of CACI No. 1203, the 

court stated that plaintiffs had to prove that the product’s failure to 

perform as expected “was a substantial factor in causing Philip Mettias’ 

and Febi Mettias’ harm as well as the plaintiffs’ harm.” (Italics added.) 

In reading CACI No. 1205, the court stated that plaintiffs had to prove 

that the lack of sufficient warning “was a substantial factor in causing 

Philip Mettias’ and Febi Mettias’ and the plaintiffs’ harm.” (Italics 

added.) As the trial court was about to make the same statement about 

proof of plaintiffs’ harm in the reading of CACI No. 1220 regarding the 

negligence claim, plaintiffs’ counsel asked for a sidebar, at which he 

pointed out that the language requiring proof of plaintiffs’ harm was 

incorrect, as this was a wrongful death action. 
15

The court agreed to reread the instructions, and delete the 

reference to proof of plaintiffs’ harm. In reinstructing on CACI No. 

1203, the court informed the jury in relevant part that plaintiffs had to 

prove “that the product’s failure to perform safely was a substantial 

factor in causing Philip Mettias’ and Febi Mettias’ harm. The 

instruction should stop there. I’m eliminating from what I had read to 

you before the words ‘as well as the plaintiffs’ harm.’ You are not to 

consider that.” In rereading CACI No. 1205, the court told the jury in 

relevant part that plaintiffs had to prove “that the lack of sufficient 

warnings was a substantial factor in causing Philip Mettias’ and Febi 

Mettias’ harm. And I am eliminating the words that I have read to you 

before ‘and the plaintiffs’ harm.’ You are only to accept the instruction 

as I have changed it and in its original form.” (Italics added.) In 

rereading CACI No. 1220, the court instructed that plaintiffs had to 

prove “that defendants’ negligence was a substantial factor in causing 

Philip Mettias’ and Febi Mettias’ harm. And that is the complete 

instruction that you are to follow in reaching a verdict in this case.” 

The court then read CACI No. 1222, and did not include any reference 

to plaintiffs’ having to prove that they were harmed. 

As best we understand plaintiffs’ contention, it is that although 

the court corrected the reference to proof of plaintiffs’ harm in CACI No. 

1203 and 1220, and never mentioned the point in CACI No. 1222, the 

court did not make an adequate correction in the CACI No. 1205, 

because as to that instruction the court stated, “You are only to accept 

the instruction [CACI No. 1205] as I have changed it and in its original 

form.” (Italics added.) According to plaintiffs, this reference to 
16

accepting CACI No. 1205 as changed and in its original form might 

have confused the jury into erroneously believing that to prove all of 

plaintiffs’ claims, plaintiffs had to prove that they were exposed to 

asbestos as well as Philip and Febi.

The contention is, to say the least, farfetched, and it ignores 

virtually the entire record except for four words (“and in its original 

form”) spoken by the court in its rereading of CACI No. 1205. 

Regardless, we need not dwell on the issue. As we have already noted, 

the special verdict returned by the jury shows that the jury rejected 

each cause of action on an essential premise of Pep Boys’ alleged 

liability unrelated to the issue of causation of harm. Thus, even were 

we to assume that the jury was somehow confused as to whether 

plaintiffs had to prove that plaintiffs themselves were exposed to 

asbestos, we would conclude that the error was not prejudicial. 

(Cassim, supra, 33 Cal.4th at p. 800.) 
17

DISPOSITION

The judgment is affirmed. Pep Boys shall recover its costs on 

appeal.

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.
Filed 6/5/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LAOSD ASBESTOS CASES B287831 

 JCCP No. 4674

JIMMY METTIAS et al.,

Plaintiffs and Appellants,

v.

THE PEP BOYS MANNY MOE & 

JACK OF CALIFORNIA et al.

Defendants and Respondents.

 

 (Los Angeles County

 Super. Ct. No. BC538462)

ORDER GRANTING

PUBLICATION

THE COURT:*

The opinion in the above-entitled matter filed on May 14, 2019, was 

not certified for publication in the Official Reports. Good cause appearing, 

it is ordered that the opinion in the above entitled matter be published in 

the official reports.

*MANELLA, P. J. WILLHITE, J. COLLINS, J.