IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

OWEN J. ROGAL, D.D.S., P.C., 

 Plaintiff, 

v. 

SKILSTAF, INC., 

 Defendant. 

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CIVIL ACTION NO. 

3:06-cv-00728-MHT

DEFENDANT’S BRIEF IN SUPPORT OF

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Charles A. Stewart III 

Bradley Arant Rose & White LLP

The Alabama Center for Commerce 

401 Adams Avenue, Suite 780 

Montgomery, AL 36104 

Telephone: (334) 956-7700 

Facsimile: (334) 956-7701 

Amelia T. Driscoll

Bradley Arant Rose & White LLP

One Federal Place 

1819 Fifth Avenue North 

Birmingham, AL 35203-2104 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

Attorneys for Defendant 

Skilstaf, Inc. 

Case 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 1 of 19
TABLE OF CONTENTS 

I. STATEMENT OF UNDISPUTED FACTS....................................................2 

A. Introduction and Plan Provisions ..........................................................2 

B. Plaintiff’s Claim for Coverage ..............................................................5 

II. THE JUDICIAL STANDARD OF REVIEW.................................................8 

III. RRI CORRECTLY DENIED PLAINTIFF’S CLAIMS...............................10 

IV. CONCLUSION..............................................................................................15 

CERTIFICATE OF SERVICE ................................................................................17 

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IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

OWEN J. ROGAL, D.D.S., P.C., 

 Plaintiff, 

v. 

SKILSTAF, INC., 

 Defendant. 

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)

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CIVIL ACTION NO. 

3:06-cv-00728-MHT

DEFENDANT’S BRIEF IN SUPPORT OF 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant Skilstaf, Inc. (“Skilstaf” or “Defendant”) hereby submits this 

brief in support of its Motion for Summary Judgment. Defendant’s Motion for 

Summary Judgment should be granted and Plaintiff’s claims dismissed because it 

was correctly determined that the claims Plaintiff submitted in connection with its 

treatment of Dianna Berry were not covered under the terms of the Skilstaf Group 

Health Plan (the “Plan”). 

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I. STATEMENT OF UNDISPUTED FACTS 

A. Introduction and Plan Provisions

1. Skilstaf is an employee leasing company that provides its clients with 

employee benefits and human resources services including, but not limited to, 

health care benefits. See Aff. of Kim Liner at ¶ 3, attached hereto as Exhibit 1 

(“Liner’s Affidavit”).1

 

2. As an employee leasing company, Skilstaf enters into co-employment 

agreements with its clients under which the client leases its employees to Skilstaf 

and Skilstaf simultaneously assigns the employees back to the client. See id. 

3. Although Skilstaf’s clients retain direct control and supervision of 

their employees, Skilstaf becomes the co-employer of its clients’ employees for 

specified purposes such as payroll, benefits, and workers’ compensation. See id. at 

¶ 4. 

4. Because Newspaper Processing, Inc. is one of Skilstaf’s clients, 

Skilstaf provides group health coverage under the Plan to Newspaper Processing, 

Inc. employees and their spouses. See id. at ¶ 5. 

 

1

 The following documents are attached to the Affidavit of Robert Johnson (“Johnson’s 

Affidavit”) and are being filed under seal pursuant to the Court’s January 11, 2007, order: (1) 

Exhibit A – the Plan’s Summary Plan Description (“SPD”), which describes the health benefits 

available under the Plan to eligible employees, Skilstaf-00001 through Skilstaf-00085; and (2) 

Exhibit B – excerpts from the Administrative Record. For ease of reference, pages within each 

respective exhibit will be referred to in this brief by their bates-labeled page numbers only, such 

as “Skilstaf-00125.” 

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5. Dennis Berry (“Mr. Berry”) is an employee of Newspaper Processing, 

Inc., and, during the time relevant to the Complaint, was a participant in the Plan. 

See id. at ¶ 6. 

6. Accordingly, during the time relevant to the Complaint, Skilstaf 

provided group health coverage under the Plan to Mr. Berry and to his wife, 

Dianna Berry (“Mrs. Berry”). See id. 

7. The Plan, which is an employee welfare benefits plan, is governed by 

the Employee Retirement Income Security Act of 1974, 29 U.S.C § 1001 et seq.

(“ERISA”). See Skilstaf-00003. 

8. Skilstaf is the sponsor of the Plan. Skilstaf-00060. 

9. As the Plan Sponsor, Skilstaf is responsible for funding the Plan. Id.

(confirming that Skilstaf is the entity responsible for making “contributions to the 

plan” based “upon its determination of the amounts necessary to timely pay 

benefits and expenses”). 

10. Risk Reduction, Inc. (“RRI”) is the Plan Administrator. Skilstaf00060. 

11. The Plan vests full discretionary authority in RRI to interpret the 

Plan’s terms and provisions. Skilstaf-00058 (making clear that the “Plan 

Administrator has full discretion to interpret the Plan and to apply [the Plan’s] 

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claim review procedures”), Skilstaf-00060 (defining RRI as the Plan 

Administrator). 

12. Coverage under the Plan is expressly limited “to medically necessary 

treatment . . . .” Skilstaf-00017; see also Skilstaf-00054. 

13. “[M]edically necessary” treatment is defined, in pertinent part, as that 

treatment which: 

[T]he plan administrator deems to be the shortest, least expensive or 

least intense level of treatment, care, or service rendered or supplied 

to the extent required to diagnose or treat an injury or sickness. The 

service or supply must be consistent with the covered person’s 

medical condition; known to be safe and effective by most physicians 

who are licensed to treat the condition at the time the service is 

rendered; and not provided primarily for the convenience of the 

covered person or physician. 

Skilstaf-00056. 

14. Therapy that is rehabilitative, physical, or chiropractic in nature is 

covered only where “there is documented continuous physical improvement” in the 

condition that is being treated. See Skilstaf-00032, Skilstaf-00033. 

15. Several types of medical benefits are specifically excluded from 

coverage under the Plan. See Skilstaf-00039-Skilstaf-00042. 

16. As specifically relevant to the instant dispute, the Plan’s SPD makes 

clear that Skilstaf need not cover “[s]ervices, expenses, or supplies that the plan 

administrator determines are not medically necessary.” Skilstaf-00039. 

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B. Plaintiff’s Claim for Coverage

17. In January 2005, Plaintiff began treating Mrs. Berry’s back, hip, jaw, 

ear, neck, and shoulder pain with radiofrequency therapy.2

 See, e.g., Skilstaf01754 (attaching a representative example of the operative reports that Plaintiff’s 

employees drafted in connection with their repeated treatments of Mrs. Berry); see 

also Ex. 3 at ¶ 5, attached hereto (verifying that Plaintiff’s treatment of Mrs. Berry 

began on or about January 14, 2005). 

18. Plaintiff continued to treat Mrs. Berry until June 2005. See Ex. 3 at 

Ex. A. 

19. Between January and June 2005, Plaintiff treated Mrs. Berry on 

twenty-five separate occasions. See id. 

20. Each radiofrequency treatment that Plaintiff provided Mrs. Berry cost 

more than $7,000.00. See id. 

21. Ultimately, Plaintiff submitted medical bills totaling $189,900.00 in 

connection with its treatment of Mrs. Berry. See id. at ¶ 6. 

22. In July 2005, Intracorp Physician Consultative Services’ Medical 

Director, Dr. Marsha M. Silberstein, M.D., conducted an independent review of 

Mrs. Berry’s medical records for the purpose of determining, among other things, 

 

2

 According to one website, Plaintiff is in the business of treating its patients’ chronic pain 

through a non-invasive radiofrequency procedure whereby Plaintiff’s employees place 

pinpointed heat directly into their patients’ injured muscles. See Ex. 2, attached hereto. 

Case 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 7 of 19
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whether Plaintiff’s radiofrequency treatments were medically necessary and 

whether Mrs. Berry’s alleged condition was improving as a result of those 

treatments. See Skilstaf-00192-Skilstaf-00193. Dr. Silberstein concluded that: 

[T]hese [radiofrequency] procedures are not medically necessary 

based on the information provided. There is no documentation of the 

patient’s showing improvement. The frequency of the surgical 

procedures exceeds any guideline that I know of. . . . Considering the 

information presented for review as summarized above, for this 

particular patient, it is my opinion that the requested procedures are 

not medically necessary for this patient. There is no documentation of 

the patient’s medical history, physical exam, trial of conservative 

medical management, or concurrent multidisciplinary pain 

management modalities. There is no documentation of any 

improvement. In addition, radiofrequency ablation of nerves is 

unproven in the published peer reviewed medical literature to provide 

improved long term net health outcomes and is not medically 

necessary per CIGNA guidelines. 

Skilstaf-000193. 

23. Although RRI had mistakenly processed Plaintiff’s claims as an initial 

matter, RRI notified Plaintiff that its claims were not covered under the terms of 

the Plan once it realized that (1) Plaintiff’s treatments were not medically 

necessary, and (2) there had been no documented physical improvement in Mrs. 

Berry’s alleged condition. See Johnson’s Affidavit at ¶ 9; Skilstaf-00093 

(notifying Plaintiff that its claims were not covered under the Plan because, among 

other things, there was no “‘documented physical improvement’ from [its] 

treatment”); see also Skilstaf-01829-Skilstaf-01830 (2/18/05 operative report), 

Skilstaf-01788-Skilstaf-01789 (3/18/05 operative report), and Skilstaf-01649-

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Skilstaf-01650 (6/3/05 operative report) (verifying that, on a scale of 1 to 10, Mrs. 

Berry characterized her right neck pain as 3 out of 10 in February, 5 out of 10 in 

March, and 3 out of 10 in June). 

24. On September 6, 2005, Plaintiff’s counsel submitted a letter 

purporting to “appeal” RRI’s decision to deny Plaintiff’s claims. Skilstaf-00087. 

Plaintiff’s counsel attached a “summary of progress reports indicating 

improvement of [Mrs. Berry] on a per visit basis” to his September 6, 2005, 

correspondence. Id. 

25. Neither Plaintiff nor Plaintiff’s counsel has submitted any 

documentation that refutes RRI’s determination, based on Dr. Silberstein’s 

independent review of Mrs. Berry’s medical records, that Plaintiff’s repeated 

radiofrequency treatments were not medically necessary. Johnson Affidavit at ¶ 

10. 

26. RRI affirmed its initial denial decision on or about September 26, 

2005, noting that the “additional material that [Plaintiff’s counsel had] provided 

contain[ed] insufficient evidence that Ms. Berry ha[d] experienced documented 

physical improvement from those treatments.” Skilstaf-00094. 

27. Plaintiff filed the instant lawsuit on or about October 6, 2005, seeking 

coverage under the Plan for the costs it had incurred in treating Mrs. Berry. See

Ex. 3. 

Case 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 9 of 19
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II. THE JUDICIAL STANDARD OF REVIEW 

Under ERISA, “a deferential standard of review [is] appropriate when a 

[decision maker] exercises discretionary powers.” Firestone Tire & Rubber Co. v. 

Bruch, 489 U.S. 101, 111 (1989). If a plan’s terms vest discretion in a decision 

maker to interpret that plan and there is no conflict of interest, then a court will 

uphold the decision maker’s judgment unless the decision maker has abused its 

discretion. Id.

The Plan vests full discretionary power in RRI to interpret the Plan, to 

determine all inquiries arising in the Plan’s administration, application, and 

interpretation, and to apply the Plan’s claim review procedures. Skilstaf-00058, 

Skilstaf-00060 (defining RRI as the Plan Administrator and outlining the Plan 

Administrator’s discretionary authority). Moreover, RRI is not responsible for 

funding the Plan. See Skilstaf-00060 (making clear that Skilstaf, and not RRI, is 

the entity responsible for making “contributions to the plan” based “upon its 

determination of the amounts necessary to timely pay benefits and expenses”). 

Because RRI (the Plan Administrator responsible for making discretionary 

decisions under the Plan) is not responsible for funding the Plan, there is no 

conflict of interest and RRI’s decision to deny Plaintiff’s claim is to be reviewed 

by the Court under the arbitrary and capricious standard of review. See, e.g., HCA 

Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 994 (11th 

Case 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 10 of 19
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Cir. 2001) (“If no conflict of interest exists, then only arbitrary and capricious 

review applies and the claims administrator’s wrong but reasonable decision will 

not be found arbitrary and capricious.”); Brown v. Blue Cross & Blue Shield of 

Ala., Inc., 898 F.2d 1556, 1562 (11th Cir. 1990) (noting that a “‘conflict of interest 

[exists] when the fiduciary making a discretionary decision is also the insurance 

company responsible for paying the claims’”). 

Under the arbitrary and capricious standard of review, the Court is to first 

conduct a de novo review to determine whether the decision maker’s interpretation 

is “wrong” and the claimant’s rival interpretation reasonable. See Williams v. 

BellSouth Telecomms., Inc., 373 F.3d 1132, 1137-38 (11th Cir. 2004) 

(“recapitulat[ing]” the Eleventh Circuit’s multi-step approach for reviewing a 

benefit denial). In the Eleventh Circuit, a court “conducting a de novo review . . . 

is bound by the provisions of the documents establishing an employee benefit plan 

without deferring to either party’s interpretation.” Moon v. Am. Home Assurance 

Co., 888 F.2d 86, 89 (11th Cir. 1989) (internal quotation marks and citations 

omitted). If a de novo review reveals the decision maker’s interpretation to be 

“correct,” the inquiry ends and a court must uphold the decision maker’s 

determination. Adams v. Thiokol Corp., 231 F.3d 837, 843 (11th Cir. 2000). 

If, however, the court finds that the decision maker’s interpretation was 

“wrong,” it must then consider whether the interpretation was arbitrary and 

Case 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 11 of 19
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capricious. A reasonable decision must be upheld “even if there is evidence that 

would support a contrary decision.” Jett v. Blue Cross & Blue Shield of Ala., 890 

F.2d 1137, 1140 (11th Cir. 1989). Therefore, any “wrong but reasonable 

interpretation is entitled to deference even though the claimant’s interpretation is 

also reasonable,” HCA Health Services of Georgia, Inc., 240 F.3d at 994, and even 

though evidence “would support a contrary decision[,]” Jett, 890 F.2d at 1140. 

When applying the arbitrary and capricious standard, “[t]he function of the 

court is to determine whether there was a reasonable basis for the decision, based 

upon the facts as known to the [decision maker] at the time the decision was 

made.” Id. at 1139. Further, when applying the arbitrary and capricious standard, 

a court is to limit its scope of review to the administrative record that was before 

the decision maker at the time the decision maker denied or terminated the 

claimant’s benefits. Paramore v. Delta Airlines, Inc., 129 F.3d 1446, 1451 (11th 

Cir. 1997). Therefore, to determine the propriety of RRI’s decision to deny 

Plaintiff’s claim, this Court’s scope of review is limited to the information that was 

available to RRI when it made its decision. 

III. RRI CORRECTLY DENIED PLAINTIFF’S CLAIMS 

In this action, Plaintiff seeks to recover the costs it incurred when it provided 

medically unnecessary treatment to Mrs. Berry – costs which Skilstaf properly 

refused to cover. Plaintiff’s ERISA § 502(a) claim is “to recover benefits due to 

Case 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 12 of 19
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[it] under the terms of [Mrs. Berry’s] plan . . . .” 29 U.S.C. § 1132(a)(1)(B); see

Alday v. Container Corp., 906 F.2d 660, 665 (11th Cir. 1990) (“[A]ny 

[participant’s] right to . . . benefits at a particular cost can only be found if it is 

established by contract under the terms of the ERISA-governed benefit plan 

document.”). Because RRI correctly determined that Skilstaf need not cover the 

costs that Plaintiff incurred when it provided radiofrequency treatments to Mrs. 

Berry, Skilstaf’s Motion should be granted and Plaintiff’s claims dismissed. 

The Plan’s SPD makes clear that Skilstaf need not cover (1) “[s]ervices, 

expenses, or supplies that the plan administrator determines are not medically 

necessary[,]” or (2) rehabilitative-type care that does not result in “documented 

continuous physical improvement.” See Skilstaf-00039, Skilstaf-00032. On July 

28, 2005, Dr. Silberstein reviewed Mrs. Berry’s medical records and concluded 

that Plaintiff’s radiofrequency treatments were: 

[N]ot medically necessary based on the information provided. There 

is no documentation of the patient’s showing improvement. The 

frequency of the surgical procedures exceeds any guideline that I 

know of. . . . Considering the information presented for review as 

summarized above, for this particular patient, it is my opinion that the 

requested procedures are not medically necessary for this patient. 

There is no documentation of the patient’s medical history, physical 

exam, trial of conservative medical management, or concurrent 

multidisciplinary pain management modalities. There is no 

documentation of any improvement. In addition, radiofrequency 

ablation of nerves is unproven in the published peer reviewed medical 

literature to provide improved long term net health outcomes and is 

not medically necessary per CIGNA guidelines. 

Case 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 13 of 19
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Skilstaf-000193. Plaintiff has failed to submit any documentation that refutes 

RRI’s determination that its claims are not covered under the Plan; accordingly, 

Skilstaf’s Motion should be granted and Plaintiff’s claims dismissed. 

First, neither Plaintiff nor Plaintiff’s counsel has submitted any 

documentation that refutes RRI’s determination that Plaintiff’s repeated 

radiofrequency treatments were not medically necessary. Johnson’s Affidavit at ¶ 

10. Second, Plaintiff has failed to produce documentation evidencing “continuous 

physical improvement” in Mrs. Berry’s alleged condition as a result of Plaintiff’s 

weekly radiofrequency treatments. See Skilstaf-00193 (notifying Plaintiff 

regarding the lack of documented physical improvement); see also Skilstaf-01829-

Skilstaf-01830 (2/18/05 operative report), Skilstaf-01788-Skilstaf-01789 (3/18/05 

operative report), and Skilstaf-01649-Skilstaf-01650 (6/3/05 operative report) 

(illustrating, for example, that Mrs. Berry’s right neck pain did not continuously 

improve as a result of Plaintiff’s repeated treatments). 

The Eleventh Circuit has made clear that, in order to establish coverage 

under an ERISA plan like the one at issue here, “it is implicit in the requirement of 

proof that the evidence” submitted by the claimant “be objective.” Watts v. 

Bellsouth Telecomms., Inc., No. 06-15156, 2007 WL 542436, at *1 (11th Cir. Feb. 

22, 2007). As district courts in this Circuit have explained: 

The objective-evidence requirement promotes integrity in the 

application of the law. It assures claimants are treated fairly and with 

Case 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 14 of 19
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parity by providing that coverage decisions are not based on varying 

subjective expressions by claimants . . . . The requirement of 

objective evidence also promotes integrity by assuring there is 

corroboration for a claimant’s subjective complaints, thus deterring 

embellished allegations of the effect of the diagnosed malady as well 

as deterring fraud in the claims process. 

Brucks v. The Coca-Cola Co., 391 F. Supp. 2d 1193, 1205 (N.D. Ga. 2005); see 

also Fick v. Metro. Life Ins. Co., 347 F. Supp. 2d 1271, 1286-87 (S.D. Fla. 2004) 

(“Case law supports the conclusion that it is reasonable for a plan administrator to 

require objective medical evidence even where the plan does not specifically 

contain such a requirement. Where a plan requires proof of continued disability, 

‘the very concept of proof connotes objectivity.’ Were an opposite rule to apply, 

LTD benefits would be payable to any participant with subjective and effervescent 

symptomology simply because the symptoms were first passed through the 

intermediate step of self-reporting to a medical professional. In the absence of a 

requirement of objective evidence, the review of claims . . . would be ‘meaningless 

because a plan administrator would have to accept all subjective claims of the 

participant without question.’”) (internal citations omitted). 

Here, Plaintiff has failed to present any objective evidence that Mrs. Berry’s 

physical condition improved as a result of its repeated radiofrequency treatments. 

To the contrary, the only documentation Plaintiff submitted to RRI on this issue – 

by way of a “summary of progress reports” that Plaintiff’s counsel sent to RRI on 

or about September 6, 2005 – is based entirely on Mrs. Berry’s subjective selfCase 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 15 of 19
14 

reported assessment that her condition was improving as a result of Plaintiff’s 

repeated radiofrequency treatments. See Skilstaf-00087-Skilstaf-00091. Because 

Plaintiff has failed to present any objective assessment that Mrs. Berry’s condition 

was, in fact, improving, this Court need not give any “weight or credence 

whatsoever to [Plaintiff’s] . . . conclusory” and subjective opinion to the contrary. 

See Archible v. Metro. Life Ins. Co., 85 F. Supp. 2d 1203, 1220 (S.D. Ala. 2000) 

(making clear that, where an opinion is based on subjective complaints rather than 

objective findings, a court conducting a de novo review need not give any “weight 

or credence whatsoever to [the] . . . conclusory . . . opinion[]”). 

Even assuming arguendo that subjective reports of the type submitted by 

Plaintiff are sufficient to establish coverage under an ERISA plan, which Skilstaf 

denies, the operative reports submitted by Plaintiff’s counsel support RRI’s 

determination that Mrs. Berry’s physical condition did not continually improve as 

a result of Plaintiff’s weekly radiofrequency treatments. By way of illustration, 

Plaintiff’s operative reports make clear that Mrs. Berry’s right neck pain did not

continuously improve over the course of her treatment. See, e.g., Skilstaf-01829-

Skilstaf-01830 (2/18/05 operative report), Skilstaf-01788-Skilstaf-01789 (3/18/05 

operative report), and Skilstaf-01649-Skilstaf-01650 (6/3/05 operative report) 

(verifying that, on a scale of 1 to 10, Mrs. Berry characterized her right neck pain 

as 3 out of 10 in February, 5 out of 10 in March, and 3 out of 10 in June). Simply 

Case 3:06-cv-00728-MHT-WC Document 39 Filed 05/18/2007 Page 16 of 19
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put, even Plaintiff’s subjective documentation – which is the only documentation 

Plaintiff has offered in response to RRI’s determination that Mrs. Berry’s physical 

condition did not continually improve over the course of her treatment – fails to 

establish any error in RRI’s denial decision. 

 RRI’s decision – which decision was based on the SPD’s plain language, on 

Plaintiff’s failure to submit any documentation verifying that its treatment was 

medically necessary, on Plaintiff’s failure to submit objective documentation that 

Mrs. Berry’s condition was improving as a result of its treatments, and on the 

opinion of an independent physician that reviewed Mrs. Berry’s medical records – 

was correct. Accordingly, Skilstaf is entitled to judgment in its favor and RRI’s 

decision to deny Plaintiff’s claims should be upheld by this Court. See Adams, 

231 F.3d at 843 (“If the administrator’s interpretation was legally correct, the 

inquiry ends.”). 

IV. CONCLUSION 

 For the reasons detailed above, Skilstaf is entitled to summary judgment in 

its favor and Plaintiff’s claims should be dismissed with prejudice. 

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Respectfully Submitted, 

 s/Charles A. Stewart III 

Charles A. Stewart III (STE067) 

Bradley Arant Rose & White LLP

The Alabama Center for Commerce 

401 Adams Avenue, Suite 780 

Montgomery, AL 36104 

Telephone: (334) 956-7700 

Facsimile: (334) 956-7701 

cstewart@bradleyarant.com

 

 s/Amelia T. Driscoll 

Amelia T. Driscoll (DRI016) 

Bradley Arant Rose & White LLP

1819 Fifth Avenue North 

Birmingham, AL 35203-2104 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

adriscoll@bradleyarant.com

Attorneys for Defendant 

Skilstaf, Inc. 

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CERTIFICATE OF SERVICE

I hereby certify that on May 18th, 2007, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system, which will send notification 

of such filing to the following: 

Robert E. Cole 

437 Chestnut Street, Suite 218 

Philadelphia, PA 19109 

Beth A. Friel 

Jeanne L. Bakker 

Montgomery, McCracken, Walker & Rhoads 

123 South Broad Street 

Philadelphia, PA 19109 

and I hereby certify that I have mailed by U. S. Postal Service the document to the 

following non-CM/ECF participants: None. 

/s/ Amelia T. Driscoll 

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