[Cite as 701 Lakeside, L.L.C. v. Pinnacle Condominium Unit Owners Assn., 2024-Ohio-2899.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

701 LAKESIDE, LLC, :

Plaintiff-Appellant, :

No. 112441

v. :

PINNACLE CONDOMINIUM UNIT :

OWNERS ASSN., ET AL.,

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: August 1, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-18-907567

Appearances:

Consolo Law Firm Co., LPA, and Frank Consolo, for 

appellant. 

James J. Reagan, for appellees. 

ON RECONSIDERATION

EMANUELLA D. GROVES, J.:

Pursuant to App.R. 26(A)(1)(a), plaintiff-appellant 701 Lakeside, LLC 

filed an application for reconsideration of this court’s opinion in 701 Lakeside, LLC 

v. Pinnacle Condominium Unit Owners Assn., et al., 2024-Ohio-1269 (8th Dist.). 
Upon review, appellant’s motion for reconsideration is granted. The opinion 

released in this case by this court on April 4, 2024, is hereby vacated and substituted 

with this opinion.

Plaintiff-appellant, 701 Lakeside, LLC (“701 Lakeside”) appeals the 

judgment of the trial court denying its motion for declaratory judgment on 

February 6, 2023. Upon review, we affirm the trial court’s decision.

On November 28, 2018, 701 Lakeside filed a complaint against 

defendants-appellees Pinnacle Condominiums Unit Owner’s Association 

(“PCUOA”) and Coral Management LLC. It raised claims for declaratory judgment,

civil trespass, conversion of property, unjust enrichment, violation of R.C. 5311.23,

negligence, and civil theft. The majority of the claims stem from a dispute over 

whether the first and second floors of the parking garage below the Pinnacle 

Condominiums are considered part of the condominium property or the common 

elements as outlined in the Declaration of Condominium Ownership 

(“Condominium Declaration”) and of easements outlined in the Reciprocal 

Easement Agreement and Amended Reciprocal Easement Agreement (“REAs”), 

restrictions, and covenants for Pinnacle Condominiums. During the relevant time, 

701 Lakeside owned and operated the basement, first, and second levels of the 

parking garage, and Gus Georgalis (“Georgalis”) was the managing member of 701 

Lakeside. 
The Parking Garage and Condominium Project

Initially, the parking garage had three levels: a basement, first, and 

second floor. Georgalis conveyed the basement-level air rights1from 701 Lakeside 

to the Greater Cleveland Regional Transit Authority (“RTA”). In 2003, Georgalis 

conceived a condominium development project and formed Pinnacle 701, LLC to 

develop the air space above the garage’s second floor2 into the Pinnacle 

condominiums (collectively “Pinnacle”). Pinnacle also added three new garage 

levels and 701 Lakeside constructed ramps on the first and second levels of the 

garage. The ramps provided bypass access to the three new Pinnacle-owned garage 

levels, which would provide parking for the condominium project in the new fivelevel garage.

The Original REA

On May 20, 2004, 701 Lakeside and Pinnacle, both controlled by 

Georgalis, recorded a Reciprocal Easement and Operating Agreement (“REA”) with 

the Cuyahoga County Recorder. The REA was recorded as instrument 

200405211109 and detailed the rights, duties, and obligations of the parties under 

the REA. The REA identified the easements 701 Lakeside granted to Pinnacle as 

the developer of the condominium and garage projects. The REA granted Pinnacle 

1 “The right to use the air space superjacent to the ground is one of the rights in 

land.” Money from Heaven: Should Qualified Air Rights Donations be Characterized as

Interests in Land or Buildings? Why does It Matter, 50 Clev.St.L.Rev. 283, 288 (2002-

2003).

2 Greater Regional Transit Authority’s air rights included the air space between the 

basement surface level and the basement roof. 
use of the first and second floors of the garage as well as easements for access and 

ingress from the street to the condominiums via the first- and second-floor ramps 

constructed by Pinnacle. The original REA acknowledged in its recitals one of the 

purposes of the REA was to create permanent easements:

J. Each of the parties to this REA intends that the 701 Lakeside 

Property and the Pinnacle Property will interrelate and function to 

their mutual advantage and benefit. Therefore, each party desires to 

create certain rights, privileges, obligations, duties, and easements and 

to impose certain restrictions and covenants upon the respective 

parcels, which shall benefit not only the parcels but also the owners of 

such parcels and the owner’s respective grantees, successors, assigns 

and permittees (hereinafter defined), and which shall bind not only the 

respective owners but also each owner’s respective grantees, 

successors, assigns and permittees[.] REA instrument 200405211109.

Certain easements were intended to run with the land.

NOW, THEREFORE, 701 Lakeside and Pinnacle each hereby grants, 

agree, and declare that the 701 Lakeside Property and the Pinnacle 

Property shall be held, sold, and conveyed subject to the following 

easements, restrictions, obligations, covenants, rights, and conditions 

which are to protect the value and desirability of the Project and the 

Parcels and which shall run with the land and be binding on and inure 

to the benefit of the respective owners and all parties having any right, 

title, or interest in the parcels or any part thereof, their respective heirs, 

successors, and assigns.

Article 2 of the original REA identified the following relevant 

easements:

2.1 Grant of Appurtenant Easements Encumbering 701 Lakeside 

Property. Subject to all of the terms, covenants, conditions, and 

restrictions of this REA, the 701 Lakeside Property Owner, for itself, its 

successors, and assigns, does hereby grant to and for the benefit of the 

Pinnacle Property, the Owner thereof and its respective successors and 

assigns, the appurtenant easements outlined in this Section 2.1. Except 

as otherwise noted in this REA, each easement shall be for the 

nonexclusive use of the Pinnacle Property Owner and its respective 
successors and assigns. Each easement shall commence on the date 

hereof and shall continue in perpetuity (so long as an improvement is 

located on the 701 Lakeside Property) and shall include all rights of 

access reasonably necessary to enjoy same:

. . .

b) an easement relative to all walkways, driveways, doorways, and 

stairways of the 701 Lakeside Property for pedestrian and vehicular 

ingress to and egress from the Pinnacle Property and the public 

sidewalks and roadways (notwithstanding the preceding, the grant of 

this easement shall not entitle the Pinnacle Property Owner, its 

successors, assigns or Permittees, the right to use the ramps and 

parking areas adjoining or leading exclusively to the RTA Parcel; or (ii) 

the parking areas on the First Floor Air Rights Parcel described on 

exhibit G or Second Floor Air Rights Parcel described on exhibit H).

Notably, these easements provided the condominium owners’ sole 

means of accessing the PCUOA-owned parking on the parking garage’s third, fourth, 

and fifth floors by vehicle or pedestrian traffic. 

The Amended REA

701 Lakeside executed an amended REA on November 28, 2005, with 

Pinnacle 701 LLC. Georgalis was the principal of both entities at that time. 701 

Lakeside amended the REA by deleting sections 2.1 f and k from the REA, which 

stated:

(f) an easement to use the first-floor ramp easement as described in 

Exhibit “I” for vehicle access and ingress;

. . .

(k) an easement to use the second-floor ramp easement as described in 

Exhibit “N” for vehicle access and egress.

701 Lakeside replaced these sections with the same language, except 

the term vehicle was removed:
(f) an easement to use the first-floor ramp easement as described in 

Exhibit “I” for access and ingress; 

. . .

(k) an easement to use the second-floor ramp easement as described in 

Exhibit “N” for access and egress.

The Pinnacle Condominium Declaration was recorded on 

December 5, 2005, days after the amended REA, creating the PCUOA as a matter of 

law. Over the next several years, disputes centering around the obligations and 

rights of the parties concerning access and cost-sharing of the garage have been 

litigated.

The First Arbitration

On September 2, 2009, PCUOA filed a complaint in Cuyahoga C.P. 

No. CV-09-703063 seeking a temporary restraining order prohibiting 701 Lakeside 

from denying PCUOA members access to the garage’s first floor elevator. The trial 

court granted PCUOA’s motion and ordered 701 Lakeside to remove the padlocks it 

had placed on the elevators immediately. Subsequently, 701 Lakeside filed a motion 

seeking an order from the trial court invoking mandatory arbitration under the 

terms of the amended REA. The trial court granted 701 Lakeside’s motion to enforce 

the mandatory arbitration provision within the amended REA agreement. PCUOA 

appealed, and we affirmed the trial court’s order. Pinnacle Condominiums Unit

Owners’ Assn. v. 701 Lakeside, LLC, 2011-Ohio-5505 (8th Dist.). The matter was 

arbitrated in American Association of Arbitration Case No. 53-115-0045311, 

captioned In the Matter of Arbitration Between 701 Lakeside LLC. v. Pinnacle 
Condominium Owners Association. The arbitrators were tasked with interpreting 

the scope, rights, and obligations of 701 Lakeside and PCUOA under the terms of 

the REAs. 

The arbitrators issued a final award on August 15, 2012, whereby the 

panel interpreted the meaning, scope, and purpose of the REAs. During its analysis, 

the arbitration panel followed the well-settled precedent of Graham v. Drydock 

Coal Co., 76 Ohio St.3d 311 (1996). Accordingly, the panel resolved any ambiguities 

in the REA language against 701 Lakeside. 

Among its findings, the Arbitrators interpreted the garage ramps and 

parts of the garage up to the PCUOA garage as “common area elements.” Moreover, 

the arbitrators granted PCUOA’s counterclaim for a declaration that the PCUOA and 

its unit owners have a permanent nonexclusive easement of ingress and egress 

through the gates, ramps, stairwells, and elevators in and through the parking 

garage owned and operated by 701 Lakeside. The trial court adopted the Arbitrator’s 

findings and determined that PCUOA was the dominant holder of a permanent 

nonexclusive easement of ingress and egress that runs with the land. Ultimately, 

the easement was transferred, by operation of law, from Pinnacle to PCUOA. 

The trial court permanently barred 701 Lakeside from interfering 

with the easements in the future, ordered confirmation of the arbitration award, and 

entered final judgment on March 20, 2013, which 701 Lakeside did not appeal. 
The Second Arbitration

The parties entered a second arbitration captioned In the Matter of 

Arbitration Between 701 Lakeside LLC. v. Pinnacle Condominium Owners 

Association, arbitration Case No. 01-14-0001-893. The claims in the second 

arbitration related to common area expenses, validity and scope of easements, 

garage maintenance, and enforcement of the REA and the August 15, 2012 final 

award terms.

The arbitrators issued their findings on June 1, 2016. The arbitrators 

concluded that the prior arbitration panel’s August 15, 2012 decision granted 

Pinnacle’s counterclaim for a declaration that, under the REA, Pinnacle has 

permanent nonexclusive easements of ingress and egress through the parking 

garage owned and operated by 701 Lakeside. The arbitrators found the doctrine of 

res judicata applicable to issues of enforceability and validity of the REAs, which 

addressed the scope of the easements conveyed in the REAs. The second arbitration 

panel concluded that under the doctrine of res judicata,

Pinnacle and its members have a permanent nonexclusive easement of 

ingress and egress through the gates, ramps, stairwells, walkways, and 

elevators in and through the parking garage owned and operated by 701 

Lakeside. 701 Lakeside is permanently barred from doing anything to 

interfere with this easement. (Final Award, June 1, 2016).

The trial court ratified the second arbitration award and again 

permanently barred 701 Lakeside from doing anything to interfere with the REAs.
Current Litigation

In the instant case, on November 28, 2018, 701 Lakeside filed a 

verified complaint with seven causes of action. Among them, 701 Lakeside asked 

the trial court for a declaratory judgment that the REAs were null and void in light 

of the Condominium Declaration. The parties engaged in substantial motion 

practice. Both PCUOA and Coral filed motions for summary judgment, which the 

trial court denied. 

Additionally, 701 Lakeside filed its own motion for summary 

judgment concerning the claims for failure to comply with R.C. 5311.23 and trespass. 

The trial court also denied its motion for summary judgment on March 23, 2022. 

701 Lakeside subsequently filed a motion for declaratory judgment on 

November 29, 2022, seeking a declaration that the REAs are null and void in light 

of the Condominium Declaration. 701 Lakeside claimed the Condominium 

Declaration excludes the basement and the first and second levels of the garage from 

the condominium property and common elements. Citing conflicting terms in the 

Condominium Declaration and the REAs, 701 Lakeside argued that the 

Condominium Declaration is the controlling contract because it was filed after the 

REAs. 

The trial court disagreed and dismissed 701 Lakeside’s first cause of 

action for declaratory judgment on February 6, 2023, for two reasons. First, the trial 

court found that 701 Lakeside lacked standing to seek a declaratory judgment under 

the Condominium Declaration pursuant to R.C. 5311.23(A) and (B). Moreover, the 
trial court found that the validity of the REAs had been addressed in prior litigation 

and was barred by res judicata. 

On February 24, 2023, 701 Lakeside filed its notice of appeal of the 

trial court’s dismissal of its motion for declaratory judgment, raising one assignment 

of error. We affirmed the trial court’s order on April 4, 2024. Appellants filed a 

motion for en banc consideration and reconsideration of this court’s decision and 

journal entry on April 15, 2024. 

Appellants allege that this court applied an abuse-of-discretion 

standard of review, instead of a de novo standard of review, in considering whether 

the trial court erred when it determined that Appellant “lacked standing” because it 

was not an “interested person” under the terms of the Condominium Declaration

pursuant to R.C. 5311.23(B). 

We granted Appellants motion for reconsideration to clarify the 

standard of review this court applied in its April 4, 2024 opinion.

Assignment of Error

The trial court erred when it denied appellant’s motion for a declaratory 

judgment in its favor on the first cause of action, declaring that the REA 

and amended REA are null and void as a matter of law.

Standard of Review

“[A]n appellate court reviewing a declaratory-judgment matter 

should apply an abuse-of-discretion standard in regard to the trial court’s holding 

concerning the appropriateness of the case for declaratory judgment, i.e., the 

matter’s justiciability, and should apply a de novo standard of review in regard to 
the trial court’s determination of legal issues in the case.” Arnott v. Arnott, 2012-

Ohio-3208, ¶ 1. Whether a party has standing to bring an action is a question of law 

that we review de novo. E.g., State ex rel. Ames v. Portage Cty. Bd. of Revision, 

2021-Ohio-4486, ¶ 8. 

Condominium Instruments

This case centers on whether the trial court erred in determining that 

701 Lakeside was not an “interested person” under the terms of the Condominium 

Declaration pursuant to R.C. 5311.23 (A) and (B). The Ohio Condominium Act, 

codified in R.C. Ch. 5311 and its amendments, outlines the relationships, rights, and 

remedies that safeguard owners, condominium associations, and purchasers from 

developer misconduct. Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark 

Cos., 67 Ohio St.3d 274, 280 (1993). The objective of R.C. Ch. 5311 is to define and 

regulate the legal framework surrounding condominium development, including 

the interrelationship between condominium developers and unit owners’ 

associations. Id. 

This objective is achieved through various “Condominium 

Instruments.” Condominium Instruments are defined in R.C. 5311.01(M) and 

include the declaration, accompanying drawings, plans, the bylaws of the unit 

owner’s association, the condominium development disclosure statement described 

in section R.C. 5311.26, any contracts about the management of the condominium 

property, and any other documents, contracts, or instruments establishing 

ownership of or exerting control over a condominium property or unit. 
R.C. 5311.01(M). The relevant condominium instruments in this matter are the 

REAs and Condominium Declaration. Appellants argue that under a de novo

review, this court must consider the provisions of the Condominium Declaration,

which specifically prohibited Appellees from trespassing on the basement and first

and second levels of the garage. Appellants’ argument lacks merit. Both REAs and

Condominium Declarations are condominium instruments subject to declaratory

judgment outlining the party’s contractual rights and obligations. See

R.C. 5311.01(M) and 5311.23(B).

REAs outline the easement holders’ rights and obligations. Pinnacle

Condominiums Unit Owners’ Assn. at ¶ 4. In contrast, the Condominium

declarations and bylaws represent contractual agreements among the unit owners

themselves and between the unit owners and the association. State ex rel. Curd v.

Backhaus, 56 Ohio App.2d 79, 81 (1977).

An REA is a condominium instrument that memorializes the 

contractual rights and obligations of the easement holders, adhering to standard 

rules of contract interpretation. Pinnacle at ¶ 4. 701 Lakeside is named as a party 

in the REA and owner of the servient estate, and Pinnacle LLC is the dominant estate 

owner. (REA section 12.1). The REA terms bind all present and future dominant 

and servient estate owners. It is undisputed that appellants are an interested party 

with rights and obligations under the REA. A prior arbitration award outlined the 

scope of the easements and the respective contractual rights and obligations of the 

easement owners pursuant to the terms of the REA.
Condominium Declarations are contracts between the association

and the purchasers and are also subject to standard contract interpretation. 

Georgalis v. Cloak Factory Condominium Unit Owners’ Assn., 2021-Ohio-66, ¶ 13

(8th Dist.). E.g., Heba El-Attar v. Marine Towers E. Condominium Owners’ Assn.

2018-Ohio-3274, ¶ 9 (8th Dist.) This distinction underlines the different legal

frameworks governing the relationship between condominium developers, owners,

associations, and agents.

When disputes between the Condominium Unit Owners’ Association 

and other stakeholders arise, R.C. 5311.23(A) permits a unit owner’s association to 

obtain damages for an injury caused by a breach of the condominium instruments 

by a declarant, developer, agent, unit owner, or any person entitled to occupy a unit. 

Akerstrom v. 635 W. Lakeside, Ltd., 2018-Ohio-98, ¶ 11 (8th Dist.). 

Conversely, R.C. 5311.23(B) allows any “interested person,” including 

a condominium owners’ association, to obtain 1) a declaratory judgment to 

determine its legal relations under a condominium instrument or 2) an injunction 

against a declarant, developer, agent, unit owner, or person entitled to occupy a unit 

that threatens or fails to comply with its obligations under the instrument. Id. at

¶ 12.

Interested Person Pursuant to R.C. 5311.23(B).

701 Lakeside claims it is an “interested person” under the 

Condominium Declaration, pursuant to R.C. 5311.23(A) and (B). Preliminarily, we 

note that R.C. 5311.23(A) governs claims for civil damages, and R.C. 5311.23(B) is 
the vehicle for declaratory judgments or injunctive relief. Since 701 Lakeside’s 

assignment of error concerns a claim for a declaratory judgment, we will consider 

whether 701 Lakeside is an interested person with standing to seek a declaratory 

judgment under R.C. 5311.23(B). 

The term “interested person” is not defined in the statute. However, 

“‘the inquiry as to standing must begin with a determination of whether the statute 

in question authorizes review at the behest of the plaintiff.’” State ex rel. Flanagan

v. Lucas, 2014-Ohio-2588, ¶ 17. State ex rel. E. Cleveland Fire Fighters’ Assn., Local

500 v. Jenkins, 2002-Ohio-3527, ¶ 11, quoting Sierra Club v. Morton, 405 U.S. 727

(1972). We have previously held “[u]nder R.C. 5311.23 and 5311.20, 

the association is the party entitled to enforce the obligations possessed or imposed 

upon the unit owner’s association by statute or otherwise.” Akerstrom ¶ 16. 

701 Lakeside offers Pointe at Gateway Condo Owner’s Assn., in 

support of its claim that it is an interested person under R.C. 5311.23. Pointe at 

Gateway Condo Owner’s Assn. v. Schmelzer, 2013-Ohio-3615 (8th Dist.). In 

Gateway, the condominium owners’ association brought a claim for a declaratory 

judgment against the developer and owner of a historical building to prevent the 

building owner from retaining ownership of the facade of the building pursuant to 

the terms of the condominium declaration. Id. The action was commenced by the 

condominium unit owners’ association against the developer. Under 

R.C. 5311.23(A), “a declarant, developer, agent, unit owner, or any person entitled 
to occupy a unit is liable for damages in a civil action” for a breach of the 

condominium declarations. 

Moreover, the association sought a declaratory judgment pursuant to 

R.C. 5311.23(B) to determine its rights concerning the facade of the building under 

the terms of the condominium instruments. Because the association and 

owner/developer were persons whose rights and obligations were defined in the 

condominium declarations, the association was an “interested person” under 

R.C. 5311.23, with standing to seek a declaratory judgment determining those rights 

and obligations. R.C. 5311.23(B).3 The court, in Pointe at Gateway Condo Owner’s 

Assn., interpreted the terms of the declaration and ultimately determined, under the 

plain meaning of the language in the contract, that the owner/developer had a right 

to ownership and control of the facade of the building. The instant case is 

distinguishable. 

Once 701 Lakeside conveyed its interests in the development to 

Pinnacle, it retained only its ownership interests in the appurtenant easements as 

the servient estate. The condominium instruments that determine the rights and 

obligations concerning 701 Lakeside’s ownership interests are the REAs. 701 

Lakeside acknowledges that prior litigation addressed the rights and obligations of 

the PCUOA and 701 Lakeside in light of the REAs. Still, it claims it is entitled to 

enforce the terms of the Condominium Declaration. 

3 Until the condominium owners’ association is created by recording the 

condominium declaration and bylaws, the developer acts as the association. See

Mangano v. 1033 Water St., L.L.C., 2018-Ohio-5349, ¶ 35 (8th Dist.).
We find nothing in the record to indicate that 701 Lakeside has an 

interest in the Condominium Declaration because it is not a party to the contract. 

As a nonparty, 701 Lakeside cannot demonstrate it is an “interested person” entitled 

to declaratory relief under R.C. 5311.23(B) in light of the Condominium Declaration.

Here, R.C. 5311.233(B) only permits the PCUOA to commence claims for declaratory 

judgment or injunction regarding the Condominium Declaration. Akerstrom at

¶ 16. Additionally, PCUOA argues that 701 Lakeside is not an interested person 

because it can claim no injury caused by the PCUOA breaching the Condominium 

Declaration. PCUOA challenged 701 Lakeside’s standing to pursue a claim under 

R.C. 5311.23(B), pursuant to the declaration.

Standing

In the present case, the trial court found that 701 Lakeside lacked 

standing to seek a declaratory judgment under the terms of the Condominium 

Declaration. We agree.

The doctrine of standing ensures the justiciability of a claim by 

determining whether a party has the requisite interest in a lawsuit to seek relief in 

court. Link v. Wayne Ins. Group, 2018-Ohio-3529, ¶ 13 (3d Dist.),

ProgressOhio.org., Inc. v. JobsOhio, 2014-Ohio-2382, ¶ 7. Without standing a trial

court may not consider the merits of a legal claim. A plaintiff establishes standing 

by demonstrating (1) a direct injury, (2) caused by a defendant’s unlawful actions,

and (3) that the injury is likely to be redressed by the relief sought by the plaintiff. 

Windsor Realty & Mgt. v. Northeast Ohio Regional Sewer Dist., 2019-Ohio-3096, 
¶ 13 (8th Dist.). “A person with standing has a real interest in the subject matter of 

the lawsuit.” Id. 

To establish standing, 701 Lakeside must demonstrate a direct injury 

caused by PCUOA’s breach of the contract and that a declaratory judgment 

determining 701 Lakeside’s rights and obligations in light of the Condominium 

Declaration would redress the injury. When the condominium declaration was 

initially recorded, Pinnacle, not 701 Lakeside, was a party to the Condominium 

Declaration. Moreover, 701 Lakeside’s only role in the declaration is that of an 

owner of the servient estate and whose rights and obligations are defined in the 

REAs. As previously determined, 701 Lakeside is not an interested person within 

the meaning of the statute, and the record fails to reflect any obligations owed to it 

by PCUOA within the terms of the Condominium Declaration. 701 Lakeside has 

failed to demonstrate that it is a party entitled to enforce the terms of the 

declaration, entitling it to relief under R.C. 5311.23(B).

Furthermore, the trial court correctly dismissed 701 Lakeside’s first 

cause of action for a declaratory judgment concerning its rights, status, or legal 

relation in light of the Condominium Declaration.

Because the issue of standing is dispositive, this court will not address 

the underlying issue of res judicata. As previously stated, the trial court may not 

consider a legal claim where the complainant has no standing. Consequently, 701 

Lakeside’s assignment of error is overruled.

Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.

The court found there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, JUDGE

LISA B. FORBES, P.J., CONCURS IN JUDGMENT ONLY;

MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY