No. 89-257 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, ex rel., FIRST 

RANK SYSTEM, FIRST BANK WEST GREAT 

FALLS, and JOHN REICHEL, 

Relators, 

-vsTHE DISTRICT COURT OF THE EIGHTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTAbJA, IN AND FOR THE COUNTY OF 

CASCADE, THE HONORABLE NAT ALLEN, 

Presiding Judge, and ROBERT M. 

PANC ICH , Respondents. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relators: 

Stephen D. Bell & Keith Strong; Dnrsey & Whitney, 

Billings, Montana 

For Respondent: 

Ralph L. Herriott, Billings, Montana 

Walter M. Hennessey, Butte, Montana 

~illiam L. Baillie, Great Falls, Montana 

Gene B. Daly, Helena, Montana 

Submitted: September 5, 1989 

Decided: November 28, 1989 0 

Filed: 
Justice Fred J. Weber delivered the Opinion of the Court. 

Relators First Bank System, First Rank West Great 

Falls, and John Reichel seek a writ of supervisory control 

from this Court following an order entered in the District 

Court for the Eighth Judicial District, Cascade County. In 

exercising our power of supervisory control, we vacate the 

lower court's order and remand for further proceedings. 

The issues presented for our review are: 

1. Did the District Court err in granting summary 

judgment in favor of plaintiff on the issue of liability? 

2. Is supervisory control appropriate when the District Court granted summary judgment despite the presence of 

numerous factual issues? 

Relators are the named defendants in a civil action 

brought by Robert Pancich, a former employee of First Bank 

West Great Falls. First Bank System is the parent corporation of First Bank West, and John Reichel was the Managing 

Director of the Western Montana Region of First Bank System 

at the time pertinent to this lawsuit. Mr. Reichel had also 

been elected a member of First Bank West's Board of 

Directors. 

The incident giving rise to the present controversy 

occurred in 1983. In that year the Office of the Comptroller 

of the Currency (OCC) investigated First Bank West Great 

Falls and determined that it was engaged in "unsafe and 

unsound" banking practices. An affidavit by Mr. Reichel 

states that the deficiencies existing in the bank at that 

time included "ineffectiveness of some existing management 

personnel, high operating expenses, financial imbalance, 

unnecessary expenses, and inefficient use of resources." 

After the report by the OCC, on August 12, 1983, Mr. Reichel 

terminated Mr. Pancich's employment as president of the bank. 
Prior to termination, Mr. Reichel contacted four members of 

the bank board, recommending that Mr. Pancich be terminated. 

Six days later, on August 18, 1983, during a special meeting 

of the board of directors, a new president was elected. 

During a regular meeting of the board, on September 15, 1983, 

the board unanimously accepted a letter of resignation from 

Mr. Pancich. 

The affidavit by Mr. Reichel states that of the bank's 

board of directors, nine members were eligible to vote on 

decisions involving employment termination, one of whom was 

himself. Affidavits by the four members whom Mr. Reichel 

contacted state that prior to the August 12 termination Mr. 

Reichel discussed with them the need for a new president 

because of the Bank's serious financial setbacks. The affidavit of each of these four members states, "I concluded and 

agreed that Robert M. Pancich should be terminated from his 

employment at the Bank.'' Affidavits by three other members 

of the board state that prior to the termination, each of 

these three individuals had formed the opinion that the bank 

needed new leadership. All nine members of the board state 

by affidavit that on August 18, 1983, each attended a special 

meeting of the board during which each concurred in the 

termination of Mr. Pancich. The affidavits further state 

that at this meeting each member voted to elect a successor 

to Mr. Pancich. These affidavits are uncontradicted. 

Subsequently Mr. Pancich brought suit against the Bank, 

its parent corporation and Mr. Reichel individually, allegina 

wrongful termination and breach of an implied covenant of 

good faith and fair dealing. 

Initially defendants moved for summary judgment, which 

was denied by the District Court. Following denial of this 

motion, on December 7, 1987, defendants applied to this Court 

for a writ of supervisory control which was denied on two 
grounds: (1) that the District Court's order denying summary 

judgment was interlocutory; and (2) that relators had an 

adequate remedy by appeal from the final judgment. A year 

later plaintiff moved for summary judgment on the issue of 

liability. Plaintiff's motion was granted by the District 

Court without explanation or accompanying memorandum. Defendants moved the lower court to reconsider its order or to 

certify to this Court pursuant to Rule 54(b), M.R.Civ.P. 

This motion also was summarily denied. The District Court 

then set a date for trial on the issue of damages. 

I 

Did the District Court err in granting summary judgment 

in favor of plaintiff on the issue of liability? 

In our analysis, we begin by emphasizing that summary 

judgment is only appropriate when there are no genuine issues 

of material fact and the moving party is entitled to judgment 

as a matter of law. Rule 56 (c) , M.R.Civ.P. Any inferences 

to be drawn from the factual record must be resolved in favor 

of the party opposing summary judgment. Simmons v. Jenkins 

(1988), 750 P.2d 1067, 45 St.Rep. 328. 

Defendants contend that the court granted summary 

judgment based on an incorrect assumption that the denial of 

defendants' motion for summary judgment entitled plaintiff to 

summary judgment in his favor. Defendants' original motion 

for summary judgment was based upon the fact that First Bank 

West is a national bank governed by the National Bank Act, 12 

U.S.C. § 21, et seq. Defendants' claimed that this statute 

preempts state law, and that pursuant to 12 U.S.C. § 24(5), a 

national banking association has the power to appoint a 

president and to dismiss an officer "at pleasure." The 

District Court denied defendant's motion by simply stating: 
IT IS ORDERED that said motion is overruled 

and denied for the reason that a discharge is not 

ratifiable by the board after defendants executed 

the discharge of plaintiff and for the further 

conflicts in the admissible evidence revealed in 

defendants' Answers to Interrogatories #40, #SO, 

#58, #70, #73, and #74, and others. 

While we do not rule on this denial of summary judgment, we point out that it contains neither a factual nor a 

legal analysis. A year later plaintiff moved for summary 

judgment on the issue of liability. In this motion plaintiff 

contended that the court's denial of defendants' motion for 

summary judgment entitled plaintiff to summary judgment in 

his favor. Defendants contend that the court erroneously 

granted plaintiff's motion on this basis. While we cannot 

ascertain the court's reason for its decision, we do emphasize that summary judgment is not a decision on the merits. 

A denial of summary judgment is simply a decision that there 

are factual issues. As stated by one authority: 

[Tlhe denial of summary judgment does not 

preclude either party from raising at 

trial any of the issues dealt with on the 

motion. This is because the denial of 

summary judgment is not decision on the 

merits; it simply is a decision that 

there is a material factual issue to he 

tried. 

10 Wright, Miller & Kane, Federal Practice and Procedure, 

S 2712 at p. 587. While the District Co.urtls determination 

on defendants' motion for summary judgment was made a year 

earlier, and is not binding on the present motion, we point 

out that the District Court concluded that there were factual 

disputes. If there were material factual disp,utes, neither 

plaintiff nor defendant were entitled to summary judgment. 

Defendants also contend that the court erroneously 

granted summary judqment since genu-ine issues of material 
fact remain as to each of plaintiff's allegations, and as to 

defendants' affirmative defenses. In the petition for a writ 

of supervisory control, defendants list the following as 

issues involving factual determinations: 

(a) Whether the court improperly removed from jury 

consideration the issue of whether there was a 

breach of an implied covenant of qood faith and 

fair dealing when numerous affidavits described a 

fair and honest reason for the discharge from 

employment; 

(b) Whether an alleqed failure to meet the requirements of a federal preemption defense provides 

grounds for summary ruling that the implied covenant of good faith and fair dealing was breached or 

wrongful discharge occurred; 

(c) Whether mere discharge from employment, without more, entitled respondent to summary iudgment 

on the issue of liability for breach of implied 

covenant of good faith and fair dealing; 

(dl Whether denial of relators' summary judgment 

motion, without more, entitled respondent to entry 

of summary judgment; 

(e) Whether the Bank's parent corporation is 

subiect to liability for breach of implied covenant, based on discharge of its subsidiary's employee, when respondent offered no proof that the 

corporate form was used as a subterfuge to perpetrate fraud, justify wrong, or defeat public 

convenience; 

(f) Whether a director of a corporation is subject 

to personal liability when his acts were clearly 

taken in furtherance of corporate purpose. 

In reviewing the applicable law, we emphasize the 

following standards. The covenant of good faith and fair 

dealing does not arise unless the employee has been given 

objective manifestations of job security. Dare v. Montana 

Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015. 
Even if the covenant is implied in the relationship, it is 

not breached if the employer had a fair and honest or legitimate business reason for the discharge. Barrett v. ASARCO, 

Inc. (Mont. 1988), 763 P.2d 27, 45 St.Rep. 1865. 

In the present case defendants claim that Mr. Pancich 

was an at-will employee in that he had no objective manifestations of continued employment. They allege therefore that 

the covenant of good faith and fair dealing may not even 

apply to the termination. Additionally, the uncontradicted 

affidavits identify the OCC's determination that the bank was 

engaged in unsound banking practices as a fair and honest 

business reason for the discharge. The District Court had 

these affidavits for review prior to granting summary judgment. The affidavits clearly raise genuine issues of material fact. Further, the District Court had reviewed 

interrogatories and had expressly stated that there were 

conflicts in the evidence. It is clear that plaintiff established no basis from which the court could conclude that as a 

matter of law Mr. Pancich was wrongfully discharged and the 

covenant was breached. We conclude that genuine issues of 

material fact exist relative to the issues of wrongful discharge and breach of the covenant of good faith and fair 

dealing, precluding summary judgment. 

Additionally, there remain genuine issues of material 

fact regarding defendants' affirmative defense that the 

Banking Act insulates them from liability. Through uncontested affidavits, defendants present evidence supporting 

their position that the termination of Mr. Pancich had prior 

authorization by the board. They also present facts indicating that the termination was ratified by the board, both at 

the special meeting of August 18 where a new president was 

elected, and again at the September 15 meeting where each 

member voted to accept Mr. Pancich's letter of resiqnation. 
Although plaintiff contends that Mr. Reichel did not have the 

authority to discharge Mr. Pancich, the plaintiff failed to 

support this contention by affidavit or otherwise. 

In response to Justice Sheehy's dissent, we note that 

while defendants do argue that cases interpreting the Ranking 

Act would allow them this defense, we conclude that this is 

simply one more area in which issues of fact remain. We 

further point out that whether discharge "at pleasure" is 

available to defendants is only relevant to one of their 

defenses. Even if it were determined that the discharge was 

not authorized, or that ratification was not effective, this 

does not establish liability. It only eliminates that particular defense. The issue presently before this Court is 

only whether summary judgment against all defendants on the 

issue of liability was proper. The argument in regard to the 

Banking Act does not dispose of that issue. 

We also agree with defendants' contention that plaintiff has failed to present facts from which it may be concluded that, as a matter of law, the parent corporation of 

First Bank West is liable for breach of the covenant of good 

faith and fair dealing, or that Mr. Reichel is personally 

liable in this suit. Meridian Minerals Co. v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 742 P.2d 456, (parent corporation not a participant in action of subsidiary unless 

corporate form is used as subterfuge) ; Bottrell v. American 

Bank (1989), 773 P.2d 694, 46 St.Rep. 561, (actions of bank 

officers protected by corporate shield from personal liability). Genuine issues of material fact remain on these issues. 

Because of the numerous genuine issues of material fact 

on each of the above issues, we conclude that the District 

Court's grant of summary judgment was manifestly incorrect. 
Is supervisory control appropriate when the District 

Court granted summary judgment in favor of Plaintiff despite 

the presence of numerous factual issues? 

This Court discussed the role of s.upervisory control in 

State ex re1 Whiteside v. District Court (1900), 24 Mont. 

539, 562-63, 63 P. 395, 400, as follows: 

It has its own appropriate functions, and, without 

undertaking to define particularly what these 

functions are, we think one of them is to enable 

this court to control the course of litigation in 

the inferior courts where those courts are proceeding within their jurisdiction, but by a mistake of 

law, or willful disregard of it, are doing a gross 

injustice, and there is no appeal, or the remedy by 

appeal is inadequate. Under such circumstances, 

the case being exigent, no relief could he granted 

under the other powers of this Court, and a denial 

of a speedy remedy wo.uld be tantamount to a denial 

of justice. Cases may arise also where some relief 

could be granted under some one of the other original writs named, but such relief would not be 

complete and adequate because of some error which 

could not be corrected by means of the limited 

functions of the particular writ, while the supervisory power is unlimited in the means at our 

disposal for its appropriate exercise. 

This Court may accept supervisory control pursuant to 

Rule 17, M.R.App.P., when due appeal is an inadequate remedy. 

In applying this standard we have repeatedly stated that a 

writ may issue to prevent extended and needless litigation: 

. . . This Court will nonetheless accept jurisdiction to protect First Bank from participating in 

needless ligigation, a purpose for which a writ of 

supervisory control is intended: " . . . it is in 

the nature of a summary appeal--a shortcut--to 

control the course of litigation in the trial court 

. . . and may be employed to prevent extended and 

needless litigation." (Citations omitted.) 
First Bank v. Fourth ~udicial Dist. Court (1987), 227 Mont. 

515, 519, 737 P.2d 1132, 1134. 

We also issued the writ in Continental Oil v. Elks Nat. 

Foundation (Mont. 1989), 767 P.2d 1324, 46 St.Rep. 121, to 

correct a partial summary judgment order, and in Great Western Sugar Co. v. District Court (1980), 188 Mont. 1, 778 

P.2d. 272, the writ issued to prevent needless litigation 

where the district court had refused to dismiss a defendant 

whose affirmative defense clearly allowed dismissal. 

Appellate review of an interlocutory order by the 

district court is not favored because of this Court's reluctance to intervene in district court decisions and because 

there normally is an adequate remedy by appeal, State ex rel. 

Guar. Ins. v. District Court (Mont. 1981), 634 P.2d 648, 38 

St.Rep. 1682. However, issuance of an extraordinary writ is 

discretionary, 16 Wright, Miller and Kane, Federal Practice 

and Procedure, 5 3932 at p. 187, and this Court has previously accepted review in an appropriate case. - See, - e.g., State 

ex rel. Burlington Northern v. Dist. Ct. (Mont. 1989), 779 

P.2d 885, 46 St.Rep. 1625 (writ issued because an order 

placed a party at a significant disadvantage in litigating 

the merits of a case); ~uiper v. Dist. Court of Eighth Judicial Dist. (Mont. 1981), 632 P.2d 694, 38 St.Rep. 1288 (writ 

issued to determine whether district court properly granted a 

protective order) ; Jaap v. District Court of Eighth Judicial 

Dist. (Mont. 1981), 623 P.2d 1389, 38 St.Rep. 280 (writ 

issued where district court exceeded its jurisdiction by 

allowing defendant's attorney to privately interview plaintiff's physicians). A case by case analysis must be employed 

in determining whether supervisory control should be accepted. State ex rel. Deere and Co. v. District Court (1986), 

224 Mont.. 384, 730 P.2d 396. 
The record here establishes genuine issues of material 

fact regarding the liability of each of three separate defendants. It is premature to allow a trial on damages as to any 

one or all three of the defendants under that circumstance. 

Such a trial on damages becomes needless and expensive litigation. The attendant publicity of such a trial on damages 

and its adverse effect upon defendants is not easily calculated. We conclude that the order of the District Court was 

was manifestly incorrect and created problems sufficiently 

burdensome to the defendants to require this Court to take 

supervisory control. We conclude that supervisory control is 

appropriate to prevent needless and potentially damaging 

litigation. We vacate the District Court's order of summary 

judgment and remand for further proceedings consistent with 

this opinion. 

We Concur: H 

,/ ' 1 Ir 7- 

Hdnorable Henry-le, ReHarrison 
Justice R. C. McDonough dissenting. 

I would deny the writ. Relators here have an adequate 

remedy by appeal. 1 

@&%zd4zd7d Justice 
Justice John C. Sheehy, dissenting: 

The first mistake of the majority is its unwarranted 

interference with the ~istrict Court's interlocutory order 

for which, if wrong, there is a complete and speedy remedy by 

appeal. The second mistake of the majority is, having 

determined to interfere, the members have failed to interpret 

properly the applicable law relating to the discharcre of a 

bank officer. Had they properly interpreted the law, they 

had then discovered that there was no genuine issue of 

material fact before the District Court. 

It should have piqued the interest of the majority that 

in all of the briefs filed by the banks, there is not a 

single whisper of contention that Pancich was an at-will 

employee. 

It should further have piqued the interest of the 

majority that in all of the briefs filed by the banks, there 

is not a single reference to federal law or federal cases 

bearing on the discharge of a bank officer, although in this 

case the banks involved are national associations. 

Had their interest been piqued, they should first have 

looked at the provisions of 12 U.S.C. § 24, which relates to 

the discharge of bank officers. The statute provides that a 

national bank has the power: 

FIFTH. To elect or appoint directors, and by its 

board of directors to appoint a president, vz 

presideyt, cashier, and other officers, define 

their duties, require bonds of them and fix the 

penalty thereof, -dismiss such officers or any of 

-- them at pleasure, and appoint others to fill in 

their places. (Emphasis added.) 

The effect of 12 U.S.C. § 24 was discussed in McWhorter 

v. First Interstate Bank (0r.App. 1986), 724 P.2d 877, 879, 

wherein it was contended that the president of a national 
bank had authority to dismiss a bank officer. The Oregon 

court said: 

The difficulty with defendant's argument is that we 

are concerned here with the delegation of a 

specific statutory duty, not simply with the 

managerial powers that normally accompany a general 

conferral of authority in the articles or bylaws of 

a corporation. Section 24 (Fifth) explicitly 

confers the responsibility for the hiring and 

dismissal of officers on the board of directors. 

Other provisions of the national banking laws make 

it clear that Congress knows how to manifest its 

intent about what powers are exercisable only by 

the board and what powers may be exercised by 

subordinate entities. See, e.g. 12 U.S.C. 5 24 .- (Seventh) ("board of directors or duly authorized 

officer or agents"). 

We consider that premise to be incorrect, because 

the authority to hire and fire the officers of 

national banks is not simply a matter of corporate 

organization; it is a matter which Congress has 

deemed sufficiently important to regulate by 

statute and to entrust to the highest decision 

making entity in the corporate structure . . . 

In Mahoney v. Crocker Nat'l Bank (N.~ist.cal, 1983), 571 

F.Supp. 287, discharged national bank officers brought suit 

against the bank based on the federal Age ~iscrimination in 

Employment Act. The bank sought to interpose the defense 

that because it was a national bank, its bank officers served 

at pleasure under the National an king Act, 12 U.S.C., 

section 24. The appeals court held that because the 

plaintiff bank officers had not been discharged by the bank's 

board of directions, nor by an officer empowered by the 

by-laws to discharge bank officers, the defense of at-will 

employment was not available to the bank, since the dismissal 

of the bank officers was not done in a manner authorized by 
the National ank king Act, 12 U.S.C., section 24. Mahoney, 

571 F.Supp. at 290-291. 

In this case, one member of the majority has concluded 

that because in Mahoney the bank sought to use the National 

Banking Act in defense, the provisions of the Act are 

available only to banks as a defense, and that plaintiffs 

cannot rely on those same provisions to prove an improper 

discharge. On that basis the member of the majority refuses 

to acknowledge the right of a discharged bank officer to rely 

on the procedures established by Congress for the hiring and 

firing of bank officers in 12 U.S.C., section 24, saying the 

Act is only available to a bank as a matter of defense. 

There is no way for me to explain that rationale: Clearly, 

it seems to me, while it is true that under the National 

 ank king Act, a bank officer is an at-will employee, under the 

same Act, his dismissal can only be by the board of directors 

in concert, or by someone authorized in the by-laws to 

dismiss the bank officer. Any other kind of dismissal is 

against law and gives rise to liability. 

In this case, the discharge of ~ancich was by John 

Reichel, and not by the board of directors. Attempt was made 

by the bank to show that the board of directors ratified the 

discharge. Under the cases, they are not helped by that 

attempt. It is old law and undisputed to this date that the 

assent of the individual members of the board, acting 

separately and singly, and not when acting as a unit, is not 

the assent of the bank, and is not binding on the bank. 

~irst Nat. Bank v. Drake (Kan. 1886), 11 P. 445, 447. In 

~iskotoni v. ~ichigan Nat. Rank-West (6th ~ir. 1983) , 716, 

F.2d 378, 387, the federal court held that an attempt by the 

board of directors to ratify the president's action in 

terminating an officer did not satisfy the statutory 

requirement that officers of a national bank be dismissed by 
an action of the bank's board of directors. Ratification 

therefore is impossible. The Oregon court recognized the 

authority of ~iskotoni and refused to recognize an attempted 

ratification of a discharge by the board of directors after 

the fact. McWhorter v. ~irst Interstate Bank (0r.App. 1986), 

724 P.2d 877, 879. In the light of those decisions and the 

plain statutory language of 12 U.S.C. $ 24 (~ifth), the 

~istrict Court was eminently correct in holding: 

IT IS ORDERED that said motion is overruled and 

denied for the reason that a discharge is not 

ratifiable by the board after defendants executed 

the discharge of plaintiff . . . 

There is no legal requirement that a district court in 

ordering summary judgment should express reasons or give a 

legal analysis as referred to in the majority opinion. We 

have suggested that such be done but if the district court 

does not do so, this Court is not excused from its duty to 

examine the law to determine if the summary judgment is 

proper. In this case, an examination of the applicable law 

shows that the order of the district court was correct. 

The legal situation in this case boils down to this: 

John Reichel, as the regional managing director of the 

western Montana region of First Bank System, or as a director 

of the bank, in discharging Robert M. Pancich from the 

presidency of ~irst Bank West, Great Falls, acted completely 

against a Congressional statute. It is not relevant in this 

situation that First Bank West might otherwise have had good 

cause to discharge the president. If it had such cause, it 

could only act through its board of directors. Reichel 

plainly tortiously interfered with the contractual relation 

between Pancich and his bank. A violation of a federal 

statute with respect to discharge is certainly a breach of 

the implied covenant of good faith and fair dealing---if 
expected compliance with federal statutes is not inherent in 

a national bank officer, what importance can we attach to 

mere personnel brochures upon which we have previously 

supported implied covenants? Public policy ordained by 

Congress through its national banking laws requires that an 

officer be discharged only by the board of directors of a 

national bank. When public policy has been violated in 

connection with a wrongful discharge, a cause of action 

arises. Keneally v. Orgain (1980), 186 Mont. 1, 5-6, 606 

P.2d 127, 129. 

Moreover, there is no basis for the contention that John 

Reichel has no personal liability in this matter. He is the 

person who violated the congressional statute. Under the 

National Banking Act he had no authority to remove Pancich as 

a bank officer. The order of the District Court fixing 

liability for a wrongful discharge upon the defendant Reichel 

was eminently proper in this case. 

There is further no basis to contend that a question of 

fact exists as to the liability of First Bank System. In 

discharging ~ancich, ~eichel was acting as the agent of ~irst 

Bank System. A corporation is liable for the wrongful acts 

of its agents when the agents are acting in the course and 

scope of their employment. ~irst Bank System is responsible 

for Reichel's wrongful acts. 

The foregoing applicable law convinces me that there is 

no genuine issue of material fact as to the liability of the 

defendants and that the ~istrict Court properly ordered 

summary judgment on that point. Even if I were not so 

convinced, however, I would still not grant supervisory 

control because such action is a plain interference with the 

District Court proceedings from which there is complete, 

adequate and speedy remedy by appeal. The majority cites a 

number of cases in which we granted summary judgment but that 
simply glosses over what is occurring here, a direct 

interloping into the district court process on improvident 

grounds. I am outraged at the effect on the ~istrict Court 

proceedings. The District Court, after granting partial 

summary judgment had fixed trial of the cause for September 

29, 1989. This Court vacated that trial setting, acting 

through its majority. In their exorbitant worry over 

"needless and expensive litigation" and "attendant publicity" 

the majority here have made the district court trials more 

expensive and burdensome, and necessarily increased the 

expense of the litigation--quite needlessly, in view of the 

law. The same thing happened recently in State ex rel. 

Burlington Northern v. ~istrict Court (Mont. 1989) , - P.2d 

, 46 St.Rep. 1625. There, an injured railroad worker 

lost his trial setting by the action of this Court. It is 

too late to rectify the loss of a trial setting in the case 

at bar but we should at least refuse supervisory control. 

Justice William E. Hunt, Sr.: 

I concur in the dissent of Justice Sheehy.