[Cite as Johnson v. Aultman Hosp., 2018-Ohio-1268.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ANGELA JOHNSON 

 Plaintiff-Appellant 

-vsAULTMAN HOSPITAL, et al. 

 Defendants-Appellees 

JUDGES: 

Hon. John W. Wise, P. J. 

Hon. Craig R. Baldwin, J. 

Hon. Earle E. Wise, Jr., J. 

Case No. 2017 CA 00145 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 2016 CV 01468 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: March 30, 2018 

APPEARANCES: 

For Plaintiff-Appellant For Defendants-Appellees 

ANDREA L. WHITAKER BRUCE G.HEAREY 

WILLIAM T. WHITAKER KATHLEEN J. SANZ 

WILLIAM T. WHITAKER CO., LPA OGLETREE, DEAKINS, NASH, 

54 East Mill Street SMOAK & STEWART 

Suite 301 127 Public Square, Suite 4100 

Akron, Ohio 44308 Cleveland, Ohio 44114 
Stark County, Case No. 2017 CA 00145 2

Wise, John, P. J. 

{¶1} Appellant Angela Johnson appeals the July 6, 2016, decision of the Stark 

County Common Pleas Court granting summary judgment in favor of Appellees Aultman 

Hospital and Marie Hooper. 

STATEMENT OF THE FACTS AND CASE

{¶2} In December, 2012, Appellant Angela Johnson was hired by Appellee 

Aultman Hospital as an oncology nurse. In June, 2015, Aultman's Pharmacy Unit ran a 

routine, random audit of its nurses' narcotics withdrawal and administration records. 

Appellant’s scores over a three-month period were found to be higher than usual and 

higher than her peers. Additionally, approximately twenty-one (21) discrepancies were 

found in which Appellant had either failed to document her administration of narcotics that 

she had withdrawn, or she had withdrawn more medication than a particular patient's 

prescription called for. 

{¶3} On July 1, 2015, Appellee Marie Hooper, Appellant’s immediate supervisor, 

met with Appellant to bring these discrepancies to her attention. Appellant was unable to 

provide an explanation for all of the discrepancies, and Appellant was suspended pending 

further investigation. 

{¶4} On July 13, 2015, Hooper met with Appellant again and notified her that she 

was being terminated for failure to follow proper protocol regarding medication 

administration and for theft of narcotics. Appellant denied that she had stolen any drugs 

and initiated an action with the Ohio Unemployment Compensation Review Commission. 

Following hearings and testimony, the hearing officer on December 22, 2015, concluded 

that Appellant had been terminated for just cause. 
Stark County, Case No. 2017 CA 00145 3

{¶5} On June 24, 2016, Appellant filed a Complaint in the Stark County Court of 

Common Pleas against Appellees Aultman Hospital and Marie Hooper alleging eight 

causes of action: (1) breach of implied contract; (2) wrongful discharge; (3) libel; (4) 

slander; (5) tortious interference with employment relationship; (6) respondeat superior; 

(7) tortious interference with future employment; and (8) intentional infliction of emotional 

distress. 

{¶6} On July 27, 2016, Appellees filed a Civ.R. 12(B)(6) Motion to Dismiss. 

{¶7} On November 17, 2016, the trial court granted Appellees’ motion to dismiss 

as to six of the eight causes of action. Appellant’s causes of action for breach of implied 

contract and wrongful termination remained. 

{¶8} On November 28, 2016, Appellant voluntarily dismissed her wrongful 

discharge claim, leaving only the claim for breach of implied contract against Aultman 

Hospital. 

{¶9} On December 16, 2016, Appellant filed a new Complaint (Case No. 

2016CV02741) reasserting only the defamation claims, and the two cases were 

consolidated on February 21, 2017. 

{¶10} On April 17, 2017, Appellees filed a Motion for Summary Judgment. 

{¶11} On July 6, 2016, the trial court granted Appellees’ Motion for Summary 

Judgment. 

{¶12} Appellant now appeals, assigning the following errors for review: 

ASSIGNMENTS OF ERROR 

{¶13} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

ON WHETHER THERE EXISTS AN IMPLIED DUTY OF CONTINUED EMPLOYMENT 
Stark County, Case No. 2017 CA 00145 4

IN THE ABSENCE OF JUST CAUSE WHEN THERE IS A GENUINE ISSUE OF 

MATERIAL FACT AS TO WHETHER THE ALLEGED BASIS OF THE DISCHARGE IS A 

FALSE CLAIM THAT CAUSES FORESEEABLE HARM BEYOND AND GREATER THAN 

LOSS OF EMPLOYMENT; TO WIT, THAT THE EMPLOYER CAUSED FORESEEABLE 

HARM BY DISCHARGING APPELLANT ON THE BASIS OF A FALSE ACCUSATION 

OF A THEFT OF DRUGS TRIGGERING A FALSE REPORT TO THE STATE BOARD 

OF NURSING. 

{¶14} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

ON APPELLANT'S DEFAMATION CLAIMS AS THERE ARE GENUINE DISPUTES OF 

MATERIAL FACT AS TO 1) WHETHER THE DEFENDANTS FALSE REPORT TO THE 

OHIO BOARD OF NURSING WAS MADE BY THE DEFENDANTS AND, IF SO, 

WHETHER IT IS PROTECTED BY QUALIFIED IMMUNITY, AND 2) WHETHER 

DEFENDANT MARIE HOOPER MADE DEFAMATORY STATEMENTS TO A FRIEND 

OF THE APPELLANT FALSELY CLAIMING THAT APPELLANT STOLE DRUGS FROM 

AULTMAN HOSPITAL” 

Summary Judgment Standard 

{¶15} Summary judgment proceedings present the appellate court with the unique 

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. 

The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. Civ.R. 56(C) 

provides, in pertinent part: 

 Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence in the pending case, and written stipulations of fact, 
Stark County, Case No. 2017 CA 00145 5

if any, timely filed in the action, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to judgment as a 

matter of law. * * * A summary judgment shall not be rendered unless it 

appears from such evidence or stipulation and only therefrom, that 

reasonable minds can come to but one conclusion and that conclusion is 

adverse to the party against whom the motion for summary judgment is 

made, such party being entitled to have the evidence or stipulation 

construed most strongly in his favor. 

{¶16} Pursuant to the above rule, a trial court may not enter a summary judgment 

if it appears a material fact is genuinely disputed. The party moving for summary judgment 

bears the initial burden of informing the trial court of the basis for its motion and identifying 

those portions of the record that demonstrate the absence of a genuine issue of material 

fact. The moving party may not make a conclusory assertion that the nonmoving party 

has no evidence to prove its case. The moving party must specifically point to some 

evidence *759 which demonstrates the non-moving party cannot support its claim. If the 

moving party satisfies this requirement, the burden shifts to the non-moving party to set 

forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila 

v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio 

St.3d 280, 662 N.E.2d 264 (1996). 

I.

{¶17} In her first assignment of error, Appellant argues that the trial court erred in 

granting summary judgment in favor of Appellees on her wrongful termination claims. 
Stark County, Case No. 2017 CA 00145 6

{¶18} Ohio is an employment at-will state. Dohme v. Eurand Am., Inc., 130 Ohio 

St.3d 168, 2011–Ohio–4609, 956 N.E.2d 825, ¶ 11. Either party to an employment-at-will 

agreement may terminate the employment relationship for any reason that is not contrary 

to law. Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 483 N.E.2d 150 (1985). Stated 

another way, an employee can be terminated for good cause, bad cause, or no cause at 

all. Phung v. Waste Mgt., Inc., 23 Ohio St.3d 100, 491 N.E.2d 1114 (1986). 

{¶19} The doctrines of implied contract and promissory estoppel are two 

exceptions to the general rule that “employment situations of no fixed duration are 

presumed to be at-will” and terminable at any time for any lawful reason. Shetterly v. WHR 

Health Sys., 9th Dist. No. 08CA0026–M, 2009–Ohio–673, at ¶ 6–12. 

{¶20} An employee seeking to prove the existence of an implied contract “bears 

the heavy burden of demonstrating (1) assurances on the part of the employer that 

satisfactory work performance was connected to job security; (2) a subjective belief on 

the part of the employee that he could expect continued employment; and (3) indications 

that the employer shared the expectation of continued employment.” Craddock v. Flood 

Co., 9th Dist. No. 23882, 2008–Ohio–112, at ¶ 7. 

{¶21} Regarding promissory estoppel, “[t]he test ... is whether the employer 

should have reasonably expected its representation to be relied upon by its employee 

and, if so, whether the expected action or forbearance actually resulted and was 

detrimental to the employee.” Shetterly, 2009–Ohio–673, at ¶ 6 (quoting Kelly v. Georgia–

Pacific Corp., 46 Ohio St.3d 134, 139, 545 N.E.2d 1244 (1989)). “This exception requires 

‘specific representations' rather than [g]eneral expressions of optimism or good will. 

Standing alone, praise with respect to job performance and discussion of future career 
Stark County, Case No. 2017 CA 00145 7

development will not modify the employment-at-will relationship.” Id. (quoting Craddock,

2008–Ohio–112, at ¶ 8) (citations omitted)). “Whether a plaintiff proceeds under a theory 

of implied contract or promissory estoppel, ... specific representations leading to an 

expectation of continued employment are essential.” Craddock, 2008–Ohio–112, at ¶ 8; 

see Wing v. Anchor Media Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph 

two of the syllabus (1991). 

{¶22} Appellant, however, does not seem to make an argument as to breach of 

implied contract and/or promissory estoppel, arguing instead that Appellee had an 

“implied duty to not discharge [her] based upon a false claim of theft of drugs.” (See

Appellant’s brief at 17). In support, Appellant seems to be arguing that the employee 

handbook’s policy and procedures for progressive discipline created an assurance that 

her employment would continue in accordance with such terms. (Appellant’s brief at 17-

18).

{¶23} As a general rule in Ohio, employee handbooks do not constitute an 

employment contract. Stembridge v. Summit Acad. Mgmt., 9th Dist. No. 23083, 2006–

Ohio–4076, ¶ 27, citing Rudy v. Loral Defense Sys., 85 Ohio App.3d 148, 152, 619 N.E.2d 

449 (9th Dist.1993). The handbook is simply a unilateral statement of rules and policies 

creating no obligations or rights. Tohline v. Cent. Trus. Co., 48 Ohio App.3d 280, 282, 

549 N.E.2d 1223 (1st Dist.1988). 

{¶24} The Ninth District Court of Appeals addressed the issue raised herein in 

Stembridge v. Summit Acad. Mgt., supra: 

 An employment relationship is terminable at the will of either party 

unless expressly stated otherwise. (Citation omitted). Henkel v. Educational 
Stark County, Case No. 2017 CA 00145 8

Research Council of Am. (1976), 45 Ohio St.2d 249, 255, 344 N.E.2d 118. 

However, the employment at-will doctrine is the subject of two exceptions: 

(1) the existence of an implied or express contract which alters the terms of 

discharge; and (2) the existence of promissory estoppel where 

representations or promises were made to an employee. Mers v. Dispatch 

Printing Co. (1985), 19 Ohio St.3d 100, 104, 483 N.E.2d 150. Appellant has 

argued that Aultman’s employee handbook constitutes an exception to the 

employment-at-will doctrine. 

 Generally, employee handbooks do not constitute an employment 

contract. Rudy v. Loral Defense Sys. (1993), 85 Ohio App.3d 148, 152, 619 

N.E.2d 449. This Court has previously held that “ ‘employee manuals and 

handbooks are usually insufficient, by themselves, to create a contractual 

obligation upon an employer.’ ” Gargasz v. Nordson Corp. (1991), 68 Ohio 

App.3d 149, 155, 587 N.E.2d 475, quoting Manofsky v. Goodyear Tire & 

Rubber Co. (1990), 69 Ohio App.3d 663, 591 N.E.2d 752. Evidence of an 

employee handbook may be considered when deciding whether an implied 

contract exists, but its existence alone is not dispositive of the question. 

Wright v. Honda of Am. Mfg., Inc. (1995), 73 Ohio St.3d 571, 574–575, 653 

N.E.2d 381. 

 In Karnes v. Doctors Hospital (1990), 51 Ohio St.3d 139, 141, 555 

N.E.2d 280, the Ohio Supreme Court held that an employee handbook that 

expressly disclaimed any employment contract could not be characterized 

as an employment contract. This Court has also addressed disclaimers and 
Stark County, Case No. 2017 CA 00145 9

found that “ ‘[a]bsent fraud in the inducement, a disclaimer in an employee 

handbook stating that employment is at will precludes an employment 

contract other than at will based upon the terms of the employee 

handbook.’” Westenbarger v. St. Thomas Med. Ctr. (June 29, 1994), 9th 

Dist. No. 16119, at 7, quoting Wing v. Anchor Media, Ltd. of Texas (1991), 

59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph one of the syllabus.” Id. at 

paragraphs 26–28. 

{¶25} In the case sub judice, we find Appellant was an at-will employee. Aultman’s 

employee handbook, at page 15, contains an acknowledgement by the employee which 

states in pertinent part as follows: 

 The contents of this handbook are presented as a matter of 

information only and are subject to change. The plans, policies, and 

procedures described are not conditions of employment. Aultman Health 

Foundation reserves the right to modify, revoke, suspend, terminate, or 

change any or all such plans, policies, or procedures, in whole or in part, at 

any time with or without notice. The language in this handbook is not 

intended to create, nor is it to be construed to constitute, a contract between 

Aultman Health Foundation, or its affiliates, and any one or all of its 

employees. That is, employment can be terminated at any time at the will 

of either the employer or the employee ... I also acknowledge that this 

handbook is not a contract of employment and that either my employer or I 

may terminate my employment at any time, with or without cause, and with 

or without notice. 
Stark County, Case No. 2017 CA 00145 10

{¶26} The nature of the at-will employment is repeated again on page 14, wherein 

it states: 

 Aultman is an at-will employer. Just as an employee can terminate 

his or her employment with Aultman at any time, and for any or no reason; 

Aultman can terminate an employee at any time and for any or no reason. 

This policy of employment at-will means that the continued employment of 

any person is the option of Aultman. 

{¶27} We find, based on the foregoing, that the trial court did not err in finding that 

appellant was an at-will employee, and that the trial court did not err in granting summary 

judgment in favor of Appellees on Appellant's implied contract claims. 

{¶28} We further find that the trial court did not err in granting summary judgment 

to Appellees on Appellant's promissory estoppel claim. Upon our review of the record, we 

find no evidence that Appellees made any promises of continued employment to 

Appellant independent of the employee handbook. We note that Appellant, in her brief, 

does not argue that any such promises were made. 

{¶29} Even if we were to find that the disciplinary procedures created an 

enforceable promise, there is no evidence of any breach thereof, because theft is 

expressly identified as an offense which may result in "immediate discharge". 

{¶30} Page 51 of the employee handbook sets for the disciplinary guidelines and 

state, in pertinent part: 

 Any course of action or activity by an employee, even if it is not 

expressly forbidden by any policy, practice or rule, which interferes with the 

orderly operation of Aultman, the safety of its patients, visitors, customers, 
Stark County, Case No. 2017 CA 00145 11

employees or equipment, or is contrary to generally accepted standards of 

personal conduct or behavior, will be cause for disciplinary action which 

may include the employee's termination. 

{¶31} The handbook then lists three groups of "types of actions" which "may 

result" in various outcomes. However, the handbook expressly states that this "list is not 

all-inclusive and is for guidance only." Theft is listed among the group of offenses that 

"may result" in "immediate discharge". 

{¶32} Finally, Appellant has produced no evidence that she detrimentally relied 

on such a promise. Detrimental reliance does not exist where the promisee merely 

refrains from seeking other employment; she must reject a specific offer of employment 

to show detrimental reliance. Stickler v. Keycorp, 8th Dist. Cuyahoga No. 80727, 2003–

Ohio–283, ¶ 27; Onysko v. Cleveland Pub. Radio, 8th Dist. Cuyahoga No. 76484, 2000 

Ohio App. LEXIS 3368 (July 27, 2000), citing Nilavar v. Osborn, 127 Ohio App.3d 1, 17–

18, 711 N.E.2d 726 (2d Dist.1998). Here, there is no evidence that Appellant rejected an 

offer of employment based on any alleged promise by Appellee. 

{¶33} Based on the foregoing, we find the trial court properly granted summary 

judgment on Appellant’s claims of implied contract and promissory estoppel. 

{¶34} Appellant’s first assignment of error is overruled. 

II. 

{¶35} In her second assignment of error, Appellant argues the trial court erred in 

granting summary judgment on her defamation claims. We disagree. 
Stark County, Case No. 2017 CA 00145 12

{¶36} In the instant case, Appellant bases her defamation claims on: 1) Aultman’s 

report to the State of Ohio Board of Nursing; and 2) Marie Hooper’s statement to Jessica 

Starr. 

{¶37} To establish a claim for defamation, a plaintiff must show: (1) a false 

statement of fact was made about the plaintiff; (2) the statement was defamatory; (3) the 

statement was published; (4) the plaintiff suffered injury as a proximate result of the 

publication; and, (5) the defendant acted with the requisite degree of fault in publishing 

the statement. Jamison v. Galena, 2015-Ohio-2845, 38 N.E.3d 1176, ¶ 52 (5th Dist.) citing 

Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 

832. The requisite degree of fault the plaintiff must establish is dependent upon the 

classification of the defamation. 

Report to the Ohio Board of Nursing 

{¶38} Appellant asserts that both Appellees made defamatory statements by 

making a report to the Nursing Board in connection with Appellant’s termination for theft 

of narcotics. 

{¶39} Upon review, we find that Appellant has again failed to produce competent 

evidence of any defamatory statement. The only evidence produced by Appellant 

consisted of the following excerpt of testimony by Appellee Hooper at Appellant’s 

Unemployment Compensation Hearing: 

 Mr. Whitaker: My first question is this. I noticed that you put in your 

statement that you notified, that you believe that Ms. Johnson had stolen 

drugs and that you notified the Board of Nursing of that fact. 

 Ms. Hooper: Correct. 
Stark County, Case No. 2017 CA 00145 13

 Q: And did you? 

 A: HR did. 

{¶40} Appellant did not produce evidence of any written statement from Aultman 

to the Board of Nursing. She did not produce any evidence from the Board of Nursing 

itself. No clear testimony was produced as to what exactly was actually even reported to 

the Board of Nursing. As stated by the trial court in its Judgment Entry “there is no 

evidence of what was actually said, or even whether the communication was made 

verbally or in writing. Defendant Hooper herself did not notify the Board of Nursing; "HR" 

did, and there is no evidence from anyone in "HR" as to precisely what was communicated 

to the Board of Nursing.” The trial court then found that without evidence of the actual 

statement, it could not “find that sufficient evidence exists that a defamatory statement 

was published to a third party. Moreover, even if proper evidence of a false statement 

had been produced, Defendants have demonstrated the existence of a qualified privilege 

and Plaintiff has produced no evidence to overcome it.” 

{¶41} This Court further finds that R.C.§ 4723.34 imposes a mandatory reporting 

obligation upon Appellee Aultman Hospital, as follows: 

 A person or governmental entity that employs, or contracts directly 

or through another person or governmental entity for the provision of 

services by, registered nurses, licensed practical nurses, dialysis 

technicians, medication aides, or certified community health workers and 

that knows or has reason to believe that a current or former employee or 

person providing services under a contract who holds a license or certificate 

issued under this chapter engaged in conduct that would be grounds for 
Stark County, Case No. 2017 CA 00145 14

disciplinary action by the board of nursing under this chapter or rules 

adopted under it shall report to the board of nursing the name of such 

current or former employee or person providing services under a contract. 

The report shall be made on the person's or governmental entity's behalf by 

an individual licensed by the board who the person or governmental entity 

has designated to make such reports. 

{¶42} R.C.§ 4723.341 further provides that in the absence of fraud or bad faith, 

"no person reporting to the board of nursing" with regard to matters under this chapter 

shall be subject to liability in damages in a civil action such as the instant case. 

{¶43} We therefore find that, in the absence of any evidence of fraud or bad faith, 

Appellees are statutorily entitled to immunity from civil liability herein. Appellant herein 

has not produced any evidence of fraud or bad faith. 

{¶44} Additionally, a publication is protected by a qualified privilege when the 

defendant making the communication is doing so under the performance of a public or 

private duty, or where the publisher and the recipient have a common interest. Hahn v. 

Kotten (1975), 43 Ohio St.2d 237, 243-244, 72 0.0.2d 134, 138,331 N.E.2d 713,718. 

{¶45} Based on the existence of a mandatory reporting requirement as set forth 

above, Appellees had a qualified privilege to report Appellant’s termination and the reason 

for same. Appellant herein would have to show actual malice to overcome the qualified 

privilege. Id.

{¶46} "Actual malice" requires clear and convincing evidence that a defendant 

published a statement with knowledge that it was false or with reckless disregard of its 

truth or falsity. A & B-Abel/ Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades 
Stark County, Case No. 2017 CA 00145 15

Council, 73 Ohio St.3d 1, 1995-0hio-66, 651 N.E.2d 1283 (1995). In order to demonstrate 

"reckless disregard", Appellant must produce "sufficient evidence to permit the conclusion 

that the defendant in fact entertained serious doubts as to the truth of his publication." 

{¶47} In the instant case, Appellant has not produced any evidence of reckless 

disregard by Appellees, nor any evidence from which reasonable minds could find any 

"actual malice" on the part of Appellees in connection with their report concerning 

Appellant's termination to the Board of Nursing. 

{¶48} The trial court therefore did not err in finding that Appellees were entitled to 

judgment as a matter of law on this defamation claim. 

Statement to Jessica Starr 

{¶49} Appellant also alleges that Marie Hooper made a defamatory statement to 

Jessica Starr, a mutual friend. 

{¶50} Upon review, Appellant has again failed to support this allegation with any 

competent or admissible evidence with regard to such statement. 

{¶51} As found by the trial court : 

 The record contains no evidence from Ms. Starr herself by way of 

affidavit, deposition, or other sworn statement, and no evidence or 

admission from Defendant Hooper as to any such statement. The sole 

"evidence'' of any such statement is Plaintiff's statement that she (Plaintiff) 

was told by Ms. Starr that Ms. Hooper had said (to Ms. Starr) that Plaintiff 

had been stealing drugs and had filed a lawsuit. 
Stark County, Case No. 2017 CA 00145 16

{¶52} The trial court found that “[n]otwithstanding the purported truthfulness of any 

such statement, this "evidence" is unqualified hearsay” and therefore inadmissible 

pursuant to Civil Rule 56. 

{¶53} We likewise find Appellant's statement as to what Ms. Starr said Mrs. 

Hooper allegedly said to her is not admissible under Rule 801 or Rule 56 and is insufficient 

to create a genuine issue of material fact. 

{¶54} Additionally, in her deposition, Appellant admitted that she did not even 

know any of the details of the conversation between Hooper and Starr, stating: 

{¶55} "I wasn't part of that conversation, so I don't know what Marie [Hooper] told 

Jessica specifically" and "I don't know the specifics of their conversation." 

{¶56} Based on the lack of competent evidence of any defamatory statement, 

Appellant’s defamation claim against Defendant Hooper also fails. 

{¶57} Appellant’s second assignment of error is overruled. 

{¶58} For the foregoing reasons, the decision of the Court of Common Pleas of 

Stark County, Ohio, is affirmed. 

By: Wise, John, P. J. 

Baldwin, J., and 

Wise, Earle E., J., concur. 

JWW/d 0316