[Cite as Hoppel v. Feldman, 2011-Ohio-1183.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

DOUGLAS E. HOPPEL ) CASE NO. 09 CO 34 

) 

PLAINTIFF-APPELLANT ) 

) 

VS. ) OPINION 

) 

A. RICHARD FELDMAN, et al. ) 

) 

DEFENDANTS-APPELLEES ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Columbiana County, Ohio 

Case No. 2009-CV-538 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellant: Atty. Carl Frankovitch 

Atty. Kevin M. Pearl 

Frankovitch, Anetakis Colantonio 

 & Simon 

337 Penco Road 

Weirton, WV 26062 

For Defendants-Appellees: Atty. James F. Koehler 

Atty. P. Wesley Lambert 

1400 Fifth Third Center 

600 Superior Avenue, East 

Cleveland, Ohio 44114 

Atty. Gregory V. Mersol 

Atty. Chris Bator 

Atty. Jeffrey Vlasek 

Baker & Hostetler LLP 

3200 National City Center 

1900 East Ninth Street 

Cleveland, Ohio 44114-3485 

JUDGES: 
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Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: March 9, 2011 

WAITE, P.J. 

{1} Appellant, Douglas E. Hoppel, appeals the judgment entry of the 

Columbiana County Court of Common Pleas granting a motion to stay the 

proceedings and compel arbitration filed by Appellees, A Richard Feldman, The 

Feldman Agency, Intersecurities, Inc. (collectively “the Feldman defendants”), and a 

motion to stay the proceedings filed by Appellee, New York Life Insurance and 

Annuity Corp. (“New York Life”). For the following reasons, the decision of the trial 

court is affirmed. 

{2} According to the complaint, Appellant is the owner of a variable annuity 

with the Hartford Life and Annuity Insurance Company (“the Hartford”), brokered by 

the Feldman defendants. On or about September 29, 2008, when the annuity had an 

approximate value of $629,000.00, Feldman advised Appellant to transfer the funds 

from the variable annuity with the Hartford to a fixed annuity with New York Life. 

{3} Based on Feldman’s advice, Appellant executed all of the documents 

provided by Feldman to complete the transfer. Feldman informed Appellant that the 

transfer would be completed within 48 hours, and that the value of the variable 

annuity would be frozen as of October 2, 2008. 

{4} The transfer was not completed within the 48-hour time frame. 

Appellant was subsequently notified by the Hartford that the value of his variable rate 
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annuity had decreased to $546,073.62 as of October 13, 2008. On that same date, 

Appellant informed Feldman that he no longer wished to proceed with the transfer 

due to the diminution in the value of the variable annuity. 

{5} Feldman informed Appellant that the money had not been transferred to 

New York Life, but that Appellant had to contact the Harford to obtain reinstatement 

of his variable annuity contract. In the interim between the liquidation, then 

reinstatement, of Appellant’s variable annuity, “the price of shares in the variable 

annuity account changed, and although [Appellant’s] account was reinstated at 

$458,000.00, he received fewer shares.” (Compl. ¶24.) The year-end value of the 

variable annuity at the Hartford was $417,794.60. 

{6} In January of 2009, and again in April 2009, Appellant’s counsel sent 

letters to the Feldman defendants requesting all documents related to the transfer of 

Appellant’s variable annuity at the Harford to the fixed annuity at New York Life. 

When the Feldman defendants did not respond to either request, Appellant filed the 

complaint in the above-captioned case, alleging breach of contract, breach of 

fiduciary duty, and negligence claims against the Feldman defendants and New York 

Life. After filing two motions for leave to plead, the Feldman defendants filed a 

motion to stay and to compel arbitration, at issue in this appeal. New York Life filed a 

combined response to the motion as well as a motion to stay on its own behalf. 

{7} In support of the motion to compel arbitration, the Feldman defendants 

filed the affidavit of Michael Scherrmao, the vice president and chief operating officer 
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of Intersecurities, Inc. Attached to the affidavit is a customer account information 

form (“CAI”) signed by Appellant on July 18, 2005. 

{8} There are two boxes in the top right hand corner of the CAI, captioned 

“New” and “Update.” The “Update” box is marked. The last paragraph of the CAI 

reads, in pertinent part: 

{9} “CLIENT ACKNOWLEDGMENT: * * * THIS AGREEMENT CONTAINS 

A PREDISPUTE ARBITRATION CLAUSE WHICH APPEARS ON PAGE 2, 

PARAGRAPH 1, OF THIS AGREEMENT, WHICH BY SIGNING BELOW I AM 

ACKNOWLEDGING THAT ON THIS DAY I HAVE RECEIVED.” (CAI, p. 1.) 

{10} The arbitration clause states: 

{11} “In consideration of opening one or more accounts for the undersigned, 

the undersigned agree(s) that any controversy between us arising out of or relating to 

my (our) account, transactions with or for me (us), or this agreement or the breach 

thereof shall be settled by arbitration in accordance with the rules, then established, 

of the National Association of Securities Dealers, Inc. * * *” (CAI, p. 2.) 

{12} Appellant attached his own affidavit to his opposition brief. According to 

the affidavit, Appellant maintained more than one investment account with the 

Feldman defendants when the CAI was executed. (Hoppel Aff., ¶4.) Appellant 

opened his first accounts with the Feldman defendants, including the account that is 

the subject of the complaint, in 1999. (Hoppel Aff., ¶5.) 

{13} In 2005, Appellant maintained a traditional Individual Retirement 

Account (“IRA”) with Putnam Investments, with Lynette L. Pagley of American 
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General Securities, Inc., as the broker. (Hoppel Aff., ¶6.) In July of 2005, Appellant 

transferred the Putnam Investments account from Pagley at American General 

Securities, Inc., to Feldman at Intersecurities, Inc. (Hoppel Aff., ¶7.) Appellant 

attached the July 30, 2005 and September 30, 2005 year-to-date statements from 

the Putnam Investments IRA to demonstrate that the account representative was 

Pagley at the end of July, and Feldman at the end of September. 

{14} Appellant asserts that the CAI was executed as a part of the 2005 IRA 

transfer. (Hoppel Aff., ¶7.) Line two of the CAI reads, “Account Type,” and the 

“Traditional IRA” box is marked. Although the “Variable Account” box and “Other” 

box are not marked, the line following the “Other” box contains the handwritten 

inscription, “transfer rep on acct.” (CAI, p. 1.) 

{15} Appellant argues that the CAI was not executed for any other purpose 

than the transfer of the traditional IRA, “and has no connection whatsoever with [his] 

individual accounts which are the subject of the above-captioned lawsuit.” (Hoppel 

Aff., ¶8.) The Feldman defendants counter that the CAI is broadly worded and refers 

to the Putnam IRA and all of Appellant’s existing accounts at the time that the CAI 

was executed. 

{16} The affidavits of Scherrmao and Appellant, the CAI, the Putnam 

investment statements, and the letters sent by Appellant’s counsel to the Feldman 

defendants requesting Appellant’s file were the only evidence before the trial court. 

The trial court did not conduct an oral hearing on the motions nor did it delay to allow 

Appellant to conduct any discovery. The judgment entry reads, in pertinent part: 
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{17} “The Court finds there is a contractual agreement between [Appellant] 

and [the Feldman defendants] which would require arbitration and therefore orders 

the same. 

{18} “Whereas [Appellant] opposes any stay of litigation concerning his 

claims against New York Life, the Court finds that the allegations of the Complaint 

are such that a trial of the issues against New York Life would in all certainty require 

the involvement of [the Feldman defendants] with respect to whom the Court ordered 

the stay. Therefore, for reasons of fairness and judicial economy, the Court stays 

this entire proceeding pending the completion of the arbitration ordered above.” 

(9/16/09 J.E., pp. 1-2.) 

{19} This timely appeal followed. 

ASSIGNMENT OF ERROR NO. 1

{20} “The trial court erred in finding that a contract to arbitrate the claims at 

issue existed between Douglas E. Hoppel and A. Richard Feldman, The Feldman 

Agency, LLC, and/or InterSecurities, Inc.” 

{21} “ ‘The Ohio Arbitration Act allows for either direct enforcement of 

[arbitration] agreements through an order to compel arbitration under R.C. 2711.03, 

or indirect enforcement through an order staying proceedings under R.C. 2711.02.’ ” 

Maestle v. Best Buy Co., 100 Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7, at ¶14, 

quoting Brumm v. McDonald & Co. Securities, Inc. (1992), 78 Ohio App.3d 96, 100, 

603 N.E.2d 1141. 
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{22} R.C. 2711.02(B) provides that a court shall stay trial of an action on 

application of one of the parties if (1) the action is brought regarding any issue 

referable to arbitration under a written agreement for arbitration, and (2) the court is 

satisfied the issue is referable to arbitration under the written agreement. 

{23} If a party moves to compel arbitration pursuant to R.C. 2711.03(A), 

“[t]he court shall hear the parties, and, upon being satisfied that the making of the 

agreement for arbitration or the failure to comply with the agreement is not in issue, 

the court shall make an order directing the parties to proceed to arbitration in 

accordance with the agreement.” 

{24} R.C. 2711.03(B) reads, in pertinent part, “[i]f the making of the 

arbitration agreement or the failure to perform it is in issue in a petition filed under 

division (A) of this section, the court shall proceed summarily to the trial of that issue. 

If no jury trial is demanded as provided in this division, the court shall hear and 

determine that issue.” 

{25} Appellant asserted his right to a bench trial, rather than a jury trial, in his 

response to the motion to compel. He claimed that, “[i]n this case there is a 

substantial question as to whether the purported arbitration agreement advanced by 

defendants in their motion is even applicable to the account at issue in this litigation. 

Given that fact, the plaintiff should be afforded an opportunity to engage in discovery 

on the issue of whether the dispute in this case is subject to arbitration, and if 

necessary, to have a trial of that issue before this Court.” (Response Brf., p. 7.) 

Therefore, Appellant submitted the issue of arbitrability to the trial court for resolution. 
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{26} Ohio law provides that courts generally should indulge a strong 

presumption in favor of arbitration. ACRS, Inc., v. Blue Cross & Blue Shield of 

Minnesota (1998), 131 Ohio App.3d 450, 455, 722 N.E.2d 1040. However, an 

arbitration clause should not be expanded beyond its intent. Stillings v. Franklin Twp. 

Bd. of Trustees (1994), 97 Ohio App.3d 504, 508, 646 N.E.2d 1184. 

{27} In Council of Smaller Enterprises v. Gates, McDonald & Co. (1998), 80 

Ohio St.3d 661, 687 N.E.2d 1352, the Ohio Supreme Court set forth guidelines in 

determining the arbitrability of a given dispute: (1) arbitration is a matter of contract 

and a party cannot be required to submit to arbitration any dispute which he has not 

agreed to submit; (2) the question whether a particular claim is arbitrable is one of 

law for the court to decide; (3) when deciding whether the parties have agreed to 

submit a particular claim to arbitration, a court may not rule on the potential merits of 

the underlying claim; and, importantly, (4) when a contract contains an arbitration 

provision, there is a presumption of arbitrability in the sense that an order to arbitrate 

the particular grievance should not be denied unless it may be said with positive 

assurance that the arbitration clause is not susceptible of an interpretation that 

covers the asserted dispute. Id. at 665-666. 

{28} The Feldman defendants argue that, based on the plain language of 

the CAI, Appellant agreed to arbitrate any issue that may arise not only with respect 

to his new IRA but also his previously existing accounts. Appellant contends that the 

arbitration agreement applies solely to the newly-opened IRA. In his brief, Appellant 

argues that because he was not a signatory to any arbitration agreement relating to 
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the variable rate annuity, a presumption against arbitration arises. Appellant relies on 

Council of Smaller Enterprises, supra, where the Supreme Court of Ohio decided that 

no party can be required to submit to arbitration when it has not first agreed to do so. 

{29} Appellant contends that the test to be applied in this appeal was first 

announced by the Ohio Supreme Court in Academy of Medicine of Cincinnati v. 

AETNA Health Inc., 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488. In that 

case, the Ohio Supreme Court adopted a test articulated by the Sixth Circuit Court of 

Appeals in Fazio v. Lehman Bros., 340 F.3d 386 (6th Cir.2003), which is “to ask if an 

action could be maintained without reference to the contract or relationship at issue.” 

Academy of Medicine of Cincinnati at ¶6. If it can, the Ohio Supreme Court 

reasoned, “it is likely outside the scope of the arbitration agreement.” Id. 

{30} However, the Fazio test cannot be applied, here. First, the arbitration 

clause at issue is admittedly not part of the original contract between the parties, but, 

instead, arose in a customer account information form signed later as a result of the 

ongoing relationship between the parties. Although the CAI was completed during 

the processing of the IRA, the plain language of the CAI states that it governs the 

new relationship between the parties and/or it updates an existing relationship as a 

result of a new account or accounts. Thus, the Fazio test is unworkable in this case 

because it subverts the very question raised by this appeal, that is, whether the 

language of the CAI relates back to the preexisting accounts. 

{31} General contract law requires a court to interpret a contract so as to 

carry out the intent of the parties. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. 
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Convention Facilities Auth. (1997), 78 Ohio St.3d 353, 678 N.E.2d 519. “[T]he intent 

of the parties to a contract resides in the language they chose to employ in the 

agreement.” Shifrin v. Forest City Ent., Inc. (1992), 64 Ohio St.3d 635, 638, 597 

N.E.2d 499. 

{32} If the terms of a contract are unambiguous, the trial court may not 

interpret the contract in a manner inconsistent with those terms. Alexander v. 

Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 374 N.E.2d 146. Contractual 

terms are ambiguous if the terms are reasonably susceptible to more than one 

interpretation. U.S. Fid. & Guar. v. Aultman St. Elizabeth Med. Ctr. (1999), 129 Ohio 

App.3d 45, 55, 716 N.E.2d 1201. When the trial court finds an ambiguity in a 

contract, the court may look to extrinsic evidence to determine the parties’ intent. Id. 

at 55-56, 716 N.E.2d 1201. 

{33} If a contract is clear and unambiguous, then its interpretation is a matter 

of law that we review de novo. Nationwide Mut. Fire. Ins. Co. v. Guman Bros. Farm

(1995), 73 Ohio St.3d 107, 108, 652 N.E.2d 684. However, if the contract is 

ambiguous, ascertaining the parties' intent constitutes a question of fact. Crane 

Hollow, Inc. v. Marathon Ashland Pipe Line, LLC (2000), 138 Ohio App.3d 57, 74, 

740 N.E.2d 328. Because Appellant did not make a jury demand with respect to the 

arbitration agreement, we cannot reverse a factual finding of the trial court so long as 

some competent, credible evidence supports it. C.E. Morris Co. v. Foley Constr. Co.

(1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at syllabus. 
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{34} Appellant correctly argues that the CAI form is ambiguous. Initially, we 

note that the “Update” box on the CAI is checked, which appears to indicate that the 

form addresses both the new account and the preexisting accounts. On the other 

hand, under the “Account Type” section, only the “Traditional IRA” box is marked, the 

“Variable Account” box is not. However, it can be argued that the “Traditional IRA” 

box is marked for the purpose of updating the existing list of accounts. 

{35} Next, the text of the arbitration agreement reads, in part, “[i]n 

consideration of opening one or more accounts for the undersigned, the undersigned 

agree(s) that any controversy between us arising out of or relating to my (our) 

account, transactions with or for me (us), or this agreement or the breach thereof 

shall be settled by arbitration* * *.” Although the CAI form includes alternative 

language in the event that there is more than one account holder, and alternative 

language in the event that more than one account is being opened when the form is 

completed, the form includes no such alternative language regarding new and preexisting accounts. The Feldman defendants argue that the “one or more accounts” 

language refers to pre-existing accounts as well as newly opened accounts. 

However, this language may also be reasonably interpreted to refer solely to the 

situation where the undersigned is opening more than one account when he or she 

completed the form, as Appellant urges. 

{36} The rules of construction to be applied in this case are also at odds. A 

court must construe a contract against its drafter. Cent. Realty Co. v. Clutter (1980), 

62 Ohio St.2d 411, 406 N.E.2d 515. However, Ohio courts have as earlier stated, 
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favored arbitration and have given a broad construction to arbitration clauses 

employing the language “any controversy regarding this agreement.” See e.g., Lowe 

v. Oster Homes, 9th Dist. No. 05CA008825, 2006-Ohio-4927, ¶12. 

{37} Ambiguous contracts are by their very nature susceptible to competing 

interpretations. Because the CAI appears to be ambiguous, while Appellant is 

correct that the trial court could have interpreted the language in the manner he 

argues, we also recognize that the language of the agreement is very broad and 

encompassing. The language in the CAI is readily susceptible to the trial court’s 

interpretation that it encompasses both newly opened and pre-existing accounts. 

The record reflects that there is competent, credible evidence supporting the trial 

court’s conclusion that the issues raised in the complaint are subject to the arbitration 

clause. Accordingly, Appellant’s first assignment of error is overruled. 

{38} For the purpose of clarity, the remaining assignments of error are 

addressed out of order. 

ASSIGNMENT OF ERROR NO. 3

{39} “The trial court erred in failing to allow discovery or conduct an 

evidentiary hearing before staying the case and compelling arbitration.” 

{40} By its terms, R.C. 2711.03 requires a hearing on the motion to compel 

arbitration. A hearing on a R.C. 2711.02 motion to stay is discretionary with the trial 

court. Maestle, ¶19. The Feldman defendants cite R.C. 2711.02 in their motion 

before the trial court and in their brief on appeal. Consequently, they rely exclusively 

on the rule announced in Maestle to argue that the hearing in this case was 
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discretionary with the trial court. However, the Feldman defendants moved the trial 

court to both stay the case and to compel arbitration, hence the matter is governed 

by mandatory hearing language in R.C. 2711.03. 

{41} Notably, Appellant did not request a hearing in this case. At least three 

Ohio courts have held that a party waives the right to a R.C. 2711.03 hearing if he or 

she does not request a hearing. In reaching that conclusion, however, the courts 

relied on additional facts, such as: the waiving party was permitted to conduct 

discovery, Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-829, 

809 N.E.2d 1161, ¶22; the waiving party did not request discovery, Mattox v. 

Dillard’s, Inc. 8th Dist. No. 90991, 2008-Ohio-6488, ¶15; the waiving party filed a 

motion for summary judgment. Liese v. Kent State University, 11th Dist. No. 2003-P0033, 2004-Ohio-5322 ¶44. 

{42} Here, Appellant requested discovery in his response to the motions, but 

the trial court never ruled on the request. The trial court ultimately reviewed the 

arbitrability issue on briefs, and permitted Appellant to offer his own affidavit in 

support of his opposition brief to the motion to compel arbitration. The Eighth District 

has held that a party is “heard” for the purposes of R.C. 2711.03 where the trial court 

accepts his or her affidavit. Mattox, ¶15. Because Appellant made no jury demand, 

by law he submitted the interpretation of the CAI to the trial court. Appellant has not 

shown that he was prejudiced by the trial court’s failure to permit discovery or 

conduct an oral hearing because this matter rests solely on contract interpretation 
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and Appellant was allowed, by affidavit, to advance his interpretation of the disputed 

language. Hence, his third assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 2

{43} “The trial court erred in ordering the case stayed and compelling 

arbitration, as arbitration had been waived.” 

{44} As a general rule, either party to a contract of arbitration may waive the 

contractual right to arbitrate. Rock v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

(1992), 79 Ohio App.3d 126, 128. For instance, a plaintiff waives the right to arbitrate 

by filing a complaint. Id. For the defendant, the right to arbitrate can be preserved by 

seeking enforcement of the arbitration clause. Harsco Corp. v. Crane Carrier Co.

(1997), 122 Ohio App.3d 406, 412. Failure to move for a stay pursuant to R.C. 

2711.02, coupled with responsive pleadings, will constitute a defendant’s waiver. 

Peterson v. Crockett Constr. (Dec. 7, 1999), 7th Dist. No. 99-CO-2, citing Mills v. 

Jaguar-Cleveland Motors, Inc. (1980), 69 Ohio App.2d 111, 113. 

{45} To prove that a defending party waived its right to arbitration, a 

complainant is required to demonstrate that the defending party knew of an existing 

right to arbitration but acted inconsistently with that right. Harsco at 414. “The 

essential question is whether, based on the totality of the circumstances, the party 

seeking arbitration has acted inconsistently with the right to arbitrate.” Id. at 413-414. 

{46} Circumstances which may be considered by the court as pertinent to 

the issue are: (1) any delay in the requesting party’s demand to arbitrate via a 

motion to stay judicial proceedings and an order compelling arbitration; (2) the extent 
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of the requesting party’s participation in the litigation prior to its filing a motion to stay 

the judicial proceeding, including a determination of the status of discovery, 

dispositive motions, and the trial date; (3) whether the requesting party invoked the 

jurisdiction of the court by filing a counterclaim or third-party complaint without asking 

for a stay of the proceedings; and (4) whether the non-requesting party has been 

prejudiced by the requesting party’s inconsistent acts. Id. In reviewing a trial court's 

determination that a party has waived its right to arbitrate, an appellate court must 

apply an abuse of discretion standard. Peterson, supra, at *3. 

{47} Appellant cites Peterson, supra, for the proposition that the Feldman 

defendants waived their right to arbitration. In Peterson, the cases pended for eleven 

months, during which time the defendant filed counterclaims, a jury demand, and 

responses to discovery requests. The record reflects that, here, the Feldman 

defendants filed motions for leave to plead before filing the motion to compel 

arbitration. The motion to compel arbitration was filed early in the litigation, and 

Appellant has not established that he suffered prejudice. Appellant’s second 

assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 4

{48} “The trial court erred in staying the case as to New York Life Insurance 

and Annuity Corporation.” 

{49} At least two Ohio appellate courts have recognized that a defendant 

who is not a party to the arbitration agreement can obtain a stay of litigation pending 

arbitration. Scotts Co. v. Warburg (November 15, 2000), 3d Dist. No. No. 14-2000-
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19; DH-KL Corporation v. Stampp Corbin (August 12, 1997), 10th Dist. No. 

97APE02-206. Both Courts adopted the reasoning in Air Freight Services, Inc. v. Air 

Cargo Transport, Inc. (N.D.Ill.1996), 919 F.Supp. 321. Although the Air Cargo case 

was decided under the Federal Arbitration Act, the language is virtually identical to 

the Ohio statute. 

{50} In this case, Appellant contends that the Feldman defendants 

represented that the transfer of his annuity from the Hartford to New York Life would 

be accomplished within 48 hours after the execution of the paperwork and that the 

value of the annuity would be frozen as of October 2, 2008. Because any potential 

liability on the part of New York Life is directly related to the representations made by 

the Feldman defendants, the trial court did not err in staying the entire matter until the 

claims against the Feldman defendants are resolved through arbitration. Thus, 

Appellant’s fourth assignment of error is overruled. 

{51} In conclusion, Appellant submitted the interpretation of the arbitration 

clause in this case for a determination by the trial court. The trial court’s 

interpretation of the clause must be affirmed if it is supported by competent, credible 

evidence. The CAI is ambiguous, and is susceptible to the interpretations offered by 

both Appellant and the Feldman defendants. The trial court resolved the matter on 

briefs, but permitted Appellant to offer his own affidavit in support of his opposition 

brief. Because the matter involves contract interpretation alone, Appellant has failed 

to demonstrate that he suffered prejudice as a result of the trial court’s refusal to 

permit additional discovery or failure to hold an oral hearing on the motion to compel. 
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Finally, the Feldman defendants timely filed the motion to compel in this case. 

Accordingly, the judgment of the trial court staying the matter as it pertains to the 

Feldman defendants and ordering the parties to submit the matter to arbitration is 

affirmed. Moreover, Appellant’s claims against New York Life are dependent upon 

their claims against the Feldman defendants. Hence, the judgment of the trial court 

staying the proceedings against New York Life pending the outcome of the arbitration 

is also affirmed. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.