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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2019-0121

TORROMEO INDUSTRIES

v.

STATE OF NEW HAMPSHIRE

Argued: January 14, 2020

Opinion Issued: March 13, 2020

Sumner F. Kalman Attorney at Law, PC, of Plaistow (Sumner F. Kalman

on the brief and orally), for the petitioner.

Gordon J. MacDonald, attorney general (Emily C. Goering, assistant 

attorney general, on the brief and orally), for the State.

HICKS, J. The State appeals an order of the Superior Court (Schulman, 

J.) on a petition filed by Torromeo Industries (Torromeo) for the reassessment 

of eminent domain damages. See RSA 498-A:27 (2010). The court awarded 

Torromeo $70,800 in condemnation damages. We vacate and remand. 

I. Facts

The trial court found, or the record establishes, the following relevant

facts. Torromeo owns several acres of land in Plaistow on which there is a 

4,000 square foot light industrial building and a 1,500 square foot single-
2

family residence. The property is located in the town’s “Industrial I” zone. Lots 

in that zone must have 80,000 square feet (equivalent to 1.84 acres) and 150 

feet of road frontage. 

Before the taking at issue, Torromeo’s lot consisted of 11.88 acres with 

approximately 149 feet of frontage. Of those 11.88 acres, the residence 

occupied approximately .36 acres and the light industrial use occupied 

approximately 2 acres, leaving approximately 9.52 acres for potential 

development. The residence rented for $1,500 monthly, net of utilities, and the 

.36-acre portion of the lot on which it sat had approximately 100 feet of the 

entire lot’s 149 feet of frontage. Before the taking, the property could be 

accessed by vehicle only by way of a private driveway.

Although the property’s 149 feet of frontage did not comply with the 

zoning ordinance, according to the State’s appraiser and not disputed by 

Torromeo’s appraiser, it “was approved by the Planning Board in 1989 and is 

considered to be a legally permitted pre-existing use.” Moreover, although 

residential uses are not allowed in the Industrial I zone, approximately .36 

acres of Torromeo’s property have been continuously used as such for 

approximately 70 years, and the residential use is deemed a lawful, preexisting, 

nonconforming use. 

In 2015, the State took approximately 1.9 acres of Torromeo’s land by 

eminent domain to construct a two-lane, paved service road. To complete the 

project, the State also took approximately 30,000 square feet for permanent 

and temporary easements. As a result of the taking, Torromeo’s property 

became three independent parcels: (1) a .36-acre lot on which the residence 

sits; (2) an approximately 10-acre site on which the light industrial building 

sits and of which approximately 6.55-to-8 acres are considered to be surplus

land; and (3) a .28-acre “gore” or uneconomic remnant. 

The State offered Torromeo $500 as just compensation for the taking. 

Torromeo declined the offer and sought a determination of condemnation 

damages from the New Hampshire Board of Tax and Land Appeals (BTLA). See

RSA 498-A:24-:26 (2010). Thereafter, the State offered, consistent with the 

view of its appraiser, and the BTLA ordered, $35,000 in just compensation. 

Torromeo petitioned the superior court for de novo review of the BTLA award. 

See RSA 498-A:27.

A. State’s Expert

Both parties submitted appraisal reports from their experts, who were 

the only witnesses at the bench trial. The State’s expert opined that the 

property’s highest and best use before the taking was as improved by the 

single-family residence and light industrial building, with the surplus land 

being held for future development. The expert explained that, although the 
3

property could be further developed, such as by converting it “to condominium 

ownership,” which would involve the creation of “a private road . . . to allow 

development of the remainder of the lot,” doing so might not be financially 

feasible given the market.

The State’s expert opined that the property’s highest and best use after 

the taking was to hold the surplus land for future development and to continue 

to use .36 acres of the property for the residential use and the remaining land 

for the light industrial use. However, the expert further opined that the highest 

and best use of the property was as a “de facto subdivision.” He explained that 

the service road, to be constructed as part of the taking, will separate the 

residential lot from the remaining land. He testified that, although the 

residential lot had not yet become “a lot of record,” it could easily become one 

simply by filing a deed and a survey with the registry of deeds. He stated that

“according to the Code Enforcement Officer for the Town, making the site a lot 

does not require a subdivision or variance due to the ‘de facto’ subdivision of 

the site resulting from the construction of the service road, separating the .36 

site from the parent lot.” Rather, “[t]he lot would be created and recognized by 

the Town by filing a survey and deed, with a legal description.” Moreover, he 

explained that, according to the zoning ordinance, “[i]f a lot of record . . . has 

. . . a portion . . . taken by eminent domain for a public good, then if it becomes 

. . . nonconforming, it is an allowable lot.”1 Thus, he opined, after the taking, 

the residential lot “could be separately transferred . . . , something that would 

not have been possible in the ‘Before’ scenario due to the dimensional 

requirements imposed by zoning, unless relief [was] granted from the 

applicable ordinances.”

The State’s expert further testified that he did not assume that, before 

the taking, the lot would have received the necessary relief from zoning 

requirements because town officials had informed him that it “was unlikely if 

not impossible” that such relief would have been granted. The expert also 

testified that, generally, when he performs an appraisal, he does not assume 

that a variance will be granted; rather, he appraises property “as is based on 

current zoning and the information from the code officer and the planning 

director.” Nor did the State’s expert assume that, before the taking, the 

residential lot would have received subdivision approval. The State’s expert 

testified that “the code enforcement officer and the planning director” told him 

that the possibility of subdividing the residential lot from the remaining land, 

before the taking, “was remote.” 

 

1 See Plaistow, N.H., Zoning Ordinance, art. V, § 220-39 (2019) (“No lot shall be so reduced in area 

that the area, yards, lot width, frontage, coverage or other requirements of this chapter shall be 

less than herein prescribed for each district. The provisions of this section shall not apply when 

part of a lot is taken for a public purpose.”) 
4

Relying upon the residential portion of the property’s rental value and 

using the income capitalization approach to value, the State’s expert opined 

that, before the taking, the residential portion was worth $155,000. To obtain 

this value, the expert used the current rental rate for the property 

($1,500/month), applied a 5% vacancy and collection loss, deducted the 

projected operating costs, and estimated that the net income derived from the 

rental is $11,600. Using a capitalization rate of 7.5%, the expert divided the 

projected net operating income by the selected capitalization rate. 

The State’s expert did not use the income approach to value the 

residential lot after the taking because he assumed that, after the taking, the 

residence “would be sold,” and, therefore, he used the sales comparison 

approach to estimate its selling price. Under that approach, the residential 

lot’s value after the taking was $190,000. Ultimately, the State’s expert opined 

that the surplus land sustained approximately $70,000 in damages, which was 

offset by the approximately $35,000 that the value of the residential lot 

increased as a result of becoming a separate, saleable lot after the taking. 

B. Torromeo’s Expert

Torromeo’s expert opined that the highest and best use of the property 

both before and after the taking was as a subdivision, with the residential lot 

being separated from the remaining land. He testified that, before the taking, 

“you could do exactly the same thing as you could accomplish” after the taking 

“by isolating the residence and the [light] industrial [use] through 

condominiumization.” In his opinion, whether variances could have been 

obtained, before the taking, to allow this to occur “is almost irrelevant.” The 

expert noted that “[c]ondominium ownership is subject to the subdivision 

regulations,” but did not discuss the probability that subdividing the property 

through “condominiumization” would have been approved under those 

regulations before the taking.

Using the sales comparison approach, Torromeo’s expert opined that the 

residential part of the property (including the dwelling) was worth $237,500 

before the taking, and $112,500 after the taking. Using the cost approach to 

value, Torromeo’s expert opined that the “before taking” value of the residential 

lot was $184,000, and its “after taking” value was $70,000. Although 

Torromeo’s expert also calculated the value of the property under the income 

capitalization approach to value, he did not provide separate values for the 

residential and industrial lots, and gave no weight to that approach in his final 

calculations.

C. The Trial Court

At the bench trial, the court expressed skepticism that Torromeo’s land

could not have been subdivided before the taking:
5

THE COURT: The other question that I had, and I still have it, 

is looking at the before [taking value of the lot], there’s that 

residential area. It’s separated from the abutter by a driveway 

that’s used by -- for light industrial use, but for an industrial use, 

that driveway is there. I understand it’s not the same as this big, 

beautiful road with the sidewalks and the curves and the drainage. 

Well, there’s a driveway that’s there already. To me, it’s a little 

bit inconceivable that if the landowner went to the planning board 

and said, I’d like a subdivision waiver to carry on what’s already de 

facto there. The house is there. It’s been there since the 1950s. 

The rest of [it is] an industrial site. It’s been there since whenever, 

but a long time, judging from the building that we all saw. That 

they wouldn’t get that, and they wouldn’t get a variance based on

the very unique nature of that property.

. . . .

. . . I mean, I’m just kind of thinking if that case came here for an 

appeal from the denial of the subdivision waiver or denial of the 

zoning variances, what would this Court do under the applicable 

case law. And I guess, I think we’d probably grant the waiver and

variances.

Following the hearing and a view of the property, the trial court accepted 

the State’s appraisal except as it related to the residential portion of the 

property. The court found “that the highest and best use, both before and after 

the taking,” of the residential portion of the property, “is as a salable residential 

lot.” The court found that, although “[w]aivers and variances would be 

required (both before and after the taking) because the . . . residential lot is 

undersized” for the Industrial I zone, the residential lot’s dimensions are “in 

keeping with the character of the surrounding neighborhood.” 

The court further decided that “Torromeo would be entitled to 

subdivision [regulation] waivers and zoning variances for the limited purpose of 

continuing the existing use on the existing de facto lot.” To support that 

determination, the court found that “changing [the residential lot’s] legal status 

from an ersatz lot to a real one would not alter the nature of the neighborhood,” 

or increase the intensity of the residential use on the lot. Nor would it have 

any “effect on property values, traffic, access to utilities, or congestion.” 

Given the trial court’s view that the residential portion could have 

become a separate, saleable lot both before and after the taking, the court 

rejected the State appraiser’s opinion that the taking increased the portion’s 

value. The court found that, in fact, the value of the residential lot remained 

the same, both before and after the taking. The court stated:
6

The State’s appraiser opined that the saleable residential lot has a 

value [under the sales comparison method of appraisal] of 

$190,000.

There is nothing in the State’s appraisal report, or the appraiser’s 

testimony, that suggests that the value of the residential land as a 

saleable lot would have been any greater prior to the taking. In 

other words, . . . if the [residential] lot had been subdivided out of 

the property prior to the taking, its ‘before’ value would have been 

$190,000.

The court, therefore, awarded Torromeo $70,800 as just compensation for the 

taking, based upon the State’s expert’s opinion that the taking caused $70,000 

in damages to the surplus land, and upon the $800 value the court gave to a 

temporary construction easement. The State unsuccessfully moved for 

reconsideration, and this appeal followed.

II. Analysis

“The law has long been settled in this jurisdiction that in eminent 

domain proceedings the owner of land condemned is entitled to damages for 

the taking measured by the difference between the value of his land after the 

taking, and what it would have been worth on the day of the taking if the 

taking had not occurred.” Edgcomb Steel Co. v. State, 100 N.H. 480, 486-87

(1957). “In determining value, the landowner is entitled to have the property 

appraised at the most profitable or advantageous use to which it could be put 

on the day of the taking,” Daly v. State, 150 N.H. 277, 279 (2003), also known 

as its highest and best use, see Steele v. Town of Allenstown, 124 N.H. 487, 

490 (1984). The value to be ascertained is fair market value, which is “the 

price which in all probability would have been arrived at by fair negotiations 

between an owner willing to sell and a purchaser desiring to buy, taking into 

account all considerations that fairly might be brought forward and reasonably 

be given substantial weight in such bargaining.” Daly, 150 N.H. at 279 

(quotation omitted). “Determination of fair market value is an issue of fact, and 

we will not disturb a finding by a trial court unless it is clearly erroneous or 

unsupported by the evidence.” Society Hill at Merrimack Condo. Assoc. v. 

Town of Merrimack, 139 N.H. 253, 255 (1994). 

Fair market value is generally determined by one of the following 

appraisal methods: (1) the sales comparison approach, which establishes value 

by comparing the appraised property to similar properties that have recently 

sold, see Appeal of Pennichuck Water Works, 160 N.H. 18, 38 (2010); (2) the 

income capitalization approach, which “determines value by measuring a 

property’s worth on the basis of its capacity to generate future rental income,” 
7

Rollsworth Tri-City Trust v. City of Somersworth, 126 N.H. 333, 336 (1985); 

and (3) the reproduction less depreciation or cost approach, where the 

appraiser determines the value of the land without the buildings and then adds 

to that sum the depreciated current cost of reconstructing the buildings, see

State v. 3M Nat’l Advertising Co., 139 N.H. 360, 362-63 (1995); see also Appeal 

of Pennichuck Water Works, 160 N.H. at 38. All three approaches are valid, 

but also have weaknesses. See Appeal of Pennichuck Water Works, 160 N.H. 

at 38. “We have never attempted to tie the fact finder’s hands with a rigid fair 

market value formula in the absence of legislative directive.” Id. (quotation, 

brackets, and ellipsis omitted). “Rather, judgment is the touchstone.” Id.

(quotation omitted). 

“In the context of a partial taking, the property owner is entitled to not 

only the fair market value of the property actually taken, but also 

compensation for the effect of the taking, if any, on the entire property,” which 

is referred to as severance damages. Daly, 150 N.H. at 280 (quotation omitted). 

In an eminent domain proceeding involving a partial taking, the preferred 

method for determining condemnation damages is the “before and after” 

method, under which “the value of the remainder of the tract after the taking is 

deducted from the value of the whole tract before the taking.” N.H. Dep’t of 

Transp. v. Franchi, 163 N.H. 797, 798 (2012) (quotations omitted). Using the 

“before and after” method automatically accounts for severance damages. Id. 

at 799 (quotation omitted).

“‘[J]ust compensation cannot be predicated upon potential uses which 

are speculative and conjectural.’” Boyle v. City of Portsmouth, 172 N.H. ___, 

___ (decided January 24, 2020) (slip op. 11) (quoting United States v. 320.0 

Acres of Land, More or Less, Etc., 605 F.2d 762, 814 (5th Cir. 1979)). “Rather, 

evidence of the specific highest and best use of condemned land is only 

relevant if the use is likely to be ‘reasonably probable’ in the reasonably near 

future.” Id. at ___ (slip op. at 11) (quoting United States v. 33.92356 Acres of 

Land, 585 F.3d 1, 7 (1st Cir. 2009)). “The principle that just compensation 

cannot be predicated upon potential uses which are speculative and 

conjectural . . . is but the converse of the principle . . . that just compensation 

must take into account the highest and most profitable use for which the 

property is adaptable and needed or likely to be needed in the reasonably near 

future.” 320.0 Acres of Land, 605 F.2d at 814 (quotation omitted). “This 

limitation ensures that the landowner is put in as good a position as he would 

have occupied if his property had not been taken, but that he does not profit 

from the condemnation.” Tenn. Valley Auth. v. 1.72 Acres of Land in Tenn., 

821 F.3d 742, 752-53 (6th Cir. 2016). 

“Thus, “[i]f a claimed use is prohibited by zoning,” then it must be shown 

“that it is reasonably probable that the relevant restrictions will be removed in 

the reasonably near future.” 33.92356 Acres of Land, 585 F.3d at 7; cf. Boyle, 

172 N.H. at ___ (slip op. at 11-12) (relying upon cases “in the analogous context 
8

of condemnation proceedings where the property’s asserted highest and best 

use depends upon the approval of variances or permits for its development,” 

the court holds that the plaintiff failed to prove lost profits with reasonable 

certainty when his expert expressly declined to opine on the probability that 

the city would grant the necessary permits). For instance, in 33.92356 Acres of 

Land, 585 F.3d at 8, the court observed that given the defendant’s concession 

“that, as zoned, the 34 acres could not legally be used for residential 

development or sand extraction without rezoning or some variance or permit by 

the Board,” his expert’s testimony could not be admitted unless the defendant 

showed “that there is a reasonable probability that the property would be 

rezoned or that a variance could have been obtained in the near future.”2

The State challenges the trial court’s determination that the residential 

lot could have become a separate, saleable lot before the taking, contending 

that this determination has no support in the evidentiary record. We agree. In 

order for the residential lot to have become a separate, saleable lot before the 

taking, the property would have had to have been subdivided. Whether that 

subdivision came about through condominium conversion or otherwise is 

immaterial because, as Torromeo’s expert correctly observed, in Plaistow, 

“[c]ondominium ownership is subject to the subdivision regulations.” Plaistow, 

N.H., Subdivision Regulations art. I, § 235-3 (2018) (defining a subdivision to 

include dividing land for the purpose of “condominium conveyance”), art. II, § 

235-5 (2018) (providing that “[a]pproval of subdivision plats” by the planning 

board “is required before the land may be divided and . . . offered for sale, 

lease, or conveyance, including condominium conveyance”), art. III, § 235-12

(2018) (“Before any building permit for the erection of a structure, 

condominium conversion, subdivision of land, or lot line adjustment shall be 

granted, the owner or his agent shall make application for approval of such 

condominium conversion, lot line adjustment, subdivision, or site plan to the 

Planning Board of the Town of Plaistow, New Hampshire.”).

The only evidence before the trial court regarding whether subdividing 

the property would have been reasonably probable before the taking came from 

the State’s expert, who testified that the possibility of obtaining planning board 

approval to subdivide the land before the taking “was remote at best.” He 

testified that town officials had informed him that, before the taking, it would 

 

2

At the same time, we recognize that even the chance of an improbable event can affect fair 

market value. United States v. 87.98 Acres of Land More or Less in County of Merced, No. 

Civ.F03-6064AWILJO, 2005 WL 2810641, at *10 (E.D. Cal. Oct. 25, 2005), affirmed on other 

grounds, 530 F.3d 899 (9th Cir. 2008). As the Ninth Circuit Court of Appeals has observed,

“discovery in land of a reasonable probability of possible successful development of gas or oil 

gives great value to such land” and “has a market value even where the prospects of successful 

development are too speculative to be reasonably probable.” Phillips v. United States, 243 F.2d 

1, 6 (1957) (quotations and emphasis omitted). “Ultimately, review for reasonable probability 

must mean excluding evidence of valuation that would not be considered by business interests 

and the broader marketplace in general.” 87.98 Acres of Land, 2005 WL 2810641, at *10.
9

have been “unlikely if not impossible” for the residential portion of Torromeo’s 

land to be subdivided from the rest of the lot. Although Torromeo’s expert 

opined that the highest and best use of the property, before the taking, was as 

a subdivision, he did not discuss whether subdividing the property before the 

taking was reasonably probable, or specifically, whether there was a reasonable 

probability that Torromeo would have been able to secure all necessary 

waivers, approvals, and variances. See Boyle, 172 N.H. at ___ (slip op. at 11).

Although as the trier of fact, the trial court was entitled to accept or 

reject such portions of the evidence as it found proper, including that of expert 

witnesses, Public Serv. Co. of N.H. v. Town of Bow, 170 N.H. 539, 542 (2018), 

the court was not entitled to, in effect, introduce its own evidence into the 

proceeding. “It is axiomatic that a trial court cannot go outside of the

evidentiary record except as to matters judicially noticed.” In the Matter of 

Rokowski and Rokowski, 168 N.H. 57, 61 (2015) (quotation and brackets 

omitted). A court “may not introduce its own evidence into a proceeding.” In re 

Schrag, 464 B.R. 909, 914 (Bankr. D. Or. 2011); see United States v. BerberTinoco, 510 F.3d 1083, 1091 (9th Cir. 2007) (“While a resident judge’s

background knowledge of an area may inform the judge’s assessment of the 

historical facts, the judge may not actually testify in the proceeding or interject 

facts (excluding facts for which proper judicial notice is taken).” (quotation and 

citation omitted)). “Doing so is inconsistent with the established role of the 

trial court in adversary litigation.” Rokowski, 168 N.H. at 61 (quotation 

omitted). 

“Under New Hampshire Rule of Evidence 201, the circumstances under 

which a judge may judicially notice a fact are limited.” Id.; see N.H. R. Ev. 201. 

Under Rule 201, “[a] judicially noticed fact must be one not subject to 

reasonable dispute in that it is either (1) generally known within the territorial 

jurisdiction of the trial court or (2) capable of accurate and ready determination 

by resort to sources whose accuracy cannot reasonably be questioned.” N.H. 

R. Ev. 201(a). Whether subdividing the property before the taking was 

reasonably probable is not a fact that either is “generally known” or “capable of 

accurate and ready determination by resort to sources whose accuracy cannot 

reasonably be questioned.” Id.

Because there was no evidence that it was reasonably probable that the 

property could have been subdivided before the taking, thereby rendering the 

residential lot separate and saleable, there was no support for the trial court’s

finding that the lot’s “before taking” value was $190,000, the same as its “after 

taking” value under the sales comparison approach. See Boyle, 172 N.H. at ___ 

(slip op. at 11).

To the extent that the trial court determined that, before the taking,

Torromeo would have been entitled to a waiver from the subdivision 

regulations, as a matter of law, its determination is similarly without basis in 
10

the record. The Town’s subdivision regulations allow the planning board to 

waive specific regulatory requirements only if “[s]trict conformity would pose an 

unnecessary hardship to the applicant and waiver would not be contrary to the 

spirit and intent of the regulations” or “[s]pecific circumstances relative to the 

subdivision, or conditions of the land . . . , indicate that the waiver will properly

carry out the spirit and intent of the regulations.” Plaistow, N.H., Subdivision 

Regulations art. II, § 235-11(A) (2018). No evidence was admitted with respect 

to those waiver requirements during the bench trial. 

Torromeo urges us to uphold the trial court’s order on alternative 

grounds. See Sherryland v. Snuffer, 150 N.H. 262, 267 (2003) (“When a trial 

court reaches the correct result, but on mistaken grounds, this court will 

sustain the decision if there are valid alternative grounds to support it.”). 

Torromeo contends that the trial court’s decision that the residential lot did not 

increase in value as a result of the taking is supportable, even if its reasoning 

is not.

According to Torromeo, the trial court decided that the value of the 

residential lot did not increase as a result of the taking “by using the incomebased approach to property appraisal.” In fact, the trial court used the sales 

comparison approach to determine the fair market value of the residential lot 

before and after the taking. See Choquette v. Roy, 167 N.H. 507, 513 (2015) 

(“The interpretation of a trial court order is a question of law, which we review 

de novo.”). Indeed, neither expert used the income capitalization approach to 

value the residential lot after the taking. The State’s expert chose not to use 

that approach because it assumed that the residential lot would be sold after 

the taking; Torromeo’s expert used the approach, but did not give separate 

values for the industrial and residential lots under that approach, and gave no 

weight to the approach in his final calculations. 

Contrary to Torromeo’s assertions, the fact that the trial court found that 

“[t]here has been no change [to] the rental income” generated from the 

residential lot as a result of the taking, is not dispositive with regard to whether 

the residential lot changed value. As the State correctly observes, the actual 

rent charged to occupy the residence does not necessarily equate to the fair 

market value of the residence. See Ventas Realty Limited Partnership v. City of 

Dover, 172 N.H. ___, ____ (decided January 10, 2020) (slip op. at 5) (trial court 

faulted expert for failing to explain how property’s actual income and expenses

compare to market rates when relying upon actual income and expenses under 

the income capitalization approach). 

Even if there were evidence in the record from which the trial court could 

have found that, under the income capitalization approach, the fair market 

value of the residential lot remained the same, before and after the taking, we 

could not affirm the trial court on that basis. The trial court did not make that 

finding, and we could affirm on that basis only if we could say that it
11

necessarily would have made that finding as a matter of law. Cf. State v. 

Hayward, 166 N.H. 575, 583 (2014) (“When, as in this case, a discretionary 

decision is at issue and the trial court has not exercised that discretion, we 

may sustain the trial court’s ruling on a ground upon which it did not rely only 

if there is only one way the trial court could have ruled as a matter of law.”

(quotation omitted)). 

Because we cannot discern how the trial court would have ruled had it 

not found that the residential lot could have been a separate, saleable lot both 

before and after the taking, and because we are unable to determine, as a 

matter of law, the “before taking” and “after taking” value of that lot, we vacate 

the trial court’s award of condemnation damages to Torromeo and remand for 

further proceedings consistent with this opinion. See Turner v. Shared Towers 

VA, LLC, 167 N.H. 196, 204 (2014) (deciding that, because we could not 

determine how the trial court would have ruled upon a particular issue had it 

not mistakenly relied upon an equitable theory of relief, and because resolving 

the issue required further fact finding, we vacated this portion of the trial court 

order and remanded for further proceedings). 

Vacated and remanded.

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.