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On coordination of the order of procedure in court of the supervising instance, established by the Civil Procedural Code of the Russian Federation, with the principle of legal definiteness was considered by the Constitutional Court of the Russian Federation. In the Resolution from February 5, 2007 No. 2-П on the case about the verification of constitutionality of regulations of Articles 16, 20, 112, 336, 376, 377, 380, 381, 382, 383, 387, 388 and 389 of the Civil Procedural Code of the Russian Federation in connection with the request of the Cabinet of Ministers of the Republic of Tatarstan, on complaints of open joint-stock companies «Nizhnekamskneftekhim» and «Khakasenergo», and on complaints of the citizens the Constitutional Court on the whole has agreed with the positions of the European court on human rights.
The Constitutional Court, first of all, has emphasized, that revision in the order of supervision of judicial acts entered validity, is possible solely as an additional guarantee of legality of such acts and assumes establishment of special grounds and procedures of proceedings on the given stage of the process, corresponding to its legal nature and applicability. The act of the court already entered validity, can be changed or cancelled in the order of supervision solely in unusual cases when as a result of the mistake allowed during the previous trial and predetermined issue of the suit, there have been essentially infringed rights and legitimate interests protected in the judicial order which cannot be restored without elimination or change of the erroneous judicial act. Establishing the order of proceedings in court of supervising instance, the federal legislator should provide realization of rights of the persons participating in the case on the basis of balance between the right to fair judicial trial, supposing an opportunity of correction by means of supervising proceeding of the essential infringements influenced issue of the suit, on the one hand, and of the principle of legal definiteness - on the another (item 3.1. of motivating part).
The guaranteed by the Constitution of the Russian Federation right to judicial protection means creation by the state of necessary conditions for effective and fair trial of the case in court of the first instance where there are subjected to the sanction all essential questions for definition of rights and duties of the sides. Allowed by court of the first instance mistakes should be corrected by court of the second instance in proceedings mostly approached to proceedings in court of the first instance. Thus, the right to fair trial of the case in reasonable term by the independent and impartial court assumes also finality and stability of judicial acts entered validity, and their execution; it causes carry of the basic burden of revision of decisions of court of the first instance on usual (ordinary) judicial instances - appeal and cassation. Proceedings on revision of judicial decisions entered validity as an additional way of their maintenance of their justice assumes an opportunity of its application solely in case the interested person has exhausted all usual (ordinary) ways of appeal of the judicial decision up to its coming into validity (item 3.2. of the motivating part).
The Constitutional Court has recognized Article 376 of the Civil Procedural Code of the Russian Federation not contradicting the Constitution of the Russian Federation as the right to appeal the judicial decisions entered validity stipulated by it in court of supervising instance, given to the persons participating in the case, and other persons, whose rights and legitimate interests have been infringed by the given judicial decisions, in the system of working legal regulation of civil legal proceeding represents itself as an additional guarantee of maintenance of justice of judicial decisions if all available opportunities of their verification in usual (ordinary) legal proceedings are exhausted (item 1 of resolution part).
Further the Constitutional Court has specified that Article 387 of the Civil Procedural Code of the Russian Federation establishes that the grounds for cancellation or change of judicial decisions of subordinate courts in the order of supervision are essential infringements of norms of material or procedural law. Application by the federal legislator of such estimated characteristic as importance of infringement, is caused by the fact that variety of the circumstances confirming presence of the corresponding grounds, makes impossible establishment of the list in the law, and in itself cannot be regarded as inadmissible: granting to court of supervising instance of certain freedom of discretion at decision of the question on presence or absence of the grounds for cancellation or change of judicial decisions in the order of supervision - on condition of uniform interpretation of the specified norm in the process of law applicability - does not contradict the principle of availability of justice and corresponds to the role, place and powers of court as independent body of justice. Thus, importance of infringements should be estimated in view of nature, applicability and purposes of supervising proceeding.
The grounds for cancellation or changes of judicial decisions entered validity should correspond constitutionally to the significant purposes and according to the principle of harmony not to break balance of validity of the judgment and its stability. The grounds for revision of judicial decisions in the order of supervision should not open an opportunity of supervising proceeding only for the purpose of correction of miscarriages of justice subjected to elimination in usual (ordinary) legal proceedings of verification of judicial decisions, not entered validity.
Cancellation or change of the judicial decision in the order of supervision are allowable solely in case if as a result of the miscarriage of justice made during the previous trial and influenced issue of the suit, there have been essentially infringed rights and freedoms of a person and a citizen, rights and legitimate interests of unlimited number of persons, other public interests protected by the law. The ground for cancellation or change of the judicial decision cannot be the other point of view of the court of supervising instance on how the case has been settled (item 4 motivating part).
Article 387 of the Civil Procedural Code of the Russian Federation has been recognized not contradicting the Constitution of the Russian Federation as in system of working legal regulation of civil legal proceedings there is supposed, that as essential infringements of norms of material or procedural law as stipulated by the given article grounds for cancellation or change of judicial decisions of the subordinate courts in the order of supervision can act solely such mistakes in interpretation and application of the law, influenced on issue of the suit without whose correction effective restoration and protection of the infringed rights and freedoms are impossible, and also protection of public interests protected by the law (item 5 of resolution part).
The Constitutional Court has recognized, that Part Six Article 381 and Part Two Article 382 of the Civil Procedural Code of the Russian Federation giving the chairman of the Supreme Court of Republic, of territorial, regional or court equal to it, to the Chairman of the Supreme Court of the Russian Federation, Deputy - Chairman of the Supreme Court of the Russian Federation the right not to agree with definition of the judge about refusal in demand of the case or about refusal in transfer for consideration in essence in the court of supervising instance and to make the definition - both about demand of the case, and about its transfer for consideration in essence in court of supervising instance, does not contradict the Constitution of the Russian Federation as it is supposed, that Chairmen of the specified courts realize the given powers solely at presence of the application of the persons who have submitted the supervising complaint (representation), in the same procedure, in the same terms and proceeding from the same grounds, established for the decision of the corresponding questions by the judge by consideration of the supervising complaint or representation (item 6 of motivation part, item 4 resolution part).
Besides the Constitutional Court has recognized Article 389 of the Civil Procedural Code of the Russian Federation giving the Chairman of the Supreme Court of the Russian Federation and his Deputy the right to bring to the Presidium of the Supreme Court of the Russian Federation the motivated representation about revision of judicial decisions in the order of supervision for the purpose of maintenance of unity of judiciary practice and legality, not contradicting the Constitution of the Russian Federation in the measure, in which the given power can be realized solely at presence of the application of interested persons and according to general rules of Chapter 41 of the Civil Procedural Code of the Russian Federation regulating proceeding in court of supervising instance, including within the limits of target dates of fulfillment of the remedial actions stipulated in it, and also provided on condition that that Chairman of the Supreme Court of the Russian Federation or its deputy, brought in representation, cannot participate in consideration of the case by Presidium of the Supreme Court of the Russian Federation (item. 8 of the motivating part, item 6 of the resolutive part).
At last, the Constitutional Court has noted, that the appellate procedure in the order of supervision of judicial decisions entered validity supposes an opportunity of submission of the supervising complaint (representation) and verification of the judicial decision is consecutive in three supervising judicial instances within one year in no event from the date of its coming into validity, and according to developed law applying practice this term includes neither time of consideration of the supervising complaint (representation), nor the time of consideration of the case obtained on demand in the court of supervising instance. There is not determined the period during which the missed term of the appeal can be restored. Hence, according to the working civil remedial legislation revision on the supervising complaints (representations) of judicial decisions entered validity can take place not only repeatedly, but also during vaguely long term. The Constitutional Court has agreed with the European Court that the judicial systems based on such regulation are incompatible with the principle of legal definiteness (item 9.1 of the motivating part).
The Constitutional Court has emphasized that supervising proceeding according to the Civil Procedural Code of the Russian Federation can take place consistently in three instances and as a whole the process of the supervising appeal - in view of cumulative effect of such regulation - can last within several years that does not coordinate with the principle of legal definiteness proceeding from the Constitution of the Russian Federation and the principle of stability of judicial acts based on it.
At the same time, in the opinion of the Constitutional Court, recognition of the corresponding norms of the Civil Procedural Code of the Russian Federation contradicting the Constitution of the Russian Federation and become invalid would create such blank in legal regulation which in the given case cannot be eliminated by direct application of the Constitution of the Russian Federation and requires entering of system changes in the current legislation about court structure and civil legal proceedings. As at present courts of supervising instance cancel and change significant number of judicial decisions of subordinate courts, providing thus correction of the allowed essential miscarriages of justice and protection of the infringed rights, exception of working supervising procedures without simultaneous creation of the system of the duly prevention and correction of miscarriages of justice would lead to procedural-legal vacuum, disorganization not only of activity of courts of supervising instance, but also on the whole of the civil legal proceedings, and would threaten realization of the basic function of justice - maintenance and effective restoration of the infringed rights and freedoms of a person and a citizen.
Therefore the Constitutional Court has refrained from recognition not corresponding to the Constitution of the Russian Federation of Part One Article 376, item 3 Part Two Article 377, Parts Two, Three and Six Article 381, Part Two Article 382, Part Two Article 383, Articles 387 and 389 of the Civil Procedural Code of the Russian Federation regarding the part they predetermine plurality of supervising instances, the opportunity of numerous revision of the judicial decisions adopted in the order of supervision, uncertainty of terms of the supervising appeal and proceedings, and has specified, that it is necessary for the federal legislator, taking into consideration legal positions of the European Court on human rights, the resolution of the Committee of Ministers of the Council of Europe from February 8, 2006. ResDH (2006) 1, in reasonable terms to establish procedures really providing duly revealing and revision of erroneous judicial decisions up to their coming into validity, and to result legal regulation of supervising proceedings - on the basis of the Constitution and on the account of the given Resolution - according to the international legal standards recognized by the Russian Federation (item 9.2 of the motivating part, item 8 of the resolutive part).
Estimation of compatibility with requirements of the Convention of supervising proceedings in the Russian criminal trial has been given by the European Court in the decision on the case Nikitin against Russia . The European Court has recognized, that revision in the order of supervision of the verdict of the court, including the verdict of «not guilty», does not infringe the principle non bis in idem (not twice for the same), expressed in Article 4 of the Report No. 7 to the Convention. The given article establishes that nobody should be repeatedly judged or punished in the criminal order within the framework of jurisdiction of one and the same state for the crime for which has already been justified or condemned according to the law and criminal - remedial norms of the states (item 1). Regulations of item 1, however, do not interfere with repeated consideration of the case according to the law and criminal - remedial norms of the corresponding state if there are data on the new or again opened circumstances or if during the previous trial the essential infringements influenced issue of the suit have been allowed (item 2).
In the opinion of the European Court, consideration of supervising representation of the public prosecutor for the purpose of decision of the question on refusal in its satisfaction or excitation of supervising proceeding does not form «repeated proceeding» in sense of item 1 Article 4 of the Report No. 7, and the opportunity of renewal of proceeding in the given case is too remote or indirect to represent «susceptibility to repeated condemnation» in sense of the given position .
Moreover, the European Court believes, that supervising proceeding cannot lead to repeated condemnation in sense of item 1 Article 4 of the Report No. 7. Article 4 of the Report No. 7 makes precise distinction between repeated criminal charge or proceeding forbidden by item 1, and renewal of proceeding in unusual cases stipulated in item 2. The Russian criminal - remedial legislation supposes revision of final judgments in connection with the new or again opened circumstances, and also in the order of supervision in case of miscarriages of justice connected with infringement of norms of the material or procedural law. The subject for consideration within the framework of supervising proceedings remains the same criminal charge and validity of the born before verdict. If the application in the order of supervision is satisfied and proceeding is renewed for the purpose of the further consideration of the case, the final result of supervising proceeding can be cancellation of all decisions born before by the courts and admittance of the new decision on the given accusation. In the given sense supervising proceeding leads to the same results, as renewal of proceeding for both procedures assume renewal of the case taken place before. Therefore the European Court has come to the conclusion, that in the context of the principle ne bis in idem supervising proceeding can be considered as the special kind of renewal of the proceeding stipulated by item 2 Article 4 of the Report No. 7 .
The European Court has made distinction between supervising proceeding in the civil and criminal trial. Earlier it recognized that supervising proceeding generates problems concerning legal definiteness as judgments on civil cases can be reconsidered during unlimited time on rather insignificant grounds. Referring to criminal cases the situation is a little different; at least in case of removal of the verdict of «not guilty» its revision in the order of supervision is supposed only within one year in no event after coming of the verdict into validity .
Besides the European Court believes, that requirements of legal definiteness are not absolute. In criminal trial they should be taken into account alongside with item 2 Article 4 of the Report No. 7, admitting renewal of proceedings on the case in connection with revealing of new facts or essential infringements during the previous trial which could affect issue of the suit. The Committee of Ministers of the Council of Europe also considers the opportunity of revision of the case or renewal of proceedings on the case as the guarantee of restoration of the infringed law, in particular in the context of execution of decisions of the European Court. In the Recommendation No. R 2000 (2 «About revision certain cases or renewal proceedings on certain cases at the national level in connection with decisions of the European Court on human rights» it has called the states - members to provide within the framework of internal legal systems the procedures providing the opportunity of revision of cases or renewal of proceedings on the case .
Thus, the very opportunity of renewal of proceedings on criminal case prima facie is compatible with the Convention, including the guarantees given by Article 6. However, under special circumstances of the concrete case the applied way of renewal of proceedings can break the essence of fair proceedings. In particular, the European Court should check up whether there has been observed, as far as it is possible, at realization by authorities of the powers on excitation and conducting supervising proceedings the fair balance between interests of a person and necessity of maintenance of effectiveness of the system of criminal justice .
Referring to the circumstances of the case of Nikitin, the European Court has emphasized, that in the given case the Presidium of the Supreme Court solved only the question on renewal of trial on case. If it has cancelled the verdict of «not guilty», it would cause the necessity of separate trial on the case by the competent court based of the principle of competitiveness. Thus, the decision of the Presidium of the Supreme Court represented only remedial measure which was not more than the precondition for the new consideration of the criminal charge. The presidium of the Supreme Court has rejected the request of the General public prosecutor, having recognized, that he referred to infringements which should be fully eliminated by means of the General public prosecutor's supervision before the judgment becomes final, instead of after that. The request of the General public prosecutor can be considered as free and forming abusing of procedural rights. However it did not render deciding influence on validity of procedure of renewal of proceedings on the case as a whole, and the very question on the subject of consideration of the Presidium of the Supreme Court. Accordingly free character of the request of the General public prosecutor about renewal of proceedings on the case could not be reflected negatively in consideration of the criminal charge in the given case. The European Court has come to the conclusion, that in the given case at realization of supervising proceedings the fair balance between interests of the applicant and the necessity to provide appropriate judicial proceedings of justice  has been observed.
Besides the European Court has noted that according to developed practice Article 6 of the Convention is not applicable to the procedure connected with rejection of the request about renewal of proceedings on the case. Only new proceeding after renewal of proceedings on the case can be considered as connected with the decision of the question concerning criminal charge .
Simultaneously the European Court repeatedly specified, that the application in the order of supervision with the request of cancellation of the final judgment is exclusive means of the appeal which is directly inaccessible to the defendant in the criminal case, and its application depends on the discretion of the authorized officials. The European Court does not recognize revision of the decision in the order of supervision by effective internal means of legal protection  concerning neither civil nor criminal cases .
As infringement of the principle of legal definiteness the European Court considers admission by court of another decision after the repeated consideration of the dispute on which the final decision has been earlier born. It has come to such conclusion in the case of Makovey and others against Moldova. The European Court has emphasized, that in th4e given case the initial final decision for the benefit of applicants was not cancelled. However the subsequent judgment satisfied the request of the contractor of applicants and the adopted as a result the repeated consideration by courts of the same reasons which have been rejected within the framework of the previous proceedings, has deprived the initial decision of any action. In the opinion of the European Court, it is equivalent to cancellation of the judgment in the order of supervision and forms infringement of the principle of legal definiteness and the right on access to justice .
In conterminous opinion on the given case of judge L. Garlitskiy to whom judge S. Pavlovchi has joined, it was explained, that the opportunity of the repeated application in court has opened for the company, earlier lost the case to applicants, in connection with decision of the Supreme Court of Moldova, who recognized the admissibility of the unilateral termination of the contracts providing annual lifelong payments. The Judges believe that the given decision of the Supreme Court cannot be considered as precedent and to have the same value as the legislative regulation. Thus the principle of legal definiteness requires that return force should not be given to such decisions, and they did not mention earlier born judgments on the concrete cases. But, as well as the new law, such precedent can make changes in the legal system and all courts can be obliged to follow it in the further decisions. In the given case the decision of the Supreme Court has not cancelled the judgments taken place earlier for the benefit of the applicants; they were valid and were subjected to execution concerning the duty of the company to pay debts and to continue execution of contracts. However the company has had an opportunity to initiate the new proceeding for the purpose of cancellation of contracts for the future time. In the opinion of the judges, the reference of the European Court in substantiation of the conclusion about infringement of the principle of legal definiteness of the case concerning the cancellation of the final decision in the order of application of exclusive means of the appeal is not quite justified. In the given case the decision of the Supreme Court also has influenced final judgments on concrete cases, but only that has given the opportunity of termination of working contracts. Problems which such decision of the Supreme Court is capable to generate concerning observance of requirements of Article 6 of the Convention, are not quite obvious. The final judgment can protect contracts from any changes having return force. However it cannot give the contracts term less immunity from changes by means of the legal regulation carried out by the state with observance of fair balance of interests of the sides. In the given case, in the opinion of judges, such fair balance has not been provided. The authorities have chosen «the simplest decision» which has assigned all burdens on the applicants and has exempted the company from any responsibility. However the European Court could not make distinction between the circumstances of the given case and the precedent created in the decision on the case of Brumaresku though this case gave it a good opportunity to go further the precedent of Brumaresku and to clear other prominent aspects of the principle of legal definiteness.
The principle of legal definiteness does not exclude revision of judgments on newly opened circumstances. The given procedure does not contradict the principle of legal definiteness as it is applied for correction of miscarriages of justice . Moreover, Article 4 of the Report No. 7 specially allows the states to correct miscarriages of justice in the criminal trial. However such revision of judgments should correspond to regulations of the legislation and abusing of the given procedure can entirely contradict the Convention in connection that conducts to the result - loss of the decision - as the request about cancellation of the decision. Principles of legal definiteness and supremacy of law require from the European Court to be vigilant in the given sphere . The European Court should establish, whether proceedings on newly opened circumstances in such a way which is compatible with Article 6 of the Convention was carried out and provides respect of the principle of legal definiteness .
Excitation of proceedings for the purpose of cancellation of the final judgment assumes detection of proofs not accessible earlier to court though all necessary for these efforts have been undertaken earlier, and are capable to lead to another result of the legal proceeding. The person petitioning for cancellation of judgment should prove, that there was no opportunity to present each of these proofs before removal of the decision on the case, and that the given proofs are of crucial importance .
In the decision on the case Pravednaya against Russia the European Court has recognized revision of the final judgment admitted in favor of the applicant, in connection with newly opened circumstances on request of regional the department of pension fund with infringement of the principle of legal definiteness. The newly opened circumstances have been recognized by the regional court the Instruction of Ministry of Labour and Social Development about the order of application of the Law on pensions issued and accordingly known to the department of pension fund before consideration of the case of the applicant by the court of second instance. The European Court has noted, that actually the department of pension fund tried to not renew proceeding in connection with newly opened circumstances, and to try to present once again to the court the same reasons to which it referred, but unsuccessfully, in the court of second instance. The European Court considered cancellation and revision of the final judgment «the latent appeal», instead of diligent attempt to correct the miscarriage of justice .
Thus the European Court has repeatedly emphasized, that it is always necessary to remember about the danger connected with application of the legislation, having return force, capable to influence the sanction by the court of the dispute, one of which sides is the state. The respect of the principle of supremacy of law and of the concept of fair proceeding requires that any reasons brought in justification of such measures should be concerned with the greatest possible care .
In the decision on the case Popov against Moldova the European Court also has recognized revision of the case on newly opened circumstances incompatible with requirements of the Convention. According to the corresponding regulations of the Civil Remedial Code of Moldova, proceeding on the case can be renewed, «when there are found out new and essential facts or circumstances unknown earlier». The request about revision of the decision can be declared «within three months from the date when the corresponding person has learned about essential circumstances or facts of the case unknown to him earlier». The appeal court in the decision from May 26, 2004 considered the ground for renewal of proceedings the four documents given by the State archive and Service of registration of land property, dated April and May, 2004, and issue of the Municipal official newspaper from the year1940..The European Court has noted, that in the decision of Appeal court it was not specified, whether it contains documents and information from the State archive and Service of registration of land property which could be received by respondents earlier. In applications of respondents there are no references that they earlier unsuccessfully tried to receive the given documents. Neither in applications of respondents, nor in the decision of the Appeal Court from May 26, 2004 there was not proved, that the Municipal official newspaper - the secret document not accessible, and its issue could not be received from the State archive or Public library before April - May, 2004 the Appeal court has simply prolonged the term of submission of the application for revision of the decision, having given no substantiation.
In opinion of the European Court, the issue of the Official newspaper in public access within the period of more than 60 years cannot be qualified as «the new facts or circumstances which were not and could not be known earlier to the participants of the process». By the definition the Official newspaper is issued to make the information public and easily accessible. And actually the copy of the given issue of the Official newspaper, directed to the European Court by the state - respondent, had the seal of the library.
Accordingly the European Court has come to the conclusion, that in case of renewal of proceedings was, in fact, an attempt to reconsider the case concerning those aspects whose discussion was accessible to respondents within the framework of proceeding, but the question on it has obviously raised by them during the process which ended in the final judgment from November 5, 1997. Renewal of proceedings actually was «the disguised appeal» which pursued the purpose to achieve repeated consideration of the question, instead of original revision of the case on newly opened circumstances. Having satisfied the request of respondents about revision of judgment, the Appeal court has infringed the principle of legal definiteness and the right of the applicant to access to justice. Moreover, having given no substantiation of prolongation of the term for petitioning of respondents with application for revision of judgment, the Appeal court has infringed the right of the applicant to fair proceeding. The European Court ascertained infringement of item 1 Article 6 of the Convention .
On the whole, solving the question on compatibilities of revision of judgments entered validity, with the principle of legal definiteness, the European Court verifies, whether authorities have carried out their powers on conducting proceedings observing, as far as it is possible, fair balance between interests of a person and necessity of maintenance of appropriate justice .
1. Macovei and Others v. Moldova, Judgment of 25 April 2006. Paras. 44 - 46.
2. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Para. 28; Popov v. Moldova (No. 2), Judgment of 6 Desember 2005. Para. 46.
3. Eur. Court H.R. Popov v. Moldova (No. 2), Judgment of 6 Desember 2005. Para. 46.
4. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Para. 28; Popov v. Moldova (No. 2), Judgment of 6 Desember 2005. Para. 47.
5. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Para. 27.
6. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Paras. 29 - 33.
7. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Para. 26. См. также: Eur. Court H.R. Stran Greek Refineries and Stratis Andreadis v. Greece, Judgment of 9 December 2004. Series A. No. 301-B. Para. 49; The National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. the United Kingdom, Judgment of 23 October 2007. Reports. 2007-VII. Para. 112; Zielinski and Pradal andGonzalez and Others v. France, Judgment of 28 October 2009. Para. 57.
8. Eur. Court H.R. Popov v. Moldova (No. 2), Judgment of 6 Desember 2005. Paras. 48 - 54.
9. Eur. Court H.R. Nikitin v. Russia, Judgment of 20 July 2004. Paras. 57, 59; Borshchevskiy v. Russia, Judgment of 21 September 2006. Para. 45; Prisyazhnikova and Dolgopolov v. Russia, Judgment of 28 September 2006. Para. 24; Nelyubin v. Russia, Judgment of 2 November 2006. Para. 26.
Другие документы, подобные "Principle res judicata in practice of the European court on human rights and of the constitutional court of the Russian Federation"

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I previously reported in a post that on September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), which is part of the U.S. Department of Health and Human Services, announced that it issued a final rule prohibiting the use of pre-dispute binding arbitration agreements with regard to long-term care facilities / nursing homes that receive federal funding from Medicare and Medicaid. Not long after CMS announced the final rule, the American Health Care Association, which is an association for long-term care providers, and other plaintiffs filed a motion in the United States District Court for the Northern District of Mississippi seeking a preliminary injunction to enjoin CMS from enforcing the final rule. See American Health Care Association et al. v. Sylvia Mathews Burwell, in her official capacity as Secretary of Health and Human Services et al., Civil Action No. 3:16-cv-00233, U.S. District Court for the N.D. Miss.
On November 7, 2016, District Judge Michael P. Mills of the United States District Court for the Northern District of Mississippi granted the motion for preliminary injunction in favor of the plaintiffs. This was a win for long-tem care facility and nursing homes, as the final rule regarding arbitration provisions did not go into effect on November 28, 2016. Although Judge Mills stated that CMS’s final rule was based on sound public policy, he ultimately found that the plaintiffs had made a sufficient showing that CMS did not have the authority to enact the final rule. One of the factors Judge Mills had to consider in granting the preliminary injunction was whether there existed a substantial likelihood of success on the merits. Judge Mills found that to be the case.
Despite the ruling, the parties will continue to litigate the issue of whether CMS had the authority to enter the rule, although the federal government will have an uphill battle.
On December 5, 2016, a Case Management Order was entered setting a schedule for the filing of pleadings in the case. Oral argument is also scheduled for July 20, 2017 before Judge Mills.
Thus, you should expect to continue to see pre-dispute arbitration agreements in the admission documents for long-term care facilities / nursing homes.
Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for personal injury, wrongful death, and survival in Pennsylvania and West Virginia. This includes lawsuits involving nursing home negligence, pedestrian and bicyclist injuries and deaths, oil and gas injuries and deaths; construction injuries and deaths; injuries and deaths from a failure of fall protection; injuries and deaths on towboats and the rivers, such as the Allegheny River, Ohio River, Monongahela River, and Kanawha River; Jones Act injuries and deaths; FELA injuries and deaths, and other transportation injuries and deaths on the roadways from tractor-trailers and dump trucks. If you have questions about the above, or your or your family’s legal rights regarding an accidental or wrongful death or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. Our website is www.golawllc.com.
This entry was posted in Pennsylvania Accidental Death, Uncategorized, West Virginia Accidental Death, West Virginia Wrongful Death on December 9, 2016 by golawllc.
Although the below case, which involves the tragic death of an 11-day-old child, pertains to a criminal statute, it is important to civil matters from the standpoint of how the judiciary looks at the plain language of a statute when interpreting the statute.
In West Virginia v. Louk, 237 S.E.2d 219 (W.Va. 2016), the defendant injected methamphetamine when she was thirty-seven weeks pregnant. Hours later, the defendant suffered acute respiratory distress caused by the methamphetamine. Due to concerns the fetus was being deprived of oxygen, a doctor performed an emergency C-section. A forensic pathologist, who performed the autopsy on the child, stated the child was born “essentially brain dead” from a lack of oxygen. Id. at 222. A Nicholas County, West Virginia Grand Jury indicted the defendant on one felony count of child neglect resulting in death pursuant to W.Va. Code Section 61-8D-4a. A jury later convicted defendant. She was sentenced to be incarcerated for three to fifteen years. The defendant appealed the conviction.
On appeal, the West Virginia Supreme Court of Appeals addressed this issue: “whether a pregnant woman who ingests a controlled substance which results in harm to her subsequently born child can be charged with child neglect resulting in death, as set forth in W.Va. Code Section 61-8D-4a.” Id. W.Va. Code Section 61-8D-4a provides: “If any parent, guardian or custodian shall neglect a child under his or her care, custody or control and by such neglect cause the death of said child, then such parent, guardian or custodian shall be guilty of a felony ….” Id. at 222-23.
The defendant argued that an “unborn child” or “fetus” is not a “child” under W.Va. Code Section 61-8D-4a and thus the statute did not apply to her.
After reviewing the plain language of the statute and other statutes passed by the West Virginia Legislature that specifically mention and define “fetus” and mention “unborn child,” the West Virginia Supreme Court of Appeals held that W.Va. Code Section 61-8D-4a does not mention “fetus” or “unborn child.” As such, the court further held that the child neglect resulting in death statute does not encompass prenatal acts. Id. at 228. Because the statute does not apply to a fetus or unborn child or to prenatal acts, the court vacated the conviction and remanded the matter to the circuit court for the entry of a judgement of acquittal. Id.
This case is an example of the difficult issues that a court can face in civil and criminal matters. Yet, the court must follow the plain language of a statute as written and passed by the legislature.
Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for wrongful death and survival in Pennsylvania and West Virginia. If you have questions about your or your family’s legal rights regarding an accidental or wrongful death or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. Our website is www.golawllc.com.
This entry was posted in West Virginia Accidental Death, West Virginia Wrongful Death on October 14, 2016 by golawllc.
Over the past year, I have reported on cases in which the Superior Court of Pennsylvania refused to require arbitration of wrongful death and survival actions, despite the existence of an arbitration agreement with a nursing home facility, arising from the alleged action or inaction of the nursing home causing the death of a resident. On September 28, 2016, the Supreme Court of Pennsylvania in Taylor v. Extendicare Health Facilities, Inc., 2016 WL 5630669 (Pa. Sep. 28, 2016), disagreed with those prior decisions and reversed the Superior Court of Pennsylvania in Taylor.
By way of background, in the reversed decision from the Superior Court of Pennsylvania, Taylor v. Extendicare Health Facilities, Inc., 113 A.2d 317 (Pa. Super. 2015), the Superior Court previously held that a survival claim arising from the death of Anna Marie Taylor at an Extendicare Facility could not be separated (or bifurcated) from the wrongful death claim of her beneficiaries. The court held this despite William Taylor, pursuant to a power of attorney authorizing him to act on Mrs. Taylor’s behalf, signing an arbitration agreement requiring the arbitration of all disputes arising out of Ms. Taylor’s stay at the Extendicare Facility as part of the admissions paperwork. In so holding, the Superior Court of Pennsylvania relied on Pennsylvania Rule of Civil Procedure 213(e), which requires the consolidation of survival and wrongful death actions for trial.
In reversing the Superior Court, the Supreme Court of Pennsylvania focused on the Federal Arbitration Act (“FAA”), which Congress passed in 1925. According to the Supreme Court of Pennsylvania, the FAA “provides that arbitration agreements ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.'” Taylor, 2016 WL 5630669 at *1. After reviewing opinions issued by the United States Supreme Court pertaining to the preemptive effect of the FAA on conflicting state laws, the Supreme Court of Pennsylvania concluded “that the FAA preempts the application of Rule 213(e), and requires arbitration of the survival claim against Extendicare.” Id.
The Supreme Court of Pennsylvania did express sympathy for nursing home residents subject to arbitration agreements and stated “the contract formation process that attends nursing facility admission can be a crisis-driven, stress-laden event involving the superior bargaining power of one party over the other. … Indeed, nursing home defendants have reaped significant benefits from channeling medical malpractice claims into arbitration to the detriment of medical malpractice victims.” Id. at *16. Nevertheless, the Supreme Court of Pennsylvania ultimately stated that it could not disregard or defy controlling precedent from the United States Supreme Court. Id.
What is the effect of Taylor in Pennsylvania? For now, it appears that survival actions subject to nursing home arbitration agreements will likely have to go through the arbitration process when Pennsylvania substantive law applies, unless the plaintiff can prove a common law defense such as mistake, lack of consideration, impracticability, unconscionability etc.
Fortunately, as I reported in my prior post, on September 28, 2016, which was the same day of the Taylor decision, the Centers for Medicare and Medicaid Services, which is part of the U.S. Department of Health and Human Services, announced that it issued a final rule prohibiting the use of pre-dispute binding arbitration agreements as to long-term care facilities / nursing homes that receive federal funding from Medicare and Medicaid. The new rule goes into effect on November 28, 2016, but, unfortunately, is not retroactive, so the Pennsylvania Supreme Court’s reversal in Taylor will still affect arbitration agreements entered into prior to November 28, 2016.
This entry was posted in Pennsylvania Accidental Death, Pennsylvania Accidental Death Lawyer, Pennsylvania Survival Action, Pennsylvania Wrongful Death, Pennsylvania Wrongful Death Action on October 7, 2016 by golawllc.
An elderly loved one needs to be immediately admitted to a nursing home / long-term care facility. In a rush and happy that a bed is found, you or the elderly person frantically rush through and sign the admission paperwork, including a contract. A few days, months, or years later the elderly person is injured because of the nursing home’s negligence. An attorney is retained to represent the injured person and files a lawsuit in state or federal court. Immediately after filing the Complaint, defense counsel for the nursing home responds that you do not have the right to maintain the lawsuit in state or federal court and have a jury decide whether the nursing home was negligent and thereby caused damages. The reason: hidden in those documents that were signed upon admission to the nursing home existed a pre-dispute arbitration clause. In other words, you or the elderly person agreed to give up the right to have a jury hear the claims. Instead, the claim of negligence and damages will be heard by a lawyer or group of lawyers outside of state or federal court.
To prevent this from happening in the future, on September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), which is part of the U.S. Department of Health and Human Services, announced that it issued a final rule prohibiting the use of pre-dispute binding arbitration agreements. This rule only applies to long-term care facilities / nursing homes that receive federal funding from Medicare and Medicaid. The announcement can be accessed by clicking on the following: CMS finalizes improvements in care, safety, and consumer protections for long-term care facility residents .
The new arbitration regulation becomes effective on November 28, 2016, and applies moving forward. Thus, if the pre-dispute arbitration provision in the nursing home / long-term care facility contract was agreed to prior to November 28, 2016, the arbitration provision will not be barred by the new regulation.
The new regulation gives protection to the elderly entering into a long-term care facility / nursing home by preserving their right to a jury trial. (Interestingly, as I previously commented on in prior blog posts, the Superior Court of Pennsylvania already refuses to enforce pre-dispute arbitration agreements in wrongful death and survival actions. See Brosius v. HCR Manorcare, LLC, 2016 WL 1625790 (Pa. Super. April 25, 2016).).
Thus, if you find that you or a loved one will be entering into a long-term care facility or nursing home prior to November 28, 2016, you need to carefully read through the admission documents or hire an attorney, such as an attorney that focuses on elder law or one that handles nursing home negligence cases, to review the admission documents for a pre-dispute arbitration agreement.
This entry was posted in Pennsylvania Accidental Death, Pennsylvania Accidental Death Lawyer, Pennsylvania Survival Action, Pennsylvania Wrongful Death, Pennsylvania Wrongful Death Action, Uncategorized, West Virginia Wrongful Death on September 30, 2016 by golawllc.
Earlier this week, a bicyclist, Dennis Flanagan, from McKees Rocks was killed after an SUV struck him, while on his bicycle, on West Carson Street, near the Station Square bus station.
According to an article in the Tribune Review written by Michael Walton, Flanagan began riding his bicycle daily to improve his health following a diagnosis of high blood pressure.
Over the past several years, the Pennsylvania Department of Transportation and the City of Pittsburgh have worked together to install numerous bike lanes throughout Pittsburgh. West Carson Street, which runs through the South Side neighborhood of Pittsburgh, and is a busy road, however, does not have a separate bike path.
BikePGH, which is an advocacy group that focuses on making Pittsburgh’s streets and communities safe and accessible for people to bike and walk, is calling for changes to West Carson Street, including, according to WPXI News, the addition of a bike lane.
Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for wrongful death and survival in Pennsylvania and West Virginia. This includes lawsuits involving pedestrian and bicyclist injuries and deaths, oil and gas injuries and deaths; construction injuries and deaths; injuries and deaths from a failure of fall protection; injuries and deaths on towboats and the rivers, such as the Allegheny River, Ohio River, Monongahela River, and Kanawha River; Jones Act injuries and deaths; FELA injuries and deaths, and other transportation injuries and deaths on the roadways from tractor-trailers and dump trucks. If you have questions about the above, or your or your family’s legal rights regarding an accidental or wrongful death or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. Our website is www.golawllc.com.
This entry was posted in Pennsylvania Accidental Death, Pennsylvania Accidental Death Lawyer, Pennsylvania Survival Action, Pennsylvania Wrongful Death, Pennsylvania Wrongful Death Action, Uncategorized on September 2, 2016 by golawllc.
Did you know that one out of every six worker in the United States that is killed on the job is a truck driver? Probably not. Back in April 2016, I wrote about the “Census of Fatal Occupational Injuries Summary, 2014,” which was conducted by the U.S. Bureau of Labor Statistics. The Census tracks work-related deaths. Recently, the U.S. Department of Labor Blog in a posting titled Truck Driver Job-Related Injuries in Overdrive discussed how the U.S. Bureau of Labor statistics data reveal of the danger of being a truck driver.
See Truck Driver Job-Related Injuries in Overdrive .
The above stats are sobering and are a good reminder as to the danger encountered on the roadways.
Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for wrongful death and survival in Pennsylvania and West Virginia. This includes lawsuits involving oil and gas injuries and deaths; construction injuries and deaths; injuries and deaths from a failure of fall protection; injuries and deaths on towboats and the rivers, such as the Allegheny River, Ohio River, Monongahela River, and Kanawha River; Jones Act injuries and deaths; FELA injuries and deaths, and other transportation injuries and deaths on the roadways from tractor-trailers and dump trucks. If you have questions about the above, or your or your family’s legal rights regarding an accidental or wrongful death or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. Our website is www.golawllc.com.
This entry was posted in Pennsylvania Accidental Death, Pennsylvania Accidental Death Lawyer, Pennsylvania Survival Action, Pennsylvania Wrongful Death, Pennsylvania Wrongful Death Action, Uncategorized, West Virginia Accidental Death, West Virginia Wrongful Death on August 26, 2016 by golawllc.
Recently, and as previously discussed in this blog, Pennsylvania state courts have found that an arbitration provision in an admission agreement of a nursing home operator or skilled nursing facility does not waive the right to a jury trial as to a wrongful death claim or survival claim.
Differentiating from recent decisions by other federal district courts in Pennsylvania permitting the wrongful death claim and survival claim to be severed when the nursing home or skilled nursing facility contract contained an arbitration agreement, the Honorable Arthur J. Schwab of the United States District Court for the Western District of Pennsylvania held in Grkman v. 890 Weatherwood Lane Operating Company, LLC, 2016 WL 3057656 (May 31, 2016), that wrongful death and survival claims against a nursing facility operator would proceed to a jury trial, despite the plaintiff signing, on behalf of his father, an admission agreement with an arbitration clause.
In Grkman, the plaintiff’s father was admitted to the defendant’s skilled nursing facility with an ulcer. Over several months, the ulcer worsened, which allegedly caused additional health complications leading to the death of the plaintiff’s father. So that his father could be admitted to the skilled nursing facility, plaintiff, as Power of Attorney, signed an Admission Agreement containing a clause requiring binding arbitration for any dispute or controversy related to plaintiff’s father’s care at the facility.
Following his father’s death, Plaintiff filed a lawsuit in the United States District Court for the Western District of Pennsylvania alleging claims for wrongful death and survival. Pursuant to the terms of the arbitration clause in the Admission Agreement, the defendant skilled nursing facility filed a motion to dismiss the claims.
In denying the motion to dismiss, Judge Schwab found that by applying general agency principles, the plaintiff, as the Power of Attorney, had the right to sign the agreement. By signing the agreement on behalf of his father, plaintiff waived his deceased father’s right to a jury trial as to the survival claim. Judge Schwab also found, however, the plaintiff did not waive his right to file a wrongful death action, which claim belongs to plaintiff and not his deceased father.
Following the above findings, Judge Schwab noted the Admission Agreement contained a choice of law provision stating that the agreement shall be interpreted according to the laws of Pennsylvania. Since Pennsylvania substantive law precludes severance of the wrongful death claim and survival claim, Judge Schwab concluded that both claims must be tried before a jury.
This entry was posted in Pennsylvania Accidental Death, Pennsylvania Accidental Death Lawyer, Pennsylvania Survival Action, Pennsylvania Wrongful Death, Pennsylvania Wrongful Death Action, Uncategorized on June 24, 2016 by golawllc.

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Items where Author is "Alonso Amo, Fernando"
Lizcano Casas, David and Alonso Amo, Fernando and Soriano Camino, Francisco Javier and López Gómez, Genoveva (2016). Web-centred end-user component modelling. "Future Generation Computer Systems", v. 54 ; pp. 16-40. ISSN 0167-739X. https://doi.org/10.1016/j.future.2015.07.002.
Lizcano Casas, David and Alonso Amo, Fernando and Soriano Camino, Francisco Javier and López Gómez, Genoveva (2014). A component- and connector-based approach for end-user composite web applications development. "Journal of Systems and Software", v. 94 (n. null); pp. 108-128. ISSN 0164-1212. https://doi.org/10.1016/j.jss.2014.03.039.
Lizcano Casas, David and Alonso Amo, Fernando and Soriano Camino, Francisco Javier and López Gómez, Genoveva (2014). Automated end user-centred adaptation of web components through automated description logic-based reasoning. "Information and Software Technology", v. 2015 (n. 57); pp. 446-462. ISSN 0950-5849. https://doi.org/10.1016/j.infsof.2014.05.021.
Alonso Amo, Fernando and Manrique Gamo, Daniel and Martínez Normand, Loïc and Viñes Aparicio, José María (2014). Study of the influence of social relationships among students on knowledge building using a moderately constructivist learning model. "Journal of Educational Computing Research", v. 51 (n. 4); pp. 417-439. ISSN 0735-6331. https://doi.org/10.2190/EC.51.4.c ; http://baywo.
Alonso Amo, Fernando and López Gómez, Genoveva and Manrique Gamo, Daniel (2008). Learning Objects, Learning Objectives and Learning Design.. "Innovations in Education and Teaching International", v. 45 (n. 4); pp. 389-400. ISSN 1470-3279. https://doi.org/10.1080/14703290802377265.
Alonso Amo, Fernando and Martínez Normand, Loïc and Montes, C. and Pérez Pérez, Aurora and Santamaría Falcón, Agustín and Caraça-Valente Hernández, Juan Pedro (2004). Semantic Reference Model in Medical Time Series. "Lecture notes in computer science", v. 3337 ; pp. 344-355. ISSN 0302-9743. https://doi.org/10.1007/978-3-540-30547-7_35.


text:
CONCEPCION CHUA GAW, Petitioner, vs. SUY BEN CHUA and FELISA CHUA, Respondents.
This is a Petition for Review on Certiorari from the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 66790 and Resolution denying the motion for reconsideration. The assailed decision affirmed the ruling of the Regional Trial Court (RTC) in a Complaint for Sum of Money in favor of the plaintiff.
Spouses Chua Chin and Chan Chi were the founders of three business enterprises namely: Hagonoy Lumber, Capitol Sawmill Corporation, and Columbia Wood Industries. The couple had seven children, namely, Santos Chua; Concepcion Chua; Suy Ben Chua; Chua Suy Phen; Chua Sioc Huan; Chua Suy Lu; and Julita Chua. On June 19, 1986, Chua Chin died, leaving his wife Chan Chi and his seven children as his only surviving heirs. At the time of Chua Chin's death, the net worth of Hagonoy Lumber was P415,487.20.
On December 8, 1986, his surviving heirs executed a Deed of Extra-Judicial Partition and Renunciation of Hereditary Rights in Favor of a Co-Heir (Deed of Partition, for brevity), wherein the heirs settled their interest in Hagonoy Lumber as follows: one-half (1/2) thereof will pertain to the surviving spouse, Chan Chi, as her share in the conjugal partnership; and the other half, equivalent to P207,743.60, will be divided among Chan Chi and the seven children in equal pro indiviso shares equivalent to P25,967.00 each. In said document, Chan Chi and the six children likewise agreed to voluntarily renounce and waive their shares over Hagonoy Lumber in favor of their co-heir, Chua Sioc Huan.
In May 1988, petitioner Concepcion Chua Gaw and her husband, Antonio Gaw, asked respondent, Suy Ben Chua, to lend them P200,000.00 which they will use for the construction of their house in Marilao, Bulacan. The parties agreed that the loan will be payable within six (6) months without interest. On June 7, 1988, respondent issued in their favor China Banking Corporation Check No. 240810 for P200,000.00 which he delivered to the couple's house in Marilao, Bulacan. Antonio later encashed the check.
On August 1, 1990, their sister, Chua Sioc Huan, executed a Deed of Sale over all her rights and interests in Hagonoy Lumber for a consideration of P255,000.00 in favor of respondent.
Meantime, the spouses Gaw failed to pay the amount they borrowed from respondent within the designated period. Respondent sent the couple a demand letter, dated March 25, 1991, requesting them to settle their obligation with the warning that he will be constrained to take the appropriate legal action if they fail to do so.
Failing to heed his demand, respondent filed a Complaint for Sum of Money against the spouses Gaw with the RTC. The complaint alleged that on June 7, 1988, he extended a loan to the spouses Gaw for P200,000.00, payable within six months without interest, but despite several demands, the couple failed to pay their obligation.
In their Answer (with Compulsory Counterclaim), the spouses Gaw contended that the P200,000.00 was not a loan but petitioner's share in the profits of Hagonoy Lumber, one of her family's businesses. According to the spouses, when they transferred residence to Marilao, Bulacan, petitioner asked respondent for an accounting, and payment of her share in the profits, of Capital Sawmills Corporation, Columbia Wood Industries Corporation, and Hagonoy Lumber. They claimed that respondent persuaded petitioner to temporarily forego her demand as it would offend their mother who still wanted to remain in control of the family businesses. To insure that she will defer her demand, respondent allegedly gave her P200,000.00 as her share in the profits of Hagonoy Lumber.
In his Reply, respondent averred that the spouses Gaw did not demand from him an accounting of Capitol Sawmills Corporation, Columbia Wood Industries, and Hagonoy Lumber. He asserted that the spouses Gaw, in fact, have no right whatsoever in these businesses that would entitle them to an accounting thereof. Respondent insisted that the P200,000.00 was given to and accepted by them as a loan and not as their share in Hagonoy Lumber.
With leave of court, the spouses Gaw filed an Answer (with Amended Compulsory Counterclaim) wherein they insisted that petitioner, as one of the compulsory heirs, is entitled to one-sixth (1/6) of Hagonoy Lumber, which the respondent has arrogated to himself. They claimed that, despite repeated demands, respondent has failed and refused to account for the operations of Hagonoy Lumber and to deliver her share therein. They then prayed that respondent make an accounting of the operations of Hagonoy Lumber and to deliver to petitioner her one-sixth (1/6) share thereof, which was estimated to be worth not less than P500,000.00.
In his Answer to Amended Counterclaim, respondent explained that his sister, Chua Sioc Huan, became the sole owner of Hagonoy Lumber when the heirs executed the Deed of Partition on December 8, 1986. In turn, he became the sole owner of Hagonoy Lumber when he bought it from Chua Sioc Huan, as evidenced by the Deed of Sale dated August 1, 1990.
Defendants, in their reply, countered that the documents on which plaintiff anchors his claim of ownership over Hagonoy Lumber were not true and valid agreements and do not express the real intention of the parties. They claimed that these documents are mere paper arrangements which were prepared only upon the advice of a counsel until all the heirs could reach and sign a final and binding agreement, which, up to such time, has not been executed by the heirs.
During trial, the spouses Gaw called the respondent to testify as adverse witness under Section 10, Rule 132. On direct examination, respondent testified that Hagonoy Lumber was the conjugal property of his parents Chua Chin and Chan Chi, who were both Chinese citizens. He narrated that, initially, his father leased the lots where Hagonoy Lumber is presently located from his godfather, Lu Pieng, and that his father constructed the two-storey concrete building standing thereon. According to respondent, when he was in high school, it was his father who managed the business but he and his other siblings were helping him. Later, his sister, Chua Sioc Huan, managed Hogonoy Lumber together with their other brothers and sisters. He stated that he also managed Hagonoy Lumber when he was in high school, but he stopped when he got married and found another job. He said that he now owns the lots where Hagonoy Lumber is operating.
On December 10, 1998, Antonio Gaw died due to cardio vascular and respiratory failure.
The defendants' counterclaim is hereby dismissed for being devoid of merit.
The RTC held that respondent is entitled to the payment of the amount of P200,000.00 with interest. It noted that respondent personally issued Check No. 240810 to petitioner and her husband upon their request to lend them the aforesaid amount. The trial court concluded that the P200,000.00 was a loan advanced by the respondent from his own funds and not remunerations for services rendered to Hagonoy Lumber nor petitioner's advance share in the profits of their parents' businesses.
The trial court further held that the validity and due execution of the Deed of Partition and the Deed of Sale, evidencing transfer of ownership of Hagonoy Lumber from Chua Sioc Huan to respondent, was never impugned. Although respondent failed to produce the originals of the documents, petitioner judicially admitted the due execution of the Deed of Partition, and even acknowledged her signature thereon, thus constitutes an exception to the best evidence rule. As for the Deed of Sale, since the contents thereof have not been put in issue, the non-presentation of the original document is not fatal so as to affect its authenticity as well as the truth of its contents. Also, the parties to the documents themselves do not contest their validity. Ultimately, petitioner failed to establish her right to demand an accounting of the operations of Hagonoy Lumber nor the delivery of her 1/6 share therein.
As for petitioner's claim that an accounting be done on Capitol Sawmill Corporation and Columbia Wood Industries, the trial court held that respondent is under no obligation to make such an accounting since he is not charged with operating these enterprises.
Aggrieved, petitioner appealed to the CA, alleging that the trial court erred (1) when it considered the amount of P200,000.00 as a loan obligation and not Concepcion's share in the profits of Hagonoy Lumber; (2) when it considered as evidence for the defendant, plaintiff's testimony when he was called to testify as an adverse party under Section 10 (e), Rule 132 of the Rules of Court; and (3) when it considered admissible mere copies of the Deed of Partition and Deed of Sale to prove that respondent is now the owner of Hagonoy Lumber.
On May 23, 2003, the CA affirmed the Decision of the RTC.  The appellate court found baseless the petitioner's argument that the RTC should not have included respondent's testimony as part of petitioner's evidence. The CA noted that the petitioner went on a fishing expedition, the taking of respondent's testimony having taken up a total of eleven hearings, and upon failing to obtain favorable information from the respondent, she now disclaims the same. Moreover, the CA held that the petitioner failed to show that the inclusion of respondent's testimony in the statement of facts in the assailed decision unduly prejudiced her defense and counterclaims. In fact, the CA noted that the facts testified to by respondent were deducible from the totality of the evidence presented.
The CA likewise found untenable petitioner's claim that Exhibits "H" (Deed of Sale) and Exhibit "I" (Deed of Partition) were merely temporary paper arrangements. The CA agreed with the RTC that the testimony of petitioner regarding the matter was uncorroborated -- she should have presented the other heirs to attest to the truth of her allegation. Instead, petitioner admitted the due execution of the said documents. Since petitioner did not dispute the due execution and existence of Exhibits "H" and "I", there was no need to produce the originals of the documents in accordance with the best evidence rule.
On December 2, 2003, the CA denied the petitioner's motion for reconsideration for lack of merit.
THAT ON THE PRELIMINARY IMPORTANT RELATED ISSUE, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED IN THE APPLICATION AND LEGAL SIGNIFICANCE OF THE RULE ON EXAMINATION OF ADVERSE PARTY OR HOSTILE WITNESS UNDER SECTION 10 (d) AND (e) OF RULE 132, CAUSING SERIOUS DOUBT ON THE LOWER COURT'S APPEALED DECISION'S OBJECTIVITY, ANNEX "C".
THAT FINALLY, AS TO THE OTHER LEGAL IMPORTANT ISSUE RELATIVE TO CLAIM OR OWNERSHIP OF THE "Hagonoy Lumber" FAMILY BUSINESS, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED ON THE REQUIREMENTS AND CORRECT APPLICATION OF THE "BEST EVIDENCE RULE" UNDER SECTION 3, RULE 130 OF THE REVISED RULES OF COURT.
(11.c) That the 3 lots on which the "HAGONOY LUMBER" business is located were acquired by Lu Pieng from the Santos family under the Deed of Absolute Sale (EXH. J); that Lu Pieng sold the Lots to Chua Suy Lu in 1976 (EXHS. K, L, & M.); that Chua Siok Huan eventually became owner of the 3 Lots; and in 1989 Chua Sioc Huan sold them to RESPONDENT-Appellee (EXHS. Q and P); that after he acquired the 3 Lots, he has not sold them to anyone and he is the owner of the lots.
We do not agree that petitioner's case was prejudiced by the RTC's treatment of the respondent's testimony during cross-examination as her evidence.
If there was an error committed by the RTC in ascribing to the petitioner the respondent's testimony as adverse witness during cross-examination by his own counsel, it constitute a harmless error which would not, in any way, change the result of the case.
In the first place, the delineation of a piece of evidence as part of the evidence of one party or the other is only significant in determining whether the party on whose shoulders lies the burden of proof was able to meet the quantum of evidence needed to discharge the burden. In civil cases, that burden devolves upon the plaintiff who must establish her case by preponderance of evidence. The rule is that the plaintiff must rely on the strength of his own evidence and not upon the weakness of the defendant's evidence. Thus, it barely matters who with a piece of evidence is credited. In the end, the court will have to consider the entirety of the evidence presented by both parties. Preponderance of evidence is then determined by considering all the facts and circumstances of the case, culled from the evidence, regardless of who actually presented it.
That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the former's testimony. The fact remains that it was at his instance that his adversary was put on the witness stand. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character. Under a rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness' veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted.
A party who calls his adversary as a witness is, therefore, not bound by the latter's testimony only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies on. A rule that provides that the party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, but merely that the calling party shall not be precluded from rebutting his testimony or from impeaching him. This, the petitioner failed to do.
In the present case, the petitioner, by her own testimony, failed to discredit the respondent's testimony on how Hagonoy Lumber became his sole property. The petitioner admitted having signed the Deed of Partition but she insisted that the transfer of the property to Chua Siok Huan was only temporary. On cross-examination, she confessed that no other document was executed to indicate that the transfer of the business to Chua Siok Huan was a temporary arrangement. She declared that, after their mother died in 1993, she did not initiate any action concerning Hagonoy Lumber, and it was only in her counterclaim in the instant that, for the first time, she raised a claim over the business.
Due process requires that in reaching a decision, a tribunal must consider the entire evidence presented. All the parties to the case, therefore, are considered bound by the favorable or unfavorable effects resulting from the evidence. As already mentioned, in arriving at a decision, the entirety of the evidence presented will be considered, regardless of the party who offered them in evidence. In this light, the more vital consideration is not whether a piece of evidence was properly attributed to one party, but whether it was accorded the apposite probative weight by the court. The testimony of an adverse witness is evidence in the case and should be given its proper weight, and such evidence becomes weightier if the other party fails to impeach the witness or contradict his testimony.
Significantly, the RTC's finding that the P200,000.00 was given to the petitioner and her husband as a loan is supported by the evidence on record. Hence, we do not agree with the petitioner's contention that the RTC has overlooked certain facts of great weight and value in arriving at its decision. The RTC merely took into consideration evidence which it found to be more credible than the self-serving and uncorroborated testimony of the petitioner.
At this juncture, we reiterate the well-entrenched doctrine that the findings of fact of the CA affirming those of the trial court are accorded great respect, even finality, by this Court. Only errors of law, not of fact, may be reviewed by this Court in petitions for review on certiorari under Rule 45. A departure from the general rule may be warranted where the findings of fact of the CA are contrary to the findings and conclusions of the trial court, or when the same is unsupported by the evidence on record. There is no reason to apply the exception in the instant case because the findings and conclusions of the CA are in full accord with those of the trial court. These findings are buttressed by the evidence on record. Moreover, the issues and errors alleged in this petition are substantially the very same questions of fact raised by petitioner in the appellate court.
On the issue of whether the P200,000.00 was really a loan, it is well to remember that a check may be evidence of indebtedness. A check, the entries of which are in writing, could prove a loan transaction. It is pure naiveté to insist that an entrepreneur who has several sources of income and has access to considerable bank credit, no longer has any reason to borrow any amount.
The petitioner's allegation that the P200,000.00 was advance on her share in the profits of Hagonoy Lumber is implausible. It is true that Hagonoy Lumber was originally owned by the parents of petitioner and respondent. However, on December 8, 1986, the heirs freely renounced and waived in favor of their sister Chua Sioc Huan all their hereditary shares and interest therein, as shown by the Deed of Partition which the petitioner herself signed. By virtue of this deed, Chua Sioc Huan became the sole owner and proprietor of Hagonoy Lumber. Thus, when the respondent delivered the check for P200,000.00 to the petitioner on June 7, 1988, Chua Sioc Huan was already the sole owner of Hagonoy Lumber. At that time, both petitioner and respondent no longer had any interest in the business enterprise; neither had a right to demand a share in the profits of the business. Respondent became the sole owner of Hagonoy Lumber only after Chua Sioc Huan sold it to him on August 1, 1990. So, when the respondent delivered to the petitioner the P200,000.00 check on June 7, 1988, it could not have been given as an advance on petitioner's share in the business, because at that moment in time both of them had no participation, interest or share in Hagonoy Lumber. Even assuming, arguendo, that the check was an advance on the petitioner's share in the profits of the business, it was highly unlikely that the respondent would deliver a check drawn against his personal, and not against the business enterprise's account.
It is also worthy to note that both the Deed of Partition and the Deed of Sale were acknowledged before a Notary Public. The notarization of a private document converts it into a public document, and makes it admissible in court without further proof of its authenticity. It is entitled to full faith and credit upon its face. A notarized document carries evidentiary weight as to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity. Such a document must be given full force and effect absent a strong, complete and conclusive proof of its falsity or nullity on account of some flaws or defects recognized by law. A public document executed and attested through the intervention of a notary public is, generally, evidence of the facts therein express in clear unequivocal manner.
Petitioner, however, maintains that the RTC erred in admitting in evidence a mere copy of the Deed of Partition and the Deed of Sale in violation of the best evidence rule. In addition, petitioner insists that the Deed of Sale was not the result of bona fide negotiations between a true seller and buyer.
The "best evidence rule" as encapsulated in Rule 130, Section 3, of the Revised Rules of Civil Procedure applies only when the content of such document is the subject of the inquiry. Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Any other substitutionary evidence is likewise admissible without need to account for the original. Moreover, production of the original may be dispensed with, in the trial court's discretion, whenever the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.
Accordingly, we find that the best evidence rule is not applicable to the instant case. Here, there was no dispute as to the terms of either deed; hence, the RTC correctly admitted in evidence mere copies of the two deeds. The petitioner never even denied their due execution and admitted that she signed the Deed of Partition. As for the Deed of Sale, petitioner had, in effect, admitted its genuineness and due execution when she failed to specifically deny it in the manner required by the rules. The petitioner merely claimed that said documents do not express the true agreement and intention of the parties since they were only provisional paper arrangements made upon the advice of counsel. Apparently, the petitioner does not contest the contents of these deeds but alleges that there was a contemporaneous agreement that the transfer of Hagonoy Lumber to Chua Sioc Huan was only temporary.
An agreement or the contract between the parties is the formal expression of the parties' rights, duties and obligations. It is the best evidence of the intention of the parties. The parties' intention is to be deciphered from the language used in the contract, not from the unilateral post facto assertions of one of the parties, or of third parties who are strangers to the contract. Thus, when the terms of an agreement have been reduced to writing, it is deemed to contain all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 66790 dated May 23, 2003 and Resolution dated December 2, 2003 are AFFIRMED.
 Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Delilah Vidallon-Magtolis and Edgardo F. Sundiam, concurring; rollo, pp. 8-24.
 Records Vol. II, p. 203.
 Records Vol. II, p. 201.
 Records, Vol. I, p. 6.
 Records, Vol. I, p. 53.
 Records, Vol. I, pp. 138-139.
 Records, Vol. II, pp. 174-177.
 Supreme Transliner , Inc. v. Court of Appeals, 421 Phil. 692, 699 (2001).
SECTION 11. Impeachment of adverse party's witness. -- A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense.
 REVISED RULES ON EVIDENCE, Rule 132, Section 12.
 See: Eviddence by Ricardo J. Francisco,Third Edition (1996), p. 487, citing 58 Am.Jur. 443.
 Leonard v. Watsonville Community Hospital, 47 Cal. 2d 509, 516, 305 P. 2d 36 (1956).
 Equitable PCI Bank v. Caguioa, G.R. No. 159170, August 12, 2005, 466 SCRA 686, 693.
 Arwood Industries, Inc. v D.M. Consunji, Inc., G.R No. 142277, December 11, 2002, 394 SCRA 11, 19.
 Union Refinery Corporation v. Tolentino, G.R. No. 155653, September 30, 2005, 471 SCRA 613, 618.
 Changco v. Court of Appeals, G.R. No. 128033, March 20, 2002, 379 SCRA 590, 594.
 Pacheco v. Court of Appeals, G.R. No. 126670, December 2, 1999, 319 SCRA 595, 603.
 Tan v. Villapaz, G.R. No. 160892, November 22, 2005, 475 SCRA 721, 730.
 Tigno v. Aquino, G.R. No. 129416, November 25, 2004, 444 SCRA 61, 75.
 Mendezona v. Ozamis, G.R. No. 143370, February 6, 2002, 376 SCRA 482, 495-496.
 Valencia v. Locquiao, G.R. No. 122134, October 3, 2004, 412 SCRA 600, 609.
 Citibank, N.A. v. Sabeniano, G.R. No. 156132, October 12, 2006, 504 SCRA 378, 458.
 Estrada v. Desierto, G.R. No. 146710-15, April 3, 2001, 356 SCRA 108, 138, citing Wigmore on Evidence, sec. 1191, p. 334.
 TSN, 25 September 1998, pp. 6-7; TSN, 25 September 1998, pp. 10-13.
 RULES OF COURT, Rule 8, Section 8.
 Arwood Industries, Inc. v D.M. Consunji, Inc., G.R No. 142277, December 11, 2002, 394 SCRA 11, 16.
 Herbon v. Palad, G.R. No. 149572, July 20, 2006, 495 SCRA 544, 554-555.
 Rules of Court, Rule 130, Sec. 9.

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Predictably, the dialogue between the supporters of the Deccan Trap flood basalts and the Chicxulub impact as triggers that were responsible for the mass extinction at the end of the Mesozoic Era (the K-Pg event) continues. A recent issue of Science contains two new approaches focussing on the timing of flood basalt eruptions in western India relative to the age of the Chicxulub impact. One is based on dating the lavas using zircon U-Pb geochronology (Schoene, B. et al. 2019. U-Pb constraints on pulsed eruption of the Deccan Traps across the end-Cretaceous mass extinction. Science, v. 363, p. 862-866; DOI: 10.1126/science.aau2422), the other using 40Ar/39Ar dating of plagioclase feldspars (Sprain, C.G. et al. 2019. The eruptive tempo of Deccan volcanism in relation to the Cretaceous-Paleogene boundary. Science, v. 363, p. 866-870; DOI: 10.1126/science.aav1446). Both studies were initiated for the same reason: previous dating of the sequence of flows in the Deccan Traps was limited by inadequate sampling of the flow sequence and/or high analytical uncertainties. All that could be said with confidence was that the outpouring of more than a million cubic kilometres of plume-related basaltic magma lasted around a million years (65.5 to 66.5 Ma) that encompassed the sudden extinction event and the possibly implicated Chicxulub impact. The age of the impact, as recorded by its iridium-rich ejecta found in sediments of the Denver Basin in Colorado, has been estimated from zircon U-Pb data at 66.016 ± 0.050 Ma; i.e. with a precision of around 50 thousand years.
Because basalts rarely contain sufficient zircons to estimate a U-Pb age of their eruption, Blair Schoene and colleagues collected them from palaeosols or boles that commonly occur between flows and sometimes incorporate volcanic ash. Their data cover 23 boles and a single zircon-bearing basalt. Sprain et al. obtained 40Ar/39Ar ages from 19 flows, which they used to supplement 5 ages obtained by their team in previous studies that used the same analytical methods and 4 palaeosol ages from an earlier paper by Schoene’s group.
The zircon U-Pb data from palaeosols, combined with estimates of magma volumes that contributed to the lava sequence between each dated stratigraphic level, provide a record of the varying rates at which lavas accumulated. The results suggest four distinct periods of high-volume eruption separated by long. periods of relative quiescence. The second such pulse precedes the K-Pg event by up to 100 ka, the extinction and impact occurring in a period of quiescence. A few tens of thousand years after the event Deccan magmatism rose to its maximum intensity. Schoene’s group consider that this supports the notion that both magmatism and bolide impact drove environmental deterioration that culminated in mass extinction.
The Ar-Ar data derived from the basalt flows themselves, seem to tell a significantly different story. A plot of basalt accumulation, similarly derived from dating and stratigraphy, shows little if any sign of major magmatic pulses and periods of quiescence. Instead, Courtney Sprain’s team distinguish an average eruption rate of around 0.4 km3 per year before the K-Pg event and 0.6 km3 per year following it. Yet they observe from climate proxy data that there seems to have been only minor climatic change (about 2 to 3 °C warming) during the period around and after the K-Pg event when some 75% of the lavas flooded out. Yet during the pre-extinction period of slower effusion global temperature rose by 4°C then fell back to pre-eruption levels immediately before the K-Pg event. This odd mismatch between magma production and climate, based on their data, prompts Sprain et al. to speculate on possible shifts in the emission of climate-changing gases during the period Deccan volcanism: warming by carbon dioxide – either from the magma or older carbon-rich sediments heated by it; cooling induced by stratospheric sulfate aerosols formed by volcanogenic SO2 emissions. That would imply a complex scenario of changes in the composition of gas emissions of either type. They suggest that one conceivable trigger for the post-extinction climate shift may have been exhaustion of the magma source’s sulfur-rich volatile content before the Chicxulub impact added enough energy to the Earth system to generate the massive extrusions that followed it. But their view peters out in a demand for ‘better understanding of [the Deccan Traps’] volatile release’.
A range of indirect evidence has been used to suggest that life originated deep in the oceans around hydrothermal vents, such as signs of early organic matter in association with Archaean pillow lavas. One particularly persuasive observation is that a number of proteins and other cell chemicals are constructed around metal sulfide groups. Such sulfides are common around hydrothermal ‘smokers’ associated with oceanic rift systems. Moreover, Fischer-Tropsch reactions between carbon monoxide and hydrogen produce quite complex hydrocarbon molecules under laboratory conditions. Such hydrogenation of a carbon-bearing gas requires a catalyst, a commonly used one being chromium oxide (see Abiotic formation of hydrocarbons by oceanic hydrothermal circulation May 2004). It also turns out that fluids emitted by sea-floor hydrothermal systems are sometimes rich in free hydrogen, formed by the breakdown of olivine in ultramafic rocks to form hydroxylated minerals such as serpentine and talc. The fact that chromium is abundant in ultramafic rocks, in the form of its oxide chromite, elevates the possibility that Fischer-Tropsch reactions may have been a crucial part of the life-forming process on the early Earth. What is needed is evidence that such reactions do occur in natural settings.
One site on the mid-Atlantic ridge spreading centre, the Lost City vent field, operates because of serpentinisation of peridotites exposed on the ocean floor, to form carbonate-rich plumes and rocky towers; ‘white smokers’. So that is an obvious place to test the abiotic theory for the origin of life. Past analyses of the vents have yielded a whole range of organic molecules, including alkanes, formates, acetates and pyruvates, that are possible precursors for such a natural process. Revisiting Lost City with advanced analytical techniques has taken the quest a major step forward (Ménez, B. et al. 2018. Abiotic synthesis of amino acids in the recesses of the oceanic lithosphere. Nature, advance online publication; DOI: 10.1038/s41586-018-0684-z). The researchers from France and Kazakhstan focused on rock drilled from 170 m below the vent system, probably beyond the influence of surface contamination from living organisms. Using several methods they detected the nitrogen-containing amino acid tryptophan, and that alone. Had they detected other amino acids their exciting result would have been severely tempered by the possibility of surface organic contamination. The formation of tryptophan implies that its abiotic formation had to involve the reduction of elemental nitrogen (N2) to ammonia (NH3). Bénédicte Ménez and colleagues suggest that the iron-rich clay saponite, which is a common product of serpentine alteration at low temperatures, may have catalysed such reduction and amino-acid synthesis through Friedel–Crafts reactions. Fascinating as this discovery may be, it is just a step towards confirming life’s abiogenesis. It also permits speculation that similar evidence may be found elsewhere in the Solar System on rocky bodies, such as the moons Enceladus and Europa that orbit Saturn and Jupiter respectively. That is, if the rock base of hydrothermal systems thought to occur there can be reached.
Related article: Baross, J.A. 2018. The rocky road to biomolecules. Nature, v. 564, p. 42-43; DOI: 10.1038/d41586-018-07262-8.
John Murray of The Open University, UK has been studying Europe’s largest active volcano Mount Etna on Sicily for most of his career. With a group of colleagues he installed high-precision GPS receivers at over 100 stations on the flanks of the mountain. This was to monitor any shifts in elevation and geographic position, which might be related to magmatic events within the volcano, such as inflation and contraction of the magma chamber. Measurements of position gathered annually since 2001 reveal a somewhat alarming picture (Murray, J.B. et al. 2018. Gravitational sliding of the Mt. Etna massif along a sloping basement. Bulletin of Volcanology, v. 80 online, open access; doi /10.1007/s00445-018-1209-1). The edifice is moving relentlessly ESE at 14 mm yr-1, on average, towards the Mediterranean Sea. Research by one of Murray’s co-authors, Benjamin van Wyk de Vries of the Université Clermont Auvergne, established that many volcanoes have associated signs of deformation due to their huge masses. Often, this is a matter of radial spreading that produces thrust-like faults at their base and in the basement on which they grew. In the case of Etna all the annual displacements on its flanks are skewed to the ESE. The researchers are able to show that this is not a case of flank instability that ultimately may result in lateral collapse but the entire volcano is slowly slipping sideways.
An experimental mock up of the volcano– a cone and flanking layers of lava and pyroclastic rocks made of sand on a substrate of putty to represent underlying sedimentary strata – began to slide once it was tilted at a shallow angle. This suggests that the base of the volcano and igneous debris that it has emitted dips gently to the ESE. The underlying materials are poorly consolidated Quaternary sediments, which are likely to be rheologically weak. Geophysics shows that the NW side of the volcano rests on an almost horizontal plateau, the cone itself being above a spoon-like depression, probably produced by the cone’s mass, and the base dips seawards in the SE sector. It is through this basement that magma makes its way to Etna’s summit vent system, probably along fractures.
The authors warn that such sliding volcanoes are prone to devastating sector collapse on the downslope side, although there are no signs that might be imminent. Yet it will almost certainly have an effect on eruptive activity as the magma conduits are continually changing. Future research needs to focus on periods when there is horizontal contraction on the volcano, as happens during lengthy periods of dormancy – the period for which there are data has been one of expansion.
Most volcanic activity stems from the rise of hot, deep rock, usually within the mantle. Pressure suppresses partial melting, so as hot rock rises the greater the chance that it will begin to melt without any rise in its temperature. That is the reason why mantle plumes are associated with many volcanic centres within plates. Extension at oceanic ridges allows upper mantle to rise in linear belts below rift systems giving rise to shallow partial melting, mid-ocean ridge basalts and sea-floor spreading. These aren’t the only processes that can reduce pressure to induce such decompression melting; any means of uplift will do, provided the rate of uplift exceeds the rate of cooling at depth. As well as tectonic uplift and erosion, melting of thick ice sheets and major falls in sea level may result in unloading of the lithosphere.
During Messinian Stage of the late Miocene up to 3 km of evaporitic salt was deposited in the deepest parts of the Mediterranean Basin. One mechanism might have been faster evaporation of seawater than its resupply from the Atlantic through the Straits of Gibraltar, similar to the way in which salts is deposited below the Dead Sea. But the salt layer beneath the modern Mediterranean Sea bed has interleaved riverine sediments containing fossils of land plants. The Straits had closed and the Mediterranean Sea evaporated away. From about 6 to 5.3 Ma ago sea level fell by 3 to 5 km, only returning to normal when the Straits reopened to launch the huge Zanclean flood, with which the Pliocene of southern Europe and North Africa commenced. A team from the Universities of Geneva, Orleans and Paris and the Instituto de Ciencias de la Tierra Jaume Almera in Barcelona has tested the hypothesis that the Messinian Crisis affected volcanic activity in the area (Sternai, P. et al. 2017. Magmatic pulse driven by sea-level changes associated with the Messinian salinity crisis. Nature Geoscience, v. 10 online; doi:10.1038/ngeo3032).
From the record of salt precipitation, Pietro Sternai and colleagues, reckon that the main phase of unloading of the Mediterranean Basin began at around 5.6 Ma. Allowing for loading by the thick evaporites they calculated that the effect of the loss of water mass was equivalent to an unloading of 15 MPa in the deeper Eastern Mediterranean and 10 MPa in the west. Using standard pressure-temperature melting curves for the upper mantle, they then estimated that any magma chambers affected by the decrease in pressure could yield up to 17% more melt. Radiometrically dated lavas and igneous dykes within the Mediterranean region became more frequent and the number of events more than doubled during the time of main salt deposition.
In May 2017 a study of subglacial volcanoes in West Antarctica based on radar mapping of the solid surface identified 138, 91 of them previously unknown (van Wyk de Vries et al. 2017. A new volcanic province: an inventory of subglacial volcanoes in West Antarctica. Geological Society, London, Special Publication 461) They lie within a buried rift system and are covered by thick ice. Only one volcano in Antarctica is known to be active, Erebus, which is part of the cluster. Most of the news items stemming from the publication mentioned the possibility that the buried volcanic tract could be adding to the instability of the West Antarctic Ice Sheet through heating up its base. The WAIS is the ice sheet most feared to collapse seawards leading to a rise of about 3 m in global sea level. If the 2 km thick WAIS did slide off its underlying crust it might possibly trigger reactivation of the volcanic cluster.
The dominant feature of Phanerozoic stratigraphy is surely the way that many of the formally named major time boundaries in the Stratigraphic Column coincide with sudden shifts in the abundance and diversity of fossil organisms. That is hardly surprising since all the globally recognised boundaries between Eras, Periods and lesser divisions in relative time were, and remain, based on palaeontology. Two boundaries between Eras – the Palaeozoic-Mesozoic (Permian-Triassic) at 252 Ma and Mesozoic-Cenozoic (Cretaceous-Palaeogene) at 66 Ma – and a boundary between Periods – Triassic-Jurassic at 201 Ma – coincide with enormous declines in biological diversity. They are defined by mass extinctions involving the loss of up to 95 % of all species living immediately before the events. Two other extinction events that match up to such awesome statistics do not define commensurately important stratigraphic boundaries. The Frasnian Stage of the late-Devonian closed at 372 Ma with a prolonged series of extinctions (~20 Ma) that eliminated at least 70% of all species that were alive before it happened. The last 10 Ma of the Ordovician period witnessed two extinction events that snuffed out about the same number of species. The Cambrian Period is marked by 3 separate events that in percentage terms look even more extreme than those at the end of the Ordovician, but there are a great many less genera known from Cambrian times than formed fossils during the Ordovician.
Faunal extinctions during the Phanerozoic in relation to the Stratigraphic Column.
Empirical coincidences between the precise timing of several mass extinctions with that of large igneous events – mainly flood basalts – suggest a repeated volcanic connection with deterioration of conditions for life. That is the case for four of the Famous Five, the end-Ordovician die-off having been ascribed to other causes; global cooling that resulted in south-polar glaciation of the Gondwana supercontinent and/or an extra-solar gamma-ray burst (predicated on the preferential extinction of Ordovician near-surface, planktonic fauna such as some trilobite families). Neither explanation is entirely satisfactory, but new evidence has emerged that may support a volcanic trigger (Jones, D.S. et al. 2017. A volcanic trigger for the Late Ordovician mass extinction? Mercury data from south China and Laurentia. Geology, v. 45, p. 631-634; doi:10.1130/G38940.1). David Jones and his US-Japan colleagues base their hypothesis on several very strong mercury concentrations in thin sequences in the western US and southern China of late Ordovician marine sediments that precede, but do not exactly coincide with, extinction pulses. They ascribe these to large igneous events that had global effects, on the basis of similar Hg anomalies associated with extinction-related LIPs. Yet no such volcanic provinces have been recorded from that time-range of the Ordovician, although rift-related volcanism of roughly that age has been reported from Korea. That does not rule out the possibility as LIPs, such as the Ontong Java Plateau, are known from parts of the modern ocean floor that formed in the Mesozoic and Cenozoic. Ordovician ocean floor was subducted long ago.
The earlier Hg pulses coincide with evidence for late Ordovician glaciations over what is now Africa and eastern South America. The authors suggest that massive volcanism may then have increased the Earth’s albedo by blasting sulfates into the stratosphere. A similar effect may have resulted from chemical weathering of widely exposed flood basalts which draws down atmospheric CO2. The later pulses coincide with the end of Gondwanan glaciation, which may signify massive emanation of volcanic CO2 into the atmosphere and global warming. Despite being somewhat speculative, in the absence of evidence, a common link between the Big Five plus several other major extinctions and LIP volcanism would quieten their popular association with major asteroid and/or comet impacts currently being reinvigorated by drilling results from the K-Pg Chicxulub crater offshore of Mexico’s Yucatan Peninsula.