§ 85-4 Application for permit; fees.
§ 85-5 Placard to be issued and displayed.
§ 85-6 Compliance with terms of permit; bracing.
§ 85-7 Disturbance of pipes, cables or conduits; notice prior to disturbance.
§ 85-8 Manner of excavating, backfilling, repaving and repairing.
§ 85-9 Tunneling and undermining.
§ 85-10 Work done by township; liability for costs.
§ 85-11 Notice of new regulations.
§ 85-12 Conduction of work in a quiet and orderly manner.
§ 85-13 Safety measures required.
§ 85-14 Time limit; extension.
§ 85-15 Location and character of underground structures to be filed.
§ 85-17 Inspection and supervision by Township Engineer.
§ 85-18 Bonds and guaranties.
§ 85-19 Construal of provisions.
§ 85-20 Violations and penalties.
Off-tract improvements — See Ch. 104.
Quarrying — See Ch. 128.
Streets and sidewalks — See Ch. 145.
This chapter shall be known as and may be cited as the "Harmony Township Street Excavation Ordinance."
No person, firm or corporation shall disturb the surface of or make any opening, cut or excavation of any kind in any road, street, alley, highway, sidewalk or any other public way under the jurisdiction of the Township of Harmony for any purpose without first having obtained a permit for the same as hereinafter provided.
In the event of emergency where repairs must be made immediately, then, and in that event only, the excavation may be made for the purpose of alleviating the emergency. As soon as the leak or interruption in service has been repaired, the person, persons or corporation having made the excavation shall forthwith apply for a permit and comply with all other applicable provisions of this chapter.
Application in writing shall be made to the Municipal Clerk and signed by the person, firm or corporation making the proposed street opening or excavation, setting forth the location of the proposed opening or excavation, the size thereof and the purpose therefor. The application shall then be forwarded to the Township Engineer for his review and approval. The Township Engineer shall endorse his approval upon the face of the application and shall then return the application to the Municipal Clerk, who shall then issue the permit.
Before the permit shall be issued by the Municipal Clerk, the person, firm or corporation making the- application shall have on Me with the Township Clerk a surety bond issued by a surety company authorized to do business in this state, in the amount of $1,000, covering the opening or excavation set forth in the application and any and all future openings and excavations to be made in a calendar year. Said bond shall be conditioned upon the permittee's compliance with this chapter and to indemnify the township for any loss, liability or damage that may result or accrue from or because of the making, existence or manner of constructing or guarding any such opening or excavation, during the term of said bond.
The person, firm or corporation making and signing the application shall comply with all the provisions of this chapter as hereinafter set forth.
Any opening area less than 100 square feet: $175.
Any opening area 100 square feet or greater: $175, plus $35 for each additional 100 square feet of opening area or percentage thereof.
A three-foot width shall be used for purposes of determining inspection fee only.
The Municipal Clerk shall provide each permittee, at the time a permit is issued hereunder, a suitable placard upon which is written the following notice: "Township of Harmony, N.J. Permit No. _______________, Expires:____________." It shall be the duty of any permittee to keep the placard posted in a conspicuous place at the site of the excavation work. It shall be unlawful for any person to exhibit such placard at or about any excavation not covered by such permit or to misrepresent the number of the permit or the date of expiration of the permit.
It shall be unlawful to make any opening or excavation in any way contrary to or at variance with the terms of the permit therefor. Proper bracing shall be maintained to prevent the collapse of adjoining ground, and the excavation shall not have anywhere below the surface any portion which extends beyond the opening at the surface.
No injury shall be done to any pipes, cables or conduits in the making of such excavations or openings, and notice shall be given to the persons maintaining any such pipes, cables or conduits, which are or may be endangered or affected by the making of any such excavations or openings, before such pipes, cables or conduits shall be disturbed.
The area of pavement to be removed from the proposed opening or excavation shall have straight clean-cut edges, and the material removed from the excavation shall be removed from the site and disposed of in a manner directed by the Township Engineer.
Upon completion of the proposed work in the excavated area, the trench shall be backfilled with broken stone or stone dust. The backfilling shall be made in layers not to exceed six inches in depth and be thoroughly compacted, and shall be carried to within six inches of the surface of the existing bituminous pavement.
Upon completion of the compacted backfilling of the trench to the required elevation, the backfilled area shall be paved with four inches compacted thickness of bituminous stabilized base course and two inches' compacted thickness of FABC-1 bituminous surface course.
In areas where concrete pavement is removed for the proposed excavation, the compacted backfill shall be completed as above to the subgrade of the existing pavement and repaved with an equal thickness of concrete pavement.
All of the backfilling and repairing of the excavated area shall be done in a neat and workmanlike manner so that the restored pavement meets the existing surrounding pavement as smoothly as possible. All the cost of backfilling and repairing shall be borne by the permittee.
All repairing shall be completed within three days of the date that backfilling is completed.
No part of a trench or excavation shall be tunnelled or undermined, except in such cases as may be approved by the Township Engineer.
If the permittee falls to complete the excavation work covered by the permit, including backfilling as set forth in this chapter within the time set by said permit, the Township Engineer, if he deems it advisable, shall have the right to do all work and things necessary to complete the excavation work. The permittee shall be liable for the actual cost thereof and 25% of such cost, in addition to general overhead and administrative expenses.
Whenever the Mayor and Township Committee enacts any ordinance or resolution providing for the paving or repaving of any street, the Municipal Clerk shall promptly mail a written notice thereof to each person, firm or corporation owning any sewer main, conduit or other utility in or under said street. Such notice shall notify such persons, firms or corporations that no excavation permits shall be issued for openings, cuts or excavations in said street for a period of five years after the date of enactment of said ordinance or resolution. Such notice shall also notify such person, firm or corporation that application for excavating permits for work to be done prior to such paving or repaving shall be submitted promptly in order that the work covered by the excavation permit shall be completed as soon as practicable, and in no event later than the date specified in the permit for the excavation work therefor. During the five-year period, no excavation permit shall be issued to open, cut or excavate in said street unless, in the judgment of the Township Engineer, an emergency as described in this chapter exists which makes it absolutely essential that the excavation permit be issued.
Each permittee shall conduct and carry out the excavation in such a manner as to avoid unnecessary inconvenience and annoyance to the general public and occupants of neighboring property. The permittee shall take appropriate measures to reduce, to the fullest extent practicable in the performance of the excavation work, noise, dust and unsightly debris and shall promptly remove from the street all excess of excavated materials.
All persons, firms or corporations granted a permit to make an opening or excavation in the public streets and highways of the township shall, at all times, maintain suitable barricades and guards, display proper warning and signals and flags and provide all necessary watchmen to prevent injury to any person or damage to any vehicle by reason of the work. Such barricades shall be protected by sufficient lights at nighttime. Streets and highways must be kept open for traffic at all times, except when otherwise ordered or approved by the Township Engineer.
No street or highway shall remain open because of any permit issued pursuant to this chapter for a period in excess of two weeks, unless the Township Engineer shall approve a greater period of time, either at the time of the application for the permit or subsequent thereto. If the Township Engineer shall approve such a period of time at the time the application is submitted, it shall be so endorsed upon the application, and if approved subsequently, such approval shall be in writing and an endorsement to that effect attached to the placard required in § 85-5. In any event, no such approval shall be granted except on written application, signed by the permittee or applicant, setting forth the reasons for such application.
Users of subsurface street space shall file accurate drawings, plans and profiles showing the location and character of all existing underground structures and installations with the Township Engineer within two years after enactment of this chapter. Corrected maps shall be filed with the Township Engineer within 60 days after new installations, changes or replacements are made.
A permittee, prior to commencement of excavation work hereunder, shall furnish the Municipal Clerk satisfactory evidence in writing that the permittee has in force and will maintain in force during the performance of the excavation work and the period of the excavation permit public liability insurance of not less than $100,000 for any one person and $300,000 for any one accident and property damage insurance of not less than $25,000, duly issued by an insurance company authorized to do business in this state.
The Township Engineer shall verify the extent of the excavation or opening and shall inspect the work. No bond or deposit money, as the case may be, shall be released until 18 months after the completion of the project and receipt of written certification from the Township Engineer stating that the work has remained in a satisfactory condition for the said 18 months.
Public utility corporations of the State of New Jersey may file a corporate bond on a yearly basis in an amount of $5,000, in lieu of cash bonds. Nonpublic utility permittees shall post either a performance guaranty or cash bond in the amount of $5,000. Should the Township Engineer determine that the amount of either the corporate bond or performance guaranty deposited by the nonpublic permittee is insufficient to defray restoration costs, the public utility corporation or nonpublic utility permittee shall post a performance guaranty, with the Harmony Township Municipal Clerk in such an amount as is determined by the Township Engineer.
This chapter shall not be construed as imposing upon the township or any official or employee any liability or responsibility for damages to any person injured by the performance of any excavation work for which an excavation permit is issued hereunder; nor shall the township or any official or employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized hereunder, the issuance of any permit or the approval of any excavation work.
Any person, firm or corporation who or which shall violate any of the provisions of this chapter shall, upon conviction thereof, be liable to punishment by a fine of not more than $500 or, in the case of individuals, may be imprisoned in the county jail for not more than 90 days, or both; such fine and imprisonment, for each offense, at the discretion of the Judge before whom such conviction is had. Each day that a violation thereof is allowed to continue shall be considered a new and separate offense.


I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be, only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now, once all sides of the problem are considered.
While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim, in short, is toward "voluntariness" in a utopian sense, or, to view it from a different angle, voluntariness with a vengeance.
It is most fitting to begin an inquiry into the constitutional precedents by surveying the limits on confessions the Court has evolved under the Due Process Clause of the Fourteenth Amendment. This is so because these cases show that there exists a workable and effective means of dealing with confessions in a judicial manner; because the cases are the baseline from which the Court now departs, and so serve to measure the actual, as opposed to the professed, distance it travels, and because examination of them helps reveal how the Court has coasted into its present position.
The earliest confession cases in this Court emerged from federal prosecutions, and were settled on a nonconstitutional basis, the Court adopting the common law rule that the absence of inducements, promises, and threats made a confession voluntary and admissible. Hopt v. Utah, 110 U.S. 574; Pierce v. United States, 160 U.S. 355. While a later case said the Fifth Amendment privilege controlled admissibility, this proposition was not itself developed in subsequent decisions.  The Court did, however, heighten the test of admissibility in federal trials to one of voluntariness "in fact," Wan v. [p507] United States, 266 U.S. 1, 14 (quoted, ante p. 462), and then, by and large, left federal judges to apply the same standards the Court began to derive in a string of state court cases.
Among the criteria often taken into account were threats or imminent danger, e.g., Payne v. Arkansas, 356 U.S. 560, physical deprivations such as lack of sleep or food, e.g., Reck v. Pate, 367 U.S. 433, repeated or extended interrogation, e.g., Chambers v. Florida, 309 U.S. 227, limits on access to counsel or friends, Crooker v. California, 357 U.S. 433; Cicenia v. Lagay, 357 U.S. 504, length and illegality of detention under state law, e.g., Haynes v. Washington, 373 U.S. 503, and individual weakness or incapacities, Lynumn v. Illinois, 372 U.S. 528. Apart from direct physical coercion, however, no single default or fixed combination of defaults guaranteed exclusion, and synopses of the cases would serve little use, because the overall gauge has been steadily changing, usually in the direction of restricting admissibility. But to mark just what point had been reached before the Court jumped the rails in Escobedo v. Illinois, 378 U.S. 478, it is worth capsulizing the then-recent case of Haynes v. Washington, 373 U.S. 503. There, Haynes had been held some 16 or more hours in violation of state law before signing the disputed confession, had received no warnings of any kind, and, despite requests, had been refused access to his wife or to counsel, the police indicating that access would be allowed after a confession. Emphasizing especially this last inducement and rejecting some contrary indicia of voluntariness, the Court in a 5-to-4 decision, held the confession inadmissible.
There are several relevant lessons to be drawn from this constitutional history. The first is that, with over 25 years of precedent, the Court has developed an elaborate, sophisticated, and sensitive approach to admissibility of confessions. It is "judicial" in its treatment of one case at a time, see Culombe v. Connecticut, 367 U.S. 568, 635 (concurring opinion of THE CHIEF JUSTICE), flexible in its ability to respond to the endless mutations of fact presented, and ever more familiar to the lower courts. [p509] Of course, strict certainty is not obtained in this developing process, but this is often so with constitutional principles, and disagreement is usually confined to that borderland of close cases where it matters least.
The second point is that, in practice and, from time to time, in principle, the Court has given ample recognition to society's interest in suspect questioning as an instrument of law enforcement. Cases countenancing quite significant pressures can be cited without difficulty,  and the lower courts may often have been yet more tolerant. Of course, the limitations imposed today were rejected by necessary implication in case after case, the right to warnings having been explicitly rebuffed in this Court many years ago. Powers v. United States, 223 U.S. 303; Wilson v. United States, 162 U.S. 613. As recently as Haynes v. Washington, 373 U.S. 503, 515, the Court openly acknowledged that questioning of witnesses and suspects "is undoubtedly an essential tool in effective law enforcement." Accord, Crooker v. California, 357 U.S. 433, 441.
Finally, the cases disclose that the language in many of the opinions overstates the actual course of decision. It has been said, for example, that an admissible confession must be made by the suspect "in the unfettered exercise of his own will," Malloy v. Hogan, 378 U.S. 1, 8, and that "a prisoner is not ‘to be made the deluded instrument of his own conviction,'" Culombe v. Connecticut, 367 U.S. 568, 581 (Frankfurter, J., announcing the Court's judgment and an opinion). Though often repeated, such principles are rarely observed in full measure. Even the word "voluntary" may be deemed some [p510] what misleading, especially when one considers many of the confessions that have been brought under its umbrella. See, e.g., supra, n. 5. The tendency to overstate may be laid in part to the flagrant facts often before the Court; but, in any event, one must recognize how it has tempered attitudes and lent some color of authority to the approach now taken by the Court.
I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a tromp l'oeil. The Court's opinion, in my view, reveals no adequate basis for extending the Fifth Amendment's privilege against self-incrimination to the police station. Far more important, it fails to show that the Court's new rules are well supported, let alone compelled, by Fifth Amendment precedents. Instead, the new rules actually derive from quotation and analogy drawn from precedents under the Sixth Amendment, which should properly have no bearing on police interrogation.
the history of the two principles is wide apart, differing by one hundred years in origin, and derived through separate lines of precedents. . . .
8 Wigmore, Evidence § 2266, at 401 (McNaughton rev.1961). Practice under the two doctrines has also differed in a number of important respects.  [p511] Even those who would readily enlarge the privilege must concede some linguistic difficulties, since the Fifth Amendment, in terms, proscribes only compelling any person "in any criminal case to be a witness against himself." Cf. Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 25-26 (1965).
Though weighty, I do not say these points and similar ones are conclusive, for, as the Court reiterates, the privilege embodies basic principles always capable of expansion.  Certainly the privilege does represent a protective concern for the accused and an emphasis upon accusatorial, rather than inquisitorial, values in law enforcement, although this is similarly true of other limitations such as the grand jury requirement and the reasonable doubt standard. Accusatorial values, however, have openly been absorbed into the due process standard governing confessions; this, indeed, is why, at present, "the kinship of the two rules [governing confessions and self-incrimination] is too apparent for denial." McCormick, Evidence 155 (1954). Since extension of the general principle has already occurred, to insist that the privilege applies as such serves only to carry over inapposite historical details and engaging rhetoric and to obscure the policy choices to be made in regulating confessions.
The more important premise is that pressure on the suspect must be eliminated, though it be only the subtle influence of the atmosphere and surroundings. The Fifth Amendment, however, has never been thought to forbid all pressure to incriminate one's self in the situations covered by it. On the contrary, it has been held that failure to incriminate one's self can result in denial of removal of one's case from state to federal court, Maryland v. Soper, 270 U.S. 9; in refusal of a military commission, Orloff v. Willoughby, 345 U.S. 83; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz, 176 F.2d 210, and in numerous other adverse consequences. See 8 Wigmore, Evidence § 2272, at 441-444, n. 18 (McNaughton rev.1961); Maguire, Evidence of Guilt § 2.062 (1959). This is not to say that, short of jail or torture, any sanction is permissible in any case; policy and history alike may impose sharp limits. See, e.g., [p513] Griffin v. California, 380 U.S. 609. However, the Court's unspoken assumption that any pressure violates the privilege is not supported by the precedents, and it has failed to show why the Fifth Amendment prohibits that relatively mild pressure the Due Process Clause permits.
The Court appears similarly wrong in thinking that precise knowledge of one's rights is a settled prerequisite under the Fifth Amendment to the loss of its protections. A number of lower federal court cases have held that grand jury witnesses need not always be warned of their privilege, e.g., United States v. Scully, 225 F.2d 113, 116, and Wigmore states this to be the better rule for trial witnesses. See 8 Wigmore, Evidence § 2269 (McNaughton rev.1961). Cf. Henry v. Mississippi, 379 U.S. 443, 451-452 (waiver of constitutional rights by counsel despite defendant's ignorance held allowable). No Fifth Amendment precedent is cited for the Court's contrary view. There might, of course, be reasons apart from Fifth Amendment precedent for requiring warning or any other safeguard on questioning, but that is a different matter entirely. See infra pp. 516-517.
the domino method of constitutional adjudication . . . , wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation.
Friendly, supra, n. 10, at 950.
Examined as an expression of public policy, the Court's new regime proves so dubious that there can be no due [p515] compensation for its weakness in constitutional law. The foregoing discussion has shown, I think, how mistaken is the Court in implying that the Constitution has struck the balance in favor of the approach the Court takes. Ante, p. 479. Rather, precedent reveals that the Fourteenth Amendment, in practice, has been construed to strike a different balance, that the Fifth Amendment gives the Court little solid support in this context, and that the Sixth Amendment should have no bearing at all. Legal history has been stretched before to satisfy deep needs of society. In this instance, however, the Court has not and cannot make the powerful showing that its new rules are plainly desirable in the context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and imposed on every State and county in the land.
[t]o speak of any confessions of crime made after arrest as being "voluntary" or "uncoerced" is somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser.
The Court's new rules aim to offset these minor pressures and disadvantages intrinsic to any kind of police interrogation. The rules do not serve due process interests in preventing blatant coercion, since, as I noted earlier, they do nothing to contain the policeman who is prepared to lie from the start. The rules work for reliability in confessions almost only in the Pickwickian sense that they can prevent some from being given at all.  In short, the benefit of this new regime is simply to lessen or wipe out the inherent compulsion and inequalities to which the Court devotes some nine pages of description. Ante, pp. 448-456.
What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it.  There can be little doubt that the Court's new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs [p517] must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation. See supra, n. 12.
How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete, see Developments, supra, n. 2, at 941-944, and little is added by the Court's reference to the FBI experience and the resources believed wasted in interrogation. See infra, n.19, and text. We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control,  and that the Court is taking a real risk with society's welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation.
While passing over the costs and risks of its experiment, the Court portrays the evils of normal police questioning in terms which I think are exaggerated. Albeit stringently confined by the due process standards, interrogation is no doubt often inconvenient and unpleasant for the suspect. However, it is no less so for a man to be arrested and jailed, to have his house searched, or to stand trial in court, yet all this may properly happen to the most innocent, given probable cause, a warrant, or an indictment. Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law.
On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on the morning of March 13, petitioner Miranda was arrested and taken to the police station. At this time, Miranda was 23 years old, indigent, and educated to the extent of completing half the ninth grade. He had "an emotional illness" of the schizophrenic type, according to the doctor who eventually examined him; the doctor's report also stated that Miranda was "alert and oriented as to time, place, and person," intelligent within normal limits, competent to stand trial, and sane within the legal definition. At the police station, the victim picked Miranda out of a lineup, and two officers then took him into a separate room to interrogate him, starting about 11:30 a.m. Though at first denying his guilt, within a short time, Miranda gave a detailed oral confession, and then wrote out in his own hand and signed a brief statement admitting and describing the crime. All this was accomplished in two hours or less, without any force, threats or promises, and — I will assume this, though the record is uncertain, ante 491-492 and nn 66-67 — without any effective warnings at all.
It is also instructive to compare the attitude in this case of those responsible for law enforcement with the official views that existed when the Court undertook three major revisions of prosecutorial practice prior to this case, Johnson v. Zerbst, 304 U.S. 458, Mapp v. Ohio, 367 U.S. 643, and Gideon v. Wainwright, 372 U.S. 335. In Johnson, which established that appointed counsel must be offered the indigent in federal criminal trials, the Federal Government all but conceded the basic issue, which had, in fact, been recently fixed as Department of Justice policy. See Beaney, Right to Counsel 29-30, 342 (1955). In Mapp, which imposed the exclusionary rule on the States for Fourth Amendment violations, more than half of the States had themselves already adopted some such rule. See 367 U.S. at 651. In Gideon, which extended Johnson v. Zerbst to the States, an amicus brief was filed by 22 States and Commonwealths urging that course; only two States besides that of the respondent came forward to protest. See 372 U.S. at 345. By contrast, in this case, new restrictions on police [p521] questioning have been opposed by the United States and in an amicus brief signed by 27 States and Commonwealths, not including the three other States which are parties. No State in the country has urged this Court to impose the newly announced rules, nor has any State chosen to go nearly so far on its own.
The Court, in closing its general discussion, invokes the practice in federal and foreign jurisdictions as lending weight to its new curbs on confessions for all the States. A brief resume will suffice to show that none of these jurisdictions has struck so one-sided a balance as the Court does today. Heaviest reliance is placed on the FBI practice. Differing circumstances may make this comparison quite untrustworthy,  but, in any event, the FBI falls sensibly short of the Court's formalistic rules. For example, there is no indication that FBI agents must obtain an affirmative "waiver" before they pursue their questioning. Nor is it clear that one invoking his right to silence may not be prevailed upon to change his mind. And the warning as to appointed counsel apparently indicates only that one will be assigned by the judge when the suspect appears before him; the thrust of the Court's rules is to induce the suspect to obtain appointed counsel before continuing the interview. See ante pp. 484-486. Apparently, American military practice, briefly mentioned by the Court, has these same limits, and is still less favorable to the suspect than the FBI warning, making no mention of appointed counsel. Developments, supra, n. 2, at 1084-1089.
The law of the foreign countries described by the Court also reflects a more moderate conception of the rights of [p522] the accused as against those of society when other data are considered. Concededly, the English experience is most relevant. In that country, a caution as to silence, but not counsel, has long been mandated by the "Judges' Rules," which also place other somewhat imprecise limits on police cross-examination of suspects. However, in the court's discretion, confessions can be, and apparently quite frequently are, admitted in evidence despite disregard of the Judges' Rules, so long as they are found voluntary under the common law test. Moreover, the check that exists on the use of pretrial statements is counterbalanced by the evident admissibility of fruits of an illegal confession and by the judge's often-used authority to comment adversely on the defendant's failure to testify.  India, Ceylon and Scotland are the other examples chosen by the Court. In India and Ceylon, the general ban on police-adduced confessions cited by the Court is subject to a major exception: if evidence is uncovered by police questioning, it is fully admissible at trial along with the confession itself, so far as it relates to the evidence and is not blatantly coerced. See Developments, supra, n. 2, at 1106-1110; Reg. v. Ramasamy  A.C. 1 (P.C.). Scotland's limits on interrogation do measure up to the Court's; however, restrained comment at trial on the defendant's failure to take the stand is allowed the judge, and, in many other respects, Scotch law redresses the prosecutor's disadvantage in ways not permitted in this country.  The Court ends its survey by imputing [p523] added strength to our privilege against self-incrimination since, by contrast to other countries, it is embodied in a written Constitution. Considering the liberties the Court has today taken with constitutional history and precedent, few will find this emphasis persuasive.
It is no secret that concern has been expressed lest long-range and lasting reforms be frustrated by this Court's too rapid departure from existing constitutional standards. Despite the Court's disclaimer, the practical effect of the decision made today must inevitably be to handicap seriously sound efforts at reform, not least by removing options necessary to a just compromise of competing interests. Of course, legislative reform is rarely speedy or unanimous, though this Court has been more patient in the past.  But the legislative reforms, when they come, would have the vast advantage of empirical data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they would restore the initiative in criminal law reform to those forums where it truly belongs.
All four of the cases involved here present express claims that confessions were inadmissible not because of coercion in the traditional due process sense, but solely because of lack of counsel or lack of warnings concerning counsel and silence. For the reasons stated in this opinion, I would adhere to the due process test and reject the new requirements inaugurated by the Court. On this premise, my disposition of each of these cases can be stated briefly.
In two of the three cases coming from state courts, Miranda v. Arizona (No. 759) and Vignera v. New York (No. 760), the confessions were held admissible, and no other errors worth comment are alleged by petitioners. [p525] I would affirm in these two cases. The other state case is California v. Stewart (No. 584), where the state supreme court held the confession inadmissible, and reversed the conviction. In that case, I would dismiss the writ of certiorari on the ground that no final judgment is before us, 28 U.S.C. 1257 (1964 ed.); putting aside the new trial open to the State in any event, the confession itself has not even been finally excluded, since the California Supreme Court left the State free to show proof of a waiver. If the merits of the decision in Stewart be reached, then I believe it should be reversed, and the case remanded so the state supreme court may pass on the other claims available to respondent.
In the federal case, Westover v. United States (No. 761), a number of issues are raised by petitioner apart from the one already dealt with in this dissent. None of these other claims appears to me tenable, nor in this context to warrant extended discussion. It is urged that the confession was also inadmissible because not voluntary, even measured by due process standards, and because federal-state cooperation brought the McNabb-Mallory rule into play under Anderson v. United States, 318 U.S. 350. However, the facts alleged fall well short of coercion, in my view, and I believe the involvement of federal agents in petitioner's arrest and detention by the State too slight to invoke Anderson. I agree with the Government that the admission of the evidence now protested by petitioner was, at most, harmless error, and two final contentions — one involving weight of the evidence and another improper prosecutor comment — seem to me without merit. I would therefore affirm Westover's conviction.
^ . My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement.
^ . The case was Bram v. United States, 168 U.S. 532 (quoted ante p. 461). Its historical premises were afterwards disproved by Wigmore, who concluded "that no assertions could be more unfounded." 3 Wigmore, Evidence § 823, at 250, n. 5 (3d ed.1940). The Court in United States v. Carignan, 342 U.S. 36, 41, declined to choose between Bram and Wigmore, and Stein v. New York, 346 U.S. 156, 191, n. 35, cast further doubt on Bram. There are, however, several Court opinions which assume in dicta the relevance of the Fifth Amendment privilege to confessions. Burdeau v. McDowell, 256 U.S. 465, 475; see Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347. On Bram and the federal confession cases generally, see Developments in the Law — Confessions, 79 Harv.L.Rev. 935, 959-961 (1966).
^ . Comment, 31 U.Chi.L.Rev. 313 & n. 1 (1964), states that, by the 1963 Term, 33 state coerced confession cases had been decided by this Court, apart from per curiams. Spano v. New York, 360 U.S. 315, 321, n. 2, collects 28 cases.
In fact, the concept of involuntariness seems to be used by the courts as a shorthand to refer to practices which are repellent to civilized standards of decency or which, under the circumstances, are thought to apply a degree of pressure to an individual which unfairly impairs his capacity to make a rational choice.
See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449, 452-458 (1964); Developments, supra, n. 2, at 964-984.
^ . See the cases synopsized in Herman, supra, n. 4, at 456, nn. 36-39. One not too distant example is Stroble v. California, 343 U.S. 181, in which the suspect was kicked and threatened after his arrest, questioned a little later for two hours, and isolated from a lawyer trying to see him; the resulting confession was held admissible.
^ . Among the examples given in 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev.1961), are these: the privilege applies to any witness, civil or criminal, but the confession rule protects only criminal defendants; the privilege deals only with compulsion, while the confession rule may exclude statements obtained by trick or promise, and where the privilege has been nullified — as by the English Bankruptcy Act — the confession rule may still operate.
^ . Additionally, there are precedents and even historical arguments that can be arrayed in favor of bringing extra-legal questioning within the privilege. See generally Maguire, Evidence of Guilt § 2.03, at 15-16 (1959).
^ . This, of course, is implicit in the Court's introductory announcement that "[o]ur decision in Malloy v. Hogan, 378 U.S. 1 (1964) [extending the Fifth Amendment privilege to the States] necessitates an examination of the scope of the privilege in state cases as well." Ante, p. 463. It is also inconsistent with Malloy itself, in which extension of the Fifth Amendment to the States rested in part on the view that the Due Process Clause restriction on state confessions has, in recent years, been "the same standard" as that imposed in federal prosecutions assertedly by the Fifth Amendment. 378 U.S. at 7.
^ . I lay aside Escobedo itself; it contains no reasoning or even general conclusions addressed to the Fifth Amendment, and indeed its citation in this regard seems surprising in view of Escobedo's primary reliance on the Sixth Amendment.
^ . Since the Court conspicuously does not assert that the Sixth Amendment itself warrants its new police interrogation rules, there is no reason now to draw out the extremely powerful historical and precedential evidence that the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 9'9, 943-948 (1965).
^ . See supra, n. 4, and text. Of course, the use of terms like voluntariness involves questions of law and terminology quite as much as questions of fact. See Collins v. Beto, 348 F.2d 823, 832 (concurring opinion); Bator & Vorenberg, supra, n. 4, at 72-73.
^ . The Court's vision of a lawyer "mitigat[ing] the dangers of untrustworthiness" (ante, p. 470) by witnessing coercion and assisting accuracy in the confession is largely a fancy; for if counsel arrives, there is rarely going to be a police station confession. Watt v. Indiana, 338 U.S. 49, 59 (separate opinion of Jackson, J.): "[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." See Enker & Elsen, Counsel for the Suspect, 49 Minn.L.Rev. 47, 66-68 (1964).
^ . This need is, of course, what makes so misleading the Court's comparison of a probate judge readily setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante, pp. 457-458, n. 26. With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing gain however the balance is resolved.
^ . See, e.g., the voluminous citations to congressional committee testimony and other sources collected in Culombe v. Connecticut, 367 U.S. 568, 578-579 (Frankfurter, J., announcing the Court's judgment and an opinion).
^ . In Westover, a seasoned criminal was practically given the Court's full complement of warnings, and did not heed them. The Stewart case, on the other hand, involves long detention and successive questioning. In Vignera, the facts are complicated, and the record somewhat incomplete.
[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.
Snyder v. Massachusetts, 291 U.S. 97, 122 (Cardozo, J.).
^ . A narrow reading is given in: United States v. Robinson, 354 F.2d 109 (C.A.2d Cir.); Davis v. North Carolina, 339 F.2d 770 (C.A.4th Cir.); Edwards v. Holman, 342 F.2d 679 (C.A. 5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (C.A. 7th Cir.); People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33; State v. Fox, ___ Iowa ___, 131 N.W.2d 684; Rowe v. Commonwealth, 394 S.W.2d 751 (Ky.); Parker v. Warden, 236 Md. 236, 203 A.2d 418; State v. Howard, 383 S.W.2d 701 (Mo.); Bean v. State, ___ Nev. ___, 398 P.2d 251; State v. Hodgson, 44 N.J. 151, 207 A.2d 542; People v. Gunner, 15 N.Y.2d 226, 205 N.E.2d 852; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288; Browne v. State, 24 Wis.2d 491, 131 N.W.2d 169.
An ample reading is given in: United States ex rel. Russo v. New Jersey, 351 F.2d 429 (C.A.3d Cir.); Wright v. Dickson, 336 F.2d 878 (C.A. 9th Cir.); People v. Dorado, 62 Cal.2d 338, 398 P.2d 361; State v. Dufour, ___ R.I. ___, 206 A.2d 82; State v. Neely, 239 Ore. 487, 395 P.2d 557, modified, 398 P.2d 482.
The cases in both categories are those readily available; there are certainly many others.
^ . For instance, compare the requirements of the catalytic case of People v. Dorado, 62 Cal.2d 338, 398 P.2d 361, with those laid down today. See also Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 670.
^ . The Court's obiter dictum notwithstanding, ante p. 486, there is some basis for believing that the staple of FBI criminal work differs importantly from much crime within the ken of local police. The skill and resources of the FBI may also be unusual.
^ . For citations and discussion covering each of these points, see Developments, supra, n. 2, at 1091-1097, and Enker & Elsen, supra, n. 12, at 80 & n. 94.
^ . On comment, see Hardin, Other Answers: Search and Seizure, Coerced Confession, and Criminal Trial in Scotland, 113 U.Pa.L.Rev. 165, 181 and nn. 96-97 (1964). Other examples are less stringent search and seizure rules and no automatic exclusion for violation of them, id. at 167-169; guilt based on majority jury verdicts, id. at 185, and pretrial discovery of evidence on both sides, id. at 175.
^ . Of particular relevance is the ALI's drafting of a Model Code of Pre-Arraignment Procedure, now in its first tentative draft. While the ABA and National Commission studies have wider scope, the former is lending its advice to the ALI project and the executive director of the latter is one of the reporters for the Model Code.
^ . See brief for the United States in Westover, p. 45. The N.Y. Times, June 3, 1966, p. 41 (late city ed.) reported that the Ford Foundation has awarded $1,100,000 for a five-year study of arrests and confession in New York.
^ . The New York Assembly recently passed a bill to require certain warnings before an admissible confession is taken, though the rules are less strict than are the Court's. N.Y. Times, May 24, 1966, p. 35 (late city ed.).
^ . The Court waited 12 years after Wolf v. Colorado, 338 U.S. 25, declared privacy against improper state intrusions to be constitutionally safeguarded before it concluded, in Mapp v. Ohio, 367 U.S. 643, that adequate state remedies had not been provided to protect this interest, so the exclusionary rule was necessary.


The Commonwealth charged defendant with speeding under Brunswick County, Va., Code § 82-4-10, which tracked the language of and substance of the comparable Virginia Code Annotated provisions. Defendant stipulated the Commonwealth’s evidence was sufficient to convict him, but moved to dismiss the § 82-4-10 charge because he was not provided an immediate hearing upon his request pursuant to Va. Code Ann. § 46.2-936. Section 46.2-936 provided that a person issued a summons for a violation of the traffic code which was punishable as a misdemeanor had a right to an immediate hearing. Defendant requested such a hearing by noting it on the Virginia Uniform Summons of which both he and the officer had copies. However, the speeding infraction was not punishable as a misdemeanor, and, even if it had been, the remedy for violation of the rights under § 46.2-936 would not have been dismissal of the charge.
Defendant appealed her conviction by the Circuit Court of Brunswick (Virginia) of reckless driving by speeding 70 miles per hour in a 45 miles-per-hour zone in Virginia State under Virginia Code Ann. § 46.2-862, following the denial of her motion to strike the evidence obtained by pacing to prove her speed, alleging that pacing as per law was not a method for determining speed listed in Va. Code Ann. § 46.2-882.
Defendant appealed from an order of the Circuit Court of Brunswick (Virginia), which convicted him for reckless driving and feloniously driving after having been adjudicated an habitual offender in violation of Va. Code Ann. §§ 46.2-852 and 46.2-357(B)(2), respectively and also impose penalty for driving offense, contending that the evidence was insufficient to support the convictions.
A jury in the Circuit Court of Brunswick County (Virginia) convicted defendant of reckless driving by speed, in violation of Va. Code Ann. § 46.2-862. Defendant appealed. Defendant argued that the trial court erred in denying her proposed jury instruction that improper driving, an offense set forth in Va. Code Ann. § 46.2-869, was a lesser-included offense of reckless driving by speed. The appellate court disagreed. Improper driving was not a lesser-included offense of reckless driving by speed. Every commission of reckless driving by speed did not also constitute improper driving. In addition, improper driving was not composed entirely of the elements of reckless driving by speed. Improper driving required an additional finding of slight culpability, an element excluded from § 46.2-862.
If you are dealing with a Reckless Driving Speeding Misdemeanor charge in Virginia, contact our law firm immediately for help.
Defendant was convicted in the Circuit Court of Brunswick (Virginia) of DUI in violation of Va. Code Ann. § 18.2-266. Defendant contended that the lower court was required to dismiss the DUI charge because he had already pled guilty and been convicted of an offense that was by statute deemed reckless driving. The court disagreed and held that reckless driving and speeding were separate and distinct offenses.
Reckless driving is chargeable and punishable under the provisions of Article 7 in the Motor Vehicle Code chapter on the regulation of traffic. Reckless driving is a Class 1 misdemeanor, Va. Code Ann. § 46.2-868, carrying with it the potential for a twelve month jail sentence and a fine of not more than $ 2,500 under Va. Code Ann. § 18.2-1(a).
Under the express provisions of Va. Code Ann. § 19.2-294.1, only a conviction for reckless driving bars a prosecution for DUI. A conviction for speeding, even if premised on an underlying act that may have warranted a conviction for reckless driving, does not implicate the bar of the statute.
Defendant was convicted in the Circuit Court of Brunswick (Virginia) of DUI in violation of Va. Code Ann. § 18.2-266. He had previously pled guilty to speeding in violation of Va. Code Ann. § 46.2-870. Both charges arose from the same course of driving. He asserted that the DUI conviction was barred by Va. Code Ann. § 19.2-294.1 because the speeding conviction constituted a conviction for reckless driving.


JULIUS SIMAS, JR. vs. HOUSE OF CABINETS, INC.
Present: LENK, DOERFER, & COHEN, JJ.
Contract, Building contract. Evidence, Acceptance or rejection of testimony. Arbitration, Consumer Protection Act, Judicial review, Appropriateness of judicial proceedings. Consumer Protection Act, Arbitration, Availability of remedy, Demand letter, Offer of settlement, Attorney's fees. Practice, Civil, Consumer protection case, Amendment, Findings by judge.
A homeowner who sought arbitration under G. L. c. 142A to settle a dispute arising from a home improvement contract was not precluded from later pursuing a claim in Superior Court under G. L. c. 93A, where there was no language in c. 142A that restricted an arbitrating homeowner's rights under c. 93A, and where, even if one assumed that the homeowner's c. 93A claim was arbitrable at his election, his failure to request that the c. 93A claim be considered at arbitration did not preclude a later action in court, because everyone concerned in the arbitration operated under the assumption that c. 93A claims were not to be heard at arbitration [137-138]; the trial judge did not err in allowing the homeowner to amend his request for relief to include a claim for c. 93A damages, where the c. 93A claim was not intended to be arbitrated, was not included in the request for arbitration, and was not heard or decided by the arbitrator [138-139].
CIVIL ACTION commenced in the Superior Court Department on March 11, 1994.
The case was tried before Robert Malcolm Graham, J.
Samuel L. Rodriguez for the plaintiff.
Robert H. D'Auria for the defendant.
COHEN, J. These cross appeals arise from an eight year old dispute between Simas, a homeowner, and the House of Cabinets, Inc., a building contractor (contractor), over a home-improvement project gone awry. After nonbinding arbitration pursuant to G. L. c. 142A, the case was heard de novo in the Superior Court. A jury returned a verdict for the contractor on Simas's claim for breach of contract; however, the trial judge reserved a related claim under G. L. c. 93A, § 9, and decided it in favor of Simas. For the reasons that follow, we conclude that neither party's appeal has merit, and we affirm.
work, to obtain all necessary permits, and to "perform this contract in conformity with customary industry standards." Each contract also contained a clause providing for nonbinding arbitration.
Suffice it to say that the job did not go smoothly, and the project was terminated before the work was completed. After an exchange of written demands and counter-demands, Simas filed a request for arbitration with the home improvement contractor arbitration program of the executive office of consumer affairs, pursuant to G. L. c. 142A, on a form provided by that office.
shall be taken as prima facie evidence . . . ." G. L. c. 142A, § 4(d).
On February 25, 1994, the arbitration in this case was decided in favor of Simas. The arbitrator found, inter alia, that the contracted work was incomplete and performed poorly; that the contractor violated the payment schedule by invoicing and receiving payment for work that had not been done and materials that had not been delivered; that the contractor failed to procure all legally required permits; and that the contractor covered up work requiring rough inspection without first having had it examined by the appropriate town building officials. The arbitrator awarded Simas damages of $29,957.00, plus $800.00 in reimbursement of the arbitration fee.
The contractor's filing was accepted as the equivalent of a complaint; the case was entered; and discovery ensued. However, because of the manner in which the initial pleading was styled, Simas did not respond with an answer or counterclaim. It was not until nearly a year later that Simas attempted a pleading of his own by filing a paper entitled "Motion to Amend Request for Relief." In this document, Simas sought leave to amend his request for arbitration to include a demand for relief under G. L. c. 93A. Simas's motion was allowed, over the contractor's opposition, by a judge other than the one who later presided at the trial. As a result, Simas's c. 93A claim was included with Simas's claim under G. L. c. 142A in the de novo proceedings.
The claim under G. L. c. 142A was submitted to the jury as a simple claim for breach of contract. [Note 4] The jury answered "No" to a special question asking, "Did the House of Cabinets, Inc. breach the contract with Julius J. Simas, Jr.?" Thereafter the judge, in considering the c. 93A claim, found that the contractor had committed a number of violations of G. L. c. 142A that entitled Simas to relief under G. L. c. 93A. [Note 5] The judge found further that Simas had suffered damages on account of some, but not all, of these violations and assessed total damages of $19,198.00. Because the judge also found that the contractor had not made a written tender of settlement under G. L. c. 93A, § 9(3), he ruled that Simas was entitled to recover costs of $4,474.30, and attorney's fees in the amount of $9,800. Judgment therefore entered on the c. 93A claim in the amount of $33,472.30, plus prejudgment interest from October 14, 1993, the date of Simas's initial written demand to the contractor.
letter would have established that, by September 28, the contractor had refused to perform any further work unless Simas made an additional, unjustified payment.
The fatal flaw in Simas's argument is that the trial judge did, in fact, permit him to testify that he removed the key only after he learned that the contractor was refusing to do any more work unless it received more money. Since the substance of the excluded conversation ultimately came in evidence, Simas suffered no prejudice from the trial judge's ruling. See Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657 , 663 (1997). Furthermore, insofar as the October 1, 1993, letter is concerned, it appears never to have been offered in evidence or marked for identification. [Note 6] Simas therefore failed to preserve the issue. See Baker v. Rosen, 331 Mass. 763 (1954); Roberts v. Southwick, 415 Mass. 465 , 467-468 (1993).
3. Contractor's appeal. As a threshold matter, the contractor contends that, because Simas never lived in the house where the work was performed, he was not entitled to the protection of G. L. c. 142A and could not sue for damages under G. L. c. 93A on account of c. 142A violations. General Laws c. 142A, § 1, defines an "owner" as "any homeowner of a pre-existing owner-occupied building containing at least one but not more than four dwelling units, or tenant thereof, who orders, contracts for, or purchases the services of a contractor or subcontractor." The contractor reads the words "pre-existing owner-occupied" to mean that only homeowners who physically occupied their houses before contracting for improvements are entitled to the statute's protection.
The contractor next argues that Simas was precluded from pursuing his c. 93A claim because he elected to proceed to arbitration rather than bringing suit. The contractor fails to mention that Simas was contractually committed to go to arbitration "prior to proceeding to legal action in the courts" but given that fact, the defendant's argument reduces itself to the proposition that Simas forfeited his 93A claim simply by agreeing to arbitrate under the auspices of the approved program and not raising the claim in the arbitration proceedings. This position is untenable.
There is no language in G. L. c. 142A that restricts an arbitrating homeowner's rights under G. L. c. 93A. If anything, the statute reflects an intention to facilitate a homeowner's c. 93A remedies by stating explicitly in G. L. c. 142A, § 17, that violation of any of the provisions of c. 142A shall constitute an unfair or deceptive act under the provisions of c. 93A. See note 5, supra. We ascertain no legislative intent to deprive owners who agree to participate in the arbitration program of the opportunity to advance a c. 93A claim.
of arbitration demand which was utilized in this case [Note 9] -- operated under the assumption that c. 93A claims were not to be heard at arbitration. Thus, the c. 93A claim was not within the scope of the c. 142A arbitration as framed by the arbitration demand, and Simas remained free to litigate it in court. See TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass. App. Ct. 1 , 13 (1999) (error to dismiss G. L. c. 93A, § 11, claim on claim preclusion grounds where record did not establish that parties intended to litigate c. 93A claim in prior arbitration proceedings or that arbitrator was asked to consider or decide it). See also Blanchette v. School Comm. of Westwood, 427 Mass. 176 , 183-184 (1998) (where teacher's statutory civil rights claim was not submitted to arbitration together with her grievance, she did not waive her right to pursue her claim in judicial forum). Contrast Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424 , 427 (1992); DaLuz v. Department of Correction, 434 Mass. 40 , 45-46 (2001).
The contractor's related claim, that it was error for the Superior Court to allow Simas's motion to amend his request for relief to include a claim for c. 93A damages, is equally without merit. Although we agree with the contractor that the asserted basis for the amendment was questionable, we nevertheless conclude that it was appropriate to allow the c. 93A claim to go forward in conjunction with the trial de novo.
concedes, the c. 93A claim was not raised in the arbitration. We therefore conclude that it was appropriate for the motion judge to have allowed Simas to assert his c. 93A claim in the Superior Court proceedings, not because the c. 93A claim had, in fact, been tried to the arbitrator and was required to be tried again at the trial de novo, but because the c. 93A claim was not intended to be arbitrated, was not included in the request for arbitration, and was not heard or decided by the arbitrator. See TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., supra at 13.
The contractor's next contention is that the trial judge erred in concluding that Simas made a proper demand under G. L. c. 93A, § 9. On October 14, 1993, Simas's counsel sent a letter to the contractor's counsel which identified itself as a c. 93A demand letter. The letter cited specific ways in which the contracts between the parties failed to comply with G. L. c. 142A, § 2; it recounted the contractor's failure to obtain legally required construction permits, which resulted in a stop-work order from the town's building inspector; and it set forth a detailed list of defects in workmanship which required repair. The letter stated further that "[b]ecause of the unfair and deceptive acts and practices employed by [the contractor], Mr. Simas has been seriously damaged in an amount as yet not fully determined." In closing, the letter stated that Simas intended to seek remedies under G. L. c. 93A and invited the contractor's counsel to telephone Simas's counsel "to discuss how our clients should proceed from here."
A demand letter under G. L. c. 93A, § 9, must identify the claimant and reasonably describe the unfair or deceptive act or practice relied upon and the injury suffered. G. L. c. 93A, § 9(3). An adequate demand letter will "define the injury suffered and the relief demanded in a manner that provides the prospective defendant with 'an opportunity to review the facts and the law involved to see if the requested relief should be granted or denied' and enables him to make 'a reasonable tender of settlement.' " Spring v. Geriatric Authy. of Holyoke, 394 Mass. 274 , 288 (1985), quoting from York v. Sullivan, 369 Mass. 157 , 162-163 (1975).
Here, although the October 14, 1993, letter did not specify a dollar amount of damages, it described Simas's injuries in sufficient detail to permit the contractor reasonably to ascertain its exposure. See Brandt v. Olympic Constr., Inc., 16 Mass. App. Ct. 913 , 915 (1983) (demand letter sufficient where amount of compensation owed was apparent from facts alleged); Fredericks v. Rosenblatt, 40 Mass. App. Ct. 713 , 717-718 (1996) (demand letter sufficient where it concretely described purported injury and amount of damages was reasonably ascertainable). Significantly, in this case, the contractor's business routinely required it to estimate the costs of making home improvements. Thus, the contractor was actually in a better position than Simas to compute the expense which would be involved in rectifying the defects described in Simas's letter. Furthermore, any doubt the contractor may have had as to the exact amount of damages claimed by Simas was quickly dispelled by a subsequent letter sent by Simas's counsel on November 4, 1993, in which the sum of $29,457.00 was explicitly demanded to settle the dispute. The judge correctly concluded that Simas made sufficient demand.
The contractor also claims that the trial judge erred in finding that it failed to make a reasonable tender of settlement in response to Simas's demand. The contractor's attorney responded in writing to both the October 13, 1993, letter and the November 4, 1993, letter. Both times, the contractor denied liability and demanded additional payment from Simas. The reasonableness of the contractor's response was a question of fact for the judge to determine in light of the terms of the demand and all of the attendant facts and circumstances. See Patry v. Harmony Homes, Inc., 10 Mass. App. Ct. 1 , 6 (1980). We perceive no error.
those fees. Contrast Schultz v. Subaru of America, Inc., 407 Mass. 1004 , 1005 (1990) (issue raised and decided that attorney's fees incurred in arbitration pursuant to G. L. c. 90, § 7N 1/2  were not recoverable in subsequent c. 93A action). We therefore do not consider the contractor's new contention that it was impermissible to award any arbitration-related fees. See Palmer v. Murphy, 42 Mass. App. Ct. 334 , 338-339 (1997) (issues not raised in trial court are waived on appeal).
Finally, the contractor directly challenges the judge's c. 93A decision, claiming that the jury's finding for the contractor was entitled to preclusive effect or, alternatively, that the judge erroneously failed to consider (as the contractor assumes the jury did) the significance of Simas's removal of the key. As previously observed, the jury were given only the claim for breach of contract, and the judge reserved the c. 93A claim for himself. Accordingly, the judge was permitted to make his own decision on the more expansive c. 93A claim without being constrained by the jury's finding, and was entitled to reach his own conclusions on the import of Simas's actions. See Chamberlayne Sch. & Chamberlayne Jr. College v. Banker, 30 Mass. App. Ct. 346 , 354-355 (1991).
[Note 1] It is undisputed that the arbitration clauses in the parties' contracts met these statutory requirements.
[Note 2] Alternatively, any party who is not precluded from doing so by an enforceable agreement to arbitrate or by operation of the statutory provision providing for arbitration at the homeowner's election may proceed in the first instance by way of civil action in Superior, District, or Small Claims Court. G. L. c. 142A, § 3(a).
[Note 3] Proceeding in this fashion was irregular. The contractor should have filed a complaint naming itself as the plaintiff and Simas as the defendant. See Parekh Constr., Inc. v. Pitt Constr. Corp., 31 Mass. App. Ct. 354 , 357 (1991) (party seeking to nullify award in case arbitrated under auspices of G. L. c. 251 could attempt to do so by filing complaint, as plaintiff, in Superior Court).
[Note 4] One of the prohibited acts listed in G. L. c. 142A, § 17, is tantamount to breach of contract: "abandoning or failing to perform, without justification, any contract or project engaged in or undertaken by a registered contractor or subcontractor, or deviating from or disregarding plans or specifications in any material respect without the consent of the owner." G. L. c. 142A, § 17(2). Although the arbitrator also found other violations of c. 142A, the plaintiff does not claim that any additional bases for recovery should have been submitted to the jury during the trial de novo.
[Note 5] General Laws c. 142A, § 17, as inserted by St. 1991, c. 453, provides, in pertinent part, "Violations of any of the provisions of this chapter shall constitute an unfair or deceptive act under the provisions of chapter ninety-three A."
[Note 6] Indeed, while pressing the point that the conversation should come in evidence, plaintiff's counsel appeared to concede that the letter was not admissible. He argued to the judge: "Do you mind if I show you -- it's not admissible -- do you mind if I show you the attorney's letter where he specifically says, 'Pay more money; you're not going to go back on the job?' Does that help you, your Honor?"
[Note 7] Each arbitration clause reads: "The contractor and the owner hereby mutually agree in advance that in the event of a dispute concerning the attached contract . . . the parties shall submit such dispute to a private arbitration service which has been approved by the secretary of the Executive Office of Consumer Affairs, as provided in Chapter 142A of the general laws, prior to either party proceeding to legal action in the courts."
[Note 8] Compare Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813 , 826-827 (1982) (by virtue of G. L. c. 93A, § 9(6), plaintiff could not be compelled to arbitrate claim under c. 93A, § 9, even though he had agreed to a broadly worded arbitration clause).
[Note 9] The form requires the filer to check off boxes and to fill in blanks. In the section entitled "Requested Relief" the filer may check off and itemize any monetary damages being sought, but there is no specific mention of relief under G. L. c. 93A.
[Note 10] Simas represented that, although his initial request for arbitration did not seek c. 93A damages, he had made proper demand under G. L. 93A, § 9; the c. 93A claim was put at issue during the arbitration "by express or implied consent of the parties"; and the arbitrator "found that there had been a [c.] 93A violation." Simas appears to have based this representation on the fact that the arbitrator found violations of G. L. c. 142A which, as previously noted, are per se violations of G. L. c. 93A. See G. L. c. 142A, § 17, and note 5, supra. However, the arbitrator's finding of a predicate for a c. 93A violation does not support the conclusion that the arbitrator considered and made findings on a c. 93A claim.


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This course is an expansion of graphic design skills and procedures learned in ART 262 Graphic Design II. The course covers three dimensional product development from beginning to end and includes Book design, 3D packaging and construction. 1 hr. lect.; 3 hrs. lab. Lab fee. Prerequisite: ART 262 or by advisement.
Students will be engaged in an academic and/or practical learning experience within the areas of Visual Arts or Graphic Design that falls outside the scope of other departmental offerings. Each course presented under this title will offer an opportunity to expand the students understanding and practice of aspects of fine arts and design. The designation may also be used for artist-in-residence courses and workshops, and Study Abroad courses.
Students will be engaged in an academic and or practical learning experience within the areas of Visual Arts or Graphic Design outside the scope of other departmental offerings. The parameters of the independent study will be established between the student and the participating instructor under the supervision of the department. A contract specifying the topic, hours, and a method of evaluation will be signed by the parties for the credits earned. The student will keep a logbook for the duration of the course showing a minimum of 120 hours. This opportunity will be open to second year students with the approval and advisement of the student's academic advisor and the department chairperson.
Students will be engaged in practical work experience within the areas of Visual Arts or Graphic Design. The parameters of the internship will be established between the student and the hosting organization under the department's supervision. A contract specifying hours and a method of evaluation will be signed by the parties with sufficient hours for the credits earned. This opportunity will be open to second-year students with the approval of the student's academic advisor and the department chairperson. Phone 687-5192 for further information.

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Art.1 The Data Communication Infrastructure RENAM (DCI RENAM) is open for all non-profit institutions from Moldova which carry on research, educational or similar activities (culture, healthcare).
Art.2 DCI RENAM carries out the strategy in the data communications filed for the indiscriminatory use by all research and educational community of Moldova, including culture and healthcare domains. DCI RENAM does not provide commercial services to users that do not belong to above categories.
Art.3 DCI RENAM is organized on a computer network topology, and is a part of Internet. RENAM respects the actual international principles and regulations with regards to Internet.
Art.4 Any activity which is carried out through DCI RENAM must respect the national and international legislation as well as the present regulations.
-Support for educational, research and cultural activities.
-Institution interconnects for communication, reporting, collaboration and resource sharing.
-Facilitating high-quality and non-discriminating institution access to the educational, scientific and cultural resources existing on Internet.
-Advanced technologies promotion, competence creation, support for the development of education and research resources in the field of information technology, communications and other domains.
Art.6 The DCI RENAM operation is regulated through – Council of the Association (CA) headed by the Association Co-presidents and is performed by Directors-executive department. Any other regulations concerning the development of the network, the financing method, representation, association, etc. which are not stipulated in the Operating Regulations are carried through CA.
Art.7 Administrative and technical support of the network operation is organized within RENAM’s Network Operating Center (NOC). The constitution of the NOC is regulated through CA. The functions of NOC deal with RENAM network associated projects elaboration and realization, network infrastructure maintenance, technical assistance and users support. NOC is responsible for all networking projects management in scientific – educational sphere, network infrastructure development and providing technical and administrative support for the national Academic and Research network and it’s users.
Level 1 represents the RENAM’s points-of-presence (POP) nodes and their links to level 0 nodes.
The structure of the levels 0 and 1 of DCI RENAM is established through NOC.
Level 2 represents local area networks of RENAM’s members, along with the links between these networks and the level 0 and level 1 nodes of DCI RENAM.
Art.9 The main task of NOC consists in operations management and administration of the RENAM’s DCI on levels 0 and 1 and in connection the RENAM’s members to the level 0 and level 1 nodes.
-Assures the operation of the internal nodes, the access of the RENAM’s members to the internal nodes and monitoring traffic passing through these nodes. Depending on certain conditions, NOC can propose to contract others for satisfying a part of these tasks.
-Installs or leases national or international communication channels and assures the operation of these in the network.
-Implements the RENAM’s development programs.
-Manages the RENAM’s financing resources.
-Obtains and maintains the equipment which operates on the levels 0 and 1 of RENAM. Depending on certain conditions, NOC can propose to contract other institutions for installing and maintaining this equipment.
-Offers free consulting services for RENAM members.
-Develops activities having as a goal the promotion of advanced technologies, competence creation, education and research development in the information and communications technology domain.
Art.10 RENAM member can become any institution, which addresses a writing request to AC and agrees the principles, politics and regulations of RENAM.
Art.11 RENAM membership’s attribute, gathering all the rights and obligations which are implied, is obtained by means of a contract with AC. The contract is signed by the head of the institution which demands to become a RENAM member and by Association Co-presidents. The rights and obligations of the parts involved, usage technical details of the services along with financial issues are to be mentioned in the contract.
Art.12 The RENAM member attribute, can be withdrawn through a decision of the AC if the respective institution violates in a flagrant way, deliberate or repeatedly the signed contract for obtaining the RENAM membership attribute. The respective institution will be notified on the decision to withdraw the RENAM member attribute through a paper signed by the Association’s Co-presidents.
Art.14 The value of the RENAM members’ contributions for the network’s financing is established each year through AC.
Art.15 The financing of the DCI RENAM’s level 2 is the exclusive responsibility of the RENAM members which initiate and benefit directly of the respective network segments.
Art.16 Any RENAM member gains free and equal access to all the DCI RENAM’s resources.
Art.17 RENAM members agree to access the DCI RENAM’s resources according with the present regulations and with the signed contract for gaining the RENAM member attribute.
Art.18 NOC is able to take limiting access measures against those who violate the present regulations or the signed contract for gaining the RENAM member attribute. The limiting access measures are: partially or totally interruption of some or all of the enabled access at DCI RENAM services towards one or more points of access or towards certain servers belonging to the respective institution. These are time-limited measures until the case is solved.
Art.19 DCI RENAM is open for interconnection with other data communication service providers for decreasing the roundabout traffic.
Art.20 As a general rule, the DCI RENAM interconnection to other networks should permit exclusively the data transmission to and from RENAM members.
Art.21 The DCI RENAM interconnection links with other networks are available only at the RENAM’s internal nodes, the RENAM members not being able to realize such links.
Art.22 The DCI RENAM interconnection with another network is realized based on an interconnection contract. The RENAM Association Co-presidents signs the contract along with authorized representative of the other network.
Art.23 The DCI RENAM interconnection strategy with other data communication service providers is established periodically through Association Co-presidents after council approval.
Art.24 An exception from the Art.19-Art.23 can be the interconnections with data communication infrastructures with the same profile (educational, academic, research, cultural, medical). The interconnection with this kind of network doesn’t have limited character and can be realized based on association protocol signed by RENAM Co-president after council approval.
Art.25 The RENAM members, administrators and users’ rights and obligations are established by the present regulations and the three behavior codes specific for each category: RENAM Member Institution Code, RENAM System Administrator Code, RENAM User Code.
Art.26 Each RENAM Member may elaborate its own operating rules and regulations, but these have to include the ones provided in the RENAM Member Institution and RENAM System Administrator rules described in what follows.
-The RENAM Member has to follow the state laws and the rules provided in the present regulation.
-RENAM member institution chairmen are directly responsible with the correct following of the present regulations, in the name of the institution and also in the name of its users.
-Each equipment utilized inside DCI RENAM must be allocated to its own System Administrator, who will follow the RENAM System Administrators Regulations.
-The System Administrator is concerned only with the correct utilization of that equipment.
-Lack of a System Administrator or an unqualified one makes all the responsibility fall on the institutions chairman.
-The RENAM Member is responsible for evaluating the knowledge level of the future System Administrator.
-Until else proven, the RENAM Member Institution has to consider that all its users and system administrators are of “good faith” and they qualify for the highest standards of moral and ethic.
-All security measures fall under the direct incidence of the RENAM Member Institution.
1.Has to have his own official e-mail address that he/she has to check each day. This address will be used by NOC for communicating information regarding the well working of DCI RENAM. In the case that NOC ask a specific question, an answer must be given.
2.Has to inform all administrators and users of DCI RENAM of their respective rights and obligations.
3.Has to assure that all users receive instructions about what adequate resource utilization means, and also about what will be done if a violation of the regulations is made.
-About the violation of the regulations of the RENAM Member Institution, the chairman will be notified. In the case that the violation repeats itself, NOC will limit the member’s access to the DCI RENAM resources. If this measure fails too the violating institution will be disconnected from the DCI RENAM.
-System administrator is a qualified person that handles and operates equipment for the use of other people.
-The administrator will have the obligation to maintain in good condition the equipment he administers.
-The administrator has the constant obligation to elaborate his/hers professional knowledge.
-The administrator also has to follow the User’s regulations due to the fact that he/she is actually a user too.
-Having more rights that the default user, the system administrators may not abuse this fact.
-He/She will constantly check up the equipments behavior, and will check up with all the other administrators if something goes wrong.
-He/She will take measures for revealing any unauthorized usage of the resources that he has into administration.
-He/She has their right to restrict the access to DCI RENAM resources if the user is found of violating any part of its regulation.
-In the case that the administrator fails follow the present regulation, he will be notified. If this happens again his administering job will be revoked and he/she may also suffer administrative consequences. In case of intentional and grave destructive actions his administering job will be revoked forever in frame of RENAM infrastructure.
-All users will access the DCI RENAM in an ethical and legal manner.
-Until else proven, all users are to be considered as of “good faith”, and qualify to the highest standards of morals and ethics.
-As a condition to become a user, the person has to accept the present regulations.
-The network resources will only be used in academic and administrative purposes and only incidentally in personal purposes.
-The users have the responsibility of their actions.
-The intentional utilization of the resources in any other purpose rather than the academic, research, administrative or personal – noncommercial, will be considered as being unauthorized.
1.Utilization of the resources in any other ways then they were originally designed to. Utilization of an account or computer without authorization, or handing resources to third parties or groups without specific authorization.
2.Reading, modifying, deleting, copying, adding or printing files, programs or passwords that the respective person does not own and is not authorized to access.
3.Utilization of E-Mail, web servers and bulletins for transmitting obscene, repeated, illegal or unsolicited and with a commercial character.
4.Writing, distributing and utilizing programs that bother other people or deteriorate software or hardware components inside utilized equipments (e.g. viruses).
7.Utilization of unauthorized or unlicensed programs.
8.Violating licensing terms the institution is bounded to.
9.Stealing or high jacking the equipments (e.g. equipments, information, programs, utilization time). Activities the lead to limiting accessibility to other users.
-The users that are found not to follow these regulations are to answer to the providing institution. Actions can be taken on a disciplinary, administrative or legal line.
-The responsibility of handling a violating user falls under the incidence of the systems administrator as well as to the institutions chairman.
-In the case that the user fails to comply to these regulations, he will be notified. If it happens again he will be sanctioned. If the violation is of a serious matter, and made intentionally the user will no longer access any resource from DCI RENAM.


text:
July 2, 1998. Discretionary Review Denied January 13, 1999.
Appeal from the Clay Circuit Court, R. Cletus Maricle, J.
Lawrence R. Webster, Pikeville, for appellant.
Herman W. Lester, Pikeville, for appellee.
Before COMBS, HUDDLESTON and KNOPF, JJ.
3. * * * The parties hereto acknowledge that each has made a final and total disclosure to the other of properties in their entirety accumulated during the course of their marriage.
On May 19, 1994, Suzanne moved, pursuant to Ky. R. Civ. Proc. (CR) 60.02, for relief from the decree insofar as it incorporates the property settlement agreement and from the provisions made for child support. She asserted that the agreement, and thus the decree founded on it, was "manifestly unfair and inequitable" and "was procured by fraud, undue influence [and] overreaching." On August 23, 1996, after the parties were given an opportunity to take proof and submit memoranda, the motions were denied. Suzanne thereupon appealed to this Court.
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: . . . (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; . . . (d) fraud affecting the proceedings, other than perjury or falsified evidence; . . . or (f) any other reason of an extraordinary nature justifying relief.
Suzanne's contention is that she was led to believe that the parties' net worth was far less than it was in reality and that, as a result, she was fraudulently induced to give up a disproportionate share of the property the parties had accumulated during their marriage. She claims that it was well after the dissolution decree became final before she discovered the full extent of the assets she surrendered in the property settlement agreement. John responds that in April 1993, before the agreement was signed, he and Suzanne met with the Lexington attorney who had assisted them in formulating an estate plan. At the meeting, John and Suzanne went over a joint financial statement and discussed the effect a dissolution of their marriage would have upon certain trusts they had established. Thereafter, John left the room so that Suzanne could freely seek further financial information or advice from their attorney. An accountant informed the court, by way of an affidavit, that he met with John and Suzanne in May 1993 and reviewed in detail their financial interests, holdings, partnerships and approximate net worth. Finally, Suzanne concedes that she signed the parties' joint 1990, 1991 and 1992 federal income tax returns, which reflect an adjusted gross income averaging $456,500.00 per year. The evidence presented by John effectively refutes Suzanne's claim, founded upon CR 60.02 (b), that evidence of the parties' net worth was newly discovered and, by due diligence, could not have been discovered in time to move for a new trial.
Suzanne's primary focus is on CR 60.02 (d) — the "fraud affecting the proceedings" provision — as a basis for her motion for relief from the decree. Neither Suzanne nor John cites any Kentucky case that addresses the issue whether failure to disclose in a dissolution proceeding pertinent evidence regarding income earned or property acquired during marriage amounts to "fraud affecting the proceeding," as the phrase is used in CR 60.02 (d). However, there are a few Kentucky cases that deal with related issues, and there are a number of cases from other jurisdictions, both state and federal, where the issue has been considered.
John, of course, insists that Suzanne had access to all pertinent information regarding the parties' income and assets.
According to the leading authority on the Kentucky Rules of Civil Procedure, fraud affecting the proceedings relates to what is denominated "extrinsic fraud." 7 Kurt A. Philipps, Jr., Kentucky Practice, CR 60.02, cmt. 6 (5th ed. 1995). "This covers fraudulent conduct outside of the trial which is practiced upon the court, or upon the defeated party, in such a manner that he is prevented from appearing or presenting fully and fairly his side of the case." Id. "Normally, perjury by a witness or nondisclosure of discovery material is not the type of fraud to outweigh the preference for finality." Id.
Two years after the Wise decision was rendered, the Montana Supreme Court held that false or fraudulent representations or concealments made during court proceedings do not constitute extrinsic fraud and are not grounds for reopening a decree or judgment. Miller v. Miller, 273 Mont. 286, 902 P.2d 1019, 1023 (1995). The Court defined "extrinsic fraud" as "some intentional act or conduct by which the prevailing party has prevented the unsuccessful party from having a fair submission of the controversy. * * * Extrinsic fraud is collateral to the matters tried by the court, but does not include fraud in the matters on which the judgment was rendered." (Citations omitted.) Id. at 1022.
A judgment may be set aside at any time for after-discovered fraud upon the court. Where a court is misled as to a material circumstance, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair, the court has inherent power to vacate for fraud and that power includes as well the power to modify. (Citations omitted.)[However,] [i]t is recognized that the mere failure to disclose to an adversary, or the court, matters which would defeat a party's claim or defense is not such extrinsic fraud as will justify or require a vacation of the judgment. . . .
The issue has arisen in a number of federal cases. Closest to home is the decision by the United States Court of Appeals for the Sixth Circuit in H.K. Poker Co., Inc. v. Goodyear Tire Rubber Co., 536 F.2d 1115 (6th Cir. 1976), where there were allegations supporting a Fed.R.Civ.P. (FRCP) 60 (b) motion based on nondisclosure of documents during pretrial discovery. The Court held that such allegations did not support an action to set aside a judgment based on fraud upon the court. Neither, the Court said, is the alleged perjury of a witness a ground for an action for fraud upon the court. Id. at 1118.
In Gleason v. Jandrucko, 860 F.2d 556, 12 Fed.R.Serv.3d 909, (2nd Cir. 1988), the Court was faced with a claim that the defendants had failed to disclose relevant evidence and had committed perjury during pretrial discovery resulting in plaintiff's decision to dismiss his complaint with prejudice. The district court held that the alleged perjury and nondisclosure were intrinsic to the prior proceeding and therefore did not rise to the level of fraud on the court. The Court of Appeals for the Second Circuit agreed. Citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245, 64 S.Ct. 997, 1001, 88 L.Ed. 1250 (1944), the Court observed that after-discovered evidence of alleged perjury by a witness is simply not sufficient for a finding of fraud upon the court. Similarly, the Court said, allegations of nondisclosure during pretrial discovery do not constitute grounds for an independent action under FRCP 60 (b). "In short, neither perjury nor nondisclosure, by itself, amounts to anything more than fraud involving injury to a single litigant." Gleason, 860 F.2d at 560. The Court agreed with the Fourth Circuit Court of Appeals' observation in Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1357 (4th Cir. 1982), that "[p]erjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible." Id. at 560.
That cannot be the sense in which the term is used in the final saving clause of Rule 60 (b) [CR 60.02 (f)]. The remedy for most cases of fraud must continue to be by motion under Rule 60 (b)(3) [CR 60.02 (d)] or by an independent action [CR 60.03], subject to the procedural limitations applicable to those remedies.
In Burke v. Sexton, Ky.App., 814 S.W.2d 290 (1991), this Court held that the behavior of a husband who misled his wife into believing that he had abandoned an action for dissolution of their marriage after persuading her to sign a waiver of notice of further proceedings and who then prosecuted the action to a conclusion amounted to "fraud affecting the proceedings." This ruling is consistent with the state and federal decisions discussed earlier. In a seemingly inconsistent decision, this Court held in Cain v. Cain, Ky.App., 777 S.W.2d 238 (1989), that a former wife who led her husband and the court to believe that he was the natural father of her child had perpetrated a fraud affecting the proceedings. Although the Court did not engage in an extended discussion of the reasons why the husband's CR 60.02 (d) motion should be granted, the rationale for the decision seems to have been that the former wife was perpetrating a continuing fraud on the court, as well as the husband, in seeking enforcement of court-ordered child support payments to which she was not entitled. Furthermore, it was important, this Court felt, to determine from blood tests once and for all whether the former husband was or was not the father of the child born during the parties' marriage. We do not view Cain as authority for Suzanne's argument that the nondisclosure of assets is extrinsic fraud.
In summary, we hold that nondisclosure of assets in a dissolution action does not constitute "fraud affecting the proceedings" as the term is used in CR 60.02 (d). We also conclude that Suzanne has failed to demonstrate "any other reason of an extraordinary nature justifying relief" from the property division portion of the decree.
Ky. R. Civ. Proc. (CR) 60.02 (f).
The second issue that Suzanne raises on appeal concerns child support which she contends is woefully inadequate considering John's income. The disparity between the child support John was ordered to pay ($18,000.00 per annum) and his average annual income (in excess of $400,000.00) is striking. Unfortunately, the trial court made no findings concerning modification of support or the utilization of the child support guideline table contained in Ky. Rev. Stat. (KRS) 403.212 (6). KRS 403.211 (3)(e) provides that a trial court may deviate from the guidelines if the combined parental income is in excess of the guidelines, which is unquestionably the case here. However, "[a]ny deviation must be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation." KRS 403.211 (2). See also KRS 403.211 (3).
As noted earlier, John and Suzanne's adjusted gross income for the three years preceding entry of the decree averaged $456,500.00, well beyond the guidelines. In such a case, the trial court is authorized to use its "judicial discretion in determining child support." KRS 403.212 (5). However, the trial court's order does not reveal how it determined that support of $500.00 per month per child is adequate or whether income from trusts established for the benefit of the children was taken into account in calculating support. In fact, the order says nothing more than that "[t]he motion to increase child support [is] overruled (sic — denied)."
The maximum annual adjusted parental gross income accounted for in the guidelines is $180,000.00. Kv.Rev.Stat. (KRS) 403.212 (2)(b).
We believe that the disparity between John's income and the amount he was ordered to pay in child support presents a prima facie case under CR 60.02 (f) for setting aside the portion of the decree that fixes child support that has not been refuted by John. Because of the absence of findings on this crucial issue, we are unable to review the trial court's order to determine whether it abused its discretion in setting child support. Therefore, we vacate the order denying Suzanne's CR 60.02 motion for relief from that portion of the decree setting the amount of support to be paid by John and remand this case to Clay Circuit Court with directions to make specific and detailed findings as to the amount of child support that John is required to pay. The court may, as necessary, permit the parties to supplement the record. Any increase in child support shall be retroactive to August 23, 1996, the date on which Suzanne's CR 60.02 motion was denied. The balance of the order from which this appeal is prosecuted is affirmed.

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