text:
UNITED STATES v. James Dickerson, Defendant–Appellant.
UNITED STATES of America, Appellee, v. Jayquis BROCK, Mark Baskerville, Russell Battles, Stephanie D'Agostino, Sherrod Daniels, Larry Levore, Harry Diaz, Steven Dicks, Derron Dockery, Devante Fortune, Maurice Hill, Shamaine Hobby, Edmund Jackson, Sr., James Jenkins, Milton Johnson, Torrence Jones, Demetrius Little, Kristin Longobardi, Eric Lumpkin, Wendel McDuffie, Ryan Moore, Javon Morning, Gemini Napoleon, Charles Nichols, Raymond Rice, Chanel Sinclair, Roger Sullivan, Eleazar Thompson, Tylan Thompson, Alvin Townsend, Ronnie Washington, Tyrone Williams, Darren Winfry, Aaron Moore, Manokus Fields, Brandon Tolson, Joseph Jackson, Defendants, James Dickerson, Defendant–Appellant.
Before WINTER, JACOBS, and PARKER, Circuit Judges. Jeremiah Donovan, Old Saybrook, CT, for Defendant–Appellant James Dickerson. Robert M. Spector (Marc H. Silverman, on the brief), Assistant United States Attorneys for Deirdre M. Daly, United States Attorney for the District of Connecticut, for Appellee.
In April 2012, James Dickerson was indicted along with thirty-seven other defendants and charged in two counts—conspiracy to distribute and to possess with intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c). Following a four day trial, Dickerson was convicted on both counts and sentenced to 168 months, to run concurrently. On appeal, Dickerson challenges his conviction on the conspiracy, but not the substantive distribution count. As to the conspiracy conviction, we agree with Dickerson that the evidence establishes no more than his role as a mere purchaser from the conspiracy and cannot support an inference that he joined it. Consequently, we do not address his alternative argument for a new trial as to that count on the basis that a juror committed misconduct during deliberations by accessing a dictionary definition of the word “conspiracy”.
The indictment targeted a drug distribution conspiracy based in the Newhallville neighborhood on the border of New Haven and Hamden, Connecticut. Joseph Jackson, the leader of the organization, employed several lieutenants, including his nephew Jayquis Brock, to distribute crack cocaine to purchasers. Brock ultimately pled guilty and testified for the prosecution pursuant to a cooperation agreement. Brock testified that he typically sold 18 “eight-balls” (each weighing approximately 3.5 grams) of crack cocaine per day at $140–150 each. Jackson allowed Brock to keep the money he earned for every ninth eight-ball he sold.
In October 2010, Dickerson was captured on video selling an eight-ball and eight $20 baggies of crack cocaine to an undercover officer, which formed the basis for the substantive distribution count in the indictment. In November 2010, Dickerson was arrested. Shortly thereafter, he met with a law enforcement agent and his attorney, and admitted that he purchased crack cocaine from Brock and others, broke down each eight-ball, and resold it in $20 baggies.
Dickerson's defense at trial to the conspiracy count was that he was a mere buyer of drugs and not a participant in the conspiracy. At the close of the prosecution's case in chief, Dickerson moved on this ground for a judgment of acquittal as to the conspiracy count. Dickerson contended that he never joined the conspiracy and was only one of its numerous customers, highlighting the fact that Brock himself testified that he viewed Dickerson as a customer and not a member of the organization.
The district court denied the motion, concluding that the government had adduced sufficient evidence that Dickerson was a member of the conspiracy. The district court held that, although the “transactions between Dickerson and Brock are by themselves insufficient to constitute the charged conspiracy ․ other evidence presented at trial was sufficient to permit the jury to conclude beyond a reasonable doubt that Dickerson knew of the Jackson group's drug distribution scheme and agreed to join and participate in it.” JA 111.
Specifically, the district court noted that the government had proved that Dickerson purchased and resold drugs in wholesale quantities on a regular basis over a period of at least a month from Brock and that Dickerson's post-arrest statements indicated that he knew Brock worked for Jackson and that the two were moving large quantities of drugs on a daily basis. These facts, according to the district court, permitted the jury to conclude that “Dickerson had not merely engaged in spot transactions with Brock” but that the two had developed an expectation of future sales such that “each side had an interest in the other's future drug-related endeavors—i .e., Dickerson's interest in the continued supply of [crack] by Brock, and Brock's interest in Dickerson's continued demand for them .” JA 113. This appeal followed.
“As a general matter, a defendant challenging the sufficiency of the evidence bears a heavy burden, as the standard of review is exceedingly deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir.2012) (internal citations and quotation marks omitted). Specifically, we “must view the evidence in the light most favorable to the Government, crediting every inference that could have been drawn in the Government's favor, and deferring to the jury's assessment of witness credibility and its assessment of the weight of the evidence.” Id. (citing United States v. Chavez, 549 F.3d 119, 124 (2d Cir.2008)). “Although sufficiency review is de novo, we will uphold the judgments of conviction if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ “ Id. (citing United States v. Yannotti, 541 F.3d 112, 120 (2d Cir.2008); Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Our precedent is clear that the mere purchase and sale of drugs does not, without more, amount to a conspiracy to distribute narcotics. See United States v. Parker, 554 F.3d 230, 234 (2d Cir.2009). “[T]he buyer's agreement to buy from the seller and the seller's agreement to sell to the buyer cannot ‘be the conspiracy to distribute, for it has no separate criminal object.’ “ Id. at 235 (quoting United States v. Wexler, 522 F.3d 194, 208 (2d Cir.2008) (internal alterations omitted)). We have explained that, although the mere buyer defense “does not protect either the seller or buyer from a charge they conspired together to transfer drugs if the evidence supports a finding that they shared a conspiratorial purpose to advance other transfers, whether by the seller or by the buyer,” id. at 234, “[e]vidence that a buyer intends to resell the product instead of personally consuming it does not necessarily establish that the buyer has joined the seller's distribution conspiracy,” United States v. Hawkins, 547 F.3d 66, 74 (2d Cir.2008). Nor is “contact with drug traffickers,” standing alone, sufficient “to prove participation in a conspiracy.” United States v. Gaviria, 740 F.2d 174, 184 (1984). Although we have “avoided listing factors to guide what is a highly-specific fact inquiry into whether the circumstances surrounding a buyer-seller relationship establish an agreement to participate in a distribution conspiracy,” we have identified certain factors relevant to the analysis, including “whether there was a prolonged cooperation between the parties, a level of mutual trust, standardized dealings, sales on credit [ ], and the quantity of drugs involved.” Hawkins, 547 F.3d at 74 (internal citations and quotation marks omitted).
Here, there is insufficient evidence of a shared conspiratorial purpose among Jackson, Brock and Dickerson. While Dickerson frequently bought crack from Brock, he also purchased crack from others not involved in the Jackson organization. Brock and Jackson never sold crack to Dickerson on credit, and placed no limitations on Dickerson's ability to use or resell the product he purchased. Brock testified that he did not consider Dickerson to be a member of the organization and did not know or care what Dickerson did with the drugs after he purchased them. There was no evidence that Dickerson shared profits with Brock or any other members of the organization, that Dickerson had interactions with Jackson or Brock other than the transactions that made him a customer, or that, apart from being a customer, he assisted their operation in any capacity.
This evidence is far weaker than the evidence in previous cases where we affirmed convictions despite a mere buyer defense. See, e.g., United States v. Rojas, 617 F.3d 669, 672, 675–76 (2d Cir.2010) (the seller testified that he had a “longstanding” relationship with the buyer, provided the buyer with bail money because the buyer “was moving product” for him, and sold drugs to the buyer on credit because he knew that the buyer would resell a portion of the drugs); Parker, 554 F.3d at 239 (unrebutted evidence that a buyer recruited his roommate to help the selling organization “handle one of the drug-order phone lines” while himself making deliveries for the selling group, and that another buyer purchased crack on credit and facilitated resales of crack in smaller quantities than the selling organization usually transacted in); Hawkins, 547 F.3d at 75 (testimony that the buyer “repeatedly brought potential customers' needs” to the seller's attention, and that he purchased drugs on credit with the understanding that he would resell the drugs and use the profits to repay the seller). In each of these cases, significant indicia of a conspiratorial purpose existed: the defendants purchased drugs in significant quantities on credit from the selling organization and took substantial other steps to assist it such as facilitating resales, supplying bail money and recruiting other customers and sellers.
The government, however, contends that our precedent permits juries to infer a conspiratorial agreement between the seller and the buyer on the basis of the volume and frequency of drug transactions. See Gov't Br. 41–46; see also Parker, 554 F.3d at 239 (“All three appellants purchased with such frequency and such quantity from the selling group to support a finding that each of them depended on it as a source of supply and thus had a stake in the group's success․”); Hawkins, 547 F.3d at 77 (“In some cases, a large drug quantity may, in addition to establishing an intent to redistribute, support inferences about the relationship between the participants”).
It is certainly true that the volume and frequency of transactions between Dickerson and the Jackson organization is significant, and could have, under certain circumstances permitted an inference of conspiratorial intent. For example, in a footnote in Parker, we upheld a conspiracy conviction of a defendant without evidence that he “furnished ․ additional support to the selling group” because “his repeated purchases in wholesale quantities gave him a stake in the success” of the drug selling organization. 554 F.3d at 239 n.6. However, that individual is differently situated than Dickerson. The trial evidence in Parker established that this buyer never used crack cocaine and resold all of the drugs that he purchased from multiple members of the selling organization, which, in combination with the volume of sales, permitted the inference that he was closely aligned with the success of the enterprise. See United States v. Parker, et. al ., No. 05–cr–529, Transcript of Oral Argument on Rule 29 Motion, at 17 (N.D.N.Y. Dec. 8, 2006). In contrast, Dickerson had no connection to the Jackson enterprise, other than using Brock as one of the “various” suppliers of crack cocaine for both Dickerson's personal use and resale. Further there was evidence that the Jackson organization as a whole, and Brock specifically, sold to many different buyers. Brock's trial testimony established that Dickerson was one of his forty regular customers, that Brock had no interest in what Dickerson did with the drugs, and that he saw Dickerson only as a customer.
Viewing the evidence as a whole, we find the volume and frequency of these transactions to be insufficient to move the Brock–Dickerson relationship beyond that of buyer-seller because these circumstances do not create the inference of mutual dependency we identified in Parker. If, for example, Dickerson operated a food truck and purchased fifty loaves of bread at five different supermarkets, each of which sold bread to fifty different food truck operators on a daily basis, those purchases and his subsequent resales of the bread would simply make him a good customer, not a member of any single supermarket enterprise. Although the volume of purchases is high, neither the food truck operator nor the supermarket is dependent on each other. By the same token, a good customer—even a very good customer—of a drug organization may still be just a customer, not a co-conspirator, if the evidence cannot support an inference of mutual dependency or a common stake.
“To sustain a conspiracy conviction, the government must present some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it.” United States v. Rodriguez, 392 F.3d 539, 544 (2d Cir.2004). We conclude that the evidence was insufficient to permit any rational juror to infer that Dickerson knowingly joined or participated in the charged conspiracy.
For these reasons, we REVERSE Dickerson's conviction for conspiracy to distribute and to possess with intent to distribute. Because Dickerson's 168 month sentence was driven largely by the drug weight charged in the conspiracy, we also VACATE Dickerson's sentence and REMAND for resentencing on the substantive distribution count alone.

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1103.1. Authorization and reauthorization process and requirements.
1103.4. Selection criteria for authorization and reauthorization.
1103.8. Store peer group system.
§ 1103.1. Authorization and reauthorization process and requirements.
(a) Duration of authorization or reauthorization. To serve as a WIC authorized store, a store shall be authorized in accordance with subsection (b) or reauthorized in accordance with subsection (c). A stores authorization or reauthorization shall remain in effect until the Department acts on the stores application for reauthorization when the next periodic review is conducted in the trade area in which the store is located, unless terminated earlier in accordance with subsection (d). At least once every 3 years, the Department will conduct a periodic review in each trade area. Failure to submit an application for reauthorization as prescribed under subsection (c) shall result in expiration of the stores authorization or reauthorization. The Department will provide 30 days written notice to the store prior to expiration of authorization or reauthorization for any store failing to submit an application. A store that has received a letter of authorization dated less than 60 days prior to the date of the notice of the periodic review in the stores trade area shall be exempt from the periodic review.
(1) The stores representative shall contact the local agency responsible for the trade area where the store is located to request an application for authorization. The local agency shall send WIC Program information and an application for authorization to the store. The store shall complete the application for authorization and return it to the local agency.
(2) The Department will refuse to accept an application from a store if the store has been provided notice of disqualification or is disqualified from the WIC Program, if the Department determines that the store relocated or effected a change of ownership to avoid a disqualification, or if the store has been denied authorization or reauthorization and is not eligible to apply for authorization.
(3) The Department will not accept an application for authorization less than 90 days prior to the scheduled start date of the periodic review in that trade area unless the Department finds that there would be inadequate participant access, as set forth in § 1103.7 (relating to inadequate participant access), if it does not consider the application.
(4) If the stores application for authorization is accepted, the local agency shall schedule, as expeditiously as possible, an announced onsite review of the store to determine if the store meets the selection criteria in § 1103.4 (relating to selection criteria for authorization and reauthorization). The local agency shall notify the store in advance of the approximate date of the review.
(5) The Department may request from the store any information necessary for the Department to determine whether the store qualifies as an above-50-percent-store. This information may include official State and Federal Income Tax filings, official State Sales Tax records, inventory purchase records, sales records or a self-declaration from the applicant.
(6) The local agency shall conduct the onsite review and forward the results to the Department for a decision on the stores application.
(7) The Department will deny the application if the selection criteria in § 1103.4 are not satisfied, unless the Department grants probationary authorization under § 1103.2 (relating to probationary authorization). The Department will notify the store in writing whether the stores application for authorization is granted or denied. If the Department denies the application for authorization, the store shall be eligible to reapply for authorization 6 months after the effective date of the denial.
(1) The Department will include an application for reauthorization with the notice of periodic review it sends to the store. The local agency will collect the application for reauthorization at the time of the announced onsite review of the store to determine if the store meets the selection criteria in § 1103.4. The local agency shall notify the store in advance of the approximate date of the review.
(2) The Department may request from the store any information necessary for the Department to determine whether the store qualifies as an above-50-percent-store. This information may include official State and Federal Income Tax filings, Official State Sales Tax records, inventory purchase records, sales records or a self-declaration from the applicant.
(3) The local agency shall conduct the onsite review and forward the results to the Department for a decision on the stores application.
(4) The Department will deny the application without advance warning if the selection criteria in § 1103.4 are not satisfied, unless the store requests and the Department grants temporary authorization in accordance with § 1103.3 (relating to temporary authorization) or the Department grants probationary authorization in accordance with § 1103.2. The Department will notify the store in writing whether the stores application for reauthorization is granted or denied. If the Department denies the application for reauthorization, the store shall be eligible to apply for authorization 6 months after the effective date of the denial. If the Department grants and later rescinds temporary authorization, the store shall be eligible to apply for authorization 1 year from the date of the first onsite review for reauthorization.
(1) The store has been disqualified.
(2) The store supplied false information in the application for authorization or reauthorization.
(3) The store is not serving at least 25 participants 8 months following authorization.
(5) The store relocates in excess of 1 mile of its current location and to a geographical area assigned to another local agency.
(6) The store closes for more than 3 business days and does not notify the Department.
(7) The Department does not receive from the store, within 20 calendar days of the stores receipt of a written notice from the Department, the information the Department has requested necessary for it to determine whether the store qualifies as an above-50-percent-store.
(8) After authorization of the store, the Department determines if the store qualifies as an above-50-percent-Store. This paragraph does not apply to stores solely owned or operated by nonprofit entities.
The provisions of this § 1103.1 amended under section 2102(g) of The Administrative Code of 1929 (71 P. S. § 532(g)).
The provisions of this § 1103.1 amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6853; amended October 3, 2003, effective October 4, 2003, 33 Pa.B. 4900; amended September 11, 2009, effective immediately, 39 Pa.B. 5292. Immediately preceding text appears at serial pages (300331) to (300333).
The Departments regulatory scheme which distinguishes between certification/recertification reviews and monitoring reviews, in terms of the sanctions imposed for failure to meet regulatory requirements, is based on a sound rationale. Giant Food Stores, LLC v. Department of Health, 808 A.2d 299 (Pa. Cmwlth. 2002).
The Department has the authority to deny a stores application for certification/recertification based upon a single violation of mandatory selection criteria. Giant Food Stores, LLC v. Department of Health, 808 A.2d 299 (Pa. Cmwlth. 2002).
The Department of Healths interpretations of its own regulations are given great weight unless plainly erroneous or inconsistent with the regulation, neither of which occurred here. Valeskys Market v. Department of Health, 779 A.2d 1251 (Pa. Cmwlth. 2001).
To qualify for WIC recertification, a store must meet all of the selection criteria of § 1103.4(a). Valeskys Market v. Department of Health, 779 A.2d 1251 (Pa. Cmwlth. 2001).
This section cited in 28 Pa. Code § 1101.2 (relating to definitions); and 28 Pa. Code § 1103.4 (relating to selection criteria for authorization and reauthorization); 28 Pa. Code § 1103.8 (relating to store peer group system); 28 Pa. Code § 1105.3 (relating to terms and conditions of participation); and 28 Pa. Code § 1113.1 (relating to right to administrative appeal).
(1) Inadequate participant access would occur if the store is not authorized or reauthorized.
(2) A store is reviewed prior to opening to the public and the store has not yet stocked its dairy section or its frozen juice section.
(b) Reviews during probationary authorization period. If a store receives probationary authorization, the Department will conduct an unannounced onsite review during the probationary authorization period to determine whether the store is in compliance with selection criteria in § 1103.4. The Department will rescind probationary authorization and deny the stores application to serve as a WIC authorized store if the store fails to meet one or more of the selection criteria during this review, unless extension is required under subsection (c). The Department will grant authorization or reauthorization, as applicable, if the store meets all selection criteria during the second onsite review.
(c) Extension of probationary authorization. If the store fails the review conducted during the probationary authorization period, and inadequate participant access exists as determined by the Department, the Department will extend probationary authorization for an additional 3 months during which time at least one representative of the store who is responsible for training store personnel on the WIC Program shall attend corrective training.
(d) Extended probationary authorization reviews. The Department will conduct an unannounced onsite review during the extended probationary authorization period after the store representative has attended corrective training, to determine whether the store is in compliance with the selection criteria in § 1103.4. The Department will rescind probationary authorization and deny the stores application to serve as a WIC authorized store if the store fails to meet one or more of the selection criteria during this review. The Department will grant authorization or reauthorization, as applicable, if the store meets all selection criteria during the third and final unannounced onsite review.
(e) Rescission of probationary authorization. If the Department rescinds the probationary or extended probationary authorization of a store, the store is eligible to apply for authorization 6 months from the date of the Departments rescission of probationary or extended probationary authorization.
The provisions of this § 1103.2 amended under section 2102(g) of The Administrative Code of 1929 (71 P. S. § 532(g)).
The provisions of this § 1103.2 amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6853; amended October 3, 2003, effective October 4, 2003, 33 Pa.B. 4900. Immediately preceding text appears at serial pages (295339) to (295340).
This section cited in 28 Pa. Code § 1103.1 (relating to authorization and reauthorization process and requirements); and 28 Pa. Code § 1105.1 (relating to training).
(a) Failure to meet selection criteria during onsite review. If a WIC authorized store that applies for reauthorization fails to meet one or more of the selection criteria in § 1103.4 (relating to selection criteria for authorization and reauthorization) during the announced onsite review, the store may request temporary authorization, except that a store that fails to meet the price and minimum inventory requirements of § 1103.4(5) shall be ineligible for temporary authorization. A store that is a high risk store or the subject of an ongoing compliance investigation also shall be ineligible for temporary authorization.
(1) The Department will conduct a second announced onsite review during the temporary authorization period to determine whether the store is in compliance with the selection criteria in § 1103.4. The Department will grant reauthorization if the store meets all selection criteria during this review. The Department will rescind temporary authorization and deny the stores application for reauthorization if the store fails to meet one or more of the selection criteria during the second review.
(2) If the Department rescinds the temporary authorization of a store, the store is eligible to apply for authorization 1 year after the date of the first onsite review that was conducted following the Departments receipt of the stores application for reauthorization.
(3) The Department will reduce by 10% the maximum allowable prices for foods authorized for purchase on WIC checks the store redeems for WIC transactions that occur during the first 90 days of the temporary authorization period.
The provisions of this § 1103.3 amended under section 2102(g) of The Administrative Code of 1929 (71 P. S. § 532(g)).
The provisions of this § 1103.3 amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6853; amended October 3, 2003, effective October 4, 2003, 33 Pa.B. 4900. Immediately preceding text appears at serial pages (295340) and (286005).
This section cited in 28 Pa. Code § 1103.1 (relating to authorization and reauthorization process and requirements); 28 Pa. Code § 1103.4 (relating to selection criteria for authorization and reauthorization).
§ 1103.4. Selection criteria for authorization and reauthorization.
(1) The store shall be located within this Commonwealth.
(2) A store seeking reauthorization shall serve at least 25 participants per month. The Department will deny reauthorization if the store is not serving 25 participants per month in the most recent month for which the Department has participant data at the time the onsite review for reauthorization is conducted.
(3) The store shall have allowable foods properly stored and refrigerated.
(4) The store may not have stale-dated allowable foods on its sales floor.
(5) The store shall at all times have available on the premises the minimum inventory of allowable foods as established by the Department under § 1103.5 (relating to minimum inventory) at shelf prices that are equal to or less than the competitive prices applicable to the stores peer group for those foods. On a quarterly basis, the Department will publish in the Pennsylvania Bulletin and mail to all WIC authorized stores, the competitive prices and maximum allowable prices applicable to all peer groups for allowable foods for the next quarter.
(6) The store shall be open for business and able to serve participants at least 8 hours per day, 6 days per week.
(7) The store shall be sanitary. There may not be unremoved rubbish, vermin, or general lack of cleanliness.
(8) The store shall operate as a full line grocery store in a permanent fixed location where participants may purchase allowable foods with their WIC checks.
(9) If the store has been denied authorization or reauthorization within the past 12 months, the store must be eligible to apply for authorization under § 1103.1(b) or (c) or § 1103.3(b)(2) (relating to authorization and reauthorization process and requirements; and temporary authorization).
(10) The store may not be currently disqualified from participation in the Food Stamp Program or have been assessed a civil money penalty in lieu of a disqualification from the Food Stamp Program that, had it been imposed, would not yet have expired.
(11) The store may not be currently disqualified from the WIC Program.
(12) The store shall have implemented all required corrective actions resulting from monitoring by the Department, including reimbursement of any overcharges or overpayments, and shall be in compliance with the applicable Federal and State regulations.
(13) None of the stores current owners, officers, or managers shall have been convicted of or had a civil judgment entered against them for conduct demonstrating a lack of business integrity.
(14) The store will not qualify or will not be expected to qualify as an above-50-percent-store. This paragraph does not apply to stores solely owned or operated by nonprofit entities.
(15) The store shall meet the minimum information technology requirements set by the Department. The Department will publish in the Pennsylvania Bulletin and mail to all WIC authorized stores, by September 15 of each year, the minimum technology requirements applicable for the following calendar year. This paragraph does not apply to stores authorized prior to September 12, 2009, and maintaining an uninterrupted authorized status.
The provisions of this § 1103.4 amended under section 2102(g) of The Administrative Code of 1929 (71 P. S. § 532(g)).
The provisions of this § 1103.4 amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6853; amended October 3, 2003, effective October 4, 2003, 33 Pa.B. 4900; corrected October 10, 2003, effective October 4, 2003, 33 Pa.B. 5080; amended September 11, 2009, effective immediately, 39 Pa.B. 5292. Immediately preceding text appears at serial pages (300335) to (300337).
The Department of Health correctly denied WIC recertification where the store had not served 25 participants in the most recent month for which the Department had data. Valeskys Market v. Department of Health, 779 A.2d 1251 (Pa. Cmwlth. 2001).
The petitioner chose to stock a brand of formula not subject to minimum inventory requirements. Even though not subject to minimum inventory requirements, the formula was a WIC allowable food and, therefore, subject to product freshness requirements. Therefore, the presence of out-dated lacto-free Enfamil formula was sufficient cause for the Department of Health to deny the petitioners application for recertification. Valeskys Market v. Department of Health, 779 A.2d 1251 (Pa Cmwlth. 2001).
This section cited in 28 Pa. Code § 1101.2 (relating to definitions); 28 Pa. Code § 1103.1 (relating to authorization and reauthorization process and requirements); 28 Pa. Code § 1103.2 (relating to probationary authorization); 28 Pa. Code § 1103.3 (relating to temporary authorization); 28 Pa. Code § 1103.7 (relating to inadequate participant access); 28 Pa. Code § 1105.3 (relating to terms and conditions of participation); and 28 Pa. Code § 1107.1a (relating to disqualifications).
(i) Contract brand infant formula.
(viii) Dried peas and beans.
(2) The Department will set minimum inventory requirements for all allowable foods for which minimum inventory requirements exist at a level not to exceed the maximum quantity of supplemental food authorized per month as set forth in 7 CFR 246.10(c)(1)(7) (relating to supplemental foods).
(3) The Department will publish minimum inventory requirements in the Pennsylvania Bulletin and distribute those requirements to all WIC authorized stores by September 15 of each year, and when manufacturer product or packaging changes occur.
(b) Exceptions to minimum inventory requirements. The Department will grant an exception to the minimum inventory requirements for an allowable food listed in subsection (c) when the Departments most recent check redemption information for a store shows no purchases of the allowable food for a period in excess of 90 days.
(1) Contract brand milk-based with iron liquid concentrate infant formula.
(2) Contract brand milk-based with iron ready-to-feed infant formula.
(3) Contract brand milk-based with iron powdered infant formula.
(4) Contract brand soy-based liquid concentrate infant formula.
(5) Contract brand soy-based ready-to-feed infant formula.
(6) Contract brand soy-based powdered infant formula.
(d) Expiration of exception to minimum inventory requirements. The exception to minimum inventory requirements for an allowable food granted by the Department shall expire upon the presentation to the store, on behalf of a participant, of a WIC check for the purchase of that allowable food. The WIC authorized store shall provide the food item within 48 hours after presentation of the WIC check.
The provisions of this § 1103.5 amended under section 2102(g) of The Administrative Code of 1929 (71 P. S. § 532(g)).
The provisions of this § 1103.5 amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6853; amended October 3, 2003, effective October 4, 2003, 33 Pa.B. 4900. Immediately preceding text appears at serial pages (286008) to (286010).
The grace period is provided to give a store time to come into compliance with minimum inventory requirements for a WIC allowable food for which the store had been granted a waiver. No grace period is provided to achieve compliance with product freshness requirements. If a store chooses to stock a WIC allowable food not subject to minimum inventory requirements, the food must meet product freshness requirements. Valeskys Market v. Department of Health, 779 A.2d 1251 (Pa. Cmwlth. 2001).
This section cited in 28 Pa. Code § 1103.4 (relating to selection and limitation criteria; authorization process).
The provisions of this § 1103.6 amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6853; amended October 3, 2003, effective October 4, 2003, 33 Pa.B. 4900. Immediately preceding text appears at serial pages (286010) to (286011).
§ 1103.7. Inadequate participant access.
(a) The Department will consider whether there is inadequate participant access when considering whether to place a store on probation, rather than deny authorization or reauthorization, for failure to meet selection criteria in § 1103.4 (relating to selection criteria for authorization and reauthorization) during the onsite review.
(b) The Department may consider whether there is inadequate participant access when deciding whether to impose a civil money penalty in lieu of disqualification under § 1107.1 (relating to imposition of sanctions).
(i) Less than 3 miles of the store for counties with participant density less than 25 participants per square mile.
(ii) Less than 2 miles of the store for counties with participant density of 25 to 100 participants per square mile.
(iii) Less than 1 mile of the store for counties with participant density greater than 100 participants per square mile.
(i) Three or more miles to the next closest WIC authorized store for counties with participant density less than 25 participants per square mile.
(ii) Two or more miles to the next closest WIC authorized store for counties with participant density of 25 to 100 participants per square mile.
(iii) One or more miles to the next closest WIC authorized store for counties with participant density greater than 100 participants per square mile.
(i) Within 3 miles of the store for counties with participant density less than 25 participants per square mile.
(ii) Within 2 miles of the store for counties with participant density of 25 to 100 participants per square mile.
(iii) Within 1 mile of the store for counties with participant density greater than 100 participants per square mile.
(4) Ten or more participants are affected by physical barriers or conditions which make normal travel to another WIC authorized store impractical.
The provisions of this § 1103.7 amended under section 2102(g) of The Administrative Code of 1929 (71 P. S. § 532(g)).
The provisions of this § 1103.7 amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6853; amended October 3, 2003, effective October 4,2003, 33 Pa.B. 4900. Immediately preceding text appears at serial pages (286011) to (286012).
This section cited in 28 Pa. Code § 1103.1 (relating to authorization and reauthorization process and requirements); 28 Pa. Code § 1107.1 (relating to imposition of sanctions); and 28 Pa. Code § 1107.2 (relating to civil money penalties).
§ 1103.8. Store peer group system.
(a) The Department will establish a store peer group system, including distinct competitive pricing criteria and allowable reimbursement levels for each peer group.
(b) The Department will create peer groups based upon at least two criteria selected by the Department. These criteria may include the size of a store sales floor, number of cash registers in the store, number of stores owned, and a measure of geography, such as metropolitan or other statistical areas that form distinct labor and product markets. The Department will annually publish the peer group selection criteria in the Pennsylvania Bulletin.
(c) The Department will place a store seeking authorization into an appropriate peer group based upon information gathered from the stores application as completed by the store and returned to the local agency in accordance with § 1103.1(b)(1) (relating to authorization and reauthorization process and requirements). The Department will notify a store of its peer group classification prior to conducting an onsite review under § 1103.1(b)(5). A WIC authorized store seeking reauthorization shall remain in the peer group previously selected for the store unless otherwise notified by the Department.
(d) A WIC authorized store shall adhere to the competitive prices and maximum allowable prices applicable to the stores peer group.
(e) A WIC authorized store shall inform the Department of any store changes applicable to the peer group selection criteria in effect.
The provisions of this § 1103.8 adopted under section 2102(g) of The Administrative Code of 1929 (71 P. S. § 532(g)).
The provisions of this § 1103.8 adopted September 11, 2009, effective immediately, 39 Pa.B. 5292.


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You know the saying. The road to heck is paved with good intentions. Sometimes, it appears, the road to perfecting an appeal can be as well. A recent decision by the Minnesota Court of Appeals, which the Minnesota Supreme Court declined to review, demonstrates the potential for some equitable relief from a technical rule violation if the party’s imperfect actions clearly indicate an intention to perfect a timely appeal.
In re Custody of the Minor Child of Fenton v. Carlson, A14-0138 (Minn. Ct. App. Mar. 4, 2014) involved a child custody and support dispute. After the district court rendered a decision, the child’s mother decided to appeal. The respondent-father moved to dismiss the appeal, arguing that the appellant had failed to timely and properly serve the notice of appeal. Both parties were represented by counsel. The appellant’s lawyer had filed the notice of appeal with the clerk of the appellate courts within the appeal period, but had served the notice of appeal on opposing counsel by fax without obtaining prior consent from opposing counsel to be served in that manner. In March of last year, my column focused on dotting the I’s and crossing the T’s, and I discussed the problems that fax service create. In Gliszinski v. Davisco Foods, Int’l, Inc., A11-2230 (Minn. Ct. App. filed Feb. 8, 2012), the Court of Appeals dismissed an otherwise proper appeal because the notice of appeal was served by fax nearly end of the appeal time, and mail service was not accomplished before the time expired.
In Carlson, the respondent filed a motion to dismiss correctly arguing that the rules of appellate procedure require service of the notice of appeal by personal service or U.S. mail. Service by fax or other electronic means is proper only with the consent of the party to be served. Minn. R. Civ. App. P. 125.03. Because both timely filing and service of the notice of appeal are necessary to vest jurisdiction with the Court of Appeals, see 1983 and 1998 Comments to Minn. R. Civ. App. P. 103.01, the respondent argued that appellant had failed to meet the jurisdictional requirements within the appeal period and the appeal should be dismissed.
But as is so often the case with appeals, some minor differences in the facts resulted in a different decision than you might have expected. The Court of Appeals declined to dismiss the appeal.
The court agreed that since the respondent’s counsel had not consented to the service of the notice of appeal by fax, service had not been accomplished by that action. The court reached this conclusion despite the fact that the respondent’s counsel hadn’t objected to the fax service, and in fact had, in correspondence with her adversary a short time later, described her client as having been served with the notice of appeal that had arrived only by fax.
While the factual basis for a waiver argument about the service requirements was present, the Court of Appeals chose not to take this approach. Instead, the court looked to the statement of the case, which the lawyer for the appellant had served on respondent’s counsel by U.S. mail within the appeal period.
Relying on Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn. 1985) for the proposition that notices of appeal should be liberally construed in favor of their sufficiency, the court decided to treat the appellant’s statement of the case as the notice of appeal for the purpose of serving the opposing party. The court held, “[w]e will construe the statement of the case as a notice of appeal, because the statement showed an intent to appeal and advised respondent of the issues to be raised on appeal. Appellant’s timely and proper service of the statement of the case invoked this court’s jurisdiction.” In re Custody of the Minor Child of Fenton v. Carlson, Slip. Op. at 3. The respondent tried to get the Supreme Court to review the Court of Appeals’ ruling, but without success. Thus, the appeal stayed alive.
In some ways, the results should not be too surprising. The outcome is consistent with federal precedent that often looks to whether the party has adequately evidenced its intent regarding its appeal to overlook technical deficiencies in the content of a notice of appeal. For instance, while a notice of appeal should specifically detail the judgment or order being appealed from, as long as a party’s intent to appeal from a specific ruling can fairly be inferred and the appellee is not misled or prejudiced, failure to provide such detail may not be fatal in federal court. See Sanabria v. United States, 437 U.S. 54, 67 n.21 (1978).
As in the Minnesota appellate courts, the formal requirements of Federal Rule of Appellate Procedure 3 governing notices of appeal are liberally construed by the federal appellate courts. See Smith v. Barry, 502 U.S. 244 (1992); Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988). And in many instances, federal courts will find that a document filed by a party is the “functional equivalent” of what FRAP 3 requires. A plethora of documents has been treated as the “functional equivalent” of a notice of appeal, including a brief, a motion to appeal, a petition for leave to appeal in forma pauperis, an Appellant’s Form A, and a petition for mandamus, among many others. See Herr, D., Magnuson, E., Vasaly, M., and Gans, M., eds., Eighth Circuit Appellate Practice Manual sec.5.3 (Minnesota CLE 6th ed. 2013).
Sometimes it’s better to be lucky than good. However, it is always better to follow the rules than it is to figure out a good argument as to why close was good enough.
A few take-aways. First, good and clear intentions will probably get you nowhere if you miss the deadline to appeal. Note that all of the “good enough” actions of the appellant in this case happened within the appeal period. Carefully calculate your deadlines and meet them. Second, determine what the rules require regarding the content of a notice of appeal and all other requirements to perfect an appeal. And meet them. Putting your client in a position where you have to rely upon an appellate court to divine your intentions from imperfect pleadings is not a comfortable, let alone a professionally responsible, place to be.
And don’t put too much stock in the fact the Court of Appeals reached a particular result based on a particular set of facts in a particular case. It may not do it again. And, even though the Supreme Court declined to review, that doesn’t mean the justices agreed with the Court of Appeals, or that the decision of the Court of Appeals created an inviolate and eternal rule of appellate procedure.
In Marzitelli v. City of Little Canada, 582 N.W.2d 904 (Minn. 1998), the appellant’s lawyer followed a rule of procedure adopted by the Court of Appeals concerning appealable orders that contained the direction to “let judgment be entered accordingly.” The Court of Appeals had declared that such orders lost their status as appealable orders, and the only proper appeal was from the ensuing judgment. See Saric v. Stover, 451 N.W.2d 65 (Minn. Ct. App. 1990). That was the apparent rule for nearly a decade before the Supreme Court addressed the issue. The lawyer did not appeal from the order, but waited until judgment was entered, only to have the Supreme Court reverse and find that the order was not rendered non-appealable by the direction of entry of judgment and was untimely.
Like beauty, intent is often in the eye of the beholder. And subject to the relatively subjective perceptions of the particular court personnel or judicial panel tasked with reviewing any technically imperfect appellate paperwork.
But, should unavoidable circumstances arise that even the most careful and diligent attorney could not have avoided, if the stuff is about to hit the fan, focus on substance and not the form of a notice of appeal. Make certain that your intentions to appeal and the substance of what you are appealing are clear, and get that document filed and served. The right way.
This article first appeared in the May 19, 2014 issue of Minnesota Lawyer.

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1. SGT. ANDREW1 DUNCAN was born Abt. 1782 in ScotlandParish of Faulkland in or near the Town Of Faulkland,County of Fife, and died May 08, 1861 in Charlottetown Royalty, Prince Edward Island. He met AGNES SHIRLEY AGNEW. She was born Abt. 1799 in Scotland (Ayrshire?), and died September 03, 1866 in Charlottetown Royalty,Queens County, Prince Edward Island.
2. i. JOHN2 DUNCAN, b. October 13, 1818, Brackley Point Rd. Charlottetown, Prince Edward Island; d. October 05, 1879, Vernon River, Lot 50, Prince Edward Island.
ii. JANET DUNCAN, b. April 10, 1820, Charlottetown Royalty, Queens County, Prince Edward Island.
3. iii. ANDREW DUNCAN, b. 1825, Prince Edward Island or New Brunswick unsure; d. March 01, 1904, Age 82 Charlottetown, Prince Edward Island.
iv. MARGARET DUNCAN, b. 1825, Charlottetown Royalty, Queens County, Prince Edward Island; d. June 08, 1885, Age 60 Prince Edward Island; m. THOMAS EASTON.
v. JESSIE DUNCAN, b. March 17, 1828, Charlottetown Royalty, Queens County, Prince Edward Island; d. May 17, 1902; m. ISAAC RIDER, July 1846, Prince Edward Island.
vi. ANN DUNCAN, b. April 27, 1828, Charlottetown Royalty, Prince Edward Island; d. May 29, 1907, Prince Edward Island; m. DANIEL MCKINNON.
vii. MATILDA MARTHA DUNCAN, b. 1831, Charlottetown Royalty, Prince Edward Island; d. 1922, Sherwood Cementry Lot 33, Cementry 4 Stone 589 Charlottetown,Prince Edward Island; m. WILLIAM LOCKERBIE, February 15, 1859, Prince Edward Island; b. 1825; d. May 21, 1905, Age 80.
4. viii. JANE DUNCAN, b. May 07, 1839, Charlottetown Royalty, Prince Edward Island; d. November 22, 1895, Age 54 Prince Edward Island.
ix. AGNES DUNCAN, b. Abt. 1824; d. November 18, 1916; m. JOHN STEWART.
x. ELIZA DUNCAN, b. Unknown; d. January 18, 1913; m. JOHN CARTWELL.
xi. EMELINE (EMMA) DUNCAN, b. Unknown; d. December 1919; m. ROBERT BRIDGES, July 15, 1858, By Henry Pope Prince Edward Island.
xii. MARY DUNCAN, b. Unknown; m. MARK STEADWELL.
2. JOHN2 DUNCAN (SGT. ANDREW1) was born October 13, 1818 in Brackley Point Rd. Charlottetown, Prince Edward Island, and died October 05, 1879 in Vernon River, Lot 50, Prince Edward Island. He met CATHERINE MACLAREN December 02, 1847 in Belfast, Prince Edward Island by Rev. John McLellan, daughter of JOHN MCLAREN and ISABELLE SMITH. She was born November 01, 1820 in Hermitage Grove, Royalty West, Prince Edward Island, and died August 31, 1900 in Prince Edward Island.
i. ISABELLA MARGARY3 DUNCAN, b. September 16, 1848, Vernon RiverBridge Lot 50, Queens County,Prince Edward Island; d. January 19, 1914; m. ISAAC D. SCHURMAN, September 20, 1873.
5. ii. JOHN MACLAREN DUNCAN, b. February 16, 1850, Vernon River Bridge, Lot 49, Prince Edward Island; d. October 25, 1937, Vancouver, British Columbia.
iii. ANDREW ROBERT DUNCAN (M.D.), b. September 26, 1851, Vernon River Bridge, Lot 49 , Prince Edward Island; m. JEMIMA A MASON, July 13, 1880, Prince Edward Island; b. Abt. 1854.
iv. AGNES MATILDIA ANN DUNCAN, b. November 07, 1852, Belvedere, P.E.I.; d. May 04, 1853, Prince Edward Island.
6. v. ELIZABETH CHRISTIANA DUNCAN, b. August 03, 1854, Vernon River Bridge, Lot 49 , Prince Edward Island(Newton Belfast ?); d. February 18, 1934.
vi. LAWRENCE DANIEL DUNCAN, b. November 09, 1856, Vernon River Bridge, Lot 49 , Prince Edward Island; d. October 30, 1930; m. SARAH CURRIE, December 07, 1880; b. Abt. 1861.
7. vii. JAMES WALLACE DUNCAN, b. September 10, 1859, Vernon River Bridge, Lot 49 , Prince Edward Island; d. May 19, 1932, Summerside, Prince County, Prince Edward Island.
viii. MARY( CATHERINE) L DUNCAN, b. May 18, 1861, Vernon River Bridge, Lot 49, Prince Edward Island; m. WELLINGTON YOUNG, October 17, 1881, Prince Edward Island.
3. ANDREW2 DUNCAN (SGT. ANDREW1) was born 1825 in Prince Edward Island or New Brunswick unsure, and died March 01, 1904 in Age 82 Charlottetown, Prince Edward Island. He married (1) EMALINE WORTH July 25, 1848 in St. James Church, Charlottetown, Prince Edward Island Witnesses Henry Worth and Phillip MacLaren. She was born 1822 in ? Belfast, Prince Edward Island, and died 1869 in Prince Edward Island. He met (2) ISABELLA MCLAREN October 31, 1872 in The Hermatage Farm, By Rev. Thomas Duncan, daughter of JOHN MCLAREN. She was born 1825 in Prince Edward Island, and died November 25, 1893 in Prince Edward Island.
i. ELIZABETH JANE3 DUNCAN, b. December 21, 1850, Prince Edward Island.
ii. MATILDA ANNE DUNCAN, b. November 20, 1852, Prince Edward Island.
iii. EMILY PRISCILLA DUNCAN, b. October 06, 1854, Brackley Point Rd. Charlottetown, Prince Edward Island.
8. iv. ANDREW D DUNCAN, b. January 04, 1859, Charlottetown Royalty, Prince Edward Island.
v. MARGARET GRAU DUNCAN, b. July 28, 1860, Charlottetown Royalty, Prince Edward Island.
vi. MARY ELLEN DUNCAN, b. December 12, 1861, Prince Edward Island; d. March 12, 1880, Prince Edward Island Age 18 yrs3 months aof Typhoid Fever at the home of her brother inlaw..
9. vii. ALICE MAUD DUNCAN, b. March 31, 1863; d. 1949.
viii. THOMAS HENRY DUNCAN, b. January 29, 1867, Prince Edward Island; m. UNKNOWN.
ix. PHILIP HENRY DUNCAN, b. 1864.
4. JANE2 DUNCAN (SGT. ANDREW1) was born May 07, 1839 in Charlottetown Royalty, Prince Edward Island, and died November 22, 1895 in Age 54 Prince Edward Island. She met JOHN SHAW March 19, 1863 in Charlottetown Royalty, Queens County, Prince Edward Island. He was born 1822, and died April 22, 1886 in Age 64 Prince Edward Island.
i. FREDRICK OSWALD3 SHAW, b. November 16, 1868; d. February 23, 1898, Age 30 Prince Edward Island.
ii. JOHN LESLIE SHAW, b. November 16, 1868, Prince Edward Island; d. London, England; m. HENRIETTA HOOPER, September 10, 1915; b. 1876; d. 1925, London, England.
iii. ANNE SHIRLEY SHAW, b. December 14, 1870, Prince Edward Island; d. July 1892, Prince Edward Island.
5. JOHN MACLAREN3 DUNCAN (JOHN2, SGT. ANDREW1) was born February 16, 1850 in Vernon River Bridge, Lot 49, Prince Edward Island, and died October 25, 1937 in Vancouver, British Columbia. He met PRUDENCE WOOD November 15, 1872 in Vernon River, Prince Edward Island, daughter of ROBERT WOOD and MARY WISE. She was born February 16, 1850 in Vernon River BridgeLot 48, Queens County, Prince Edward Island, and died July 02, 1906 in Charlottetown, Prince Edward Island.
i. ADELIA BERTHA LUCINDA4 DUNCAN, b. August 20, 1873, Montague,Queens County, Prince Edward Island; d. November 27, 1885, Prince Edward Island.
ii. CLARISSA PRUDENCE DUNCAN, b. January 19, 1876, Queens County, Prince Edward Island; m. JAMES FREDERICK SEMPLE, December 24, 1895.
iii. WILLIAM LINUS ALONZO DUNCAN, b. October 19, 1877, Charlottetown, Prince Edward Island; m. MAUD HALLETT, March 17, 1901.
10. iv. JOHN ALWIN CUTBERT DUNCAN, b. February 06, 1879, Charlottetown, Prince Edward Island; d. November 01, 1958, Charlottetown, Prince Edward Island.
v. ANSEL WILFRED DUNCAN, b. April 03, 1883, Vernon River Bridge, Lot 49 , Prince Edward Island; m. PRICILLA LOIS JOHNSON, June 05, 1920.
vi. NETTI EDNA DUNCAN, b. December 09, 1886, Summerside, Prince County, Prince Edward Island; d. December 17, 1918, Calgary, Alberta; m. JAMES EDWARD LOVE, September 21, 1906, Prince Edward Island.
6. ELIZABETH CHRISTIANA3 DUNCAN (JOHN2, SGT. ANDREW1) was born August 03, 1854 in Vernon River Bridge, Lot 49 , Prince Edward Island(Newton Belfast ?), and died February 18, 1934. She met WILLIAM W GILLIS January 25, 1881 in Prince Edward Island. He was born 1844, and died 1931 in Prince Edward Island.
i. CHRISTINA C4 GILLIS, b. 1883; d. 1901, Prince Edward Island.
ii. CABEL OR ISABEL GILLIS, b. 1885; d. 1905, Prince Edward Island.
iii. WILLIAM A GILLIS, b. 1887; d. 1895, Prince Edward Island.
7. JAMES WALLACE3 DUNCAN (JOHN2, SGT. ANDREW1) was born September 10, 1859 in Vernon River Bridge, Lot 49 , Prince Edward Island, and died May 19, 1932 in Summerside, Prince County, Prince Edward Island. He met ROSELLA MACLEOD August 15, 1882. She was born December 03, 1854.
i. LAURA A4 DUNCAN, b. July 13, 1883.
ii. ELLA G DUNCAN, b. February 26, 1885.
iii. JOHN W.S. DUNCAN, b. March 14, 1887.
iv. IRENE J DUNCAN, b. July 23, 1889.
v. WILFRED M DUNCAN, b. March 07, 1893.
vi. DAVID H DUNCAN, b. November 15, 1896.
8. ANDREW D3 DUNCAN (ANDREW2, SGT. ANDREW1) was born January 04, 1859 in Charlottetown Royalty, Prince Edward Island. He met ANNABELLA FRAZER. She was born May 15, 1862.
i. MARGARET EMELINE4 DUNCAN, b. October 21, 1883; d. May 12, 1966, Prince Edward Island; m. J. ARTHUR MACINNIS, October 27, 1902; b. December 16, 1882; d. April 18, 1963, Prince Edward Island.
ii. KATIE DUNCAN, b. May 29, 1897.
iii. ELIZABETH M DUNCAN, b. September 06, 1893; d. 1979, Prince Edward Island; m. HAROLD E MOORE; b. 1893; d. 1979, Prince Edward Island.
9. ALICE MAUD3 DUNCAN (ANDREW2, SGT. ANDREW1) was born March 31, 1863, and died 1949. She met ENMAN. He was born 1846 in 1924.
i. JOHN HEATH4 ENMAN, d. 1916.
ii. JEAN ELIZABETH ENMAN, b. 1896; d. 1965.
10. JOHN ALWIN CUTBERT4 DUNCAN (JOHN MACLAREN3, JOHN2, SGT. ANDREW1) was born February 06, 1879 in Charlottetown, Prince Edward Island, and died November 01, 1958 in Charlottetown, Prince Edward Island. He met RACHAEL MAY MACEACHERN June 05, 1920 in Prince Edward Island. She was born July 18, 1881 in Prince Edward Island, and died January 05, 1955 in Charlottetown, Prince Edward Island.
i. ADELAIDE BERTHA MAY5 DUNCAN, b. December 17, 1899, Charlottetown, Prince Edward Island; d. April 18, 1961, Charlottetown, Prince Edward Island; m. JOHN A LUND.
ii. JOHN FREDERICK MIDDLETON DUNCAN, b. November 05, 1905, Charlottetown, Prince Edward Island; d. March 27, 1964, Charlottetown, Prince Edward Island; m. MARIE ANGELINA GALLANT, April 17, 1928, Charlottetown, Prince Edward Island; b. October 05, 1903, Rustico, Prince Edward Island; d. March 05, 1996, Beachgrove Home ,Charlottetown ,Prince Edward Island.
iii. GLADYS PRUDENCE MAY DUNCAN, b. August 09, 1907.
iv. MALBOURN DUNCAN, b. August 08, 1909.
v. EDNA MAYE DUNCAN, b. May 18, 1914, Charlottetown, Prince Edward Island; d. March 12, 1948; m. ARTHUR GAUTIER.
vi. GORDON W DUNCAN, b. January 18, 1919, Charlottetown , Prince Edward Island; d. February 28, 1971, Age 52 Charlottetown , Prince Edward Island; m. JOYCE COOMBS.

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text:
In this paper, we present a classification of electronic components in the electronic factory. This classification provides relevant information for correcting the manufacturing process, thereby enhancing the production fields and the quality of product. Our classification system based on the support vector machine (SVM) classifies all the used electronic components into predefined categories that are learnt from the training samples. The system has been deployed in the manufacturing line and has met the design criteria of over 90% of the classification rate and 80% of the classification accuracy.
Burges C.: A Tutorial on Support Vector Machines for Pattern Recognition, [in:] Fayyad U. (ed.): Knowledge Discovery and Data Mining. Dordrecht, Kluwer 2000, p. 1÷43.
Burggraf F.: Defect Inspection: Wafers In, Process Control Out. Semiconductor International, Vol. 14, 1991, p. 58÷62.
Chou P. B., Ravishankar Rao A., Sturzenbecker M. C., Wu F. Y., Brecher V. H.: Automatic Defect Classification for Semiconductor Manufacturing. Machine Vision and Application, Vol. 9, 1997, p. 201÷214.
Chin R.: Survey of Automated Visual Inspection: 1981 to 1987. Computer Vision Graphics and Image Processing, Vol. 41, 1988, p. 346÷381.
Cortes C., Vapnik V. N.: Support-Vector Networks. Machine Learning, Vol. 20, No. 3, 1995, p. 273÷297.
Crammer K., Singer Y.: On the Learnability and Design of Output Codes for Multiclass Problems. Int. Conf. Computational Learning Theory, 2000, p. 35÷46.
Dom B., Brecher V. H.: Recent Advances in Inspecting Integrated Circuits for Pattern Defects. IBM Research Report, RJ 9602, Yorktown Heights, N.Y. 1993.
Stinson G.: Applications of Automatic Defect Classification in Photolitography. Advanced Semiconductor Manufacturing Conference and Workshop, IEEE/SEMI, 1999, p. 270÷274.
Vapnik V. N.: The Nature of Statistical Learning Theory. Springer, Berlin-Heidelberg-New York 1995.
Vapnik V. N.: Statistical Learning Theory. John Wiley & Sons, New York 1998.
Vapnik V. N., Chervonenkis A. Ya.: On the Uniform Convergence of Relative Frequencies of Events to Their Probabilities. Soviet Math. Dokl., Vol. 9, 1968, p. 915÷918.

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text: মন1 [ mana1 ] n a measure of weight (=4 seers or about 82 lbs.), a maund. ~কষা n. the system of calculating weight in terms of maunds, seers etc. ~কে adv. for each maund, each maund; in every or each maund. মন2 [ mana2 ] n mind; heart; mental state, mood; mentality; feeling; consideration; memory; inclination, desire; attraction, attachment, interest; attention; earnestness, devotion; sincerity; choice; re solve, decision. মন আসা same as মন লাগা । মন ওঠা v. to be satisfied or pleased. মন করা v. to resolve, to make up one's mind; to have a mind; to agree, to condescend (আপনি মন করলে চাকরিটা হবে). মন কাড়া v. to captivate the mind, to capture the fancy of; to win one's heart. মন কেমন করা v. to be uneasy in mind; to be worried. মন খারাপ করা see খারাপ । মন খারাপ হওয়া v. to be out of hearts; to be out of humour; to be saddened. মন খোলা, মন খুলে বলা v. to speak one's mind; to open one's heart; to break one's mind. মন গলা v. to soften (towards), to melt. মন গলানো v. to melt one's heart. মন চাওয়া v. to be inclined to; to agree to. মন ছোটো হওয়া v. to become small-minded; to feel small; to be stricken with a sense of inferiority; to become ungenerous or niggardly; to lose heart, to become dejected. মন ছোটা v. to be stricken with an impetuous inclination towards or desire for; to be greatly attracted. মন জানা v. to learn or know one's mind. মন জোগানো v. to comply with one's orders or desires; to act to please another; to humour; to flatter. মন টলা v. to become perturbed or worried; to be in two minds, to waver; to be of two minds; to soften emotionally, to melt. মন টানা v. to attract; to incline; to have a mind. মন থাকা v. to have a desire for; to be inclined towards; to have interest in; to be attentive to. মন থেকে adv. sincerely; from the bottom of one's heart; by or out of one's imagination; (rare) from memory. মন দমা v. to become disheartened or discouraged. মন দেওয়া v. to apply one's mind to, to mind; to be ear nest (মন দিয়ে কাজ করা); to pay attention or heed to; to fall in love with. মন পাওয়া v. to be able to please another; to win one's favour or love; to win the heart of. মনপ্রাণ দিয়ে চেষ্টা করা v. to try heart and soul. মন বসা same as মন লাগা । মন বিষানো v. to embitter or poi son one's mind. মন ভাঙা v. to be dis heartened or discouraged; to be broken-hearted or heart-broken. মন ভাঙানো v. to dishearten or discourage; to break one's heart; to prejudice one's mind (against), to earwig. মন ভোলানো v. to charm or captivate one's mind; to at tract or please greatly; to win one's heart; to infatuate; to melt one's heart; to cajole; to take one's mind off (some thing). মন মাতানো v. to make one be side oneself with delight; to delight or please greatly. মন মানা v. to be con soled; to agree to accept at heart; to agree or consent to. মন রাখা same as মন জোগানো । মন লাগা v. to have a liking or inclination for; to have interest in; to have earnestness in. মন লাগানো v. to apply one's mind to, to attend to earnestly. মন সরা v. to have a desire for, to be willing (to). মন হওয়া v. to be inclined; to have half a mind; to become consented. মন হারানো v. to lose oneself; to lose one's heart; to be infatuated, to be greatly enamoured (of). মনে ওঠা v. to rise in one's mind, to occur to or strike one (ফন্দি মনে ওঠা); to be recollected (স্মৃতি মনে ওঠা). মনে করা v. to call to mind, to recollect; to resolve, to decide; to have a mind; to have half a mind; to feel; to suppose; to count, to regard, to consider, to think. মনে জাগা same as মনে ওঠা । মনে জানা v. to know or feel at heart. মনে থাকা v. to be remembered, to be retained in one's memory. মনে দাগ কাটা v. to impress one's mind indelibly; to bring home to; to make an imprint on one's mind; to occupy one's memory permanently. মনে ধরা v. to be to one's liking or choice; to be after one's heart. মনে নেওয়া v. to feel; to supose; to consider or think seriously. মনে পড়া v. to re member; to be recollected. মনে পুষে রাখা v. to nourish or cherish secretly at heart. মনে রাখা v. to remember; to bear or to keep in mind. মনে লাগা v. to be to one's liking, to be up to one's choice; to impress one's mind favourably; to be shocked or pained at heart; to feel or suppose. মনে স্থান দেওয়া to cherish or keep alive in one's heart. মনে হওয়া v. to feel; to suppose; to consider, to think; to count, to regard; to come to recollect; to appear; to seem. মনের আগুন mental anguish, heart-grief. মনের কথা one's secret thoughts and feelings and intentions, one's mind. মনের কালি the gloom of one's mind; sorrow, grief; ill feeling; malice; concealed vice. মনের গোল doubt; hesitation. মনের জোর a strong will; moral courage; self-confidence; morale. মনের ঝাল a grudge. মনের ঝাল মেটানো v. to feed one's grudge. মনের বিষ concealed envy or malice; canker of the mind. মনের ব্যথা mental anguish, heart's pang. মনের মতো same as মনোমতো । মনের ময়লা same as মনের কালি । মনের মানুষ a person after one's own heart; a favourite; a minion; a lover. মনের মিল amicability; agreement, accord.

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1. Is Claimant entitled to additional workers’ compensation benefits causally related to his March 15, 2005 compensable injury?
Defendant’s Exhibit A: Curriculum vitae, George White, M.D.
3. Claimant’s vocational training and experience is as a machinist. In January 2005 he began working for Defendant. His job required him to float from spot to spot, filling in for other employees. On any given day he might run a mill, set up a lathe or operate some other machine.
4. On March 15, 2005 Claimant was setting up a job on a lathe. Due to a programming error, a part got caught in the machine and Claimant had to remove it. As he pulled on the part, which weighed approximately 50 pounds, he injured his lower back. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
5. As a result of this injury Claimant experienced low back pain radiating into his left leg. He was diagnosed with a disc herniation at L5-S1, which affected the S1 nerve root as well. After conservative measures failed to alleviate his symptoms, Claimant underwent L5-S1 disc surgery in June 2005.
6. Claimant had only temporary pain relief following surgery, and then his symptoms recurred. He was left with chronic, constant low back pain, radiating from his left buttocks down his left leg and into his left ankle. Claimant treated for this pain with narcotic pain medications, including oxycontin and methadone, which he took daily. Later, Claimant began taking oxycodone as well for breakthrough pain.
7. Following an independent medical evaluation with Dr. Fenton in May 2006 Claimant was placed at end medical result and rated with a 13 percent whole person permanent impairment. Defendant paid permanent partial disability benefits in accordance with this rating.
8. In late 2006 Claimant returned to work, briefly first for Hayward Tyler Co. and then for Moscow Mills. Initially Claimant’s job at Moscow Mills was as a machinist; later he was promoted to a position involving purchasing, planning and quoting. Claimant enjoyed his work at Moscow Mills, and because his job responsibilities accommodated his need to change positions he was able to work full-time and full-duty notwithstanding his ongoing low back and left leg symptoms.
9. As is common in patients with chronic low back pain, Claimant experienced occasional activity-related flare-ups. In November 2006, for example, he strained his back while playing with his children. In February 2007 he did so again after shoveling snow, and in February 2008 he reported increased pain, again after shoveling snow. Following each of these incidents Claimant briefly increased his dosage of narcotic pain medications, after which his symptoms returned to their baseline level.
10. Notably, even when his symptoms were at their baseline, Claimant required fairly high levels of narcotic pain medications to control them. With those medications, however, he was “going along with his life,” working full time and engaging in routine activities of daily living.
11. One of Claimant’s routine household-related duties was to help his wife take care of the trash. Every other day or so Claimant’s wife would leave a full 13-gallon white kitchen trash bag outside the front door of their home. When Claimant came home, he would put the bag in the back of his pickup truck, where it would stay until his next trip to the dump. The weight of each bag varied depending on its contents, but Claimant testified credibly that an “average” trash bag probably weighed about 12 pounds. Claimant testified that he regularly performed this activity with no detrimental effect on his low back or left leg pain.
12. On November 12, 2008 Claimant came home and found a trash bag waiting at the door. As was his practice, he carried the bag to his truck, dropped the tailgate and placed the bag in the truck bed. As he did so he felt a sharp pain in his lower back, radiating into his left buttocks and down his left leg. Claimant left the tailgate as it was, immediately went inside and lay down on the couch.
13. Claimant testified that the location of his pain was exactly as it had been at the time of his original injury, but that it was two to three times more intense. Unlike previous flare-ups, furthermore, this time the increased pain did not respond to additional narcotics and did not resolve back to its baseline. Instead, it has remained steady at the new, more intense level.
14. Claimant testified that the increased pain he has experienced since the trash bag incident has precluded him from engaging in almost any activity. He has not worked since the incident occurred, and spends most of his day lying on his back. His left leg gives out on him at times, so to prevent himself from falling he now walks with a cane. Clearly he no longer is “going along with his life” to the extent that he was previously.
• Both doctors agree that Claimant’s 2005 work injury caused his L5-S1 disc to herniate, which left his spine in a weakened condition and his disc more susceptible to future exacerbations. Both further agree that the trash bag incident resulted in an increase in symptoms emanating primarily from the same area of the back. Both agree that but for the fact that Claimant’s back already was weakened in that area, it is unlikely that lifting the bag and placing it in his truck would have been in any way problematic. In that sense, therefore, both agree that the trash bag incident somehow acted upon Claimant’s preexisting condition and thereby became the instigating event for the worsened symptoms that followed.
• Both doctors agree that whether Claimant’s worsened symptoms are due to scar tissue caused by his June 2005 disc surgery or to a new disc herniation is unclear. To clarify the diagnosis, both agree that it would be reasonable for Claimant to undergo an MRI with gadolinium, or contrast dye.
• Both doctors agree that if the MRI reveals the problem to be scar tissue, surgery will be ineffective at relieving Claimant’s symptoms. If the MRI reveals new disc material, both doctors agree that surgery might be an option, although for various reasons Dr. White believes Claimant is not a good surgical candidate.
• Both doctors agree that a multidisciplinary functional restoration or rehabilitation program may present an efficacious treatment route for Claimant. By participating in such a program hopefully Claimant would be able to decrease his dependence on narcotic pain medications, increase his exercise tolerance and improve his overall strength and conditioning level.
• Both doctors agree that Claimant should be able to return to work, at least at a sedentary work capacity. Dr. White believes that Claimant has no structurally limiting condition that would preclude him from doing so immediately. Dr. McLarney believes that it would be unrealistic to expect Claimant to transition directly back to work in his current condition, given his narcotic drug dependency, his deconditioned physical state and his extended time out of work. She is optimistic, however, that he would be able to do so after completing a functional restoration program.
• Both doctors agree that Claimant has not yet reached an end medical result from the trash bag incident.
2. This claim raises the question to what extent an intervening activity or event can operate to sever the causal link between a work-related accident and the natural consequences that flow from it. As such, its resolution depends more on legal analysis than medical analysis. Medically, there is no dispute that Claimant’s activities on November 12, 2008 – placing a 12-pound trash bag into the back of his truck – caused the low back and left leg symptoms he had experienced since his original 2005 work injury to worsen significantly. The real dispute is as to the legal ramifications of that incident in the context of this claim.
3. This Department has maintained on a fairly consistent basis that when a claimant’s condition worsens, or his or her symptoms flare, after engaging in normal, routine activities of daily living the causal link back to the original work injury remains intact, such that further medical treatment and/or periods of disability remain compensable. See, e.g., Church v. Springfield Hospital, Opinion No. 40-08WC (October 8, 2008) (climbing a single step at home does not sever causal connection); Verchereau v. Meals on Wheels, Opinion No. 20-88WC (1988) (carrying groceries); Correll v. Burlington Office Equipment, Opinion No. 64-94WC (May 1, 1995) (shoveling); but c.f. Signorini v. Northeast Cooperative, Opinion No. 36-04WC (September 1, 2004) (rising from chair; causal link severed due to nine-year gap back to original injury); Read v. W.E. Aubuchon Co., Opinion No. 24-04WC (July 13, 2004) (building rock garden and painting not properly categorized as normal activities of daily living).
4. This policy comports well with the mandate that in order to accomplish its humane purpose Vermont’s Workers’ Compensation Act must be construed liberally in favor of injured workers. Montgomery v. Brinver Corp., 142 Vt. 461 (1983). It also recognizes the practical reality that even injured workers must continue to go about their daily lives despite whatever underlying condition or weakness their work injury has caused. Were employers allowed to use reasonable, routine activities of daily living as a basis for terminating their ongoing responsibility for the natural consequences of a work injury, workers’ compensation would be a short-lived and hollow remedy indeed.
5. With those principles in mind, I find that Claimant’s activities on November 12, 2008 qualify as the type of normal, routine activities of daily living that do not operate to sever the causal link back to the original work injury. Defendant remains responsible, therefore, for all causally related workers’ compensation benefits arising from either event.
6. As for medical benefits, I find credible Dr. McLarney’s opinion, with which Dr. White essentially concurred, that Claimant should undergo an MRI with gadolinium followed by a surgical consult. Should surgery not be indicated, I find that a multidisciplinary functional restoration program is the appropriate next step.
7. I also find that Claimant has been temporarily totally disabled since November 12, 2008 and that his disability is ongoing currently. In that respect, I accept Dr. McLarney’s opinion that Claimant is unable to transition immediately back to work, but that with the benefit of further treatment hopefully he will be able to do so soon.
8. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,217.59 and attorney fees based on a contingent fee of 20% of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute. To be allowable, however, costs must be reasonable and must comply with the applicable provisions of the medical fee schedule. I find it unreasonable to hold Defendant responsible for Dr. McLarney’s $350.00 no-show fee, and therefore that charge is disallowed. I also note that Dr. McLarney’s $1,050.00 deposition fee appears well in excess of the $300 hourly rate mandated by Workers’ Compensation Rule 40.110. The deposition itself took approximately one hour, and the time spent consulting with Claimant’s attorney either before or after is not recoverable. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003). This charge is reduced to $600.00. The total costs awarded, therefore, are $2,417.59.
9. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded to the extent allowed by Workers’ Compensation Rule 10.1220.
4. Costs totaling $2,417.59 and attorney fees computed in accordance with Workers’ Compensation Rule 10.1220.
DATED at Montpelier, Vermont this 19th day of November 2009.


text:
1. The recital in the record of proceeding of a probate court, under a statute of Wisconsin Territory, of facts necessary to give such court jurisdiction is prima facie evidence of the facts recited.
2. The jurisdiction existing, the subsequent action of the court is the exercise of its judicial authority, and can only be questioned on appeal, the mode provided by the law of the territory for review of the determinations of the court.
Where a statute of the territory provided that the real estate of the decedent might be sold to satisfy his just debts when the personalty was insufficient, and authorized the Probate Court of the county where the deceased last dwelt or in which the real estate was situated to license the administrator to make the sale upon representation of this insufficiency, and "on the same being made to appear" to the court, and required the court, previously to passing upon the representation, to order notice to be given to all parties concerned or their guardians who did not signify their assent to the sale to show cause why the license should not be granted, held that the representation of the insufficiency of the personal property of the deceased to pay his just debts was the only act required to call into exercise the power of the court. The necessity and propriety of the sale solicited were matters to be considered at the hearing upon the order to show cause. A license following such hearing involved an adjudication upon these points, and such adjudication was conclusive.
3. Where an administrator had been appointed, and after giving the required bonds informed the court that he was unable to act, and resigned the appointment, not having taken possession of the property of the intestate or attempted to exercise any control over it, it was competent for the court to accept the resignation, and to appoint a new administrator. The power to accept the resignation and to make the second appointment under these circumstances were incidents of the power to make the first.
and a second purchase of it by the same party who had already bought it before, is not evidence of fraud in the first sale.
5. The title of a purchaser at an administrator's sale is not affected by the fact that the proceeds of the sale exceeded the amount of the alleged debts of the decedent, for the payment of which such sale was ordered.
A statute of Wisconsin Territory ordained that there should be appointed by the Governor, in and for each county, a person to be known as "the public administrator" thereof, and when any person shall die intestate, leaving personal property within the territory but leaving no widow, next of kin, or creditor living therein, "administration" -- the statute went on to say -- "shall be granted" to the "public administrator" of the county in which the intestate died, or, if the decedent have been a nonresident, of the county in which the estate may be found. The statute further ordained that when administration shall have been granted to any public administrator, and it shall afterwards appear that there is a widow, next of kin &c., the judge of probate shall -- on application to do so made within six months after such grant -- revoke the letters granted to the public administrator and grant them to such widow, next of kin &c., according to law.
"upon representation, and the same being made to appear to the district or probate court of the county where the deceased person last dwelt or in the county in which the real estate lies,"
at a time and place appointed, why such license shall not be granted."
With these acts in force in Wisconsin, and owning personalty in Iowa County and realty in Grant County, of that territory, one Comstock died in Illinois, having been, before and at his death, domiciled there. His brother was appointed, soon after, administrator, by the Probate Court of Iowa County, in Wisconsin, but he never took possession of the property of the estate nor attempted to exercise ownership over it, and in a short time after his appointment, sent word to the probate judge that he was unable to attend to the duties of the administration, and requested that officer to appoint another kinsman of the decedent, one Ripley, of Illinois, to the place. A formal resignation sent afterwards was accepted, and Ripley appointed, nothing, however, in all the matter of the estate, appearing about the "public administrator."
A few years afterwards, Ripley, acting under the letters granted to him in Wisconsin, applied to the Probate Court of Grant County, in that territory, for license to sell "so much" of the real estate of the deceased in the county as would "enable him to pay the sum of $8,000," together with the costs and charges attending the sale.
"the said administrator be licensed, authorized, and empowered to sell so much &c., as may enable him to pay the sum of $8,000, the debts due and owing from said estate, together with the costs and charges attending the sale,"
Ripley made the sale, the purchaser being a certain Crawford, defendant here and below, and he having received the administrator's deed and entered into possession, the heirs of Comstock now brought ejectment against him in the Circuit Court of Wisconsin, to get back the land. On the trial the defendant produced and gave in evidence, under objection, the record of the Probate Court of Iowa County, containing the letters of administration, resignation &c., and also the record of the Probate Court of Grant County, above stated, and closed.
After the defendant had thus closed, the plaintiff, for the purpose of proving collusion and fraud between the administrator and the purchaser, offered the record of a license to the administrator to sell the same premises, subsequent in date to the one above mentioned. The plaintiff offered also to prove that the administrator had made sales to the extent of $10,000, while his license to sell was to the extent of but $8,000. But both offers were refused by the court.
real estate" -- that the personal property of the estate was insufficient to pay the debts.
The defendant had judgment, and the plaintiffs brought the case here on error.
acceptance of his resignation, so far as they affect the jurisdiction of the Probate Court. It is well settled that when the jurisdiction of a court of limited and special authority appears upon the face of its proceedings, its action cannot be collaterally attacked for mere error or irregularity. The jurisdiction appearing, the same presumption of law arises that it was rightly exercised as prevails with reference to the action of a court of superior and general authority.
By the statute of Wisconsin under which the administrator was appointed, the only facts necessary to give the probate court jurisdiction were the death of the nonresident intestate and the possession by him, at the time, of personal property within the territory. Both of these facts are recited in the record of the proceedings produced by the defendant, which sets forth the letters of administration at large. These recitals are prima facie evidence of the facts recited. [Footnote 1] They show the jurisdiction of the court over the subject. What followed was done in the exercise of its judicial authority, and could only be questioned on appeal, the mode provided by the law of the territory for review of the determinations of the court. Whether there was a widow of the deceased, or any next of kin, or creditor, who was a proper person to receive letters if he had applied for them, or whether there was any public administrator in office authorized or fit to take charge of the estate or to which of these several parties it was meet that the administration should be entrusted were matters for the consideration and determination of the court, and its action respecting them, however irregular, cannot be impeached collaterally.
The same observations are applicable to the acceptance of the resignation of the first administrator and the appointment of Ripley in his place. If the second appointment was irregularly made, the irregularity should have been corrected on appeal.
But independent of this consideration, there is nothing in the objection. The power to accept the resignation and make the second appointment, under the circumstances of this case, were necessary incidents of the power to grant letters of administration in the first instance. It does not appear that the first administrator ever took possession of the property of the intestate or attempted to exercise any control over it, and his inability to act left the estate in fact without any administrator. The duty of the court therefore to provide for its proper administration could not otherwise have been discharged than by a new appointment.
But the principal reliance of the plaintiffs is placed upon the objections taken to the action of the Probate Court of Grant County in ordering the sale. With reference to these objections, as with reference to the objections taken to the original appointment of the administrator, it is only necessary to consider them so far as they affect the jurisdiction of the court.
The proceeding for the sale of the real property of an intestate, though had in the general course of administration, is a distinct and independent proceeding authorized by statute only in certain specially designated cases. But when by the presentation of a case within the statute the jurisdiction of the court has once attached, the regularity or irregularity of subsequent steps can only be questioned in some direct mode prescribed by law. They are not matters for which the decrees of the court can be collaterally assailed.
to the sale to show cause why the license should not be granted.
The record of the probate court, produced by the defendant, states the fact that a written application for the sale was made. It sets forth the application at length, representing that the personal property of the deceased was insufficient to pay his just debts by the sum of about eight thousand dollars; it gives the order directing publication of notice of the application; it recites that due notice was given; it contains a certificate of the probate justice of Illinois that the personal property of the deceased had been exhausted in payment of his debts, and that there remained debts unpaid to the amount named, and it states, by way of further recital, that it had been made to appear to the court that the sale was necessary and proper to pay such debts of the existence and amount of which due proof had been given.
debts which he owed, and 2d that the order for the sale did not show that the personal property of the estate was insufficient to pay the debts unless resort was had to the certificate of the probate justice of Illinois.
The answer to the first objection is found in the fact that the statute did not require any such particularity of statement with reference to the property of the deceased, or to the debts which he owed. It only required a representation of the general fact. The particularity desired to guide the court was to be obtained at the hearing of the application.
The answer to the second objection is that the sufficiency of the proof upon which the court took its action is not a matter open to consideration in a collateral manner. It does not touch the question of jurisdiction.
Similar questions were presented for the consideration of this Court in Grignon's Lessee v. Astor. [Footnote 3] That case turned upon the validity of proceedings for the sale of real property of an intestate under a statute almost identical in its provisions with the one under which the sale in the present case was made. And it was there held that the representation was sufficient to bring the power of the court into action, that it was enough that there was something of record which showed the subject before the court, and that the granting of the license was an adjudication upon all the facts necessary to give jurisdiction. That decision disposes of the particular objections stated to the sale in this case.
The record of the subsequent license to the administrator to sell the same property, and its second purchase by the defendant, was properly excluded. It did not show or tend to show fraud in the first sale or any collusion between the administrator and the purchaser. The proceeding may have originated in a desire to remove doubts suggested as to the regularity of the original sale, but whether this was so or not, the first sale not being set aside, its validity could not be impaired by the second.
sales made by the administrator of lands of the intestate amounted to over ten thousand dollars instead of eight thousand, the amount of his alleged debts remaining unpaid. The title of the purchaser could not be affected by the excess. That was a matter solely for the consideration of the court on the return of the sales by the administrator.
Barber v. Winslow, 12 Wendell 102; Porter v. Merchants' Bank, 28 N.Y. 641.
Van Steenbergh v. Bigelow, 3 Wendell 42; Jackson v. Robinson, 4 id. 437; Jackson v. Crawfords, 12 id. 534; Atkins v. Kinnan, 20 id. 242; Porter v. Purdy, 29 N.Y. 106; Betts v. Bagley, 12 Pickering 572.
43 U. S. 2 How. 319; See also Florentine v. Barton, 2 Wall. 210.

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