author: CLAYTON, Justice. LUKOWSKY, Justice,

text:
    Walter COLLINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 21, 1978.

      Jack Emory Farley, Public Defender, Linda K. West, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Sam E. Isaacs, II, Asst. Atty. Gen., Larry S. Roberts, Sp. Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

Walter Collins was convicted of theft by unlawful taking, trafficking in heroin, and being a persistent felony offender, and was sentenced to 13 years’ imprisonment. The Court of Appeals affirmed the judgment of the Fayette Circuit Court. We granted discretionary review.

On June 22, 1975, three Lexington police detectives had occasion to visit the Sportsman’s Motel in connection with an investigation concerning stolen tires. Appellant, who was staying at the motel with his nephew Anthony Collins, consented to a search of his room for the missing tires. Having been alerted by a maid who had seen something thrown out of the window of appellant’s room, the detectives found an automatic pistol and a hide-a-key case containing 20 bags of what appeared to be heroin on the ground near the window. This discovery led to the arrest of appellant and his nephew in the motel room. Appellant was patted down by Detective Shade, who next searched the pillows on the motel bed and then ordered appellant to sit on the bed. Immediately thereafter Shade proceeded to search the air conditioner located four to seven feet from where appellant was seated. A bus station locker key was found when Shade opened a small (eight inches by eight inches) door on the air conditioner. Subsequently the police, pursuant to a warrant, conducted a search of the locker corresponding to the key and found four grams of heroin (58% pure) and various drug paraphernalia. The contents of the locker were introduced at trial over appellant’s objection that they be suppressed as fruit of an illegal search and seizure.

Discretionary review was granted on the limited issue of whether the warrantless search of the air conditioner was a valid search incident to the lawful arrest of appellant. The constitutionality of a search incident to an arrest turns upon whether the area searched is “‘within [the arres-tee’s] immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694 (1969). Both the trial court and the Court of Appeals concluded that the search here was within the guidelines set out by the United States Supreme Court in Chimel. We affirm.

Appellant contends that the search of the air conditioner exceeded Chimel standards. The gist of his argument is that under the circumstances the arrestees were under police control to such an extent that the possibility of appellant gaining access to the air conditioner to reach a weapon or evidence was minimal. We cannot agree that Chimel requires a police officer to weigh an arrestee’s probability of success of obtaining a weapon or destructible evidence before conducting a search incident to an arrest. As the Supreme Court of the United States said in U. S. v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 440 (1973):

A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoe judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found .

The Court of Appeals for the Sixth Circuit recently held, in a case factually similar to the case before us, that “even after a defendant has been restrained pursuant to arrest, the search of an area from which he might gain possession of a weapon is lawful.” Watkins v. U. S., 564 F.2d 201, 204 (6th Cir. 1977), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71 (1978). In Watkins, the defendant was arrested in his bathrobe by two police officers, who accompanied him to his bedroom so that he could get a shirt. While in the bedroom the police discovered a revolver under the mattress. The Court concluded that since the gun was within the defendant’s reach the search was valid as incident to the arrest.

We agree with the position taken in Watkins that the area which may be searched under Chimel is that area from which the arrestee might gain possession of a weapon or destructible evidence. In this case there were three detectives and two arrestees in the motel room. Appellant was located four to seven feet from the air conditioner. The air conditioner was therefore within the immediate area where appellant might have reached, and we cannot say the search was unreasonable nor unconstitutional.

The judgment is affirmed.

All concur except LUKOWSKY, J., who dissents.

LUKOWSKY, Justice,

dissenting.

My respect for the Fourth Amendment of the Constitution of the United States and Section Ten of the Constitution of the Commonwealth of Kentucky requires me to voice my dissent in this case.

On June 21, 1975, two men, one of them Walter Collins, were observed stealing two tires from a service station. The next day the owner of the Sportsman Motel told police that he had observed two tires in the bathtub of a room rented to Walter and his nephew, Anthony Collins. An employee of the motel observed the tires being removed from the motel before the police could obtain a warrant to search the motel room. No search warrant was ever obtained for the room. The police visited the motel room, obtained permission to search it for the tires, searched and found no tires, but observed black marks in the bathtub which they photographed. They also searched Walter’s car but found nothing of relevance. No arrests were made at this time.

Before the police left the motel, a maid reported to them that she saw something being thrown from the bathroom window of Walter’s motel room. The police then searched the area outside the window and found a .25 caliber automatic pistol and a magnetic key case containing a substance which they believed to be heroin.

Three officers then returned to Walter’s room and arrested both occupants. The police then:

1. searched both Walter and Anthony,

2. searched the bed,

3. seated Walter and Anthony on the bed,

4. searched the air conditioner which was located at least four and not more than eight feet from the bed by opening the door to the control panel, and

5. found a key to a locker at the bus station which was later searched pursuant to a warrant and disgorged evidence which is alleged to be the fruit of an illegal search of the air conditioner.

The record also discloses:

1. The officers did not bother to handcuff Walter and Anthony at the time of their arrest or thereafter,

2. one officer offered Walter some orange juice while he was seated on the bed,

3. one officer kept Walter and Anthony under constant watch while they were seated on the bed,

4. the officers conducted a general search of the entire motel room, and

5. Walter and Anthony never offered any resistance to the police.

Considering these facts and applying the rule of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), I am convinced that the search was unlawful and evidence obtained by use of the key should have been suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 4441 (1963); Silverthorne v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

In Chimel, supra, the Supreme Court of the United States articulated the rule as follows:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs —or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches . . . may be made only under the authority of a search warrant. The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less.” 395 U.S. at 762-63, 89 S.Ct. at 2040, 23 L.Ed.2d at 694.

The control panel in which the key was concealed was closed at the time of the search. Consequently, the only justification for the search without a warrant is that the control panel was within Walter’s “immediate control.” For an officer to search the panel he would have had to stand between Walter and the panel. At the time of the arrest there were three officers in the room, certainly more than sufficient manpower to prevent Walter from reaching the panel. Unless Walter was an acrobat, a Houdini or Stretcho-Man I can not conceive how the panel could have fallen within the area of his immediate control. To say that the panel, four to eight feet away, was an area into which he was able to reach, despite the fact that an armed officer stood between him and it, would defy credulity.

The- evidence does not support any credible reasons which would have led the officers to believe that Walter was an especially dangerous person against whom extraordinary protective measures may have been required, or that the search was actually an attempt to secure an area which the officers believed in good faith was within Walter’s area of immediate control. Such contentions would be torpedoed by the facts:

1. the officers chose not to handcuff or otherwise restrain Walter and Anthony.

2. the officers chose the place they were to sit,

3. an officer stood between Walter and the control panel door and turned his back to Walter in order to open the door,

4. an officer offered Walter a drink of orange juice, and

5. the officers proceeded to conduct a general search of the entire motel room.

The rationale is well expressed in United States v. Griffin, C.A. 7th, 537 F.2d 900, 904 (1976):

“Once a suspect is under the control of arresting officers, the area of permissible search under Chimel is narrowed accordingly. [T]he reason underlying the limited right of search allowed in Chimel is the danger that the defendant will seize a weapon or destructible evidence, and whether that danger exists depends upon the circumstances of each case. Regardless of . earlier apprehensions . the officers obviously did not believe defendant was likely to resist, escape, or destroy evidence after he had been placed under arrest. They did not handcuff him, and they allowed him to walk about the room . . . . If the freedom thus permitted defendant created [a] danger . . . the danger was of the officers’ own making. Just as “Chimel does not permit the arresting officers to lead the accused from place to place and use his presence in each location to justify a ‘search incident to the arrest,’ ” see United States v. Mason, 173 U.S.App.D.C. 173, 177, 523 F.2d 1122, 1126 (1975), it does not permit the officers to achieve the same result by ordering the accused to . move about the room . . . . The officers’ only legitimate purpose in being in the room was to make an arrest. They did not have the right to create a situation which gave them a pretext for searching beyond the area of defendant’s immediate control. They could . . . have posted a guard on the room, obtained a search warrant, and later returned to search the room pursuant to the warrant. Cf. United States v. Jeffers, 342 U.S. 48, 52, 72 S.Ct. 93, 96 L.Ed. 59 (1951); United States v. Hayes, 518 F.2d 675, 677-678 (6th Cir. 1975). They could not, however, make a warrantless search of the bedroom and the bathroom without violating the strictures of Chimel.”

To put it simply, the control panel was not within the area from which Walter might gain possession of a weapon or destructible evidence. United States v. Shye, C.A. 6th, 473 F.2d 1061, 1066 (1973); United States v. Mapp, C.A. 2d, 476 F.2d 67, 79-81 (1973).

I would reverse the judgment and remand the case to trial court with directions to suppress the contents of the locker and conduct a new trial.

      . Currently state courts bear an increased burden in deciding Fourth Amendment issues because Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), revoked the habe-as corpus jurisdiction of federal courts in this area. State judges may no longer take comfort in the thought that any inadvertent misinterpretation of the Fourth Amendment is subject to collateral review in the federal courts and must realize that chances of direct review by the Supreme Court of the United States are slim indeed. Duncantell v. Texas, - U.S. -, 99 S.Ct. 637, 58 L.Ed.2d - (1978) (Brennan, J., dissenting); see Brown Transport Corp. v. Atcon, Inc.,- U.S. -, 99 S.Ct. 626, 58 L.Ed.2d - (1978) (White, J., dissenting). In view of these realities state judges should be particularly sensitive to Fourth Amendment claims presented to them — a fact my colleages have yet to appreciate.


source: Caselaw Access Project

author: REED, Justice.

license: Public Domain

text:
    FIRST NATIONAL BANK OF BUFFALO, Buffalo, Kentucky, Movant, v. The PEOPLES STATE BANK, INC., et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Rehearing Denied Jan. 3, 1979.

      William A. Young, Frankfort, for mov-ant.
    G. Lee Langston, Dept, of Banking and Securities, Frankfort, William E. Johnson, Johnson, Judy & Gaines, Frankfort, Larry D. Raikes, Hodgenville, for respondents.
   REED, Justice.

This is the second appearance of this dispute before this court. Although the parties explore various nooks and crannies, both procedural and substantive, the basic issues for decision are few and limited. The respondent, Peoples State Bank, applied for permission to start a new bank in Hodgenville, LaRue County, Kentucky. The movant, First National Bank of Buffalo, LaRue County, Kentucky, an existing bank in the same locality, protested this potential competition. The Commissioner of Banking caused an extensive field investigation of the application to be made by an examiner of the Department of Banking and a representative of the Federal Deposit Insurance Corporation. This procedure was pursuant to the authority of KRS 287.-050(1). The investigation report thoroughly considered the merits of the application. It detailed the needs of the community to be served. It evaluated the adequacy of capital structure, the management, the financial history and condition, and the future earnings prospects of the applicant bank.

The commissioner had notified other banks in the area of the pendency of the application for a new bank. The written protest of the Buffalo Bank first alleged that fraud had been perpetrated upon the commissioner by alleged incorrect figures contained in the application, and, second that the granting of the application for a new bank would not promote public convenience and advantage and that there was no reasonable probability of successful operation by the new bank. The element of fraud has been effectively withdrawn from the case.

The commissioner had formulated a procedural rule, BR-.73-3, which provided in pertinent part as follows: “If the Commissioner finds from the examination and from his own investigation that all the factors in item (c) are favorable and there are no protests nor requests for an evidentiary hearing on the application, he shall approve the application. Even though there be protests, if the Commissioner has reasonable grounds to believe such protests to be insubstantial in nature, irrelevant or frivolous, further, that the application is meritorious, he may approve the application without an evidentiary hearing.”

The protesting bank did not request an evidentiary hearing. The commissioner entered detailed findings of basic facts as previously related. He did not characterize the protests by a eonclusionary statement that they were insubstantial in nature, irrelevant or frivolous. Based upon his detailed findings of basic facts, the commissioner gave approval to the applicant bank upon specified conditions. Thereafter the circuit court directed the commissioner to rehear the matter. We reversed and held that the commissioner had no such authority.

The movant thereafter filed a proceeding for judicial review of the commissioner’s order conditionally approving the application of the new bank. The circuit court held that the commissioner acted arbitrarily “in failing either to hold a hearing upon the protests filed, or to make findings, pursuant to his own duly adopted regulation, that he . ‘has reasonable grounds to believe such protests to be insubstantial in nature, irrelevant or frivolous . . . The circuit court ordered the matter remanded to the commissioner for further consideration. The applicant bank appealed to the Court of Appeals. That court reversed the circuit court with direction that it enter a judgment for the applicant bank. The protesting bank applied for discretionary review by this court which we granted. We affirm the decision of the Court of Appeals.

I

A serious threshold question is whether the movant has standing to sue. The United States Supreme Court has reaffirmed its view that economic injury from lawful competition alone is not sufficient to convey standing to sue. “This court has, it is true, repeatedly held that the economic injury which results from lawful competition cannot, in and of itself, confer standing on the injured business to question the legality of any aspect of his competitor’s operations.” Hardin v. Kentucky Utilities Co., 390 U.S. 1, 5-6, 88 S.Ct. 651, 654, 19 L.Ed.2d 787, 792 (1968). Nor can it be said that the movant as an established banking concern has a vested property interest which is protected by the Due Process Clause as is true in zoning and some other subjects of administrative regulation. The movant has no vested interest in the banking business of its area and holds no exclusive franchise. On the other hand, there is authority for the proposition that where proposed competition is unlawful by reason of arbitrary and capricious administrative action or abuse of discretion, the competitor possesses sufficient standing to sue. See Warren Bank v. Camp, 396 F.2d 52 (6th Cir. 1968). Without seeking to resolve the standing question as a matter of law, we will assume, arguendo, that movant had standing to maintain this action as did the 6th Circuit in Warren Bank, supra.

II

Movant insists that it was entitled to a hearing. In view of the arguments made in the movant’s brief and in view of the expressions made by the circuit judge, we take this to mean a trial-type hearing. We reject that proposition. Interestingly enough, the problems of structuring administrative procedures and judicial review of administrative actions in the banking area have been particular concerns of Kenneth Culp Davis, the outstanding authority on administrative law in this country. In his book, K. Davis, Discretionary Justice, a Preliminary Inquiry, 122 (1969), he states: “My opinion is and has long been that trial-type hearings are a clumsy way to determine how many banks and which banks ought to serve a community.” Concerning regulation of banking, he states later: “What has happened during the 1960’s is that the federal courts have at last gone along with the idea that trial-type hearings on contested applications for charters or branches are not required.” Id.

In his treatise Davis says:

“Specific holdings that competitors of applicants are not entitled to a full trial-type hearing on the granting of applications include the Northwest Bankcorporation [v. Board of Governors of Federal Reserve System, 303 F.2d 832 (8th Cir. 1962)]; Bridgeport [Federal Savings & Loan Association v. Federal Home Loan Bank Board, 307 F.2d 580 (3d Cir. 1962) cert. denied 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 499 (1963)]; Webster Groves Trust Co. v. Saxon, 370 F.2d 381 (8th Cir. 1966); Citizens Bank of Hattiesburg v. Camp, 387 F.2d 375 (5th Cir. 1967), certiorari denied 391 U.S. 704, [904], 88 S.Ct. 1652, 20 L.Ed.2d 418 (1968). Such holdings constitute a rather respectable authority.” Davis, Administrative Law Treatise, See. 4.04 (Supp.1970).

First Federal Savings & Loan Association of Waterboro v. Board of Bank Control for South Carolina, 263 S.C. 59, 207 S.E.2d 801 (1974) presents an analogous situation to the case before us. There the South Carolina administrative authority as a result of investigation and examination granted a charter to operate a state savings and loan association over the protest of competitors. The Supreme Court of South Carolina held that neither the regulatory statute nor procedural due process required an adversary hearing before the administrative authority in passing upon an application to establish a new savings and loan association. The South Carolina court cited federal cases and made the following statements which we regard particularly applicable to the case before us:

“These decisions base the denial of an adversary hearing to a competitor in such matters upon the peculiar nature and requirements of the banking business. This reasoning is succinctly stated in Webster Groves Trust Company v. Saxon, supra, as follows:
‘The very nature of the decision required by the Comptroller indicates that a formal adversary type hearing would be of little benefit to him in the discharge of his discretionary powers. There is the further factor present that if bank applicants were subjected to severe public cross-examination, public presentation of unfavorable evidence and were forced to disclose their future plans and programs to competitors, public confidence in the banking system could be adversely affected.’ ”

We find that the better reasoned state authorities and the federal authorities establish that the movant’s constitutional and statutory rights were not violated. The contents of the detailed application were open and available to the protesting bank. The investigation report was open and accessible. The detailed findings by the commissioner addressed themselves to the information which the protesting bank was allowed to present for the administrator’s consideration. These findings of evi-dentiary facts completely disclosed the reasons of the commissioner for granting the application. We therefore reject movant’s contention in this regard.

Ill

Movant argues in substance that even if a trial-type hearing was neither constitutionally nor statutorily required, nevertheless the commissioner’s departmental regulation administratively entitled movant to such a hearing unless the commissioner upon evidence recited made a finding that movant’s protest was either insubstantial, irrelevant or frivolous. In support of this proposition, reliance is placed upon such cases as Pearl v. Marshall, Ky., 491 S.W.2d 837 (1973). So far as relevant to this argument, the Pearl case stands for the proposition that when the courts review administrative decisions we will not imply a finding of basic facts upon a mere recitation of findings of ultimate facts. In this case the movant actually argues the converse. It would contend that the commissioner was obligated to recite and specifically parrot the ultimate finding that the protest was insubstantial in spite of his basic findings of fact which rejected the allegations contained in the protest and established that the application was meritorious. Davis succinctly answers the argument:

“The two questions that arise concerning implied findings are whether basic findings may be implied from the ultimate findings, and whether ultimate findings may be implied from the action taken. The usual answer to the first question is no, and the usual answer to the second is yes, . . . 2 K. Davis, Administrative Law Treatise, Sec. 16.07 (1958) (footnote omitted).

In Yellow Cab Co. v. Public Utility Hearing Board, 79 R.I. 507, 90 A.2d 726, 728 (1952), the Supreme Court of Rhode Island applied the principle when it said:

“It is our opinion that such a finding as is referred to above does not have to be set out in precise or specific language by the hearing board in its decision, although if so expressed it would leave no room for argument or misunderstanding. Nor does such a finding necessarily have to be expressed by the hearing board with the definiteness which is ordinarily required for analogous findings in workmen’s compensation and zoning board cases, as the appellant maintains. Such conclusion if found fairly and reasonably by implication in the decision is sufficient.
“We have examined the decision of the hearing board in the instant proceeding and after consideration we are of the opinion that, when read as a whole, it contains by reasonable implication a sufficient finding of fact that in the existing circumstances the public convenience and necessity required the additional taxicab service asked for by the applicants. In view of such finding and without considering the weight of the evidence in support thereof we cannot say that its order was unlawful or unreasonable.”

In the case before us, the detailed basic findings by the commissioner constituted an adequate predicate from which it could be plainly implied that the commissioner concluded the ultimate fact that the protest was insubstantial.

We therefore reject movant’s contention that the commissioner was required to set forth and parrot conclusionary recitations of an ultimate fact. We conclude that the disposition of the matter by the Court of Appeals was correct.

The decision of the Court of Appeals is affirmed and the case is remanded to the Franklin Circuit Court with directions to enter judgment in favor of the applicant bank.

All concur except CLAYTON, J., who dissents on the ground that in his opinion sound public policy requires a trial-type hearing in matters of this nature.

      . The first appearance is reported in Phelps v. Sallee, Ky., 529 S.W.2d 361 (1975) where a detailed recitation of facts may be found.

      . Id.


author: STERNBERG, Justice.

text:
    John L. WILHITE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 21, 1978.

      Jack E. Farley, Public Advocate, Kevin M. McNally, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STERNBERG, Justice.

The appellant, John L. Wilhite, was convicted in the Fayette Circuit Court for the offense of first-degree rape (KRS 510.040) and first-degree burglary of the victim’s apartment (KRS 511.020). The jury ordered him to serve a term of 20 years in prison for rape and 10 years for burglary. In the second phase of the bifurcated proceeding, the jury found the appellant to be a persistent felony offender in the second degree and fixed his punishment at confinement in the penitentiary for a period of 20 years on each of the two charges. Thereupon, the trial court sentenced him to serve the more severe penalty of 20 years on each count and ordered the sentences to run consecutively. This had the effect of changing the penalty on the burglary conviction only (10 to 20 years), since the penalty fixed by the jury on his conviction for rape was already 20 years.

The victim testified that on September 3, 1977, at approximately 6:45 a. m., she was awakened from her sleep when she suddenly felt something in bed with her. She awoke to find a man holding a knife to her throat. The assailant told her to be quiet and not to look at him. He then placed a pillow over her head and proceeded to rape her. The assailant had personal, physical difficulty in achieving the rape, but after doing so he left the premises. The victim further testified that some money was missing from her purse and that she found her bathroom door open, although it was closed when she went to bed. The victim was unable to make a positive identification of the appellant as her assailant; however, she did notice that he was a short, young, black man, with an afro haircut. The victim identified the voice of the appellant at the preliminary hearing as that of her assailant.

The appellant was interrogated by Officer David Shade by a question-and-answer method. The questions and answers were transcribed and then discussed with the appellant, who endorsed and signed the statement. This statement was read into evidence by Officer Shade. In it the appellant stated that he was at home at the time the rape was supposed to have been committed and that he had not had intercourse for several months by reason of physical difficulties.

Other testimony for the Commonwealth revealed that fingerprints found in the victim’s bathroom matched those of the appellant, that pubic hair found on the victim’s bedsheets was similar in color and microscopic characteristics to those of the appellant, and that semen was found on the victim’s nightgown and in her vaginal tract.

Steven McClanahan, a serologist at the State Police Crime Laboratory, testified that appellant’s saliva demonstrated that he was a non-secreter, i. e., that appellant’s ABO blood-type factor did not appear in his saliva, and that an examination of the semen stains on the victim’s bedsheets and nightgown indicated that they were made by a non-secreter. Semen taken from the victim on vaginal swabs indicated a lack of ABO blood-type factor.

The appellant produced two witnesses in support of his alibi defense. Catherine Hale testified that she was with the appellant on the evening of September 2, 1977, and left his house at 2:00 a. m. on September 3. Lucian Wilhite, the appellant’s brother, testified that when he left for work on the night of September 2, the appellant was at home and that he was still there when he returned home from work at 7:15 a. m. the following morning.

The appellant presents five grounds for error. Initially, he argues that he was denied his due process right to a fair trial.

On September 7, 1977, the appellant was arrested and taken to police headquarters. After being advised of his constitutional rights, he made a lengthy question- and-answer form of statement to Officer David Shade, in which he denied any participation in, or knowledge of, the charged offense or the victim. Without objection by appellant’s trial counsel, Officer Shade was permitted to read to the jury the entire statement. The appellant contends that this statement was irrelevant, hearsay, used to prejudicially mislead the jury, and its admission was not justified as a confession, as an admission, for impeachment purposes, or, as a matter of fact, for any purpose whatsoever. However, no objection having been made to its use, the issue was not preserved for appellate review. Bowers v. Commonwealth, Ky., 555 S.W.2d 241 (1977).

The appellant further charges that the trial court denied him his due process right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution in allowing the introduction of testimony regarding his hair comparison results, since appellant’s hair was not available at the time of the trial.

By a pretrial order of November 10,1977, twenty days prior to trial, the court ordered that, “Pursuant to RCr 7.24, the defendant may see and inspect such evidence as may be in the possession of the Commonwealth or its agents,” thus making the hair samples and the results of the laboratory tests available to appellant at his request. No request was made prior to trial. Furthermore, the Commonwealth went to great detail to prove the integrity of the evidence through a chain of custody. It fully complied with the burden of proof in establishing integrity. Brown v. Commonwealth, Ky., 449 S.W.2d 738 (1969); Pendland v. Commonwealth, Ky., 463 S.W.2d 130 (1971). The witness who testified relative to the laboratory analysis and comparison of appellant’s hair was available for a thorough cross-examination. The record does not indicate that the appellant sought an independent laboratory analysis or comparison to rebut Officer McClanahan’s testimony. The appellant was cognizant of the tests and the analysis, but took no steps or proceedings to utilize his discovery order. He cannot now complain. The record does not indicate that the appellant was prejudiced by the failure of the Commonwealth to produce the hair at the time of the trial.

The appellant next argues that the trial court erred in denying his request to send someone to secure the attendance of William Anderson, who had been duly subpoenaed as a witness for the defendant but failed to appear at the trial.

Anderson was subpoenaed on the day pri- or to trial to appear at 9:00 a. m. the following day. On November 30, 1977, at 9:00 a. m., the case was called for trial and both the Commonwealth and defense counsel announced ready. At the conclusion of all of the testimony, the appellant’s trial counsel for the first time advised the court of the absence of the witness Anderson. The following dialogue took place:

“(Conference at the bench outside the hearing of the jury:)
Mr. Cox: This subpoena was executed today, Judge, on this Anderson and he still hasn’t shown up. Can I send somebody after him?
The Court: We will go ahead and work on the instructions and if he is not here — You announced ready this morning.
Mr. Cox: He has been subpoenaed.
The Court: But he wasn’t here this morning.
Mr. Cox: No, sir, he wasn’t.
The Court: Well, the defendant announced ready at that time, but we will go ahead and work on instructions and if he gets here, I will give you a chance to put him on. If he doesn’t, I don’t know what we can do about it.
(End of conference at the bench outside the hearing of the jury.)

RCr 9.04 provides that, “The court, upon motion and sufficient cause shown by either party, may grant a postponement of the hearing or trial. * * * If the motion is based on the absence of a witness, the affidavit must show what facts the affiant believes the witness will prove * * *.”

The record fails to disclose that the appellant made a motion to recess the trial or to continue it so that the attendance of the witness could be coerced. There was no affidavit filed showing what facts could be proven by the absent witness. The appellant requested that he be permitted to send someone after the witness and the trial judge did not refuse this request. The court allowed the appellant to send for Anderson, with the admonition that in the interim they would work on the instructions and with the further admonition that if the witnesses did not appear by the time the instructions were prepared, then the trial would proceed without the witness. Further relief was not sought. Complaint now made as to the action of the trial judge has been waived. Rake v. Commonwealth, Ky., 468 S.W.2d 788 (1971).

Next, the appellant charges that he was deprived of due process of law when the trial court authorized the jury to enhance both the burglary and rape sentences, where only one persistent felony charge was made in the indictment. The appellant asks for a reversal of his second-degree persistent felony offender conviction.

What the appellant is really complaining about is the application of the persistent felony offender conviction to both his former convictions of rape and burglary. He would have this court hold that his persistent felony conviction can only be applied to one of the two former convictions and that an election must have been made prior to trial as to which of the former convictions the persistent felony offender conviction, if any, would apply.

In Berning v. Commonwealth, Ky., 550 S.W.2d 561 (1977), we said:

“ * * * it is not necessary in an indictment to charge facts constituting a basis for the imposition of the habitual criminal penalty for each primary offense constituting separate counts of an indictment. One properly pleaded charge of being a habitual criminal is sufficient for an indictment containing multiple charges. * * *”

The appellant recognizes our holding in Berning, supra; however, he attempts to distinguish the statute under which he was tried on November 30, 1977, as a persistent felony offender (KRS 532.080) and the former statute which was in effect when the facts occurred which gave rise to Berning (KRS 431.190). We are aware, as Wilhite’s appellate counsel argues, of tl\e less severe effect of the present statute over the former. Both the former and the current statutes, however, provide for the imposition of more severe penalties for multiple felony convictions. The difference between the two is the method by which the severity of the punishment is arrived at and imposed.

We hold that even though the appellant was tried under the current statute dealing with persistent felony offenders, and not under the statute in effect when the facts occurred giving rise to Berning, supra, that Berning is controlling in the disposition of this action. The trial court did not err in giving to the jury the challenged persistent felony offender instruction.

Lastly, the appellant decries the action of the trial judge in providing for the rape and robbery sentences to run consecutively rather than concurrently.

The question of whether sentences shall run consecutively or concurrently is a matter within the sound discretion of the trial court. Delacey v. Commonwealth, Ky., 494 S.W.2d 735 (1973); KRS 532.110. The appellant’s criminal record speaks louder than the words of the appellant’s brief. Commencing in June 1970, to and including the present convictions for rape and robbery, appellant has been convicted of four misdemeanors and four felonies. As a matter of fact, the appellant had been released on parole only seventeen days when these last offenses were committed. Nothing more need be said in support of the trial judge’s decision to run appellant’s sentences consecutively rather than concurrently.

The judgment is affirmed.

All concur.


text:
    Freddie Dale GREGORY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 21, 1978.

      Jack E. Farley, Public Advocate, Linda K. West, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STERNBERG, Justice.

The Grand Jury of Muhlenberg County, Kentucky, on September 10, 1973, indicted the appellant for the offense of murder. Contrary to the appellant’s plea of innocence, the trial jury found him guilty as charged and fixed his punishment at life imprisonment. On September 21, 1973, judgment was pronounced and on October 2, 1973, the appellant’s motion for a new trial was overruled.

On April 5, 1974, the appellant filed a statement of appeal in this court (No. 74-266), and on April 25, 1974, this court entered an order dismissing the appeal. Thereafter, the appellant returned to the Muhlenberg Circuit Court for relief. On September 9, 1976, he filed what is captioned “RCr 11.42, Motion to Reinstate Right to Appeal Conviction.” Therein, he sought to have the judge of the Muhlenberg Circuit Court set aside his September 21, 1973, conviction on the grounds that he had been denied his right to a direct appeal. On September 13, 1976, the trial judge granted the relief requested and on September 17, 1976, entered what is captioned “Final Judgment.” The judgment in part reads as follows: “ * * * this new judgment entered on this date is only for the purpose of reinstating the defendant’s right to direct appeal his conviction, and for no other purpose.” A statement of appeal from this judgment was filed in this court on January 18, 1977 (No. SC-140-MR). On February 21, 1977, the appellant filed a motion for extension of time in which to file his brief, and on March 7, 1977, this motion was denied.

Again the appellant, for a second time, returned to the Muhlenberg Circuit Court for relief. On January 23,1978, he filed in the Muhlenberg Circuit Court what is captioned “RCr 11.42, Second Motion to Reinstate Right to Appeal Conviction.” On March 27,1978, the judge of that court, for the third time, entered a “Final Judgment.” In this judgment, as in the one entered on September 17, 1976, it is provided, “ * * * this new judgment entered on this date is only for the purpose of reinstating the defendant’s right to direct appeal of his conviction, and for no other purpose.” On June 30, 1978, the appellant filed a statement of appeal in this court from the judgment of the Muhlenberg Circuit Court dated March 27,1978 (No. 78-SC-335-MR). This case now stands submitted on briefs of counsel.

Although the question has not been raised by counsel, we have determined from our own analysis of the facts that the present appeal should be dismissed.

In Cleaver v. Commonwealth, Ky., 569 S.W.2d 166 (1978), we said:

“ * * * RCr 11.42 does not confer jurisdiction on a circuit court to reinstate a right of appeal. A proceeding under RCr 11.42 is not primarily a motion to gain the right of appeal; it is primarily an attack on a sentence or judgment that has been entered by the trial court.”

Therein we also stated, “A right to a belated appeal, or to reinstate a lapsed appeal, can be granted only by the appellate court that is to entertain it.”

The Muhlenberg Circuit Court had no jurisdiction to reinstate the appellant’s right to a direct appeal. That prerogative, as pointed out in Cleaver, was with this court. We deem it proper to call attention, however, to the fact that at the time this action was before the circuit court Cleaver v. Commonwealth, supra, had not been decided. The appellant has not sought to have this court grant him a belated appeal or to reinstate his right of appeal.

In view of the disposition to be made of this case, we do not reach the issues which are raised on this appeal.

This appeal is dismissed.

All concur.


author: REYNOLDS, Judge. HOWERTON, Judge,

text:
    BOARD OF EDUCATION OF LOUISVILLE, Kentucky, etc., Appellant, v. LOUISVILLE EDUCATION ASSOCIATION et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 30, 1977.
    As Modified on Denial of Rehearing Feb. 10, 1978.
    Henry A. Triplett, Hogan, Taylor, Denzer & Bennett, Dan C. McCubbin, Louisville, for appellant.
    John Frith Stewart, Walter Lapp Sales, Louisville, for appellees.
    Before COOPER, HOWERTON and REYNOLDS, JJ.
   REYNOLDS, Judge.

The Board of Education of Louisville, Kentucky appeals from a judgment of Jefferson Circuit Court which reinstated two non-tenured teachers with an award of back pay.

In February 1974 the appellee, Louisville Education Association (identified as L.E.A.) and the appellant, Louisville Board of Education (identified as the Board), entered into a Professional Agreement pertaining to wages, hours and working conditions of certificated teachers employed in the system. Appellees Selker and Reese, non-tenured, certificated teachers, were employed for the first time by the Board and awarded teaching contracts for the 1973-1974 school year. Appellees’ performances were determined to be unsatisfactory. The Board, following the statutory procedure of KRS 161.750(2), voted not to re-employ and gave statutory notice to the appellees.

Appellees, plaintiffs below, maintained in their complaint that the Board’s decision of non-re-employment was a “grievance” and that the Board failed to utilize the five-step grievance procedure set forth in the contract between the parties, and the appellant asserts that the trial court erred in its judgment upon this issue.

We find, as to this sole issue, that the contract (Professional Agreement) defines a grievance as follows:

Grievance is a claim based upon an event or condition which affects the welfare and/or conditions of employment of a certificated person covered under the terms of this agreement or a group of certificated persons covered under the terms of this agreement and/or the interpretations, meaning, or application of any of the provisions of this agreement or any subsequent agreement entered into pursuant to this agreement.

We find the definition of grievance as outlined in the Professional Agreement to be so generalized as to mean all things to all people. The case of Pinto v. Wynstra, 43 Misc.2d 363, 250 N.Y.S.2d 1012 (1964) held that a non-tenured teacher, whose services were terminated, did not have a grievance within the meaning of the statute providing for settlement of differences between teachers and their employer through procedures under which employees might present grievances. The statutory definition of grievance therein was broad in its scope of coverage but did contain language that the term grievance did not include, among other things, any matter which is otherwise reviewable pursuant to law or any rule or regulation having the force and effect of law. The Professional Agreement provides:

Under Kentucky law the Board shall have and exercise the exclusive control of the public schools within the Louisville School District. This Agreement in no way attempts to alter or diminish such statutory authority.

KRS 161.750, which directs itself to teachers’ limited contracts, utilizes the terms, “re-employ” and “not to re-employ.” From this record it is evident that the Board adhered to the requirements set forth in the statute and determined not to re-employ Selker and Reese. From the contract we are unable to find a specific provision requiring the Board to follow the five-step grievance procedure in a case of this specific nature where the Board voted “not to re-employ” the appellees. Were we to adopt even the most liberal construction of the term “grievance”, we would be constrained to alter the statutory steps imposed upon the Board by KRS 161.750, by further requiring it to take the additional steps set forth in the Professional Agreement. In the case of Ex Parte Woo Jan, 228 F. 927, 941 (E.D.Ky., 1916), the court stated that the word “alter” was broad enough to cover a mere addition and said that a thing is made different from what it was when nothing more is done than to add something to it. Also, see 3 Words and Phrases “Alter ”, p. 400.

Gillan v. Board of Regents of Normal Schools, 88 Wis. 7, 58 N.W. 1042 (1894) stands for the proposition that the right of dismissal given to a board is absolute and cannot be limited by contract. There is neither an infringement or issue of constitutional guaranty in this action. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Additionally, cause is not required for denial of re-employment under a limited contract. Johnson v. Dixon, Ky., 501 S.W.2d 256 (1973). The sole issue, arising from the facts in this case, does not constitute a grievance.

The judgment of the trial court is reversed, and the court is directed to enter summary judgment for the appellants, dismissing the appellees’ complaint and amended complaints.

COOPER, J., concurs.

HOWERTON, J., dissents.

HOWERTON, Judge,

dissenting.

I must respectfully dissent. I believe the majority has failed to properly recognize the contract between the Board of Education and the Teachers Association, and to the extent the contract has been recognized, it has been interpreted too narrowly.

The basic question, however, is whether the grievance procedure in the contract (Professional Agreement) applies to the termination or non-renewal of a non-tenured certificated teacher holding a limited employment contract. The majority concluded that it does not. I disagree.

The definition of a “grievance” contained in the Professional Agreement reads:

Grievance is a claim based upon an event or condition which affects the welfare . of a certificated person .

This may be a broad definition, but that fact does not invalidate it. Under the definition, a “gripe” might be a grievance. If an employee believes he has a complaint, he might well have what would constitute a grievance. We need not decide everything that might or might not be a grievance, but I must conclude that if one is not aggrieved by losing his job, he will never have a grievance. Also, it should be noted that Subsection E, “Miscellaneous”, relates to reinstatement and backpay for grievance proceedings involving loss of pay and terminations of contracts. This is a clear indication that the parties intended to include terminations of certificated teachers within the meaning of a “grievance”. The individual appellees were “certificated”, but they were not tenured.

Even the Board of Education did not contend that the non-renewal of a limited contract teacher did not come within the meaning of a “grievance”. The Board processed the grievance through the first two steps, and then it unilaterally determined that the procedure infringed upon its power not to renew a teacher’s contract under KRS 161.750.

In considering the infringement question, the majority quoted the following passage from the contract:

Under Kentucky law, the Board shall have and exercise the exclusive control of the public schools within the Louisville School District. This agreement in no way attempts to alter or diminish such statutory authority.

The statement is taken out of context from what would be called the “Management Rights” section of the Agreement. Such a provision merely means that the School Board shall manage the System, and that it is not giving up control of the public schools to others. The Board may certainly determine the size of the work force, the locations of the schools, the budget, qualifications for employment, and on and on; but, the one phrase does not eliminate the benefits and provisions for job security granted to the teachers in the remainder of the Agreement. The grievance procedure was agreed to as a fair and peaceful way to settle individual or group disputes.

The Board agreed to the terms and definitions within the contract, a termination is clearly grounds for a grievance, and unless the grievance procedure is unlawful and unenforceable, it is binding on the School Board.

The majority concluded that the grievance procedure altered the terms of KRS 161.750 which provides for re-employment or non-re-employment of limited contract teachers. There is no question but that the Board correctly followed KRS 161.750 in not re-employing Selker and Reese, but the statute does not prohibit compliance with a grievance procedure after determining not to re-employ a teacher. KRS 161.750 is not a prohibitory statute. It merely provides minimum standards for notification of non-renewal.

The two parties may need to consider the effect of a grievance procedure at the next contract time, and if the procedures are to be continued, the Board should take into account the amount of time required to process grievances resulting from terminations.

The majority relied on an 1894 case, Gillan v. Board of Regents of Normal Schools, 88 Wis. 7, 58 N.W. 1042, which made dismissals an absolute right of a board which could not be limited by contract. Gillan, Id., was undoubtedly a good decision in 1894, but it is so removed from the facts of life today that it simply must not be authority for a teacher-school board contract in Kentucky in 1974.

Kentucky courts have consistently held that a Board of Education is bound by the terms of its contracts. Statutory authority also recognizes the power of a Board to enter into contracts. KRS 160.160, KRS 160.290, and Hogan v. Glasscock, Ky., 324 S.W.2d 815 (1959). The adoption of a grievance procedure was also specifically approved in International Brotherhood of Firemen and Oilers v. Board of Education, Ky., 393 S.W.2d 793 (1965).

The grievance of a non-renewal does not take away the Board’s power under KRS 161.750 to decide whether or not to renew a contract. It does, however, provide an opportunity for review of the decision.

I cannot say what the outcome of the non-renewal of Selker and Reese would have been, if the grievance procedures had been followed, although they probably would have remained terminated. However, I do conclude that the contract was negotiated in good faith, the Board had the power to contract, the non-renewal constituted a legitimate grievance within the agreed definition, and the grievance procedure does not unlawfully take away any statutory power which must be absolutely vested in the Board.

For the foregoing reasons, I dissent.


author: PARK, Judge.

text:
    GENERAL ELECTRIC COMPANY, Appellant, v. Hazel B. MARTIN, Appellee.
    Court of Appeals of Kentucky.
    May 12, 1978.
    As Modified On Denial of Rehearing Aug. 11, 1978.
    Discretionary Review Denied Dec. 19, 1978.

      Ralph W. Wible, Sandidge, Holbrook & Craig, P. S. C., Owensboro, for appellant.
    Charles S. Wible, Lovett, Wible, & Lamar, Owensboro, for appellee.
    Before COOPER, GANT and PARK, JJ.
   PARK, Judge.

This appeal involves the right of the plaintiff-appellee, Hazel B. Martin, to disability benefits under a pension plan maintained by the defendant-appellant, General Electric Company. Mrs. Martin’s claim for disability benefits was denied by the pension board which administers the pension plan. After a full trial in circuit court, a jury returned a verdict that Mrs. Martin was disabled within the meaning of the pension plan and that the decision of the pension board denying her claim had been arbitrary, in bad faith or fraudulent. The circuit court entered a judgment that Mrs. Martin was entitled to a disability pension including past due benefits of $22,910.79.

Throughout these proceedings, General Electric has taken the position that the decision of the pension board was final and conclusive in the absence of clear proof that the denial of Mrs. Martin’s claim by the pension board was “arbitrary, in bad faith or fraudulent.” General Electric contends that the circuit court should have limited the evidence at trial to the record before the pension board and that the circuit court should have directed a verdict for General Electric.

FACTUAL BACKGROUND

General Electric has for many years maintained a pension plan providing various benefits for its eligible employees. Under section VII of the plan, a participating employee with fifteen years of service was entitled to a disability pension if the employee became permanently incapacitated for further work. Section VII further provided that:

The decision of the Pension Board as to the existence of disability shall, when supported by the certification of a physician selected by the Pension Board, be final and conclusive.

Section XX provided that the pension plan would be administered by a pension board. All of the members of the pension board were appointed annually by and held office at the pleasure of the Board of Directors of General Electric Company. Under subsection (5)(c) of section XX, the pension board had the power and duty to “make and enforce rules for the efficient administration of the Plan and to decide such questions as may arise in connection with the Plan.” Subsection (6) of section XX stated:

The decision or action of the Pension Board in respect of any question arising out of or in connection with the administration, interpretation, and application of the Plan and the rules and regulations thereunder shall be final and conclusive and binding upon all persons having any interest in the Plan.

General Electric contends that Mrs. Martin’s claim for a disability pension is barred under these terms of the plan by the adverse decision of the pension board.

Mrs. Martin is a fifty-seven year old woman with a third grade education. Her only employment has been as an assembly line worker at General Electric’s Owensboro Plant. Mrs. Martin first went to work for General Electric on February 12, 1948, and for more than twenty-two years she was employed assembling components for electronic receiving tubes used primarily in radio and television sets. She last worked for General Electric on July 24, 1970, when she claims she became incapacitated for further work. On January 22, 1949, Mrs. Martin signed a form application for participation in the General Electric Pension Plan. Under the terms of this printed application form, Mrs. Martin consented to be “bound by all the terms of the Plan.” The General Electric Pension Plan provides for employee contributions according to a graduated scale, and the printed application form signed by Mrs. Martin also authorized General Electric to deduct from her compensation the contributions she was required to make to the plan. For most of the years involved, Mrs. Martin’s compensation fell below the threshold level at which employee contributions were required. Her total contributions amounted to the relatively modest sum of $426.32.

Mrs. Martin’s last day of work with General Electric was July 24, 1970. On August 29, 1970, Mrs. Martin submitted a report from her treating physician, Dr. D. C. Bennett, to the company physician, Dr. Charles Hornaday. Dr. Bennett’s report was made on a form furnished to Mrs. Martin by General Electric Company. Dr. Hornaday rejected Dr. Bennett’s opinion that Mrs. Martin was disabled. On September 19, 1970, Mrs. Martin submitted the report of a second treating physician, Dr. Duncan Johnson. Dr. Hornaday again rejected Mrs. Martin’s claim of disability.

On August 16, 1971, Mrs. Martin submitted a third report from a treating physician, again from Dr. Johnson. On August 18, 1971, Dr. Hornaday for the first time performed a physical examination of Mrs. Martin. He again rejected her claim that she was disabled. Mrs. Martin submitted a fourth treating physician’s report on August 27, 1974. This final application for a disability pension was rejected solely on the grounds that her rights as an employee had long since expired.

General Electric never informed Mrs. Martin of her right to appeal Dr. Horna-day’s decision to the pension board. There is nothing in the record suggesting that there were any regular procedures governing appeals to the pension board at the time Mrs. Martin submitted her claim. At oral argument, General Electric conceded that the pension board had adopted no procedural rules governing appeals. Mrs. Martin was not aware of her right of appeal to the pension board until after she had filed an action against General Electric Company in the Daviess Circuit Court on February 7, 1975. Her first notice of her rights before the pension board was a motion to dismiss her action filed by General Electric Company on the ground that she had failed to exhaust her administrative remedies.

An agreed order was entered in the circuit court holding the action in abeyance pending action by the pension board. By this time, Dr. Hornaday was deceased. In addition to Dr. Hornaday’s rather sparse records concerning Mrs. Martin, the pension board considered the reports submitted by Mrs. Martin from two other physicians. The pension board denied Mrs. Martin’s claim at a meeting of the board held in Connecticut.

GENERAL VALIDITY OF PENSION BOARD DECISIONS

The courts have upheld the general validity of provisions in private pension plans making the decision of administrative boards final and conclusive on all questions of eligibility under the plan. Nevertheless, the courts have also recognized that the decisions of such pension boards are not conclusive in a narrow range of circumstances. These exceptions to the rule favoring the finality of decisions of pension boards have been stated in various ways. Most commonly, the decision of the pension board is said to be conclusive unless it is “arbitrary, fraudulent, or in bad faith.” Wyper v. Providence Washington Insurance Co., 533 F.2d 57, 63 (2d Cir. 1976); see also Matthews v. Swift & Co., 465 F.2d 814, 820-21 (5th Cir. 1972); Norman v. Southern Bell Telephone and Telegraph Co., Ky., 322 S.W.2d 95 (1959); Pennsylvania Co. v. Reager’s Adm’r, 152 Ky. 824, 154 S.W. 412 at 417, 52 L.R.A. (N.S.) 841 (1913); Gitelson v. Du Pont, 17 N.Y.2d 46, 268 N.Y.S.2d 11, 215 N.E.2d 336 (1966). The difficulty lies not in stating the rule, but in applying it to the facts. Unfortunately, the words “arbitrary, in bad faith or fraudulent” are not particularly helpful.

During oral argument, counsel for General Electric suggested that courts could delineate the circumstances in which a decision of the pension board would not be conclusive by reference to the cases defining the scope of judicial review of decisions of administrative agencies. For example, in American Beauty Homes Corp. v. Louisville and Jefferson Co. Planning and Zoning Commission, Ky., 379 S.W.2d 450, 456 (1964), the court held that there were three grounds for judicial review of administrative agencies: (1) the agency was acting outside its statutory powers; (2) the agency failed to afford procedural due process; (3) the decision of the agency was not supported by substantial evidence. We believe that this approach to the problem has much merit. Nevertheless, we must bear in mind that this case involves the action of a private pension plan board, not a statutory administrative agency.

The pension plan was a part of the contract between General Electric and Mrs. Martin. She signed a printed application for participation in the plan authorizing the company to withhold her contributions to the plan. Under such circumstances, the pension plan cannot be considered a “gratuity” by the employer providing General Electric’s employees no enforceable rights. Hadden v. Consolidated Edison Co., 34 N.Y.2d 88, 356 N.Y.S.2d 249, 312 N.E.2d 445, 449 (1974); compare Russell v. Princeton Laboratories, 50 N.J. 30, 231 A.2d 800, 803 (1967), with Stewart v. Wisconsin Steel Company, 183 Ky. 730, 210 S.W. 479, 482 (1919).

If the pension plan is viewed as a contract between employer and employee, it does not follow that public policy is violated by a provision that the pension board should decide all questions of eligibility under the pension plan. Such provisions have the salutary purpose of providing a speedy decision without the great expense of litigation. Pennsylvania Company v. Reager’s Adm’r, supra, 154 S.W. at 417. Nevertheless, the pension plan is not the result of bargaining between sophisticated and knowledgeable businessmen concerning a financial transaction of considerable magnitude. See Fite & Warmath Construction Co. v. MYS Corp., Ky., 559 S.W.2d 729, 735 (1977). We are dealing with an adhesion contract. Mrs. Martin had no choice respecting the terms and provisions of the pension plan. She was presented the plan on a take-it or leave-it basis. Although Mrs. Martin agreed to participate in the plan and authorized the company to withhold her contribution, it is totally unrealistic to say that Mrs. Martin assented to the provisions relating to the conclusive nature of the decision of the pension board. See Davis v. Humble Oil & Rfg. Co., La.App., 283 So.2d 783, 787 (1973). Under circumstances such as these, the employees rely upon the skill and good faith of the employer to provide a fair pension plan affording a degree of financial security. Cf. Pennsylvania Life Insurance Co. v. McReynolds, Ky., 440 S.W.2d 275, 278 (1969).

From the point of view of General Electric, the pension plan was intended to attract competent employees who would be induced to render long term service to the company. See Whitley v. Mammoth Life and Accident Insurance Co., Ky., 273 S.W.2d 42, 43 (1954). On the other hand, Mrs. Martin and other employees covered by the plan sought some financial security in the event of disability. Because there was no specific assent to the printed “boiler-plate” provisions of the plan relating to the power of the pension board to make a final and conclusive decision, those provisions should be construed in such a way as to carry out, rather than defeat, the express agreement of the parties that Mrs. Martin would participate in a pension plan providing disability benefits. K. Llewellyn, The Common Law Tradition: Deciding Appeals 362-71 (1960). Restatement (Second) of Contracts, § 237, comment c (Tentative Draft nos. 1-7, revised and edited 1973). The pension plan contract should be construed to impose a duty of “good faith and fair dealing” upon General Electric in administering the plan through the pension board. Kirke La Shelle Co. v. Armstrong Co., 263 N.Y. 79, 188 N.E. 163, 167 (1933); Eline Realty Co. v. Foeman, Ky., 252 S.W.2d 15,18 (1952); Restatement (Second) of Contracts § 231 (Tentative Draft nos. 1-7, revised and edited 1973); cf. Manchester Insurance & Indemnity Co. v. Grundy, Ky., 531 S.W.2d 493, 498 (1975). Before General Electric can defend an action for a disability pension on the ground that the decision of the pension board is final and conclusive, the pension board must have acted in the spirit that justifies its encouragement by the law, namely to afford a prompt and impartial decision. Continental Insurance Co. v. Vallandingham & Gentry, 116 Ky. 287, 25 Ky.L.Rep. 468, 76 S.W. 22 at 24, 105 Am.St.Rep. 218 (1903). Good faith and fair dealing require that the pension board be operated for the benefit of both employee and employer.

We conclude that there are three possible grounds for refusing to enforce the provisions of the plan making the decision of the pension board final and conclusive. These three grounds are analogous to the grounds for judicial review of decisions of administrative agencies enunciated in the American Beauty Homes case. First, the decision of a pension board should not be enforced if the board was acting outside of the powers granted to it by the pension plan. Second, the decision of the pension board should not be enforced if the procedures for deciding the employee’s claim were not fair and impartial. The party before an administrative agency is entitled to procedural due process. If an employee must surrender his right to a court adjudication of his contract claim to a disability pension, then good faith dictates that the employer afford the employee appropriate procedural safeguards. Third, unless the decision of the pension board is supported by the evidence or other information available to the board, that decision will be deemed arbitrary and unenforceable.

In the present case, there is no contention that the pension board was acting outside of the powers conferred upon it by the pension plan. Consequently, there are only two questions to be decided: (1) Was the decision of the board denying Mrs. Martin’s claim supported by the record before the board? (2) Did the procedures of the pension board afford Mrs. Martin a fair and impartial hearing on her claim?

WAS THE DECISION OF THE PENSION BOARD SUPPORTED BY THE RECORD?

At the trial of the case, the circuit court permitted Mrs. Martin to introduce medical evidence respecting her disability claim which she had not submitted to Dr. Hornaday or to the pension board. General Electric claims that this procedure was improper because Mrs. Martin was not entitled to a de novo hearing in circuit court. It is General Electric’s position that Mrs. Martin was limited to the record considered by the pension board for the purpose of deciding whether the board’s finding of nondisability was arbitrary. We agree.

If the employee may introduce new and additional medical testimony in circuit court, there is no incentive for the employee to make a full disclosure to the pension board. Only in that way, can the pension board provide a prompt and inexpensive means of determining eligibility questions under a pension plan. If the employee is free to retry the entire issue in circuit court, the very purpose of having a pension board will be defeated.

When there is no question respecting the fairness or impartiality of the proceedings, the employee should be confined to the record made before the pension board. Davis v. Humble Oil & Rfg. Co., supra, 283 So.2d at 793-95; cf. City of Louisville v. McDonald, Ky., 470 S.W.2d 173, 179 (1971); City of Louisville v. Kavanaugh, Ky., 495 S.W.2d 502, 505 (1973).

In this case, there is no dispute respecting what matters were considered by the board. Consequently, whether the record supported the pension board’s decision was a question of law for the court, rather than a question of fact for the jury. See House v. Kellerman, Ky., 519 S.W.2d 380, 382-83 (1975); Manchester Insurance & Indemnity Company v. Grundy, supra, 531 S.W.2d at 500. On this issue, Mrs. Martin was not entitled to introduce new and additional medical testimony respecting her alleged disability.

The following test should be applied in determining whether the decision of the pension board was supported by substantial evidence: was the evidence before the board of Mrs. Martin’s disability so overwhelming that reasonable men could not reach an honest decision that she was not disabled? Marsh v. Greyhound Lines, 488 F.2d 278, 280 (5th Cir. 1974); cf. Thurman v. Meridian Mutual Insurance Co., Ky., 345 S.W.2d 635, 639 (1961). Applying this test to the record before the pension board, we conclude that the board’s decision that Mrs. Martin was not disabled was supported by substantial evidence.

Mrs. Martin’s initial claim was based upon Dr. Bennett’s report that she was suffering from “moderate” pulmonary emphysema and “generalized osteoarthritis of the cervical and lumbar spine.” In answer to an inquiry from Dr. Hornaday, Dr. Bennett further reported that x-rays of the lumbar spine showed “minimal” hyper-trophic arthritis with anterior lipping. Although Dr. Johnson reported that she was suffering from “severe” disabling hyper-trophic arthritis, a report from Dr. Sparks referred to x-rays taken December 5, 1972, which showed only “moderate" osteoarthritis. After his examination of Mrs. Martin on October 18, 1971, Dr. Hornaday reported:

I do not doubt that this lady has some arthritis, but substantiating evidence is lacking and her symptoms are markedly exaggerated.

Mrs. Martin also supplied the board with a report from Dr. Leatherman, dated March 4,1974. In the opinion of Dr. Leatherman, Mrs. Martin had “some permanent disability as a result of multiple joint problems.” X-rays taken by his office showed “some” arthritic spurring and “some” arthritic changes and degeneration. His diagnosis of Mrs. Martin was multiple bursitis and tendinitis.

The pension board could have found from the record before it that Mrs. Martin was disabled. However, the evidence was not so overwhelming that it was compelled to find that she was “permanently incapacitated for further work” within the meaning of the pension plan. We hold that there was substantial evidence in the record to support the board’s finding that Mrs. Martin was not permanently incapacitated from further work at any time prior to July 24, 1971, the date when her service with General Electric was broken. In this sense, the decision of the pension board was not arbitrary. Therefore, the decision of the board is final and conclusive unless Mrs. Martin was not afforded an impartial hearing before the pension board.

WERE THE PROCEDURES OF THE PENSION BOARD FAIR AND IMPARTIAL?

When there is a question respecting the fairness or impartiality of the proceedings before the pension board, the employee cannot be confined to the record made before the board. In this case, the circuit court properly allowed Mrs. Martin to introduce evidence at trial going to this issue. This does not mean that the trial in circuit court becomes a de novo hearing. The only issue before the pension board was the question of Mrs. Martin’s disability. The proceedings in circuit court were the first opportunity for Mrs. Martin to question the manner in which General Electric administered the functions of the pension board.

Unless General Electric afforded Mrs. Martin a fair and impartial hearing before the pension board, General Electric is not entitled to enforce the provisions of the pension plan making the decision of the pension board final and conclusive. If General Electric breached its duty to Mrs. Martin of good faith and fair dealing in the administration of the pension plan, the company is not entitled to defend her action on the ground that the decision of the pension board is conclusive. The record of the proceedings in circuit court establishes as a matter of law that General Electric administered the proceedings of the pension board for its sole benefit without any consideration being given to the rights and interests of its employee, Mrs. Martin.

We first note the composition of the pension board. All of the members of the board are appointed by and hold office at the pleasure of the board of directors of General Electric. The decisions of a pension board are not unenforceable solely because the board is employer dominated. In Norman v. Southern Bell Telephone and Telegraph Company, supra, the court upheld the decision of a pension board even though all of the members were appointed by the directors of the employer. However, it should be noted that the contributions to the pension plan in the Norman case were made solely by the employer without any contribution by the employees. In upholding the decision of a committee administering a contributory plan, the court stated in Pennsylvania Co. v. Reager’s Adm’r, supra, 154 S.W. at 417:

There may be some reason for withholding from such a tribunal the right to pass on such a question where the tribunal is selected by the association or the contributing railroads, and is therefore disposed to look to the interests of the association or the railroads, rather than to the interests of the contributing employes. In the present case, however, such is not the character of the tribunal selected to determine such questions. The advisory committee is not selected by the railroad companies alone. It is composed of 12 members, six selected by the railroad companies and six selected by the contributing employes from among their own members. . . . What principle of public policy is contravened by giving an impartial tribunal the right to pass on such a question?

The unrepresentative composition of the pension board does not encourage judicial deference to its decisions. Russell v. Princeton Laboratories, supra, 231 A.2d at 805. Despite the unrepresentative composition of the pension board, the decisions of the board could be deemed conclusive if the board, in fact, functioned in a fair and impartial manner for the benefit of both employer and employee.

Mrs. Martin made four applications for disability benefits. On each occasion, she submitted an examining physician’s report on a form furnished by her employer. At the bottom of this form, there was a place for the company physician to indicate whether he did or did not agree with the opinion of the examining physician. The company physician was not required to give any reason if he disagreed with a disability diagnosis of the employee’s treating physician. Nevertheless, Dr. Hornaday indicated on one occasion that x-rays did not substantiate Mrs. Martin’s claim. On another occasion, he conducted a physical examination of Mrs. Martin. Dr. Hornaday denied Mrs. Martin’s application on three occasions. At no time was Mrs. Martin informed that she had the right to appeal Dr. Hornaday’s decision to the pension board. In fact, she was completely unaware of the existence of the pension board.

When Mrs. Martin submitted a fourth application for disability benefits, General Electric gave no consideration to her claim. Her application was returned with the following explanation:

Your insurance and service records indicate your last day of work was July 24, 1970, and your service was broken on July 24, 1971. During this time you made application for disability pension which was denied as the information furnished did not indicate your disability to be total and permanent.
Your recall rights expired on July 24, 1973, and as of that date your service was terminated. Prior to your termination you filed applications for a disability pension on three different occasions. Each time they were denied as the information they contained was not conclusive as to your total and permanent disability. The Examining Physicians Report forms that you sent to me are enclosed.

This letter dated September 17, 1974, rejecting Mrs. Martin’s claim is in complete conflict with the idea that Mrs. Martin was entitled to a fair and impartial hearing before the pension board for the purpose of reviewing Dr. Homaday’s decisions.

There was one very practical reason why Mrs. Martin was never notified of her right of appeal to the pension board. It appears that the pension board had never adopted any rules or procedures to be followed by an employee desiring to appeal to the pension board. The first notice General Electric ever gave to Mrs. Martin of her right to appeal Dr. Hornaday’s decision to the pension board was the motion to dismiss her complaint in circuit court on the ground that she had failed to exhaust her administrative remedies. In the case of Mrs. Martin, the pension board was used by General Electric as a defense to her lawsuit, rather than as a prompt and impartial means of determining the validity of her disability claim.

Unfortunately, Mrs. Martin’s experience in prosecuting her claim is not unusual. In enacting the Employee Retirement Income Security Act of 1974 (ERISA), Congress found that a “substantial number” of plans failed to provide adequate and fair procedures to employees when benefit claims were denied. S.Rep.No. 93-127, 93d Cong., 1st Sess., reprinted in [1974] U.S.Code Cong, and Admin.News pp. 4838, 4870. In order to correct this situation, ERISA requires every plan to provide adequate notice in writing to any employee whose claim has been denied setting forth the specific reasons for the denial. In addition, the employee must be given a reasonable opportunity for a full and fair review of this decision. 29 U.S.C. § 1133.

When the pension board finally considered Mrs. Martin’s case in 1975, Mrs. Martin had no realistic opportunity to question Dr. Hornaday’s decision because he died in the interim. The board met in Connecticut with the Assistant Medical Director of General Electric, Dr. Poeock, who assisted the pension board by interpreting the various medical records in Mrs. Martin’s file.

The actions of General Electric Company frustrated the principal purpose of a pension board, namely a prompt and impartial decision without the expense of litigation. General Electric delayed almost four years before invoking the provisions of the pension plan relating to the board. We conclude that General Electric did not deal fairly with Mrs. Martin in the spirit that would justify enforcing the provision of the plan making the decision of the pension board final and conclusive. Under the circumstances of this case, General Electric cannot defend Mrs. Martin’s claim on the basis of the decision of the pension board. See Continental Insurance Co. v. Vallandingham & Gentry, supra, 76 S.W. at 24.

At oral argument, counsel for General Electric suggested that, in the event this court held that Mrs. Martin had been denied a fair and impartial hearing, the proper remedy would be remand to the pension board. Cited by way of analogy were cases involving appeals from administrative agencies which had failed to afford due process hearings. E. g. Morris v. City of Catlettsburg, Ky., 437 S.W.2d 753, 755-56 (1969). This argument ignores a very real difference between administrative agencies and private pension boards. Administrative agencies are created by statute, and they frequently decide matters which are outside the judicial function of courts. In such cases, remand is the only solution. On the other hand, the private pension boards are creatures of contract. When there has been a breach of the underlying contract by failure to afford a fair and impartial hearing, there is no need or reason to remand the matter back to the pension board. The issues to be decided are within the general jurisdiction of the courts.

RULING

Because there was a breach of the implied condition that Mrs. Martin would be afforded a fair, prompt and impartial hearing before the pension board, General Electric cannot invoke the provisions of the pension plan making the decision of the board final and conclusive. Therefore, the circuit court did not err in granting Mrs. Martin a de novo hearing on the issue of her disability.

There was ample evidence upon which the jury could find that Mrs. Martin was disabled within the meaning of the pension plan. Her treating physician, Dr. Johnson, testified that Mrs. Martin was suffering from cervical arthritis which rendered her incapacitated to perform her work at General Electric. There was extensive other medical evidence that Mrs. Martin was suffering from arthritis in the cervical spine which would prevent her from being able to do her former work at General Electric Company. The evidence supports the verdict of the jury that Mrs. Martin was permanently incapacitated for further work.

The judgment of the circuit court is affirmed.

All concur.

      . Article XXI(6) of the plan provided that the law of New York would govern the construction and administration of the plan. Such provisions are intended to insure uniformity in administration of pension plans of multi-state corporations. Davis v. Humble Oil & Rfg. Co., La.App., 283 So.2d 783, 794 (1973). As a matter of Kentucky Law, the provision is valid. Big Four Mills v. Commercial Credit Co., 307 Ky. 612, 211 S.W.2d 831, 836-37 (1948); Restatement (Second) of Confíicts of Law § 187, comment b (1971). However, the parties have cited both New York and Kentucky cases without distinction, and we find no significant difference between the law of the two states.

      . In discussing statutes authorizing judicial review of administrative boards on the issues of “bad faith, fraud or misrepresentation,” the court stated that it was “difficult to grasp exactly what the legislature had in mind.” The court concluded that these issues were apparently “within the compass of arbitrariness.” American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Com’n, Ky., 379 S.W.2d 450, 456 n.12 (1964). For another case presenting the problem of stating a practical, rather than merely a rhetorical, definition of “bad faith,” see Manchester Insurance and Indemnity Co. v. Grundy, Ky., 531 S.W.2d 493 (1975).


author: VANCE, Judge:

text:
    CITY OF BEECHWOOD VILLAGE, Stonehenge Condominium Apartments, Inc., Kenneth Rice, Gary Callahan, and Katherine C. Pancoast, Appellants, v. COUNCIL OF AND CITY OF ST. MATTHEWS, Karzen Homes, Inc., and East-End Development Corporation, Appellees.
    Court of Appeals of Kentucky.
    May 26, 1978.
    As Modified Aug. 18, 1978.
    As Modified on Denial of Rehearing Aug. 18, 1978.
    As Modified On Court’s Own Motion Sept. 22, 1978.
    Discretionary Review Denied Dec. 19, 1978.

      Harry K. Herren, Jr., Bradley R. Hume, Louisville, for appellants.
    J. W. Jones, Irwin G. Waterman, Louisville, for appellees.
    Before COOPER, LESTER and VANCE, JJ.
   VANCE, Judge:

The question is the validity of an ordinance amending a zoning map. The amendment was made upon a finding by the city legislative body that major changes of an economic, physical and social nature have occurred within the area involved, which were not anticipated in the comprehensive plan adopted by the city, and which have substantially altered the basic character of the area in which the subject property is located.

The area involved consists of approximately thirty acres bounded by the Henry Watterson Expressway on the east, a commercial zone off Shelbyville Road on the south, a recreation area on the west and a single family residence area on the north. The map amendment changes the zoning from an R-4 medium density residential classification to a C-2 commercial district classification applicable to eighteen acres and R-9 and R-10 apartment districts for the remainder.

The City Planning Commission conducted hearings pursuant to public notice concerning the proposed amendment. It concluded that the amendment was not in keeping with the comprehensive plan and that no major changes of an economic, physical or social nature had occurred within the area which were not anticipated in the community’s comprehensive plan and which have substantially altered the basic character of the area. The Commission recommended that the amendment be denied.

KRS 100.213 provides:
Before any map amendment is granted, the planning commission or the legislative body or fiscal court must find that the map amendment is in agreement with the community’s comprehensive plan, or, in the absence of such a finding, that one or more of the following apply and such finding shall be recorded in the minutes and records of the planning commission or the legislative body or fiscal court,
(1) That the original zoning classification given to the property was inappropriate or improper.
(2) That there have been major changes of an economic, physical or social nature within the area involved which were not anticipated in the community’s comprehensive plan and which have substantially altered the basic character of the area.

Whether a proposed change is in conformity with a comprehensive plan or whether substantial changes have occurred which have altered the basic character of an area are questions of fact which must be resolved by a trial-type adjudicatory hearing. City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971).

When a planning commission has recommended denial of a map amendment, the legislative body is empowered to review the record made before the planning commission and from the evidence make adjudicatory findings different from the findings made by the commission provided the record will support the findings. City of Louisville v. McDonald, supra; Hayes, et al. v. City of Winchester, Ky., 495 S.W.2d 768 (1973).

The finding of an ultimate fact, (which is usually little more than a conclusion), unaccompanied by a finding of any basic facts which support the ultimate finding often renders appellate review impossible. The reviewing court has no way to determine whether the ultimate finding was made arbitrarily if it does not have before it the facts upon which the finding was based. Sims v. Angel, Ky., 513 S.W.2d 176 (1974).

In Caller v. Ison, Ky., 508 S.W.2d 776 (1974), it was held that a mere parroting of the words of the statute was not a sufficient finding of fact in a zoning matter to justify a map amendment zoning change.

In this case the city legislative body relied largely upon the hearings conducted by the Planning Commission and to some extent upon the personal investigation conducted by various council members and their own familiarity with existing conditions as a basis for its findings.

It made a finding that because of restrictions contained in the ordinance, the zoning as amended would not be in conflict with the comprehensive plan. The facts upon which this finding was based are a complete mystery because we note from the ordinance itself that the area, which was limited to medium density residential use before the amendment, may now be used for the following uses:

(1) eating and drinking establishments
(2) general business offices
(3) barber and beauty shops
(4) package liquor stores
(5) commercial photographic studios
(6) retail automobile sales & service
(7) furniture and home furnishing establishments
(8) retail sales establishments

The legislative body also found that major changes of an economic, physical or social nature had occurred within the area which were not anticipated in the community’s comprehensive plan and which have substantially altered the basic character of the area. This finding is a mere parroting of the language of the statute and was condemned in Caller v. Ison, supra. The finding does not contain a statement of what major changes have occurred, how it was determined that they were not anticipated or in what manner they have substantially altered the basic character of the area.

The trial court relied upon Edlin v. Fiscal Court of Jefferson County, Kentucky, et al., Ky., 497 S.W.2d 229 (1973) for the view that the finding of the ultimate fact was sufficient if support for the finding could be found in the record. That reliance was misplaced for two reasons. First, Caller v. Ison, supra, was decided after the decision in Edlin and second, it does not appear that the sufficiency of the finding in Edlin was raised or decided.

The trial judge correctly decided the issue of standing of the appellants to maintain the suit.

The residences of some of the appellants are adjacent to the area rezoned but they do not reside in the City of St. Matthews. As to them, appellees contend there is no standing. To prevail on the issue of standing, it would be necessary for, appellees to show that none of the appellants had standing to maintain the suit. At least one appellant is a resident of the City of St. Matthews and resides in an area adjacent to the area rezoned. The Stonehenge Condominium complex is also located in St. Matthews adjacent to the area rezoned. Even though some area between the Stonehenge complex and the proposed commercial development will be devoted to a recreational area, we think these two residents have standing as being residents of the city and within the area affected by the proposed rezoning. Davis v. Richardson, Ky., 507 S.W.2d 446 (1974); Hobbs v. Markey, 398 S.W.2d 54 (1965).

Upon the authority of Caller v. Ison, supra, the judgment is reversed. A new judgment shall be entered to invalidate the ordinance.

All concur.