Issue #78 of the Opinion Summaries has been posted, covering the nine opinions filed on May 11, 2005.

SWIGER, et al. v. UGI/AMERIGAS, Inc., No. 31792 (ALBRIGHT, C.J.)(May 11, 2005). Answering certified questions from the Circuit Court of Monongalia County, arising from a class action suit by individuals whose propane gas lines were buried at an improper depth. The lead plaintiffs were burned and their home destroyed by an explosion, resulting when, during landscaping work, the homeowner struck a gas line buried at a depth of less than six inches. Addressing the validity of a legislative rule exempting one- and two-family dwellings from compliance with certain provisions of the state fire code, and whether the exemption at issue may be invoked by a commercial vendor who installs gas lines. Rejecting a challenge to the constitutionality of the legislative rule, based upon an alleged violation of the one-object rule of article VI, section 30 of the West Virginia Constitution. Further holding that the exemption does not violate the intent and purpose of the State Fire Code or otherwise violate the public policy of the state, as determined by the legislature, and that the legislative rule is applicable to commercial suppliers servicing one- and two-family dwellings, stating "it is not for this Court to second guess the legislative wisdom of adopting an exemption that limits the ambit of a specific enactment."

STATE EX REL. SAYLOR v. WILKES; SMITH and RYAN'S FAMILY STEAK HOUSES, INC., No. 32042 (ALBRIGHT, C.J.)(May 11, 2005). Granting a writ of prohibition to prevent enforcement of an order staying circuit court proceedings in an employment discrimination and constructive discharge case, and compelling arbitration. After examining the circumstances under which the contract was made, holding that the agreement was an unconscionable adhesion contract which is unenforceable, in light of the flagrant disparity in bargaining power, a lack of meaningful alternatives available to petitioner, and the omission of critical terms and conditions in the arbitration document. Further holding, in syllabus point 6, that: "An employer's promise merely to review an employment application in exchange for a job applicant's promise to submit employment-related disputes not associated with the application process to arbitration does not represent consideration sufficient to create an enforceable contract to arbitrate such employment disputes."

STATE v. DEWEY DAMIAL WINEBARGER, No. 31696 (Per Curiam)(May 11, 2005). Affirming a jury conviction obtained in the Circuit Court of McDowell County for the offense of voluntary manslaughter. Rejecting an argument that the circuit court improperly admitted evidence relating to the defendant's prior use of weapons, some of which occurred fifteen years prior to the offense. Holding that the circumstances of the case are such that admission was warranted, in light of the substantial similarity in conduct, the similarity of circumstances, and similarity in provocation to the offense charged. Further rejecting error in admitting questionable witness testimony, after concluding that the testimony was invited by defense counsel, and any error was harmless in light of the voluminous evidence against the appellant.

IN RE: GRANPARENT VISITATION OF CATHY L. (R.) M. v. MARK BRENT R. and CARLA ANN R., No. 31864 (Per Curiam)(Davis, J., concurring)(May 11, 2005). Reversing an order of the Circuit Court of Harrison County that granted grandparent visitation with a child's biological grandmother over the objection of her adoptive parents. Holding that the circuit court failed to adequately consider the preferences of the adoptive parents, and that grandparent visitation was not in the best interests of the child. Remanded for entry of an order denying visitation.

STATE EX REL. WAUSAU BUSINESS INS. CO v. MADDEN; and CLARK, No. 32504 (ALBRIGHT, C.J.)(May 11, 2005). Granting a writ of prohibition to prevent enforcement of an order directing disclosure of materials that petitioners allege to be protected from disclosure, after the circuit court determined that such objections had been waived. Holding, in syllabus point 5: "When a party, who has obtained an extension of time to answer discovery requests, files a motion for a protective order to limit the scope of discovery, the party need not raise all objections to discovery in the motion for a protective order. However, the trial court may, after giving due notice and an opportunity to respond, require submission of all potential objections incident to consideration of the motion for a protective order."

SOLUTION ONE MORTGAGE, LLC. V. HELTON, TAX COMM'R, No. 32049 (Per Curiam)(May 11, 2005). Affirming an order of the Circuit Court of Kanawha County that dismissed a taxpayer's appeal from a sales and use tax assessment for failure to file the appeal bond required pursuant to West Virginia Code 11-10A-19(e). Holding that the failure to file the bond was fatal to the appeal, and the appellant did not proceed under the statutory alternative of seeking a waiver.

CHARLESTON AREA MEDICAL CENTER, INC. v. PARKE-DAVIS, et al., No. 31865 (ALBRIGHT, C.J.)(May 11, 2005). Answering a certified question from the US Court of Appeals for the Fourth Circuit regarding whether a cause of action for contribution from a tortfeasor is permitted where that tortfeasor did not participate in a prior settlement with another tortfeasor, and no underlying suit for damages was filed. Holding, in syllabus point 5: "The statutory right of contribution provided for in West Virginia Code 55- 7-13 (1923) (Repl. Vol. 2000) authorizes the filing of a separate cause of action by a joint tortfeasor after a judgment has been rendered in a primary cause of action brought by the injured party combined with the payment by one joint tortfeasor of more than his pro tanto share of the judgment." Further holding, in syllabus point 6: "The inchoate right of contribution recognized by this state can only be asserted by means of third-party impleader in an action brought by the injured party against a tortfteasor. Consequently, a tortfeasor who negotiates and consummates a settlement with an injured party on behalf of itself before any lawsuit is filed cannot subsequently bring an action seeking contribution from a tortfeasor who was not apprised of and not a party to the settlement negotiations and agreement."

LOMBARD CANADA, LIMITED, etc. v. JOHNSON, et al., No. 31686 (Per Curiam)(May 11, 2005). Answering a certified question from the US Court of Appeals for the Fourth Circuit regarding whether a cause of action for contribution from a tortfeasor is permitted where no underlying suit for damages was filed. Holding that a suit for contribution is not permitted in such circumstances, consistent with syllabus point 6 in CAMC v. PARKE-DAVIS (see above).

MARCUS, et al. v. HOLLEY, et al., No. 31872 (ALBRIGHT, C.J.)(May 11, 2005). Affirming an order of the Circuit Court of Cabell County granting summary judgment to the defendants in a motor vehicle collision case. Holding that the circuit court properly rejected the deliberate intention claim, because the appellant failed to establish a specific unsafe working condition. Further holding that the structure of the West Virginia workers' compensation statutes under which part-time or lower paid employees receive full medical benefits but receive lower temporary total disability benefits or permanent partial or total disability benefits does not violate principles of equal protection, due process, or the right to a certain remedy.