Opinion
C.A. No. 02-264 ERIE.
June 30, 2004
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that Defendant's motion for partial summary judgment [Document #20] be granted in part and denied in part.
II. REPORT A. Relevant Procedural and Factual History
This action was commenced by Sidney E. Smith, Jr. ("Mr. Smith") on September 5, 2002, to recover tax and interest that was assessed and collected by the Internal Revenue Service on gifts he made in 1998. During the pendency of this litigation, Mr. Smith died on April 22, 2003. As a result, Mr. Smith's children, Sidney E. Smith, III, and Jill P. Smith ("Plaintiffs") were appointed Executors of Mr. Smith's estate on April 25, 2003, and were substituted as Plaintiffs in this matter on or about May 27, 2003. (See Document #14).
The gifts in question in this case were fractional interests in a family limited partnership that was formed by the late Mr. Smith and the Plaintiffs on December 29, 1997, in accordance with the Pennsylvania Uniform Limited Partnership Act, 15 Pa.C.S.A. § 8501 et seq. ("Smith FLP"). The sole asset of the Smith FLP was 100% of the common stock of an operating company known as Erie Navigation Company, Inc. ("ENC"), which, until then, had been owned by Mr. Smith. (See Plaintiffs' Brief at p. 2; Defendant's Brief at p. 2). When it was formed, the Smith FLP had two general partners: Mr. Smith, who owned a 2% general partner interest, and Plaintiff Sidney E. Smith, III, who owned a 1% general partner interest. (See Defendant's Brief at p. 2). In addition, Mr. Smith owned a 95.15% limited partner interest, while Plaintiff Sidney E. Smith, III, owned a 0.90% limited partner interest, and Plaintiff Jill P. Smith owned a 0.95% limited partner interest. (See Defendant's Brief at p. 2).
On January 5, 1998, Mr. Smith gave each Plaintiff a 6.865% limited partner interest in the Smith FLP, and on December 31, 1998, each Plaintiff received an additional gift of a 13.37% limited partner interest in the Smith FLP. (See Plaintiffs' Brief at p. 2; Defendant's Brief at p. 2). On or about February 1999, Mr. Smith filed a Form 709, 1998 United States Gift Tax Return, on which he reported that the total value of the limited partner interests he gifted to the Plaintiffs in 1998 was $1,025,392.00. (See Complaint at ¶ 7 and Exhibit A). Based on this value, Mr. Smith paid gift tax in the amount of $262,243.00. (See Complaint at ¶ 5).
On or about December 4, 2001, Defendant issued Mr. Smith an Assessment in which it increased the total value of the gifts reported on Mr. Smith's 1998 Gift Tax Return to $1,828,598.00. (See Complaint at ¶ 7 and Exhibits C and D). As a result, Mr. Smith was assessed additional gift tax totaling $360,803.00, which he paid to the Internal Revenue Service on or about December 26, 2001. (See Complaint at ¶ 7 and Exhibits B and C). With his payment of the additional gift tax, Mr. Smith filed a Form 843, Claim for Refund and Request for Abatement, claiming that he was wrongfully assessed and requesting a refund of the additional gift tax. (See Complaint at ¶ 11 and Exhibit E). After six months passed without receiving a response to his refund request from Defendant, Mr. Smith filed the instant refund suit pursuant to 26 U.S.C. § 6532. (See Complaint at ¶ 12).
Both parties agree that the sole issue in this case is the correct valuation of the limited partner interests that were gifted to the Plaintiffs in 1998. Both parties also agree that the value of a limited partnership interest in the Smith FLP is subject to a significant marketability discount due to a provision contained in the Smith FLP partnership agreement that limits the price and the terms upon which the partnership would be required to pay a partner for his or her limited interest(s) in the partnership if the partnership exercised its right of first refusal. This provision is set forth in Article VII, § 7.5(E) of the partnership agreement, in pertinent part, as follows:
E. The total Purchase Price to be paid by a purchaser for any Interest as determined pursuant to this § 7.5 shall be paid as follows:
i. In the event of any transfer pursuant to §§ 7.3 or 7.4 hereof, the Purchase Price shall be represented by non-negotiable promissory notes of the Partnership and/or purchasing Partners, as the case may be, payable over a period of time not to exceed fifteen (15) years (with the length of payment period to be selected by the purchaser), in equal annual installments of principal and interest, the first of which shall be due and payable one (1) year after the Closing Date.
ii. Interest shall accrue on, and be payable with, the unpaid balance of said notes from the Closing Date at a rate equal to the applicable federal rate for long-term debt instruments under Code § 1274(d)(1). . . . . .
(See Document #25, Exhibit 1 at pp. 21-22).
The appraisal report prepared by Mr. Smith's valuation expert and attached to Mr. Smith's 1998 Gift Tax Return took this provision into account and discounted the value of the gifted limited partner interests accordingly. This discounted value was, thus, reflected on Mr. Smith's Gift Tax Return. (See Complaint, Exhibit A). In its Assessment, however, Defendant disregarded the above provision in arriving at the fair market value of the gifted interests, thus effectively disallowing the attendant marketability discount. Defendant did so through its application of 26 U.S.C. § 2703(a) ("Section 2703(a)"), which generally provides that, for purposes of calculating estate, gift, and generation-skipping taxes, the fair market value of property is to be determined without regard to: (i) any option, agreement, or other right to acquire or use the property at a price less than its fair market value; or (ii) any restriction on the right to sell or use such property. Plaintiffs dispute the applicability of Section 2703(a).
Thus, as a threshold matter, Defendant has filed a partial motion for summary judgment [Document #20] seeking this Court's determination that Section 2703(a) applies to this case and requires that the value of Plaintiffs' gifted limited partner interests be determined without regard to the restrictive provision set forth in Article VII, Section 7.5(E) of the Smith FLP agreement. (See Defendant's Motion at p. 1). Plaintiffs have filed a brief in opposition to Defendants' motion [Document #23] arguing that Section 2703(a) does not apply to restrictive provisions contained in "entity-creating partnership agreements," but pertains solely to independent buy-sell agreements. (See Plaintiffs' Brief at p. 4). Alternatively, Plaintiffs' argue that, even if Section 2703(a) is found to apply, the restrictive provision set forth in Article VII, Section 7.5(E) of the Smith FLP agreement falls within the "safe harbor" exception found in 26 U.S.C. § 2703(b) ("Section 2703(b)") and can, thus, be taken into account in determining the value of the gifted limited partner interests. B. Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is made and supported, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986);Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further, "[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential fact `to demand at least one sworn averment of that fact before the lengthy process of litigation continues.'" Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990), quoting Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989) (the non-movant must present affirmative evidence — more than a scintilla but less than a preponderance — which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322;Country Floors, 930 F.2d at 1061.
A material fact is a fact whose resolution will affect the outcome of the case under applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court must resolve any doubts as to the existence of genuine issues of fact against the party moving for summary judgment, Rule 56 "does not allow a party resisting the motion to rely merely upon bare assertions, conclusory allegation or suspicions." Firemen's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the dispute about a material fact is "genuine," i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party.Anderson, 477 U.S. at 247-249.
C. Discussion 1. Section 2703(a)
Section 2703(a) of the Internal Revenue Code provides as follows:
(a) General Rule. — For purposes of this subtitle [governing estate, gift, and generation-skipping transfer taxes], the value of any property shall be determined without regard to —
(1) any option, agreement, or other right to acquire or use the property at a price less than the fair market value of the property (without regard to such option, agreement, or right), or
(2) any restriction on the right to sell or use such property.26 U.S.C. § 2703(a).
Defendant argues that the plain language of Section 2703(a)(1) mandates that the restrictive provision in the Smith FLP agreement be disregarded because it constitutes an option, agreement, or right to acquire the limited partner interest(s) at a price less than the fair market value of the interest(s) (without regard to such option, agreement, or right). (See Defendant's Brief at p. 8). Plaintiffs dispute the application of Section 2703(a) to the restrictive provision at issue in this case because, they argue, Section 2703 was enacted to challenge buy-sell agreements that create the right of a buyer to purchase property at a bargain price, not partnerships validly created under state law. (See Plaintiffs' Brief at p. 5). In making this argument, Plaintiffs essentially rely on the discussion of Section 2703 contained in the case ofChurch v. United States, 85 AFTR 2d 2000-804, 2000-1 USTC par. 60,369 (W.D.Tex. 2000), aff'd 268 F.3d 1063 (5th Cir. 2001). In particular, Plaintiffs rely on the following excerpt from the Church decision to support their argument that Section 2703 does not apply to the present case:
The Government alternatively contends that if IRC § 2703 does require taxation of Mrs. Church's Partnership interest, it may nonetheless disregard the term restriction, and restrictions on sale in the Partnership Agreement that serve to reduce its market value. No case supports the Government's position, and nothing in the legislative history, or the regulations adopted by the IRS itself, convince this Court to read into § 2703 something that is not there. By its very nature, a partnership is a voluntary association of those who wish to engage in business together, and upon whom the law imposes fiduciary duties. Term restrictions, or those on the sale or assignment of a partnership interest that preclude partnership status for a buyer, are part and parcel of the property interest created by state law. These are not the agreements or restrictions Congress intended to reach in passing IRC § 2703. Reviewing the legislative history, and construing IRC § 2703 with its companion statute, IRC § 2704, it is clear that the former was intended to deal with below-market buy-sell agreements and options that artificially depress the fair market value of property subject to tax, and are not inherent components of the property itself.Church at 2000-812 (emphasis added).
Plaintiffs also cite the case of Strangi v. Commissioner, 115 T.C. 478 (2000) for the proposition that Section 2703 is not applicable to a family partnership agreement for valuation purposes. (See Plaintiffs' Brief at p. 5). In particular, Plaintiffs quote the following excerpt from the Strangi decision:
We conclude that Congress did not intend, by the enactment of § 2703, to treat partnership assets as if they were assets of the estate where the legal interest owned by the decedent at the time of death was a limited partnership or corporate interest. . . .115 T.C. at 488-89. (See Plaintiffs' Brief at p. 5).
However, as Defendant has argued, the above holding in theStrangi case has no bearing on this case. (See Defendant's brief at p. 4). In particular, the government in Strangi asked the court to interpret the term "property" as used in Section 2703(a)(2) to mean the underlying assets in the partnership and that the partnership form is the restriction that must be disregarded. Strangi, 115 T.C. at 488. The Tax Court rejected the Government's interpretation and held that the term "property" in Section 2703(a)(2) referred to the limited partnership interest, not the underlying assets of the partnership. 115 T.C. at 488-89. Since Defendant in this case is challenging a restrictive provision within the Smith FLP partnership agreement, rather than the partnership form itself, the above cited holding in the Strangi case does not apply.
However, as the highlighted portion of the above citation indicates, the restrictions reviewed by the Church court merely restricted the right of a buyer or assignee of a partnership interest to become a partner. The Church court did not review or consider a restrictive provision that fixed the price of a partnership interest at less than fair market value, such as the one at issue in this case. As a result, Plaintiffs' reliance on the Church decision is misplaced.
The partnership agreement in Church did not contain its own restrictive provision. Rather, the restrictions reviewed by the Church court were established by the default provisions of the Texas Revised Limited Partnership Act, which provided that, if the partnership agreement did not provide otherwise, the acquirer or assignee of a partnership interest would not become a limited partner except upon consent of all the other partners. Tex. Rev. Civ. Stat. Ann. art. 6132a-1, §§ 3.01(b) and 7.04(a).
In fact, this Court agrees with Defendant's assessment that this is a case of first impression, as there is no reported case that addresses the applicability of Section 2703(a) to a restrictive provision in a partnership agreement that fixes the price of a partnership interest at less than fair market value. Nonetheless, a plain reading of Section 2703(a) and the regulations promulgated thereunder make clear that the restrictive provision set forth in the Smith FLP partnership agreement is precisely the type of restriction to which Section 2703(a) was intended to apply.
In particular, the restrictive provision at issue falls within the plain language of Section 2703(a)(i), which provides that "the value of any property shall be determined without regard to . . . any option, agreement, or other right to acquire or use the property (ie., a limited partnership interest) at a price less than the fair market value of the property (without regard to such option, agreement, or right)." Although Plaintiffs attempt to argue that this Section was not intended to apply to restrictive provisions within a partnership agreement, the Treasury Regulations interpreting the reach of Section 2703 specifically state that "[a] right or restriction [under Section 2703(a)] may be contained in a partnership agreement, articles of incorporation, corporate bylaws, a shareholders' agreement, or any other agreement." 26 C.F.R. 25.2703-1(a)(3) (emphasis added). This Treasury Regulation closely tracks the legislative history behind the enactment of Section 2703, which includes the Senate Finance Committee's conclusion that the terms of Section 2703(a) were intended to "apply to any restriction however created," including "restrictions implicit in the capital structure of the partnership, or contained in a partnership agreement." 136 Cong. Rec. S15,629, S15,682 (Oct. 18, 1990). As a result, this Court must defer to the regulatory interpretation of Section 2703.See E.I. du Pont de Nemours Co. v. Comm'r, 41 F.3d 130, 136 (3d Cir. 1994), quoting Cottage Sav. Ass'n v. Comm'r, 499 U.S. 554, 560-61 (1991) (holding that courts "must defer to [the Secretary of the Treasury's] regulatory interpretations of the [Internal Revenue] Code so long as they are reasonable").
Based on the foregoing, this Court finds that Section 2703(a) should be applied to disregard the restrictive provision contained in Article VII, Section 7.5(E) of the Smith FLP agreement in valuing a limited partner interest in the partnership, unless Plaintiffs can demonstrate that the provision falls within the "safe harbor" set forth in Section 2703(b), which provides:
(b) Exceptions. — Subsection (a) shall not apply to any option, agreement, right, or restriction which meets each of the following requirements:
(1) It is a bona fide business arrangement.
(2) It is not a device to transfer such property to members of the decedent's family for less than full and adequate consideration in money or money's worth.
(3) Its terms are comparable to similar arrangements entered into by persons in an arms' length transaction.26 U.S.C. § 2703(b) (emphasis added).
Thus, to qualify for the "safe harbor" provided by Section 2703(b), all three of the foregoing requirements must be met. 26 C.F.R. § 25.2703-1(b)(2).
2. Section 2703(b) a. Bona Fide Business Arrangement
The term "bona fide business arrangement" is not defined in either the Internal Revenue Code or the regulations. However, courts have consistently recognized that an arrangement to facilitate the maintenance of family ownership and control of a business is a bona fide business arrangement. See, e.g., Estate of Gloeckner v. Comm'r., 152 F.3d 208, 214 (2d Cir. 1998); St. Louis County Bank v. United States, 674 F.2d 1207, 1210 (8th Cir. 1982); Estate of Lauder v. Comm'r, 64 TCM 1643, 1660 (1992). Since there is little doubt that the restrictive provision in this case was designed to maintain family ownership in, and control of, the Smith FLP, this Court finds that the restrictive provision at issue is a bona fide business arrangement.
2. Testamentary Device Test
The terms of Section 2703(b)(2) require that the restrictive provision must not be a "device to transfer property to members of the decedent's family for less than full and adequate consideration in money or money's worth." However, the Treasury regulations substitute the term "the natural objects of the transferor's bounty" in place of "members of the decedent's family" in apparent recognition of the fact that Section 2703 applies to both testamentary and inter vivos transfers. 26 C.F.R. § 25.2703-1(b)(1)(ii). Despite this discrepancy, it is obvious that one of Congress's primary concerns was the free passage of wealth to family members through a device that is testamentary in nature. In this case, it is clear that the restrictive provision at issue had the effect of passing property to the "natural object of transferor's bounty [Plaintiffs]" for less than full and adequate consideration. The only question is whether the restrictive provision was, in actuality, a testamentary device under the terms of Section 2703(b)(2).
There have been legislative attempts to amend Section 2703(b)(2) to conform it to the regulations; however, to date, no such legislation has been enacted. See HR Conf. Rep. 1555, 102d Cong., 1st Sess. (1991); The Revenue Bill of 1992, HR Conf. Rep. 11, 102d Cong., 2d Sess (1992).
As Plaintiffs have acknowledged in their brief, the legislative history of Section 2703(b) suggests that the testamentary device test was derived from the decision in St. Louis County Bank v. United States, 674 F.2d 1207 (8th Cir. 1982). See 136 Cong. Record § 515, 629-04 at 15,679 (1990). In St. Louis County Bank, the court recognized generally that whether or not a restrictive agreement is a substitute for a testamentary device should be adjudged based on the facts in existence at the inception of the agreement. 674 F.2d at 1210. See also Rudolph v. United States, 1993 WL 285859 (S.D.Ind. 1993) (holding that, as a general rule and absent unusual intervening circumstances, the court should evaluate the reasonableness of a stock purchase price as of the date the agreement was entered into); Estate of Lauder, 64 T.C.M. 1643 (U.S.T.C. 1992) (holding that the issue of whether a restrictive agreement is a testamentary device encompasses the intent of the parties at the time they entered into the agreement); Slocum v. United States, 256 F.Supp. 753 (S.D.N.Y. 1966) (holding that the court should look to the facts that existed at the time the restrictive agreement was entered to determine whether or not the agreement is a substitute for a testamentary device).
The only exception to this general rule recognized by the courts is when an unusual intervening event occurs which requires the court to look at the circumstances at the time of the unusual event, rather than at the inception of the agreement. See, e.g., St. Louis County Bank, 674 F.2d 1207 (8th Cir. 1982) (where seven years after a stock-purchase agreement was entered the assets of the underlying corporation were liquidated and the business was changed from an active operation to a passive investment company).
Thus, a determination of whether a restrictive agreement is merely a testamentary device frequently involves an inquiry into the intent of the parties at the inception of the agreement. Other factors to be considered include the transferor's health at the inception of the agreement; significant changes in the business subject to the restrictive provision; selective enforcement of the restrictive provision; and the nature and extent of the negotiations that occurred among the parties regarding the terms of the restrictive provision.
St. Louis County Bank, 674 F.2d at 1210. This factor was also cited in a series of technical advice memoranda and private letter rulings. See TAMs 9719006 (Jan. 14, 1997), 9723009 (Feb. 24, 1997), 9725002 (Mar. 3, 1997), 9735003 (May 8, 1997), 9736004 (June 6, 1997); Priv. Ltr. Rul. 9730004 (Apr. 3, 1997), 9842003 (July 2, 1998).
St. Louis County Bank, 674 F.2d at 1211.
St. Louis County Bank, 674 F.2d at 1211.
Estate of Lauder, 64 TCM at 1658.
In this case, there is no evidence of record from which this Court may infer Mr. Smith's intent at the time the restrictive provision was drafted, nor is there any evidence regarding Mr. Smith's health at the time he executed the Smith FLP agreement. These are genuine issues of material fact that must be more fully developed at the time of trial before this Court can determine whether the restrictive provision at issue was a "testamentary device" under the terms of Section 2703(b)(2).
3. Similar Arrangement Test
The third requirement under Section 2703(b) is that the option, agreement, right, or restriction must be comparable to similar arrangements entered into by persons in an arms' length transaction. In particular, Plaintiffs are required to show that, when the agreement was made, it was "one that could have been obtained in a fair bargain among unrelated parties in the same business dealing with each other at arms' length." 26 C.F.R. § 25,2703-1(b)(4)(i). This test is met if the right or restriction" conforms with the general practice of unrelated parties under negotiated agreements in the same business." Id.
In this case, both parties concede that it would be inherently difficult to find an agreement between unrelated parties dealing at arms' length that would be comparable to a family limited partnership, which, by its terms, is restricted to related parties. (See Plaintiffs' Brief at p. 11; Defendant's Reply Brief at p. 14-15). Nevertheless, Plaintiffs have submitted the affidavits of two attorneys, James Cullen, Esquire, and Daniel L.R. Miller, Esquire, who essentially state that restrictive provisions requiring installment payments and charging interest at the applicable federal rate are common in both family limited partnerships and transactions involving unrelated parties. (See Document # 24, Miller Affidavit, at ¶¶ 7-8; Document # 25, Cullen Affidavit, at ¶¶ 5-7). Upon review, these affidavits merely state opinions that are conclusory in nature and do not constitute evidence sufficient to dispel any genuine issue of material fact as to whether the terms of the restrictive provision in the Smith FLP agreement meet the test set forth in Section 2703(b)(3). III. CONCLUSION
These affidavits were submitted by Plaintiffs in support of their brief in opposition to Defendant's motion for partial summary judgment. Defendant has filed a motion to strike these affidavits [Document # 26] claiming that the information disclosed in the affidavits was not previously disclosed by Plaintiffs during discovery, as required by Fed.R.Civ.P. 26(a) and 26(e) and, therefore, the affidavits should be stricken by this Court pursuant to Fed.R.Civ.P. 37(c)(1). Since the Court finds these affidavits to be unavailing for purposes of deciding Defendant's motion for partial summary judgment, Defendant has not been prejudiced by the submission of these affidavits in opposition to its motion. Thus, by separate order, this Court will deny Defendant's motion to strike affidavits, and the affidavits will be admitted solely for the purpose of opposing Defendant's summary judgment motion.
In determining whether a restrictive arrangement conforms to general business practice, a taxpayer generally is expected to compare the anticipated term of the arrangement, the current fair market value of the property subject to the arrangement, anticipated changes in value during the term of the arrangement, and the adequacy of consideration given in exchange for the rights granted. 26 C.F.R. § 25.2703-1(b)(4)(i).
For the foregoing reasons, it is respectfully recommended that Defendant's motion for partial summary judgment [Document # 20] be granted in part and denied in part, as follows:
1. Partial summary judgment should be granted in favor of Defendant and against Plaintiffs as to the issue of whether 26 U.S.C. § 2703(a) applies to the restrictive provision contained in Article VII, Section 7.5(E) of the Smith FLP agreement, subject to the exceptions set forth in 26 U.S.C. § 2703(b).
2. Partial summary judgment should be granted in favor of Plaintiffs and against Defendant with regard to the issue of whether the restrictive provision contained in Article VII, Section 7.5(E) of the Smith FLP agreement satisfies the requirement set forth in 26 U.S.C. § 2703(b)(1).
3. Partial summary judgment is denied with regard to the issue of whether the restrictive provision contained in Article VII, Section 7.5(E) of the Smith FLP agreement satisfies the requirements set forth in 26 U.S.C. §§ 2703(b)(2) and (3).
In accordance with the Magistrates Act, 28 U.S.C. Section 636(b)(1)(B) and (C), and Local Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written objections to this report. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to timely file objections may constitute a waiver of any appellate rights.
ORDER
AND NOW, this 30th day of June, 2004;For the reasons more fully stated in footnote 9 of the Magistrate Judge's Report and Recommendation filed on this date, Defendant's motion to strike affidavits [Document # 26] is denied and the Affidavits of Daniel L.R. Miller, Esquire [Document #24] and James Cullen, Esquire [Document #25] are hereby admitted for purposes of determining Defendant's motion for partial summary judgment [Document # 20] only.
IT IS FURTHER ORDERED that the parties are allowed ten (10) days from this date to appeal this order to a district judge pursuant to Local Rule 72.1.3 B. Failure to appeal within ten (10) days may constitute waiver of the right to appeal.