*1 modify abrogate appellate deposition of the absent To trial or agreeing to the witness, by simply stipulating by preferred to a state rules case is not the decision testimony.4 Consid ment of the witness's should be course. - Such amendments delay in Wiseman's trial ering brought by change language of the about commencing a mere in his trial Rule, Supreme resulted only by and then our days after he made his seventy-seven (1992) Ind.App., Court. Cua v. Morrison request, it is hard to conceive speedy trial (Sullivan, concurring, 600 N.E.2d 951 J. strategy of trial and example C.J.). joined by Sharpnack, days to wait seven tactics than the decision confronta

in order to have a face-to-face witness, opportunity to examine a

tion and events, rath

hoping for a favorable turn testimony stipulate and be as

er than to not oc that the favorable event will

sured

cur. did not err in post-conviction court LAFFERTY, Appellant- Patrick C. refusing grant Wiseman relief because Claimant, pursue failed to his trial counsel procuring testimony of an methods of v. State's witness. unavailable the INDIANA DE REVIEW BOARD OF Judgment affirmed. AND PARTMENT EMPLOYMENT OF SERVICES; TRAINING Michael K. CHEZEM, J., concurs. Bonnell, Harris, George H. Joe A. and SULLIVAN, J., separate concurs Baker, as members the Review concurring opinion. Board; Wal-Mart, Appellees. and SULLIVAN, concurring. Judge, No. 93A02-9011-EX-664. states: majority Appeals Court claims. "The rule reads as Wiseman Second District. However, intent Crim.R. obvious 4(D) to obtain a permit is to the State Oct. day of time within ninety extension has exercised his defendant who which a must right speedy to a trial

Crim.R. 4 At 18376.

tried." Ind., (1988)

Kindred v. State Ind., (1987) Smith State majority, are con- cited of the Rule. interpretation

sistent with this

Nevertheless, interpretation does vio- such language clear of the Rule

lence to the

itself. (1) testimony containing requirements other witness whose can of subsec- (b)(2) (b)(1) readily procured. be as tions of section 1 of this chapter; agree post-conviction 4. We court erred when (2) showing of the witness that the absence findings fact on this issue. it failed to enter procured by has the act of the not been appellate claim of ineffective counsel based A attorney;

prosecuting upon specific (3) acts of omission or commission stating he believes the the facts to which perusal cannot be addressed of counsel's testify, include a statement witness will true; general conduct. we reach the issue he to be believes these facts attorney conclude that as a matter of law the stating prosecuting because we counsel was not ineffec- prove specified conduct of Wiseman's unable to the facts in accor- (3) through the use tive. dance with subdivision *2 SUMMARY

CASE BUCHANAN, Judge. (Lafferty) appeals Lafferty

Patrick C. compensation the denial Board of the benefits, claiming Review Employment and Department Indiana (Board) in its deter erred Training Services to unem not entitled that he was mination posi his he left ployment benefits cause and without at Wal-Mart tion statu application of the is fired to a claimant tory requirement equal pro violates and States of the United clauses tection Indiana Constitutions.1 affirm.

FACTS Board's deci- support the facts which hired Wal-Mart sion show floors of its care of the Lafferty to take Lafferty worked position In this store. hour; his forty $4.55 hour weeks unpaid. hour was lunch Lafferty con- job, Searching for a Division Job Service tacted the Employment and Department Indiana (IDETS). May On Training Services IDETS, Nally, an Mrs. opening with Lafferty of a informed (ABA) as- Management and Building ABA on his be- calling ABA Lafferty by sisted Lafferty floor mainte- ABA offered half. held the one he similar to position nance posi- ABA with Wal-Mart. the start- advantages: several offered tion the likeli- hour with ing wage was $5.00 an hour to $6.00 increase hood it would paid, months, have a he would six within break, equip- and the hour lunch one half ABA provided by supplies ment his effi- and increase easier make his work Volz, Organi- Legal Services posi- L. Gregory ABA Lafferty accepted the ciency. May Inc., Ken- day at Wal-Mart His last Evansville tion. zation Organization Falk, Legal began Services his new 1990; day he neth J. next appellant, Indiana, Inc., Indianapolis, for dis- 8, 1990, Lafferty On June claimant. involv- incident ABA over an charged from into a grocery cart having pushed a Indiana Pearson, Atty. ing Gen. E. Linley damage and causing minor Gen., cart Black, Atty. customer's Deputy W. Preston supervi- Lafferty and dispute between appellees. Indianapolis, 1; XIV, Ind. Section art. Section amend. Const. Const. See U.S. Lafferty's adjustment of work- DECISION sor over the Lafferty unemploy- filed for ing hours. ISSUE -Did the Board err ONE benefits, following hearing on finding leaving employ properly he had whether paying job ment to a better consti ABA, deputy ruled that ABA a claims tuted connection with *3 "just cause" to dismiss him did not have disqualify Lafferty from work" so as to not disqualification on and there would be no 22-4-15-1(a)? receiving benefits under IC later, Approximately basis. a week that -Lafferty PARTIES' CONTENTIONS deputy claims heard un- another changes that claims for and ruled derlying claim "good statute indicates that in con- cause entitled that he was not to benefits because leaving nection with work" should include voluntarily employment left with Wal- he employment paying job. to take a better good without cause in connection with Mart addition, Lafferty claims that IDETS' at ABA for and had failed to work work helping in him find with role period required by Ind.Code provides necessary "good ABA also 22-4-15-1(c) (1990), which decision was af- qualify cause" to for benefits. The Board judge administrative firmed law responds Lafferty properly denied (ALJ). appeal, September the Board on On unemployment benefits because his rea- of the ALJ: 1990 affirmed the decision for sons with Wal-Mart in "The claimant ... left the personal objectively were rather than relat- higher paying job order to take a with ed to his work conditions and thus he did per- conditions. This is a not have cause fectly and rational rea- understandable leaving work" for so as to entitle him to leaving employment, howev- son for unemployment benefits.

er, entirely personal reason for it is an -The Board did not err CONCLUSION leaving employment, as it is done to concluding Lafferty employ- in left his condi- improve the claimant's financial ment with Wal-Mart "without cause Therefore, tion. administrative law in connection with work." judge conclude that the claimant must general disqualification provision in did not have connection 22-4-15-1(a) (1990) provides: IC leaving employ- work respect periods "With benefit estab- ment." 6, 1980, July lished on and after an indi- Record at 20. voluntarily vidual who has left his em-

ployment without cause in connec- ISSUES tion with the work or who was dis- charged just appeal, Lafferty issues On raises two ineligible period waiting cause is as: which we reorder and restate rights in benefit week which the finding in 1. Did the Board err not disqualifying separation occurred and un- Lafferty's leaving employment accept in til he has earned remuneration em- "good cause paying job constituted ployment equal exceeding to or the week- dis- connection with work" so as to not ly benefit amount of his claim each of qualify Lafferty receiving (8) eight qualification If weeks. 22-4-15-1(a)? under IC expi- amount has not earned at the period, ration of an individual's benefit application 2. Does the of the ten week unearned amount shall be carried to an who leaves period forward to an extended benefit paying job employment to a better period subsequent of a to the benefit and then is fired the second claim." equal protec- violate disqualification provision is modified This tion clauses of the United States 22-4-15-1(c): by IC Indiana Constitutions? receiving under disqualified from in this provided

"(c) disqualifications following (a), subject to the no need for shall be then there would have been section a modi- legislature explicitly include modifications: (c) that individual would fication so subject to not be shall an individual separation disqualified. ke prior employment from his left unnecessary to examine it employer previous- accept with another employ- individual's whether an secured ly job is leav- paying ment to a better which offered good cause ing employment "without working condi- wages or betterment of (a). By under vir- work" connection with employed on tions thereafter that rea- construction tue of the statute's *4 (10) ten less than not said for employment is without son weeks...." disquali and the individual good cause supplied). (Emphasis receiving unless it can fied Lafferty left em undisputed that It that, having left to in addition beshown permanent, ployment to take job, paying employment to better of employer who with another position at least individual also worked conditions, wages and fered better Lafferty con- at the second weeks under the explicitly covered a situation at the not work ten weeks cedes that he did (c). Although of provision modification application of the argues that job, but leaving for a better Lafferty contends that who, to an provision interpreted as job should be paying discharged second himself, by the like not so as to work" in connection with cause, is a violation just employer without un receiving benefits him from disqualify address that equal protection. We now supported is not (a), interpretation his der contention. The "modifi- construction. by the statute's provides an (c) clearly provision eation'" application -Does TWO ISSUE general disqualification exception to employ to an requirement of the ten week exception is used (a). in When provision to a bet ee who leaves something out of it "carves in a statute by the then is fired paying job and ter which, opinion in the provision general cause, violate just employer without second general be within law-giver, would the United clauses of equal protection not been exception had provision if Constitutions? and Indiana States Ind. v. Taylor Phelan made." (emphasis App. -Lafferty PARTIES' CONTENTIONS supplied). concedes, agree, that and we take a better employment to leaves who is reasonable to principle it Applying is dismissed without job and then paying intended the legislature that the conclude working ten weeks cause before just general out to carve modification to re not entitled employer, is second exception for provision an benefits,2 argues but unemployment ceive to leaves who an individual employees who between distinction Indeed should paying job. accept a better based just cause discharged without for that rea- intended legislature have for the length of time worked solely on "good cause to constitute son the constitutional violates employer second would not be individual so that work" in order leaves brief, "When a worker Lafferty concedes: In his statutory special job, there is a a better take worker leaves when a "In better, job, disqualify the worker applies to provision that to take in order benefits, eligible for loses even ke will not be worker own, through no the better the better if he loses compensation benefits fault through though no least job, it was work at even was able to the worker unless fault of own, ten weeks new, at least job." he worked unless ten weeks job." (emphasis supplied). Appellant's at 9 Brief supplied). (emphasis at 4 Appellant's Brief equal protection keep present job, of the laws. individuals to their rather guarantee of responds quit that different treat begin The Board than with a employees of the classifications employer.... require- ment ... this [and] promot interest in supported by the state's discourages job-hopping pro- stability unfairly and not ing employment continuity employment." Appel- motes penalizing the first who was lee's at Brief employee's responsible for the dismissal. The Board advocates another state inter- -Denial of CONCLUSION support est the distinction: "the ten at least Lafferty due to his failure work requirement prevents unneces- his new ten weeks with sary past employ- tax rate increases of the equal protection. violation way er in no contributed application of Lafferty theorizes that the separation Appellee's of the worker." rule, regard to wheth- the ten week 10-11. Brief from the er an Vicari Review Bd. creates two denied, this trans. court employees: classifications equal protection challenge considered an class) (the statutorily class favored "One applied the ten week meet the earn- consists of who leave to take a *5 benefits, drawing ings requirements for dismissed, paying job and then are accept previously. who leave one prior completing with ten permanent full-time work and secured upholding weeks on the new in more weeks the second work ten or stay different treatment of those who on losing through no fault of job before it opposed ten weeks as their That class receives unem- own. satisfy requirement, those who do not ployment compensation. The other class this court declared: class) (the statutorily consists disfavored goals Employ- "One of the of the Indiana earnings meet the re- Security encourage ment Act is to em- benefits, drawing quirements ployment stability ... The ten-week re- accept previously se- leave one quirement prevents job-hop- excessive work, but cured ping rationally goal and is related to the in the second work less than ten weeks encouraging employment stability." through no fault of losing before it class, includes That which own. Vicari, 1063; supra see also Wade v. unemploy- Lafferty, is denied Patrick Review Bd. compensation." ment 630. Appellant's at 9-10. Brief goal employment stability pro- distinction Lafferty concedes that the be legitimate applica- vides a state interest for neither tween these classifications involves deny Lafferty tion of the ten week rule to right suspect a fundamental nor a classifi Wade, Vicari, supra; benefits. See su- Thus, Appellant's cation. at 11. reason, pra. Job-hopping, for Brief whatever up legislature's statutory scheme is to be always risky entailing venture the estab- furthering rationally held if it is related to employer-employee lishment of a new rela- legitimate v. Brad state interest. Vance tionship may prove which well unsuceess- (1979), 939, 99 S.Ct. ley 440 U.S. ful. that Indiana is an Given 171; (1988), Review Bd. L.Ed.2d v. Winder state, great at-will a new has Ind.App., 528 N.E.2d 854. discharge latitude to no mat- "permanent" ter how goals

One of the stated of the Indiana thought upon entering would encourage Employment Security Act is "to employment. entirely legiti- it in seems employment." stabilization IC 22-4-1-1. discourage mate for the State to seek to Seizing upon policy goal, the Board argues job-hopping by application in ten of the ten that the state interest "encourages is that it week rule to who are se- employer previously with another rea- whatever employer for by their work which permanent full-time cured son. of better- offered interest legitimate Also, has the State wages working conditions employer who first protecting in said employed on thereafter eviden- financial and greater have to bear weeks. not less than is dis employee who if an tiary burden (1992 Supp.) Based 22-4-15-1(c)(1) re IC meeting the charged before history of judicial legislative upon the second with quirement agree I provisions, he these eligible for benefits deemed determining Board erred claim just cause." "without was dismissed position Wal-Mart left his pay more he have employer would first work; in connection with em former due to unemployment benefits Wal-Mart-quanti- despite reasons eligible for benefits being ployees working conditions pay and fiably at the ten weeks complete failing to thereby job-related, objective and the re avoid were significantly, job. More Gray forth benefits, meeting the standard set first paying sponsibility (1976), App. Ind. House, Inc. awkward Dobbs placed may be The Dobbs N.E.2d proving having the burden position to show requires a worker cause" House standard "just have employer did the second reasons for were his or her v. Re Potts employee. See to dismiss objective related Ind.App., 475 (1985), Bd. view impel a character, as would and were such Bd. denied; v. Review Moore trans. quit under person to reasonably prudent Ind.App., 461 N.E.2d circumstance. or similar the same protection stabilization compensa first legiti- Indiana's employer's interest first *6 4, 6(£), 1936, ch. SEC. Acts applica- legislation, the tion supporting interests mate state "left work volun who disqualified who workers to rule tion of the the Without good cause."3 tarily without or without discharged, with modifier, leaving with work" "in connection employer. by the constituted pay could have joba for better Judgment affirmed. example, in For DeVillez cause. good Employment the Indiana Bd. Review SHARPNACK, C.J., concurs. 642, Ind.App. 204 (1965), 136 Div. Sec. separate J., SHIELDS, dissents employee an 369, for which the opinion. ma failed to employment existing quit his dissenting. SHIELDS, Judge, the em The Board determined terialize. so because ineligible, did but ployee was I dissent. a second job without quit his employee the an disqualifies 22-4-15-1 Indiana Code employee quit hand, the because receiving from individual one. for a better employ- his "voluntarily left if he 1967, section good cause ment without (1992 22-4-15-1(@a) amended legislation was IC work." exception: who "left an to worker deny there Supp.). attrib good cause voluntarily without subject to dis- not be shall An individual 1967, ch. employer." Acts from utable separation because qualification requalifica ten-week 310, 19.4 accept SEC. left to if he employment prior weeks, (in wait- to the following addition 4, 6(F)(1) next 1936, read: ch. SEC. Acts ing period). An individual Disqualification for benefits. 310, 1967, reads: SEC. 19 ch. 4. Acts ineligible for benefits: be shall ineligible wait- shall be individual left work An he has in which the week For upon rights based ing period or benefit dis- cause or voluntarily employ he any employer whose misconduct, earned three for the charged for employment same time. ed to abandoning employ enacted at the tion rule was em adding compel "attributable to the ment must be those that would By Id.5 reasonably prudent person legislature chose to restrict the to do the same ployer," the circumstances.); which benefits would circumstances under under the same or similar Employment quit his Geckler v. Review Bd. the Indiana employee who available to an be 473, (1963), 244 Div. Ind. c. recognized in employment. This result was Se 477, 357, (Good 193 N.E.2d cause does (1968), Ind.App. Bd. v. Review Jones personal subjective not include reasons 291, this court af 238 N.E.2d where unique employee.). that are to the denying bene firmed the Board's decision quit in favor fits to a who worker part upon legislative Based this histo- failed to hold the of another and who ry, pre-1971 I conclude that under the lan- least ten weeks. for at guage, accepted employ- per wage ment at a hour would not $4.55 relevant to our dis The last amendment eligible employee quit be for benefits disquali when cussion occurred higher his or her disquali amended to provision fication paying permanent job-termination to ac- "voluntarily left his fy a worker who has higher wage cept a would not be for good cause in connec employment without employer, cause attributable to the Acts P.L. tion with the work." wage knew or her when subsequent to the 1971 SEC. 35.6 Case law accepted employment. he or she Under merely emphasizes qual that a amendment present language, requires objec ifying voluntary termination wage knows his or her when he or she tive cause related accepts employment, Lafferty, as did upon not comment whether and does who terminates change "good cause attributable higher paying permanent employ- employer" "good cause connection ment, necessarily ineligible for bene- significant. See Marozsan with work" and, Wages are fits. connected to "work" Indiana v. Review Bd. therefore, employee may be Ind.App., Sec. Div. for reasons "in connection with work" if ("It placed only when the demands the circumstances are such that no reason- are unreasonable or un upon employees person quit- able could find fault with the fair, reasonably prudent so that a so much ting. impelled to leave that the person *7 pre-1971 disqualifying the lan- employees compensation to provide Act will jobs."); guage imposed a stricter standard than the voluntarily quit Wicker who standard, i.e., Bd. the Indiana v. Review present the "attributable to 657, App. employer" required Ind. the standard the rea- 173 Security Division (Good quitting justifies employer cause that son for to relate to the 365 N.E.2d 787 of em the "in connection with the voluntary termination while work" benefits a requires only employ related to the standard that the reason be ployment must be thereon, ment.); Ind.App. job-related. at Based I conclude the Gray, 171 (The objective legislature relat amended the modifier of reasons N.E.2d at voluntarily good employed non-disqualifying without cause attrib- under circum- has left employer or from which he has any previously wages utable to the stances cancelled from misconduct prior employment be the shall restored to the work.... with his any paid individual and benefits under these paid circumstances shall be from the fund provided: ch. SEC. 19 further 5. Acts charged experience and not to the account of voluntarily with If an individual leaves work any employer; ... good cause attributable to his out accepting purpose permanent, full- for the change pro- 6. The amendment did not the another that offers time work with "any paid vision that under these cir- earn- of betterment of paid cumstances shall be from the Fund and not conditions, ings working and thereafter or job charged experience than em- employed on said for not less account of (10) weeks, becoming ployer. Acts PL. SEC. 35. upon un- ..." then only wage working conditions are employer" better to from "attributable cause" hopping well-pay- one expand anticipated, to from the work" "in connection with constituting good Job-hopping cause in this ing position to another. circumstances disqualify- or, alternatively, discouraged by to restrict the determi- latter sense precluded a de- good that ing personal reasons reason for nation the result, As a an work, cause. thereby termination in connection with the employer to ac- one employee who leaves unemploy- disqualifying employee that permanent cept other ment benefits. necessarily ex- higher wage is not pays a 22-4-15-1(a) Arguably, failure of IC legislature real- cluded benefits. require that the less than ten leaves his or her who ized that termination be for cause on behalf wage, for another marginal job, paying might read to indicate a be higher wage pays that permanent disqualify any employ legislative intent to in a different situation though job-even her quits ee his or who first secur- quits his or her cause, including quits he or she he or she is job merely because ing another permanent job-and at a or, explained wage expected paid ten weeks of com is terminated within quits one infra, from argu mencing that the new the reasonable accept another underlying negated by policy ment is will, the second expectation that compensation. insurance - time, wage or pay higher future some policy providing or, conditions, in- provide better unemployed through no finding themselves quits his or deed, employee who from an own, including fault of their wage, for an- job, paying a reasonable her (much jobs who leave pays higher job that permanent yet, through no way) "American" wage. own, are to work for fault of their unable nothing within the Certainly, there is job, cou in the second at least ten weeks compensa- purposes of legislation pled the mandate that the supports the claim the tion scheme in favor of given "a liberal construction encourage people legislature intended legislation it is social employees because higher paying jobs. not to seek obtain pro in order to meriting such construction employee who leaves disqualifying an Not pur humanitarian underlying its mote go to other paying job to marginally Bd. Indiana poses," v. Review Horvath higher wage for a permanent Employment Sec. Div. job-hopping encourage type does 441, 443, compels the determi unemploy- purpose contravenes should legislature's silence nation that the Changing to a insurance. require construed and must be position is employee's improves the job that resulting from less than or conduct conduct not censurable *8 only if the employment occurs ten weeks of addition, discouraged. In the should by the or is for cause termination neces- the Board's decision affirmance employee. by cause employee being paid in an sarily results employment is terminat- new for his or her market value less than by or employer for cause by the ed employ- labor, no incentive and offers cause, policy employee without im- rate to than market con- pay less ers who legislative intent dictate a of "fault" cerns The form employees' situation. their prove disqualified ben- employee is discouraged is is to be job-hopping he or she becomes upon the until draws efits inappropriately that which otherwise unemployment benefits. qualified system, e.g., compensation is termi- temporary However, employment if the new permanent a quitting by cause or employer without by nated may pay a though it even employment lack of employee with joba for another wage or higher disqualifying by not is served higher "fault" interesting or where a is more Geckler, Incidentally, unique this con- which is employee. employee.7 faultless requalifying Ind. at 193 N.E.2d at 359. not render the See struction does Ball v. Review Bd. the Indiana 22-4-15-1(c)(1) superfluous language of IC c. Div. by majority opinion. I suggested as Se ("'The Board Review applying to individ- read that subsection peculiarities should not look to the of each employment accept one uals who leave apply objective claimant but should an previously permanent secured standard to determine whether a reason only which work with another able, prudent person leave work un expectation offers the reasonable better circumstances."). der similar I wages working conditions. Here, Lafferty in meaning "expecta- of the found himself a situa common word tion," ie., something reasonably, prudent benefit or tion where and normal future ly compelled sensitive would be degree probability will occur that with a agree Lafferty compelled in Random House Web- See future. disadvantageous economic cireumstances- (1991). College Dictionary In other ster's supporting family on wages that are 65% words, quits employ- an individual who poverty change jobs of the level-to for a requalified if the ment for another becomes that was and full-time employment previously se- paid higher wage and both and offered full-time, cured, permanent and and of- is working conditions. such cir Under (in fers the fu- a reasonable cumstances reason for is ture) wages working conditions of better objective subjec indeed in contrast to the only employed is on the after the individual employee tive reasons the terminated her for at least ten weeks. Of her in first Vi course, Lafferty's wages were not Dep't cari v. Review Bd. the Indiana they reality. expectation; an were a Employmen g Services t Trainin conclusion, disqual (1991), Ind.App., 568 N.E.2d 1061. In Vz- ified from insurance bene cori, the Board found that claimant left her merely fits as a matter of law because the first unhap "because she was compelled quit is to py with the work. claimant felt that another for better or bet employees placed work on her desk Rather, ter conditions. the issue away when she was from her station. voluntary whether the termination is ob Further, the claimant felt that the distribu jective in character that it is related to tion of the work was unfair." Id. at 1062. "similarly per the work and would affect findings support These the Board's conclu sons of reasonable normal sensitivi sion "that voluntarily the claimant left the ty" subjective or is character that it is employment of employer] first be [her purely personal subjective reason Incidentally, creating this construction statute the classification. Johnson v. St Vin- Ind., reject (1980), Hosp., mandate to that alternative fulfills our cent Inc. 404 N.E.2d 600; presents construction which serious constitu- Winder v. Review Bd. the Indiana Em- (1985), tional difficulties. See Fields v. Evans ployment Ind.App., Sec. Div. Ind.App., 480N.E.2d legitimate 856. The state interests asserted Board, encouraging keep individuals to suspect I note that neither a classifi- present preventing unnecessary right implicated a fundamental cation nor past employer, tax rate increases of the do and, therefore, appropriate judi- standard of appear nothing reasonable. There is challenge scrutiny equal protection of an cial discouraging bettering *9 basis standard review. Under that status, or her in terms of the rational conditions, change when the statutory singles classification which standard a group disparate treatment out a full-time under conditions that person compelled change. rationally would be to make the differences are must be based on Similarly, reasonably illusory state cannot have an interest real and not and must be preventing unnecessary interest; tax rate increases to the legitimate state it related to a must past employer payments arbitrary when the to the em- be or unreasonable and a fair and charged employer. relationship ployee substantial must exist between the to that See IC purpose 22-4-11-1(d). classification and the of the statute Cohen, Plimpton, York Debevoise & New her work personal dissatisfaction good City, appellant-defendant. [objective] ing conditions and without the work." Id. cause in connection Cutshaw, Levin, Bruce David J. Irwin B. conclusion, opinion the Board my In it Malad, P.C., Indianapo- Andis, E. Cohen & I denying Lafferty benefits erred in Abaray, lis, Chesley, G. Stanley M. Janet of the Board the decision Co., vote to reverse Chesley Bayless & Waite Schneider to the Board Cincinnati, Ohio, remand the cause L.P.A., Deborah J. Caru- this consistent with proceedings further so, Eke, appellees- Indianapolis, for Dale & opinion. plaintiffs.

SHARPNACK, Judge. Chief this proceeding earlier before ("Ameri court, Cyanamid American Co. certification, can") sought class stay notice, proceedings pending class and class moving Stephens responded by appeal. , COMPANY AMERICAN CYANAMID appeal. This court re dismiss American's Appellant-Defendant, August stay, and on fused to issue the proceedings. the record of American filed Buchanan, argu STEPHEN, reiterates its earlier Stephens now Tom Bruce Dennis dismiss, Fishero, in this renewed motion ments and Rennick David Brier overwhelming Inc., requesting "join Farms, Appellees-Plaintiffs. we ruling on a majority and conclude that a No. 61A05-9205-CV-171. not final or certification motion is class Appeals Court Motion, 11.) p. (Appellee's appealable." District. Fifth law to do so because Indiana We decline orders clearly that class certification holds 22, 1992. Oct. orders. appealable final and Dec. Transfer Denied Procedure, to Indiana Rules Pursuant 28(C)(1): Trial Rule the com- practicable after "As soon as brought of an action mencement court, action, upon hearing or class hearing, shall determine waiver it is to be so maintained. order whether may be An under this subdivision order conditional, may altered mer- the decision on the before amended its." Fire Ins.

In Koors v. Great Southwest 780, the (1988), Ind.App., 530 N.E.2d Co. the trial considered whether second district certifying a class when erred court had lack of notice of defendant claimed In hold hearing certification. on the class must be ing appeal of this issue had not the defendant dismissed because proceedings, timely filed the record stated, of a class action Terrell, Cohen, "Certification Ralph Ter- court A. Stephen M. appealable order." Id. Ryan, final and & Czajka, ri Ice Miller Donadio A. Podesta, Corp. v. McManus citing Oil E. Anne E. Indianapolis, Roger Gulf