T.S.K. v. D.M.K.

J-S43040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.S.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
D.M.K. : No. 717 MDA 2019

Appeal from the Order Entered April 16, 2019
In the Court of Common Pleas of Fulton County Civil Division at No(s):
2015-00301

BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 23, 2019

Appellant, T.S.K. (“Father”), appeals from the order dated April 15,

2019, and entered April 16, 2019,1 in the Court of Common Pleas of Fulton

County, finding D.M.K. (“Mother”) not in contempt. After review, we affirm

the trial court’s order.

____________________________________________

1 The subject order was dated April 15, 2019. However, notice pursuant to
Pa.R.C.P. 236(b) was not provided and docketed until April 16, 2019. Our
appellate rules designate the date of entry of an order as “the day on which
the clerk makes the notation in the docket that notice of entry of the order
has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further,
our Supreme Court has held that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113,
115 (1999).

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43040-19

Mother and Father are the parents of a child, a daughter, A.L.K., born

in May 2011 (“Child”). Pursuant to orders dated February 12, 2016, and May

12, 2016, entered February 16, 2016, and May 17, 2016, respectively, Mother

was awarded sole physical and legal custody of Child, with Father to have

supervised visitation through the Fulton County COPE program.2, 3 Orders,

5/17/16 and 2/16/16. Further, under the May 12, 2016 order, Father forfeited

____________________________________________

2Under the February 12, 2016 order, Father was granted supervised visitation
once per week. Order, 2/16/16. Under the May 12, 2016 order, Father was
granted supervised visitation once per month. Order, 5/17/16.

3 We observe that, while the court awarded Father supervised visitation, the
custody statute does not provide for the award of supervised visitation.
Section 5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a). “Supervised physical custody” is defined as
“[c]ustodial time during which an agency or an adult designated by the court
or agreed upon by the parties monitors the interaction between the child and
the individual with those rights.” 23 Pa.C.S. § 5322. Further, “[p]rimary
physical custody” is defined as “[t]he right to assume physical custody of the
child for the majority of time. Id. We, therefore, treat this as an award of
sole legal custody and primary physical custody to Mother and supervised
physical custody to Father.

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any visitation with Child if incarcerated.4 Order, 5/17/16. Pursuant to a

subsequent order dated March 27, 2018, and entered April 5, 2018, Mother

was to provide letters and drawings to Child received from Father, provided

Mother deemed them appropriate. In addition, Mother was to facilitate mail

from Child to Father, should Child desire. Order, 4/5/18.

Father filed a Petition for Contempt5 on December 21, 2018, asserting

that Mother was in violation of a September 15, 2015 Final Protection from

Abuse Order which stated, in relevant part:

No party shall be permitted to relocate the residence of the
child/ren to significantly impair the ability of another person to
exercise custody UNLESS every individual who has custody rights
to the child/ren consents to the proposed relocation OR the Court
approves the proposed relocation. A person proposing to relocate
MUST comply with the notice requirements pursuant to 23
[Pa.C.S.A.] Section 5337(c).6

A hearing on Father’s petition was held on April 2, 2019, during which

Father, who is incarcerated at SCI-Camp Hill, testified via video.7 Father

____________________________________________

4 Father has been incarcerated in state custody since December 2016.

5Father’s petition was titled a Petition for Civil Contempt for Disobedience of
Custody Order.

6 The orders of May 2016 and March 2018 provided similarly. See Orders,
3/27/18 and 5/12/16.

7 At the time of the April 2, 2019 hearing, the controlling custody order was
an order entered January 23, 2019, which provided similarly to the previous
orders. Under this order, Mother was granted sole physical and legal custody.
Father was afforded the right to send Child written correspondence, drawings,
and gifts, which Mother was to provide to Child, provided the content was

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represented himself pro se. Mother was represented by counsel.8 Father

asserted that Mother testified at a December 21, 2018 custody hearing to

relocating one year prior. Notes of Testimony (“N.T.”), 4/2/19, at 5. He noted

that, in contravention, Mother and her attorney had represented at a

conciliation conference in March 2018, and a memorandum prepared in

advance thereof, to still residing at her prior address. Id. at 4-6, 14. Father

suggested that, instead of lying, Mother could have indicated that she resided

at a secure location. He asserted, however, that he continues to have parental

rights and is entitled to know where Child lives. Id. at 7, 14. Significantly,

based upon the reported school district Child attended, Father admitted that

he was aware at the time that Mother had in fact relocated. Id. at 12. While

Father testified to mail sent to Child at Mother’s previous address, where the

maternal grandmother still resides, being returned, he conceded that he sends

at least one letter per week and that only two or three have been returned.

Id. at 7, 10. Moreover, despite his testimony that he therefore needs to send

correspondence two weeks in advance to ensure Child receives it timely,

Father admitted to sending correspondence several weeks in advance even

prior. Id. at 7, 11.

____________________________________________

appropriate. Further, Mother was to facilitate mail from Child to Father, should
Child desire to write to Father. See Order 1/23/19. This order likewise
provided similarly to the prior orders as to notification of relocation. Id.

8 It is unclear from the record if Mother was present at this proceeding.

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By order dated April 15, 2019, and entered April 16, 2019, the trial court

denied Father’s petition and found Mother not in contempt. Thereafter, on

April 24, 2019, Father filed a timely pro se notice of appeal. Father failed to

file a concurrent concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i) and was ordered to do so by this Court by order of

June 3, 2019.9 Per Curiam Order, 6/3/19. Father complied and filed a concise

statement of errors on May 30, 2019.10

On appeal, Father raises the following issue for our review:

____________________________________________

9 Notably, pursuant to order dated May 10, 2019, the trial court indicated that
the clarification of a concise statement of errors was not necessary. The court
further stated that it relied on its analysis provided in its April 15, 2019 order.
Order, 5/10/19. Subsequent to Father’s filing of his concise statement, on
May 31, 2019, the trial court issued an opinion indicating that it had reviewed
Father’s concise statement and that its order of April 15, 2019 provided
adequate analysis, which the court then proceeded to summarize. Opinion,
5/31/19.

10 While Father violated Pa.R.A.P. 1925(a)(2)(i) by failing to file a concise
statement of errors complained of on appeal concurrently with his notice of
appeal, as Father filed a statement in compliance with this Court’s order and
there is no assertion of any prejudice, we do not quash or dismiss his appeal.
See In re K.T.E.L., 983 A.2d 745, 747 (Pa.Super. 2009) (holding that failure
to file a Rule 1925(b) statement concurrently with a children’s fast track
appeal is considered a defective notice of appeal, to be disposed of on a case-
by-case basis, but did not result in dismissal or quashal where there was no
prejudice to the other parties as a result of the late filing); cf. Mudge v.
Mudge, 6 A.3d 1031 (Pa.Super. 2011) and J.M.R. v. J.M., 1 A.3d 902 (Pa.
Super. 2010) (failure to file a Rule 1925(b) statement, when ordered by the
Superior Court, will result in a waiver of all issues on appeal); J.P. v. S.P.,
991 A.2d 904 (Pa.Super. 2010) (finding that the appellant waived issues for
appeal by failing to comply with the trial court’s order directing her to file a
Rule 1925(b) statement within 21 days).

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1) Was the Fulton County Court of Common Pleas in error when it
stated that [Mother’s] change of residents [sic] did not impair
[Father’s] custodial rights?

Father’s Brief at 4.

Prior to addressing the merits of Father’s claim on appeal, we first

address Mother’s assertion raised in her brief that Father has waived all issues

on appeal as the issues raised in Father’s concise statement were not raised

or preserved below and “do not indicate any appealable issues as it relates to

Mother being in contempt of a court order related to the relocation statute

which is what he argues, inter alia, in his brief.” Mother’s Brief at 12

(emphasis in original). Mother further raises deficiencies in Father’s brief as

to the lack of reference to the record and enumeration of sections as required

by the Rules of Appellate Procedure. Id. at 13-14.

Pennsylvania Rule of Appellate Procedure 302(a) provides for the waiver

of issues not first raised in the lower court (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”)

Further, pursuant to Pennsylvania Rule of Appellate Procedure 2111:

(a) General rule.--The brief of the appellant, except as
otherwise prescribed by these rules, shall consist of the following
matters, separately and distinctly entitled and in the following
order:

(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.

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(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of a sentence, if
applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief sought.
(10) The opinions and pleadings specified in Subdivisions
(b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of
errors complained of on appeal, filed with the trial
court pursuant to Rule 1925(b), or an averment that
no order requiring a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) was
entered.
(b) Opinions below.--There shall be appended to the brief a
copy of any opinions delivered by any court or other government
unit below relating to the order or other determination under
review, if pertinent to the questions involved. If an opinion has
been reported, that fact and the appropriate citation shall also be
set forth.
(c) Pleadings.--When pursuant to Rule 2151(c) (original
hearing cases) the parties are not required to reproduce the
record, and the questions presented involve an issue raised by the
pleadings, a copy of the relevant pleadings in the case shall be
appended to the brief.

(d) Brief of the Appellant.--In the Superior Court, there shall
be appended to the brief of the appellant a copy of the statement
of errors complained of on appeal, filed with the trial court
pursuant to Pa.R.A.P. 1925(b). If the trial court has not entered
an order directing the filing of such a statement, the brief shall
contain an averment that no order to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) was
entered by the trial court.[11]

Pa.R.A.P. 2111 (footnote added).

____________________________________________

11As indicated above, in children’s fast track matters, such as this matter, a
concise statement of errors complained of on appeal is required to be
submitted with the notice of appeal. Pa.R.A.P. 1925(a)(2)(i).

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Rules 2114 through 2119 establish and set forth in detail the specifics

as to each of the required sections of the brief. See Pa.R.A.P. 2114-2119. As

to the argument section of a brief, Rule 2119 provides as follows:

Rule 2119. Argument.
(a) General rule.—The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the
head of each part—in distinctive type or in type distinctively
displayed—the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.
(b) Citations of authorities.—Citations of authorities in briefs
shall be in accordance with Pa.R.A.P. 126 governing citations of
authorities.
(c) Reference to record.—If reference is made to the
pleadings, evidence, charge, opinion or order, or any other matter
appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a
reference to the place in the record where the matter referred to
appears (see Pa.R.A.P. 2132).
(d) Synopsis of evidence.—When the finding of, or the refusal
to find, a fact is argued, the argument must contain a synopsis of
all the evidence on the point, with a reference to the place in the
record where the evidence may be found.
(e) Statement of place of raising or preservation of
issues.—Where under the applicable law an issue is not
reviewable on appeal unless raised or preserved below, the
argument must set forth, in immediate connection therewith or in
a footnote thereto, either a specific cross-reference to the page or
pages of the statement of the case which set forth the information
relating thereto as required by Pa.R.A.P. 2117(c), or substantially
the same information.

Pa.R.A.P. 2114.

Rule 2101 provides as follows with regard to non-compliance:

Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they

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may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the appeal
or other matter may be quashed or dismissed.

Pa.R.A.P. 2101.

We have held that an appeal may be dismissed and/or quashed where

the deficiencies of the appellant’s brief are such that we are unable to conduct

a meaningful review. Karn v. Quick & Reilly, Inc., 912 A.2d 329, 337

(Pa.Super. 2006); Branch Banking & Trust v. Gesiorski, 904 A.2d 939,

943 (Pa.Super. 2006); Commonwealth v. Maris, 629 A.2d 1014, 1017

(Pa.Super. 1993). Of particular importance, an appellant must include a

statement of questions involved. Branch Banking & Trust, 904 A.2d at 942;

Maris, 629 A.2d at 1016. As we indicated in Maris:

“This Court possesses discretionary authority to quash, dismiss or
deny allowance of appeal based upon the substantial defects of
appellant’s brief. Pa.R.A.P. 2101.” Commonwealth v. Ely, 381
Pa.Super. 510, 513, 554 A.2d 118, 119 (1989). . . . “We decline
to become appellant’s counsel. When issues are not properly
raised and developed in briefs, when the briefs are wholly
inadequate to present specific issues for review a Court will not
consider the merits thereof.” Sanford, supra, 299 Pa.Super. at
67, 445 A.2d at 150. . . .

Maris, 629 A.2d at 1017.

Moreover, we cannot accord special relief to an appellant merely

because of his or her pro se status. See id. As stated in Commonwealth v.

Rivera, 685 A.2d 1011, 1013 (Pa.Super. 1996) (quoting O'Neill v. Checker

Motors Corp., 567 A.2d 680, 682 (Pa.Super. 1989)):

While this court is willing to liberally construe materials filed by a
pro se litigant, we note that appellant is not entitled to any

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particular advantage because she lacks legal training. As our
[S]upreme [C]ourt has explained, any layperson choosing to
represent [herself] in a legal proceeding must, to some reasonable
extent, assume the risk that [her] lack of expertise and legal
training will prove [her] undoing.

In the case sub judice, we decline to find that Father failed to raise

appealable issues or that he raised issues that were not preserved below.

Further, despite some deficiencies in his brief, in particular with regard to

specific reference to the record in the court below, we decline to dismiss

Father’s appeal, as we do not find that such deficiencies hamper meaningful

review.

Turning to the merits of Father’s appeal, our standard of review is as

follows:

When we review a trial court’s finding of contempt, we are limited
to determining whether the trial court committed a clear abuse of
discretion. This Court must place great reliance on the sound
discretion of the trial judge when reviewing an order of contempt.
This Court also has stated that each court is the exclusive judge
of contempts against its process.

G.A. v. D.L., 72 A.3d 264, 269 (Pa.Super. 2013) (internal citation and

quotations omitted). We previously determined:

A court may exercise its civil contempt power to enforce
compliance with its orders for the benefit of the party in whose
favor the order runs but not to inflict punishment. A party must
have violated a court order to be found in civil contempt. The
complaining party has the burden of proving by a preponderance
of evidence that a party violated a court order.

Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001) (internal citation

omitted).

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As to relocation and notice, 23 Pa.C.S.A. Section 5337(c)(1) provides,

in relevant part, “The party proposing the relocation shall notify every other

individual who has custody rights to the child.” 23 Pa.C.S.A. Section 5322

defines “relocation” as “[a] change in a residence of the child which

significantly impairs the ability of a nonrelocating party to exercise custodial

rights.”

Further, Pennsylvania Rule of Civil Procedure 1915.17 states, in relevant

part, “A party proposing to change the residence of a child which significantly

impairs the ability of a non-relocating party to exercise custodial rights must

notify every other person who has custodial rights to the child. . . .”

In finding Mother not in contempt, the trial court reasoned as follows:

a. [Mother] is not in contempt of the September 15, 2015
Final PFA Order.
The Contempt Petition alleges a violation of the relocation
provision of the Final Protection From Abuse Order entered on
September 15, 2015. [Father] argues that “[t]he defendant failed
to follow the Rules of Civil Procedure Rule 1915.17 Relocation.
Notice and Counter-Affidavit in this matter. Wherefore violating
the rights of [Father] in this matter.” At the April 2, 2019 hearing,
[Father] testified that [Mother] moved her residence prior to the
custody conciliation which took place in March of 2018, and that
[Mother] confirmed that she had moved with the child at the
custody trial which took place on December 21, 2018. The [c]ourt
finds that there can be no violation of the September 15, 2015
Final PFA Order, which expired on March 15, 2017, for events that
occurred after its expiration.
The [c]ourt notes that the Order of Court which was in effect
prior to conciliation, dated May 12, 2016, and the Order of
Court which went into effect following conciliation, dated March
27, 2018, both contain relocation language nearly identical to the
provision on which [Father] relies. Both Orders provide that “[n]o
party shall be permitted to relocate the residence of the child to

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significantly impair the ability of another person to exercise
custody,” unless the non-relocating party consents or the [c]ourt
approves the relocation, and state that the party proposing to
relocate must comply with the notice requirements pursuant to 23
[Pa.C.S.A.] Section 5337(c). ([e]mphasis added). Therefore,
the [c]ourt will address whether these relocation provisions,
which were in effect at the time of [Mother]’s alleged violations,
were violated.
b. [Mother] is not in contempt of the subsequent Orders of
Court and has not violated the statutory requirements
regarding relocation.
Not every change in the residence of a child is deemed to
be a “relocation” which triggers [Pa.R.C.P. ]1915.17 and 23
[Pa.C.S.A.] § 5337. Pennsylvania Rule of Civil Procedure 1915.17
clearly provides that “a party proposing to change the residence
of a child which significantly impairs the ability of a non-relocating
party to exercise custodial rights must notify every other person
who has custodial rights to the child.” [Pa.R.C.P.
]1915.17(a) (emphasis added). Although [23 Pa.C.S.A.] §
5337 applies to “any proposed relocation,” [23 Pa.C.S.A.] §
5322 narrowly defines “relocation” as “a change in a residence of
the child which significantly impairs the ability of a nonrelocating
party to exercise custodial rights.” ([e]mphasis added). Unless
there is a significant impairment of the nonrelocating parent’s
custodial rights, there is no violation of [Pa.R.C.P. ]1915.17, [23
Pa.C.S.A.] § 5337, or the relevant Orders of Court.
Although [Mother] and the child had a change in residence,
their move does not constitute a “relocation” because it does not
“significantly impair” [Father]’s ability to exercise custodial rights.
“[W]hile relocation is in part defined by a change in residence of
the child, it is evident that a relocation as contemplated in the
statute requires a negative custodial impact on a nonrelocating
party.” [D.K. v. S.P.K., 102 A.3d 467, 472 (Pa.Super. 2014)].
The Superior Court has explained that:
“[S]ection 5337 is designed to give notice to a party
with custody rights that the other custodial party
intends to change his or her geographical location and
a modification of a custody arrangement will be
necessary to allow the relocating party to continue to
exercise custody rights. Section 5337(c) obviously
envisions a change in the relocating party’s
geographical location that will impact custody...”

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[Id. at]102, 473.
In the present case, there no significant impairment of
[Father]’s limited rights. The change in residence does not impact
legal custody of the child, as [Mother] obtained sole legal custody
by Order of Court dated February 12, 2016, and has maintained
sole legal custody since that time. The change in residence does
not negatively impact physical custody because [Father] is not
afforded visitation with the child. The Order of Court entered on
May 12, 2016 provided that if [Father] was “incarcerated following
entry of this order, he forfeits any and all visitations with the
child.” [Father] has not been entitled to supervised visitation
since approximately December of 2016, when he was
incarcerated. Furthermore, this is not a case where the
nonrelocating parent “has had regular and continued involvement
co-parenting in different aspects of the minor child’s life that go
beyond his periods of partial physical custody.” [C.M.K. v.
K.E.M., 45 A.3d 417, 426 (Pa.Super. 2012)]. Due to
[Father]’s incarceration at a State Correctional Institution and the
nature of his crimes, he is not permitted to be actively involved
with the child’s activities, education, or care. There is no evidence
that the relocation has broken the “continuity and frequency” of
[Father]’s involvement with the child or that it “threatens
significant impairment of [Father]’s ability to exercise his custodial
rights.” [Id.]
Nor has there been a “significant impact” on the contact
which [Father] is permitted to have with the child. Pursuant to
the Order of Court entered on March 27, 2018, [Father] may send
letters and drawings to the child. [Father] continues to frequently
mail letters and drawings for the child to [Mother]’s former
address, where [Mother]’s mother still resides. [Father] testified
that he feels that he must send mail weeks in advance, in order
to ensure that it is received by the child at the intended time.
However, this was a practice which [Father] adopted before the
child moved to her new residence. A few letters and drawings
have been returned to [Father], but this may be attributed to
difficulties with the prison mail system. The [c]ourt has no reason
to believe that [Mother] is not providing the child with the letters
and drawings which she deems appropriate. While the [c]ourt
notes [Father]’s annoyance, these facts do not suggest a
“significant impairment” of his correspondence with the child.
...

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It is clear that the child’s change in residence does not
constitute a “relocation,” as there has been no significant
impairment [Father]’s custodial rights. The requirements set forth
in Pa.R.C.P. [] 1915.17 and 23 Pa.[]C.S.A. § 5337 were,
therefore, not triggered, and [Mother] did not violate the
relocation provisions set forth in the May 12, 2016 or March 27,
2018 Orders of Court.
c. Defendant is not in contempt for failing to provide her
address to Plaintiff.
The Contempt Petition also notes that [Father] has not been
provided with [Mother]’s address. However, this information is
protected pursuant to 23 Pa.C.S.A. § 5336(b).

Order, 4/16/19, at 1-5 (footnotes omitted); see also Opinion, 5/31/19, at 1-

3 (unpaginated).

Father, however, argues that Mother relocated without notice which

“significantly impaired [his] ability to maintain a meaningful relationship with

[Child].” Father’s Brief at 10. He continues, “In fact, the move cut off all

forms of contact not only with [Father] but the said child’s family, to include

her haft [sic] sister and haft [sic] brother on [Father]’s side. The crimes to

which [Father] is charged do not involve his daughter. The [] Department of

Corrections has no policy on denying parental rights to sex offenders. . . .”

Id.

Upon review, we disagree. For the reasons stated by the trial court

included and set forth above, we discern no abuse of discretion with the trial

court’s determination that Mother was not in contempt and affirm the order of

the trial court.

Order affirmed.

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Judge Dubow joins the memorandum.

P.J.E. Gantman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/23/2019

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