J-S04044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: D.G., A MINOR                          :   IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
                                              :
APPEAL OF: A.G., BIRTH MOTHER                 :   No. 1179 WDA 2015


                       Appeal from the Order July 8, 2015,
               in the Court of Common Pleas of Allegheny County,
               Orphans’ Court, at No(s): CP-02-AP-0000064-2014

BEFORE: BOWES, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED FEBRUARY 29, 2016

         A.G. (Mother) appeals from the order entered July 8, 2015, in the

Court of Common Pleas of Allegheny County, which terminated involuntarily

her parental rights to her minor son, D.G. (Child).1 We affirm.

         Child was born in October of 2012. Immediately after his birth, Child’s

blood tested positive for opiates and he was removed from Mother’s care by

the Allegheny County Office of Children, Youth and Families (CYF).         Child

was adjudicated dependent on December 14, 2012 and placed in foster

care.2



* Senior Judge assigned to the Superior Court.
1
  The identity of Child’s natural father is unknown. His parental rights were
terminated on June 30, 2014.
2
  Mother had a prior history with CYF which, to some extent, precipitated
CYF’s dependency petition on behalf of Child. Her older daughters, Child’s
half-sisters, were adjudicated dependent before Child’s birth and placed in
the permanent care of their paternal aunt. Additionally, Mother was
incarcerated on a driving-under-the-influence (DUI) charge while she was
pregnant with Child. She was released two months prior to Child’s birth.
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     CYF filed a petition for involuntary termination of parental rights (TPR)

on April 11, 2014. On June 30, 2014, the orphans’ court denied the petition,

finding that CYF had not met its burden of proving that grounds for

termination existed as to Mother.    However, the court ordered Mother to

participate in dual-diagnosis treatment and comply with the goals of the

Family Service Plan (FSP) provided by CYF. Specifically, “CYF was ordered to

refer Mother to mental health treatment and Mother was to take a copy of [a

psychological evaluation completed by Dr. Neil Rosenblum] to her treatment

provider to insure that the issues raised by Dr. Rosenblum were being

addressed in treatment. Mother was to provide proof of her mental health

treatment.” Orphans’ Court Opinion, 9/8/2015, at 2.

     A permanency review hearing was held on September 14, 2014.           At

that hearing, Mother indicated that she had enrolled in mental health

treatment as ordered, but had not provided Dr. Rosenblum’s report to her

new therapist.   The goal change hearing was continued to November 14,

2014, pending an updated assessment by Dr. Rosenblum.

     On November 14, 2014, the orphans’ court found that Mother’s

compliance with the permanency plan was minimal, stating as follows.

           The court previously denied a TPR because the agency did
     not establish grounds. Dr. Rosenblum was not called as a
     witness at that time. Since the TPR denial, the court added an
     additional goal of mental health treatment to [Mother’s] goals

During those two months, Mother repeatedly refused to cooperate with CYF’s
request for urine screens.

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      which she has not consistently attended. Additionally, concerns
      about [Mother’s] continued contact with her family and the fact
      that her other children were in her care and at her mother’s
      residence raise additional concerns. Additionally, [Mother] was
      present at her mother’s residence when her sister who was
      subject to a warrant was arrested. Dr. Rosenblum re-evaluated
      [Mother] and continues to opine that, although [Mother] has
      some good skills with [Child], her mental health and personal
      situation is such that she is not currently stable enough to
      assume care for [Child], nor will she be stable enough within a
      reasonable period of time given the length of time [Child] has
      been in care.

Id. at 3.     Based on these findings, the orphans’ court changed the

permanency goal to adoption.

      A second TPR petition was filed on December 19, 2014. On January

23, 2015, Mother filed a motion requesting that the orphans’ court recuse

itself from the termination proceeding. That motion was denied, following a

hearing, on January 30, 2015.

      A termination hearing was held on June 29 and July 1, 2015. On July

8, 2015, the orphans’ court entered its decree terminating Mother’s parental

rights.   Mother timely filed a notice of appeal, along with a concise

statement of errors complained of on appeal.

      Mother now raises the following issues for our review.

      1. Did the [orphans’] court abuse its discretion and/or err as a
      matter of law in granting the petition to involuntarily terminate
      Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and
      (a)(5)?

      2. Did the [orphans’] court abuse its discretion and/or err as a
      matter of law in concluding that CYF met its burden of proving
      by clear and convincing evidence that termination of Mother’s


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      parental rights would best serve the needs and welfare of [Child]
      pursuant to 23 Pa.C.S. § 2511(b)?

      3. Did the [orphans’] court abuse its discretion by failing to
      recuse [itself]?

Mother’s Brief at 5 (orphans’ court answers omitted).

      We consider Mother’s claims mindful of our well-settled standard of

review.

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the [orphans’] court if they are
      supported by the record. If the factual findings are supported,
      appellate courts review to determine if the [orphans’] court
      made an error of law or abused its discretion. A decision may be
      reversed for an abuse of discretion only upon demonstration of
      manifest unreasonableness, partiality, prejudice, bias, or ill-will.
      The [orphans’] court’s decision, however, should not be reversed
      merely because the record would support a different result. We
      have previously emphasized our deference to [orphans’] courts
      that often have first-hand observations of the parties spanning
      multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated

analysis.

      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing
      evidence that the parent’s conduct satisfies the statutory
      grounds for termination delineated in Section 2511(a). Only if
      the court determines that the parent’s conduct warrants
      termination of his or her parental rights does the court engage in
      the second part of the analysis pursuant to Section 2511(b):
      determination of the needs and welfare of the child under the

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     standard of best interests of the child. One major aspect of the
     needs and welfare analysis concerns the nature and status of the
     emotional bond between parent and child, with close attention
     paid to the effect on the child of permanently severing any such
     bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

     In this case, the orphans’ court terminated Mother’s parental rights

pursuant to Sections 2511(a)(2), (5), and (b). We need only agree with the

orphans’ court as to any one subsection of subsection 2511(a), as well as

subsection 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc). Here, we analyze the court’s decision to

terminate under subsections 2511(a)(2) and (b), which provide as follows.

     (a) General Rule.—The rights of a parent in regard to a child
     may be terminated after a petition filed on any of the following
     grounds:

                                   ***

           (2) The repeated and continued incapacity, abuse,
           neglect or refusal of the parent has caused the child
           to be without essential parental care, control or
           subsistence necessary for his physical or mental
           well-being and the conditions and causes of the
           incapacity, abuse, neglect or refusal cannot or will
           not be remedied by the parent.

                                   ***

      (b) Other considerations.―The court in terminating the rights
      of a parent shall give primary consideration to the
      developmental, physical and emotional needs and welfare of the
      child. The rights of a parent shall not be terminated solely on
      the basis of environmental factors such as inadequate housing,
      furnishings, income, clothing and medical care if found to be
      beyond the control of the parent.


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23 Pa.C.S. § 2511(a)(2), (b).

      Mother argues that the orphans’ court erred in terminating her

parental rights under subsection (a)(2) where Dr. Rosenblum testified that

she “possesses good parenting skills”, and CYF caseworker Lawrence Walter

stated that her interactions with Child are appropriate. Mother’s Brief at 9.

      The orphans’ court addressed Mother’s claim as follows.

            With respect to Mother’s first issue, following the hearing
      on CYF’s first TPR petition, [the orphans’ court] ordered Mother
      to engage in mental health treatment and to provide her treating
      provider with a copy of Dr. Rosenblum’s report so that the issues
      Dr. Rosenblum had identified would be addressed in treatment.
      One such issue that Dr. Rosenblum identified was that Mother
      needed to participate in intensive dual-diagnosis therapy. At the
      June 29th termination hearing, Dr. Rosenblum testified that
      Mother’s “poor judgment, poor problem solving, how drugs and
      alcohol relate to that … troubled relationships with others, [] lack
      of ownership and responsibility, limited independence in her
      personal functioning, and difficulty accepting and responding to
      feedback from others” necessitated the intensive dual-diagnosis
      treatment. Yet, in spite of [the orphans’ court’s] June 30, 2014
      Order, Mother failed to provide her therapist, Ms. Wilkinson, with
      a copy of Dr. Rosenblum’s report in a timely manner and
      subsequently ceased attending her therapy sessions only after
      three short months.5

      ___________________________________________________
            5
               Although Ms. Wilkinson testified that it was not
            Mother’s fault that Mother’s services were delayed
            from July until November, it was Mother’s decision to
            terminate the therapy only after ten individual
            sessions.

      ___________________________________________________

            Furthermore, Mother only attended a little over 75 percent
      of her appointments during those brief months in which she was
      involved in therapy. Although Mother did attend weekly dual

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     diagnosis group therapy sessions during that time period,6
     Mother never engaged in any individual dual diagnosis treatment
     with Ms. Wilkinson per Dr. Rosenblum’s recommendation.

     ___________________________________________________
           6
             The group therapy sessions were labeled as “dual
           diagnosis” because the individuals in treatment were
           engaged in either individual mental health or drug
           and alcohol treatment or both. However, the group
           therapy sessions were not necessarily targeted at
           treating individuals with dual diagnoses per se.

     ___________________________________________________

            At the termination hearing, Mother testified that she “quit”
     attending her individual and group therapy sessions at Mercy
     Behavioral Health because she felt that she was not “getting
     anywhere with the therapists and the groups.” Mother further
     testified that she began “to look into better programs that would
     meet the goals of what Dr. Rosenblum wanted [her] to work on.”
     Yet, at the time of the July 1, 2015 termination hearing, Mother
     was not engaged in any form of mental health treatment.
     Although Mother testified that she participated in mental health
     treatment at the Northside branch of Mercy Behavioral Health
     from April to June of 2015, Mother did not offer into evidence
     any proof of her treatment, nor did she sign releases for CYF to
     have access to her records from the Northside branch.
     Furthermore, neither Ms. Wilkinson nor Mr. Williams had any
     record that Mother was being treated at the Northside branch.

           Even if [the court] had found Mother’s testimony regarding
     her most recent treatment to be credible, the fact remains that
     in the year since [the court] ordered Mother to engage in mental
     health treatment, by her own admission, she only engaged in
     roughly five months of therapy. Moreover, for the entire year
     prior to the termination hearing, Mother never sought the dual-
     diagnosis treatment that Dr. Rosenblum stated was needed to
     remedy her incapacity and neglect. Further, based upon Dr.
     Rosenblum’s evaluation, even if Mother had consistently
     attended therapy, there would be no assurance that the
     treatment would result in the type of change necessary for
     Mother to parent on a full[-]time basis.


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              Following the dependency adjudication, [Child] has never
        returned to Mother’s care or had any unsupervised visitation with
        Mother because of Mother’s continued incapacity.

Orphans’ Court Opinion, 9/8/2015, at 5-6 (citations omitted).

        The court’s analysis is supported by the record.             During the TPR

hearing, CYF adoptions caseworker Gregory Williams testified that since June

of 2014 the agency’s “nonnegotiable goals” for Mother were visitation with

Child    and   Mother’s    participation    in    mental   health   treatment.     N.T.,

7/1/12015, at 25-26.        Mother was also instructed to address her housing

situation, maintain sobriety and “positive mental health,” and locate

employment. Id. at 26. Mr. Williams testified that Mother has attended her

scheduled supervised visitations with Child, but has not followed through on

participation in mental health treatment. Id. at 29, 31. Mr. Williams further

indicated that, as of the date of the hearing, Mother was not participating in

drug and alcohol counseling, although her recent urine screens were

negative. Id. at 34-35.       Mr. Williams stated that, due to Mother’s lack of

follow-through with the nonnegotiable goal of seeking mental health

treatment, her history of drug and alcohol dependence, and her general

inconsistency    with     participating    in    court-ordered   services,   CYF    was

concerned with Mother’s stability and ability to parent Child. Id. at 39-40.

        Dr. Rosenblum testified that, when he initially evaluated Mother, he

believed she had “skills and talent” as a parent and that reunification with

her children was possible “if she could deal with her impulse control, her


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anger, and her need for dual-diagnosis treatment.” N.T., 6/29/2015, at 11.

However, he testified that in the two and a half years since his initial

evaluation he had not seen an appreciable change in Mother’s behavior,

particularly in her lack of independence and ownership over her decisions.

Id. at 10-11.

      Moreover,   Debbie   Wilkinson,   Mother’s    Mercy   Behavioral   Health

outpatient therapist testified that Mother unilaterally decided to stop

attending individual therapy and dual-diagnosis group sessions there in

February of 2015.   N.T., 7/1/2015, at 11-15.      Ms. Wilkinson testified that

Mother attended approximately 75% of her scheduled sessions before

discharging herself from the programs. Id. at 18.

      CYF caseworker Lawrence Walter testified that, while the agency

believed that Mother’s interaction with Child during supervised visitations

was appropriate, concerns remained over Mother’s long-term mental health,

sobriety, and personal stability. Id. at 58-59, 64. He testified that CYF has

had the same goals in place for Mother since 2011, when her older children

were declared dependent. Id. at 63. Those goals have not been addressed

adequately in that time, leading CYF to conclude that “the length of this case

and the assorted efforts … made to resolve these issues without success

suggests that they are unlikely to be resolved any time in the near future.”

Id. at 63.




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      During her testimony, Mother admitted that she left Mercy Behavioral

Health in February of 2015 because she did not believe she was “getting

anywhere with the therapists and the groups that [she] had so [she] started

to look into better programs” that would meet her dual-diagnosis goals. Id.

at 75. As of the TPR hearing, Mother was not receiving any mental health or

drug dependency treatment, although she testified that she had sought

referrals from CYF, but admitted that she had not followed-up. Id. at 78.

Mother testified that she was sober, having weaned herself off of opiates,

including methadone. Id. at 80-81.

      Despite Mother’s progress in achieving sobriety in the months leading

up to the TPR hearing, the record reveals that Mother has not addressed the

nonnegotiable goal of obtaining and maintaining mental health treatment,

despite being given ample opportunities to do so. In fact, Mother unilaterally

discharged herself from her dual-diagnosis program.       While she claims to

have sought a better program, she had not enrolled in treatment in the four

months between her voluntary discharge and the TPR hearing.            Further,

despite listing a few referrals, Mother failed to indicate when, if at all, she

intended to enroll in a new program.          Accordingly, because the record

supports a determination that Mother cannot or will not remedy her

incapacity, we hold that the trial court did not err in finding that CYF met its

burden under subsection 2511(a)(2).       See, e.g., In re C.L.G., 956 A.2d

999, 1008 (Pa. Super. 2008) (en banc) (“[I]f we were to permit Mother


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further opportunity to cultivate an environment where she can care for

C.L.G., we would be subjecting a child, who has been waiting for more than

two years for permanency, to a state of proverbial limbo in anticipation of a

scenario that is speculative at best.”).

We now turn our attention to subsection 2511(b). We have discussed our

analysis under that subsection as follows.

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that the trial court must also discern
      the nature and status of the parent-child bond, with utmost
      attention to the effect on the child of permanently severing that
      bond. However, in cases where there is no evidence of a bond
      between a parent and child, it is reasonable to infer that no bond
      exists.   Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some

citations omitted).

      Here, the orphans’ court concluded that terminating Mother’s parental

rights would best serve the needs and welfare of the Child:

      Mother argues that termination “permanently and unnecessarily
      deprives [Child] of the love, companionship and affection of his
      biological mother with whom he is bonded.” Dr. Rosenblum
      testified that [Child’s] primary attachment is to his foster
      parents, as they are the individuals to whom his sense of trust
      and comfort is clearly connected. Dr. Rosenblum further testified
      to a reasonable degree of psychological certainty that
      termination met [Child’s] needs and welfare. [Child] does not
      look to Mother as the individual he can rely on to meet his
      emotional needs. Moreover, […] not visiting with Mother would

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     not appear to have any adverse impact on [Child], as [Child] has
     spent the most vital years of his attachment period with his
     foster parents and has lived his entire life out of Mother’s care.
     Yet, were [Child] to be removed from his foster parents, it
     appears that he would suffer “a major emotional trauma.”

Orphans’ Court Opinion, 9/8/2015, at 9.

     We again conclude that the orphans’ court did not abuse its discretion.

The testimony of Dr. Rosenblum was corroborated by that of CYF caseworker

Walter, who testified that Child has resided with his pre-adoptive foster

parents since being adjudicated dependent in December of 2012.                N.T.,

7/1/2015, at 63-64, 68. While he recognizes Mother and interacts with her

appropriately, he has never had unsupervised contact with Mother. Id. at

68-69. Child is bonded with his foster parents, he looks to his foster parents

to meet his daily needs and he is thriving in their care.        Id. Mr. Walter

opined that Child’s best interest would be served by terminating Mother’s

parental rights, so that he can be adopted by his foster parents. Id. at 64.

     Thus, the record supports the conclusion of the orphans’ court that it

would best serve Child’s needs and welfare to terminate Mother’s parental

rights. Allowing Mother to preserve her parental rights would deny Child the

opportunity for permanence and stability. No relief is due.

     Finally, Mother argues that the orphans’ court erred in failing to recuse

itself from the termination proceeding. Mother’s Brief at 19-20.

            Generally, a party must seek to have a judge recused from
     a case, by first bringing the petition for recusal before that jurist,
     thus enabling the judge to evaluate the reasons for recusal
     firsthand. This is, in part, to allow the requested judge to state

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      his or her reasons for granting or denying the motion and, as the
      allegedly biased party, to develop a record on the matter. The
      final determination by that judge may then be reviewed by an
      appellate court, but may only be reversed upon an abuse of
      discretion.

In re Adoption of L.J.B., 18 A.3d 1098, 1112 (Pa. 2011) (citations and

quotations omitted). “We recognize that our trial judges are ‘honorable, fair

and competent,’ and although we employ an abuse of discretion standard,

we do so recognizing that the judge [her]self is best qualified to gauge [her]

ability to preside impartially. Hence, a trial judge should grant the motion to

recuse only if a doubt exists as to his or her ability to preside impartially or if

impartiality can be reasonably questioned.” In re A.D., 93 A.3d 888, 892

(Pa. Super. 2014).

      On appeal, Mother contends that the orphan’s court “denied the first

TPR petition filed against Mother … reluctantly and visibly expressed [its]

unhappiness with [the] decision saying that CYF could have prevailed.”

Mother’s Brief at 19.3    Mother further contends that the court’s familiarity


3
  Mother’s issue on appeal differs from that argued during the January 30,
2014 hearing on her motion to recuse.     At that time, counsel for Mother
indicated that the basis for the motion was statements made by the court
during a November 14, 2014 permanency review hearing involving Mother’s
older children. N.T., 1/30/2015, at 6-8. Counsel stated that a colleague of
his was present at the hearing on Mother’s behalf and believed the court was
advising CYF “how to present their case at [Mother’s] next TPR hearing.” Id.
at 7. These comments prompted the other attorney to seek a recusal, which
was denied. Id. Mother has failed to provide this Court with a transcript of
the November 14, 2014 hearing at issue, or a statement in lieu of that
transcript as prescribed in Pa.R.A.P. 1923. Accordingly, to the extent that
Mother relies on this transcript in her argument, this issue is waived. In re
G.T., 897 A.2d 1197, 1199 (Pa. Super. 2006) (“Absent a re-creation of the
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with, and negative opinions of, Mother’s family affected the partiality of her

decision in this matter. Id.

      The court addressed Mother’s issue as follows.

      As the party seeking recusal, Mother had the burden to prove
      that [the court] exhibited some form of “bias, prejudice or
      unfairness” that rendered [it] incapable of presiding impartially.
      The only evidence which Mother can point to of [the orphans’
      court’s] alleged bias is that [it] appeared to have “demonstrated
      express displeasure” in not terminating her rights at the first TPR
      hearing, that [it] had the “express intention” to terminate her
      rights at the subsequent TPR hearing, and was swayed by [its]
      knowledge of extra-judicial information regarding Mother’s
      family.

      With respect to Mother’s first argument, [the court] did not
      express displeasure in not being able to terminate Mother’s
      rights at the first TPR hearing. [It] merely denied making a
      finding in favor of Mother. Because denial of the first petition
      was used affirmatively in the [siblings’] case, [the court] simply
      commented that CYF did not establish grounds for termination,
      but that the petition was not denied due to any actions or efforts
      by Mother to improve her situation. [The court’s] comment in no
      way signified any degree of displeasure or bias towards Mother.

      In response to Mother’s second and third arguments, Mother has
      failed to demonstrate any evidence that [the court] intended to
      terminate her rights prior to the second hearing, other than her
      belief that [the court] allowed extra-judicial knowledge of her
      family to impact [its] impartiality. As [the court] stated at the
      motions hearing on January 30, 2015, despite all of the
      information that [it] was aware of during the first termination
      hearing, [it] denied CYF’s petition, finding the agency did not did
      not establish grounds for termination. Furthermore, all of the
      information … learned about Mother’s family was obtained in [the
      court’s] role as a jurist and not from any “pretrial bias or
      personal disdain.” Contrary to Mother’s belief, trial judges are

content of the alleged missing transcript, it is as if the transcript was not
filed. Under those circumstances, adequate appellate review is not possible
without such crucial testimony.”).

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        capable of “disregarding inadmissible evidence and considering
        only competent evidence.”

Orphans’ Court Opinion, 9/8/2015, at 10-11 (citations omitted).

        We discern no abuse of discretion in the orphans’ court’s decision to

deny Mother’s motion. Put simply, Mother has failed to meet her burden of

establishing that the court’s comment was evidence of “bias, prejudice or

unfairness which raises a substantial doubt as to the jurist's ability to preside

impartially.” In re A.D., 93 A.3d at 894. Moreover, we recognize, and the

orphans’ court aptly notes, that the court’s familiarity with Mother’s family is

a necessary result of the one-judge/one-family system employed by

Allegheny County and the court’s apprehension about allowing Mother, and

Child, to be involved with Mother’s family is not in and of itself evidence of

bias.

        Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by terminating Mother’s parental rights to the Children

involuntarily, we affirm the order of the orphans’ court.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/29/2016

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