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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MARTHA GALARZA-PADRON AND        :           IN THE SUPERIOR COURT OF
ABEL PADRON (H/W),               :                 PENNSYLVANIA
                                 :
                   Appellants    :
                                 :
                v.               :
                                 :
MARY KIRKALDIE, EXECUTRIX OF THE :               No. 1658 EDA 2015
ESTATE OF LOUIS KIRKALDIE AND    :
MARY KIRKALDIE                   :


               Appeal from the Judgment Entered May 12, 2015,
                in the Court of Common Pleas of Chester County
                        Civil Division at No. 2013-11961



MARTHA GALARZA-PADRON AND        :           IN THE SUPERIOR COURT OF
ABEL PADRON (H/W),               :                 PENNSYLVANIA
                                 :
                   Appellants    :
                                 :
                v.               :
                                 :
MARY KIRKALDIE, EXECUTRIX OF THE :               No. 3323 EDA 2015
ESTATE OF LOUIS KIRKALDIE AND    :
MARY KIRKALDIE                   :


                    Appeal from the Order, October 7, 2015,
               in the Court of Common Pleas of Chester County
                       Civil Division at No. 2013-11961


BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:          FILED SEPTEMBER 23, 2016
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     Martha Galarza-Padron and Abel Padron, husband and wife, appeal

from the judgment entered May 12, 2015, and the order entered October 7,

2015. The appeal at No. 1658 EDA 2015 has been taken from the May 12,

2015 order granting summary judgment and dismissing with prejudice all

claims   against   Louis   Kirkaldie,   the   Estate   of   Louis   Kirkaldie,    and

Mary Kirkaldie, in her capacity as personal representative of the Estate. The

appeal at No. 3323 EDA 2015 has been taken from the October 7, 2015

order sustaining the preliminary objections of Mary Kirkaldie and dismissing

with prejudice all claims against her in her individual capacity.                These

appeals were consolidated sua sponte. After careful review, we affirm.

     The procedural history of this matter was set forth by the trial court in

its October 7, 2015 order sustaining Mary Kirkaldie’s preliminary objections

in the nature of a demurrer:

                   This action arises out of a motor vehicle
            accident that occurred on December 23, 2011
            involving Louis Kirkaldie and plaintiff Martha
            Galarza-Padron. Defendant Mary Kirkaldie, in her
            individual capacity, has filed preliminary objections in
            the nature of a demurrer to all claims against her.
            This case has a lengthy procedural history.

                   1. Procedural History

                  As noted above, the accident at the center of
            this case occurred on December 23, 2011.
            Louis Kirkaldie died on September 19, 2012, due to
            reasons unrelated to the accident. (See Defs.’ Prel.
            Obj. at ¶2.). Plaintiffs commenced this action on
            December 13, 2013, by filing a Writ of Summons.
            The Writ named as defendants Louis and
            Mary Kirkaldie, as husband and wife.             On


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          December 23, 2013, the day the statute of
          limitations was to run, plaintiffs filed a “Summons in
          Civil Action for Additional Defendant,” which was
          issued to the Estate of Louis Kirkaldie (the “Estate”).
          The Writs were then re-issued approximately every
          thirty days between January, 2014 and October,
          2014.

                 Plaintiffs  finally  filed  a   complaint     on
          October 29, 2014. The complaint then named as
          defendants Mary Kirkaldie as Executrix of the Estate
          of Louis Kirkaldie and Mary Kirkaldie, individually. At
          the same time, plaintiffs filed a “Praecipe to Amend
          Caption of Complaint in Civil Action” requesting the
          Prothonotary amend the defendants’ side of the
          caption to change it from Louis Kirkaldie and
          Mary Kirkadlie      [sic]  (h/w)    and    Estate    of
          Louis Kirkaldie to Mary Kirkaldie, as Executrix of the
          Estate of Louis Kirkaldie and Mary Kirkaldie,
          Individually. Moving Defendants acknowledge that
          the praecipe was filed with the consent of the
          parties. Thereafter, Defendants Louis Kirkaldie and
          Mary Kirkaldie, as Executrix of the Estate of
          Louis Kirkaldie, filed an Answer and New Matter and
          asserted as a defense the statute of limitations.
          Defendants Louis Kirkaldie and Mary Kirkaldie, as
          Executrix of the Estate of Louis Kirkaldie, eventually
          filed a motion for summary judgment based upon
          the statute of limitations, and the court granted the
          motion on May 12, 2015.           On June 11, 2015,
          plaintiffs appealed the court’s summary judgment
          order.

                On June 25, 2015, Ms. Kirkaldie’s present
          counsel entered his appearance in this matter. On
          July 2, 2015, Ms. Kirkaldie filed preliminary
          objections to plaintiffs’ complaint.     According to
          Ms. Kirkaldie, although plaintiffs claim in various
          portions of their complaint that Ms. Kirkaldie was
          negligent, the only specific, factual allegations
          against her are that she was the wife of the [sic]
          Mr. Kirkaldie and was the holder of an excess
          insurance policy that potentially covers the accident.
          Ms. Kirkaldie requested oral argument on her


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            preliminary objections, the court then scheduled
            [oral argument].

                  Plaintiffs failed to file a response of any kind to
            Ms. Kirkaldie’s preliminary objections. Plaintiff[s] did
            attend the oral argument.

Order, 10/7/15 at 1-2 n.1; Docket #39.

      On October 30, 2015, appellants filed a timely notice of appeal from

the   October    7,   2015    order.      Appellants    have     complied    with

Pa.R.A.P. 1925(b), and the trial court has filed Rule 1925(a) opinions

addressing both the May 12, 2015, and October 7, 2015 orders.

      Appellants have raised the following issues for this court’s review:

            1.    Did the trial court abuse its discretion or err as
                  a matter of law by granting summary
                  judgment when the record established that:

                  •   Plaintiffs had filed suit against the
                      administrator of the estate of the
                      driver of the vehicle that collided with
                      plaintiff’s vehicle;

                  •   The lawsuit was filed within         the
                      applicable statute of limitations;

                  •   The estate of the deceased driver
                      was opened within the applicable
                      statute of limitations;

                  •   Plaintiffs filed a Praecipe to Join the
                      estate of the deceased driver as a
                      party within the applicable statute of
                      limitations; and,

                  •   The Complaint alleged claims against
                      the estate?




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              2.    Alternatively, does a Summons, which names
                    an Estate and the Executrix of the Estate as
                    Defendants, but does not identify the Executrix
                    in that capacity until the Complaint is filed, set
                    forth a valid cause of action under 20 Pa.C.S.
                    §3373, which requires that an action be
                    brought against a personal representative but
                    does not require that the action specify that
                    the personal representative is being named as
                    a defendant in that capacity?

Appellants’ brief at 4.

        In a supplemental brief, appellants raise the following additional issue:

              1.    Does a trial court have jurisdiction over
                    Preliminary Objections while the case is on
                    appeal to the Superior Court from an Order
                    granting Summary Judgment in the same
                    proceeding?

Appellants’ supplemental brief at 4.

        We will briefly address appellants’ last issue first. In its opinion filed

June 29, 2015, the trial court opined that the May 12, 2015 summary

judgment order was interlocutory. The May 12, 2015 order dismissed any

and all claims against Louis Kirkaldie, the Estate of Louis Kirkaldie, and

Mary Kirkaldie, in her capacity as personal representative of the Estate of

Louis Kirkaldie; however, the May 12, 2015 order did not dismiss appellants’

claims against Mary Kirkaldie, individually. Therefore, according to the trial

court, the May 12, 2015 order did not end the litigation as to all

claims/parties and was not a final order.       (Trial court opinion, 6/29/15 at

1-2.)    It is well established that an order granting judgment against one

defendant but leaving pending the complaint against other defendants is not


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a final order. Pa.R.A.P. 341. See Estate of Considine v. Wachovia Bank,

966 A.2d 1148, 1153 (Pa.Super. 2009) (order granting summary judgment

to one of multiple defendants not subject to interlocutory appeal as of right).

Since, according to the trial court, the May 12, 2015 order was not a final

order appealable as of right, then it retained jurisdiction to rule on

Mary Kirkaldie’s    preliminary     objections     filed   July       7,    2015.

Pa.R.A.P. 1701(b)(6); see Deeter v. Dull Corp., Inc., 617 A.2d 336,

338 n.3 (Pa.Super. 1992), appeal denied, 629 A.2d 1380 (Pa. 1993)

(plaintiffs’ notice of appeal from nonappealable interlocutory order did not

prevent trial court from accepting untimely amended complaint and

dismissing it for failure to state cause of action). Appellants counter that the

May 12, 2015 order was a final order because the remaining claim against

Mary Kirkaldie, individually, was “illusory.” (Appellants’ supplemental brief

at 9.)   Appellants state that Louis Kirkaldie was driving the vehicle in the

underlying accident and that they did not assert any negligence claims

directly against Mary Kirkaldie. (Appellants’ brief at 7.) The only allegations

in the complaint against Mary Kirkaldie were in her capacity as executrix of

the Estate and for potential excess insurance coverage.       (Id.)    Appellants

cite Breslin v. Ridarelli, 454 A.2d 80 (Pa.Super. 1982), for the proposition

that “the happenstance of a spousal relationship does not per se impose

liability upon a spouse for the other spouse’s negligence.”           (Appellants’

supplemental brief at 9.) See Breslin, 454 A.2d at 83 (“Negligence will not



                                     -6-
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be imputed to the husband of a motorist where the uncontradicted evidence

is that the motorist was on a mission of her own and that her husband had

not ordered or requested her to do any thing for him.” (citation omitted)).

         Here, appellants alleged in their complaint that Louis Kirkaldie ran a

stop sign and struck plaintiff-wife, Martha Galarza-Padron, pushing her

vehicle across the road and into a utility pole.     Appellants alleged, inter

alia, that Louis Kirkaldie was inattentive and traveling too fast for the

conditions. There were no allegations of a master/servant or principal/agent

relationship, or that Louis Kirkaldie was acting at his wife’s direction. See

Breslin, 454 A.2d at 83 (“Although such relations, legally speaking, may

exist between a husband and wife, it is only in rare instances that they

do.”).     As such, appellants argue that the May 12, 2015 order granting

summary judgment disposed of all viable claims against Mary Kirkaldie and

was in reality a final and appealable order, which divested the trial court of

jurisdiction. (Appellants’ supplemental brief at 10.)

         Even assuming, as the trial court determined, that the May 12, 2015

summary judgment order was not a final order because Mary Kirkaldie,

individually, remained in the case, there is no jurisdictional impediment to

our review because the October 7, 2015 order sustaining Mary Kirkaldie’s

preliminary objections in the nature of a demurrer ended the case and put

the litigants out of court. Therefore, the October 7, 2015 order rendered the

May 12, 2015 partial summary judgment order final for appeal purposes.



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See K.H. v. J.R., 826 A.2d 863, 869 (Pa. 2003) (“Thus, in an action

involving    multiple   defendants,   and   in   the   absence   of   an   express

determination by the trial court under Rule 341(c), an order granting

summary judgment as to one party is treated as appealable as of right only

after the disposition of the claims involving the remaining parties.          See

generally Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 650

(Pa.Super. 2002) (stating that an order settling a case as to the remaining

parties rendered the prior orders granting summary judgment final under

Rule 341).”).

        Alternatively, even if the May 12, 2015 order was a final order because

the claims against Mary Kirkaldie, individually, were “illusory,” as appellants

argue, and therefore, the trial court lacked jurisdiction to rule on

Mary Kirkaldie’s July 2, 2015 preliminary objections, the matter is basically

moot.       Appellants failed to respond to Mary Kirkaldie’s preliminary

objections, and they concede on appeal that their negligence claims against

Mary Kirkaldie were based solely upon Louis Kirkaldie’s negligence in the

underlying accident.      (Appellants’ brief at 14.)     There were no factual

allegations in the complaint connecting Mary Kirkaldie to appellants or the

subject accident. The only facts alleged were that she was Louis Kirkaldie’s

wife and was the policyholder of excess liability coverage.           According to

appellants, by barring them from proceeding against Mary Kirkaldie in her

role as executrix of the Estate, the trial court effectively determined the



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rights of the parties and extinguished all of appellants’ viable claims.

(Appellants’ brief at 13.)

      We now turn to appellants’ primary argument on appeal, which is that

by naming Mary Kirkaldie and the Estate as defendants before the statute of

limitations ran, they satisfied 20 Pa.C.S.A. § 3373, which provides, “An

action or proceeding to enforce any right or liability which survives a

decedent may be brought by or against his personal representative alone or

with other parties as though the decedent were alive.” Appellants argue that

the statute merely requires that the action be brought against the

decedent’s personal representative, not that a defendant be named in that

role. (Appellants’ brief at 18.) According to appellants, “The statute does

not require, or render it a fatal defect, if the caption does not state that the

person is named as a defendant in his or her capacity as the personal

representative.”   (Id.)     Therefore, appellants argue that the trial court

should have focused on whether they listed the personal representative of

the Estate as a defendant, which they did. (Id. at 17.) Appellants argue

that it was not a fatal defect that they did not identify Mary Kirkaldie in her

capacity as executrix until after the statute of limitations had expired, and

therefore, the trial court erred in granting summary judgment.          (Id. at

16-17.) We disagree.

            Th[e] scope of review of an order granting summary
            judgment is plenary. Our standard of review is
            clear: the trial court’s order will be reversed only
            where it is established that the court committed an


                                      -9-
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              error of law or clearly abused its discretion.
              Summary judgment is appropriate only in those
              cases where the record clearly demonstrates that
              there is no genuine issue of material fact and that
              the moving party is entitled to judgment as a matter
              of law. The reviewing court must view the record in
              the light most favorable to the nonmoving party,
              resolving all doubts as to the existence of a genuine
              issue of material fact against the moving party.
              When the facts are so clear that reasonable minds
              cannot differ, a trial court may properly enter
              summary judgment.

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-1222

(Pa. 2002).

        As stated above, the accident in this case occurred on December 23,

2011.     Louis Kirkaldie died on September 19, 2012, and an Estate was

raised on August 13, 2013.         Appellants filed a writ of summons on

December 13, 2013, naming Louis and Mary Kirkaldie as defendants.

However, it is well settled that an action filed against a dead person is void

ab initio. See Custren v. Curtis, 572 A.2d 1290, 1291 (Pa.Super. 1990),

appeal denied, 593 A.2d 419 (Pa. 1991) (“A dead man cannot be a party

to an action, and any such attempted proceeding against him is completely

void and of no effect.” (citations omitted)).

        On December 23, 2013, the day the statute of limitations was to

expire, appellants filed a “Summons in Civil Action for Additional Defendant,”

issued to the Estate of Louis Kirkaldie. However, appellants did not name

Mary Kirkaldie, in her capacity as personal representative of the Estate, as a

defendant.     See Nelson v. Estate of Massey, 686 A.2d 1350, 1351


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(Pa.Super. 1996), appeal denied, 694 A.2d 622 (Pa. 1997) (estate of the

decedent is not a proper party-defendant; rather, any action that survives a

decedent must be brought by or against the personal representative), citing

Finn v. Dugan, 394 A.2d 595, 596 (Pa.Super. 1978); Marzella v. King,

389 A.2d 659, 660 (Pa.Super. 1978) (“It is well settled that all actions that

survive   a   decedent   must   be   brought   by   or   against   the   personal

representative.”) (citations omitted).

      Appellants finally filed a complaint on October 29, 2014, outside the

applicable 2-year statute of limitations, naming as defendants Mary Kirkaldie

as Executrix of the Estate of Louis Kirkaldie and Mary Kirkaldie, Individually.

They also filed a praecipe to amend the caption, requesting the prothonotary

to amend the defendants’ side of the caption from Louis Kirkaldie and

Mary Kirkaldie (h/w) and Estate of Louis Kirkaldie, to Mary Kirkaldie, as

Executrix of the Estate of Louis Kirkaldie and Mary Kirkaldie, Individually.

Unfortunately for appellants, it was too late to amend the caption at that

point, as the statute of limitations had run. Marzella, supra (affirming trial

court’s order granting defendants’ motions to dismiss and denying plaintiffs

leave to amend their complaint, after the running of the statute of

limitations, to name the administrator of the estate as a party, where they

knew the decedent had died when they filed the praecipe for writ of

summons naming the estate as a defendant, but made no effort to revise

the praecipe to designate the administrator as a party); Finn, supra (an



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amendment to the complaint to later name the personal representative of

the estate could not be made since the statute of limitations had run);

Thompson v. Peck, 181 A. 597, 598 (Pa. 1935) (reversing an order

granting the plaintiff’s petition to name the decedent defendant’s executors

as the proper parties after the running of the statute of limitations, stating,

“[t]here can be no amendment where there is nothing to amend.           In any

event, an amendment, the effect of which is to bring in new parties after the

running of the statute of limitations, will not be permitted.” (citations

omitted)).

      As discussed above, the crux of this appeal is whether appellants’

naming of Mary Kirkaldie as a defendant within the two-year limitations

period is sufficient to satisfy 20 Pa.C.S.A. § 3373.    Appellants argue that

there is no authority for the proposition that failure to specify the

defendant’s role as personal representative is a fatal defect.    (Appellants’

brief at 19.) Appellants contend that all that is required is that the personal

representative be appointed prior to expiration of the statute of limitations,

and that the personal representative be named as a defendant before the

expiration of the statute of limitations. (Id. at 18.) We disagree.

      We find the following decisions to be instructive.       In Lovejoy v.

Georgeff, 303 A.2d 501 (Pa.Super. 1973), the underlying accident occurred

on November 8, 1968. Id. at 502. The alleged tortfeasor, the driver of the

vehicle, died the day following the accident, which was known to the



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plaintiffs. Id. After settlement negotiations fell through, the plaintiffs had

citations issued to the decedent’s parents notifying them that letters of

administration on his estate had been applied for, and directing them to

appear before the Register of Wills to take action or explain their position

with regard to the application.       Id.    The citations were issued on

November 2, 1970, within two years of the accident, but they permitted the

parents to appear as late as November 12, 1970, after the two-year period

would have elapsed. Id.

      On November 5, 1970, the plaintiffs filed a writ of summons naming as

defendants Nicholas Georgeff, both as an individual and in his capacity as

“administrator” of the tortfeasor’s estate, and Robert J. Georgeff as an

individual. Id. at 502-503. However, Nicholas Georgeff, the father of the

driver, had not applied for letters of administration until November 12, 1970,

the final day permitted in the citations for appearance.    Id. at 502.   The

mother of the driver renounced her right to letters. Id.

      On July 7, 1971, following the filing of the plaintiffs’ complaint,

Nicholas Georgeff moved for judgment on the pleadings, which was granted

insofar as the pleadings related to Nicholas Georgeff as administrator. Id. at

503. The plaintiffs appealed, and this court affirmed, finding that because

Nicholas Georgeff had not yet received letters of administration on

November 5, 1970, when the writ of summons was issued, the statute of

limitations barred any claim against him in his capacity as administrator.



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This court in Lovejoy refused to toll the statute by relating back the

appointment of Nicholas Georgeff to the time of the filing of the writ of

summons. Id. at 503-504. The Lovejoy court found that with the exercise

of ordinary diligence, the plaintiffs could have secured the appointment of an

administrator prior to suit within the two-year time period:

            Here appellants knew of the tortfeasor’s death the
            day after the accident, knew what they had to do to
            raise administration, and slept on their rights until a
            few days before the 2-year statutory period was to
            expire.

Id. at 504.    Thus, in Lovejoy, even though the timely writ of summons

named Nicholas Georgeff, “administrator” as a defendant, it was held that

the statute of limitations acted as a complete bar to recovery:

            Absent a relation back of letters to that date
            [(November 5, 1970)], no personal representative of
            the decedent can be considered to have been in
            existence at the time of filing of the summons.

Id. at 503 n.3 (citation omitted).

            Consequently, unless the appointment of Nicholas
            Georgeff related back to the time of filing of the
            summons, the filing would not have tolled the
            statute of limitations with respect to the deceased
            driver’s estate.

Id.

      Similarly, in Miller v. Jacobs, 65 A.2d 362 (Pa. 1949), the plaintiff

brought suit against “Harry P. Jacobs, Administrator of the Estate of

J.A. Jacobs, Deceased.” Id. at 364. The victim, James Edward Miller, died

in 1945 while a passenger on a ferryboat operated by Harry P. Jacobs, and a


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wrongful death action was instituted to recover damages for his death. Id.

at 363-364. J.A. Jacobs had operated the ferry until his death in 1904. Id.

at 363.    Miller had been pushed off the ferry by an automobile rolling

forward and striking him, and he drowned. Id. The negligence alleged was

failure to secure the automobiles on the ferry and failure to have an

employee stationed on the boat, in violation of federal regulations. Id. at

364.    Recovery was being sought from the estate and not from the

administrator in his individual capacity. Id. However, the decedent’s estate

was exempt from liability. Id. at 364-365.

       On appeal from the grant of judgment notwithstanding the verdict, the

plaintiff, the administratrix of Miller’s estate, argued that she should be

allowed to amend the name of the defendant by striking off the words

“Administrator of the Estate of J.A. Jacobs, Deceased,” leaving Harry P.

Jacobs named as an individual. Id. at 365. Our supreme court rejected the

plaintiff’s position, stating,

             While it is true that the name of a party already on
             the record may be corrected at any time, it is
             elementary that a new party, or a party in a
             different capacity, cannot be brought on the record
             after the statute of limitations has become a bar.

Id. (emphasis in original).

             So in Stine v. Herr, Administratrix, 78 Pa. Super.
             226, the court refused to allow a judgment in an
             action of trespass against a defendant as
             administratrix of the estate of a decedent to be
             amended, more than two years after the right of
             action had accrued, so as to bring the defendant


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            upon the record in her individual capacity. And in
            Barrett v. First Mechanics National Bank, 133
            Pa. Super. 366, 370, 3 A.2d 36, 38, where an
            attachment was brought against the executors of a
            decedent’s estate as defendants, it was said that
            “While the plaintiff may have a cause of action
            against the defendants personally * * * he did not
            bring his action in that form. * * * [and] a change
            of the defendant from a representative to an
            individual capacity, or vice versa, cannot be
            made after the statute of limitations has run,
            for it involves a change of parties.”

Id. (emphasis added).

      Therefore, appellants’ argument that merely listing Mary Kirkaldie as a

defendant was sufficient to satisfy 20 Pa.C.S.A. § 3373 misses the mark. A

party cannot be sued in a different capacity after the running of the statute

of limitations. As the trial court observed,

            By the time [appellants] finally filed a complaint in
            October, 2014, with an amended caption, by
            agreement, to reflect that Mary Kirkaldie was the
            personal representative of Louis Kirkaldie, as
            Executrix of the Estate of Louis Kirkaldie, the statute
            of limitations had already run. This was the first
            time, three years after the accident, that
            [appellants] properly asserted a claim against the
            Estate.

Order, 5/12/15 at 3 n.1. We are constrained to agree. Therefore, the trial

court did not err in granting summary judgment for appellees.

      Orders affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2016




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