J-A12026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BRADLEY S. TAYLOR AND DUNES              :   IN THE SUPERIOR COURT OF
 HOLDING & FUNDING, LLC,                  :        PENNSYLVANIA
                                          :
                    Appellants            :
                                          :
                                          :
              v.                          :
                                          :
                                          :   No. 1383 WDA 2018
 THOMAS J. SAILOR AND NICHOLAS            :
 D. MARSHALL                              :

             Appeal from the Order Entered September 17, 2018
     In the Court of Common Pleas of Allegheny County Civil Division at
                        No(s): No. GD--16-009918


BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                           FILED AUGUST 28, 2019

      Appellants, Bradley S. Taylor and Dunes Holding & Funding, LLC, appeal

from the September 17, 2018 Order entered in the Allegheny County Court of

Common Pleas granting the Motion for Summary Judgment filed by Appellees,

Thomas J. Sailor and Nicholas D. Marshall, on their Counterclaim. After careful

review, we reverse.

      The facts and procedural history are as follows. Appellant, Bradley S.

Taylor, owns an undeveloped parcel of property located at 320 Cola Street in

Pittsburgh (“the Taylor Property”).    Appellees Sailor and Marshall live in

houses on parcels across the street from Appellant Taylor’s undeveloped

parcel, at 319 Cola Street and 321 Cola Street, respectively (the “Sailor

Property” and the “Marshall Property”). The properties owned by Appellee
J-A12026-19



Sailor and Appellant Taylor are subject to an existing Light and Air Easement

dated October 17, 2002 (the “Sailor Easement”).

      Appellee Marshall acquired the Marshall Property from Appellant Taylor,

who, prior to the acquisition, owned both the Marshall Property and the Taylor

Property. The Marshall Property is also subject to a Light and Air Easement

dated March 5, 2004 (the “Marshall Easement”).

      Both the Sailor Easement and the Marshall Easement (collectively, the

“Easements”) contain the following identical provisions:

      (i) Grantee shall have an unobstructed view from and above the
      first floor containing the kitchen and living room of Grantee's
      dwelling existing on [the Sailor Property and the Marshall
      Property] over and across existing improvements on the [Taylor
      Property]; and

      (ii) Grantors shall not construct, change or alter any structure or
      improvement on [the Taylor Property] which will result in said
      structure or improvement rising to a height greater than the
      bottom of the first floor containing the kitchen and living room of
      Grantee's dwelling existing on [the Sailor Property and the
      Marshall Property].

Easements, 10/17/02 and 3/5/04, at 1.

      Appellant Taylor has entered into a contract to sell the Taylor Property

to Appellant Dunes Holding & Funding, LLC. The sale of the Taylor Property

to Appellant Dunes is contingent upon Appellant Dunes’s ability to build a

single family home on the undeveloped Taylor Property. Appellees objected

to Appellant Dunes’s construction plans alleging that the structure that

Appellant Dunes plans to build would exceed the restrictions set forth in the




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J-A12026-19



Easements and block Appellees’ unobstructed view over and across the Taylor

Property.

       On September 9, 2016, Appellants filed an Amended Complaint seeking

a declaratory judgment that the terms of the Easements placed only a height

restriction on the development of the Taylor Property.               In particular,

Appellants alleged that the Easements permit them, at their discretion, to

construct, change, or alter any structures or improvements they desire “over

the entirety of the property to a building height to an elevation of 1025.5 feet

above sea level which is an elevation equal to and not rising to a height greater

than the bottom of the first floor containing the kitchen and living room of the

dwellings erected upon the Sailor Property and Marshall Property (hereinafter

the ‘Designated Height’).” Amended Complaint, 9/6/16, at ¶ 15.

       Appellants, therefore, requested that the court order that they could use

the property “in any manner . . . so long as the use does not rise to a height

greater than the Designated Height[.]”1          Id. at 23.2   See also Motion for

Summary Judgment, 6/13/17, at 8 (unpaginated).

       On October 11, 2016, Appellees filed an Answer to Appellants’ Amended

Complaint and Counterclaim for Declaratory Judgment setting forth Appellees’
____________________________________________


1 Appellants defined “Designated Height” as “an elevation equal to and not
rising to a height greater than the bottom of the first floor containing the
kitchen and living room of the Sailor Property and Marshall Property
dwellings.” Amended Complaint at 23.

2Appellees filed a joint Answer to the Amended Complaint on October 11,
2016, and Appellee Taylor filed an Answer and Counterclaim individually on
November 7, 2016.

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J-A12026-19



competing interpretation of the Easements’ restrictions.         In particular,

Appellees denied that the Easements placed only a height restriction on

development of the Taylor Property, asserting that this interpretation ignores

the stated intent of the parties to ensure an “unobstructed view . . . over and

across” the Taylor Property. Answer, 10/11/16, at ¶¶ 15, 18.

      In their Answer and Counterclaim, Appellees offered an alternative

interpretation of the Easements. They asserted that the Easements have two

“distinct elements”: (1) a height restriction; and (2) a depth restriction

ensuring that Appellees “shall retain an unobstructed view over and across

any new structure on the Taylor Property.” Id. at 22. Appellees asserted that

a developer must “read the depth and height restrictions together to give full

effect to the entire document and the parties’ intent.” Id. They requested

that the trial court decree that: (1) the intent of the parties to the Easements

was to grant and maintain an unobstructed view over and across the Taylor

Property; (2) the Easements contain both height and depth restrictions; and

(3) improvements on the Taylor Property are governed by both height and

depth restrictions such that improvements may not exceed the height of the

bottom of the first floor of Appellees’ houses and may “not be built in a

manner or to a depth that obstructs [Appellees] view over and across the

improvement[.]”    Id. at i-v (some emphasis in original, some emphasis

added).

      On June 13, 2017, Appellants filed a Motion for Summary Judgment. In

it, they argued that the plain language of the Easements was clear that the

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J-A12026-19



Easements only limited the view from and above the first floor of the Sailor

Property and the Marshall Property.            They asserted, therefore, that they

“retain the express right to construct, change or alter structures on their

property provided only that such construction does not rise to a height

greater[] than[] the bottom of the first floor of the [Appellees’] dwellings.

Motion for Summary Judgment, 6/13/17, at ¶¶ 28-29 (emphasis added).

They expressly disputed Appellees’ contention that the Easements’ use of the

terms “over and across” created an implied limitation as to the depth of

construction on the Taylor Property. Id. at ¶ 30. They argued instead that

the language "over and across existing improvements located on [the Taylor

Property]” does not create an additional dimensional restriction, but rather,

merely, identifies where the Easements lie. Id. at 31. In sum, Appellants

argued that the plain and unambiguous language of the Easements

necessitated a finding in accordance with their interpretation and against

Appellees’ interpretation.3

       On July 13, 2017, Appellees filed a Response to the Motion for Summary

Judgment.      In the Response, Appellees articulated their position that the

Easements permit Appellants to improve or construct a new dwelling on the

Taylor Property “that rises to a height no greater than the bottom of the first

floor containing the kitchens and living rooms of the [Appellees’] respective

____________________________________________


3 Appellants also alleged that there was no genuine issue of material fact as
to the intent of the original parties to the Easement.


                                           -5-
J-A12026-19



houses (i.e., height), but such improvement and/or new structure shall not be

built in a manner or to a depth that obstructs the [Appellees’] view over and

across the improvement and/or new structure from and above the [Appellees’]

first floor containing the kitchen and living room.” Response, 7/13/17, at 6-

7. Appellees contended that the plain language of the Easements is clear that

any building on the Taylor Property “shall not be built in a manner or to a

depth as to obstruct the [Appellees’] ability to have an unobstructed view over

and across” the Taylor Property. Id. at 7. Appellees alleged the existence of

at least four genuine issues of material fact, which would preclude entry of

summary judgment, including: (1) the interpretation of the plain meaning of

the “over and across” language in the Easements; (2) whether the Easements

contain one or two restrictions;4 (3) whether the parties to the Easements

intended to place limitations on Appellees’ view; and (4) the credibility of

Appellants’ witness who provided a testimonial affidavit. Id. at 7-9.

        On August 9, 2017, Appellees filed, with leave of court, an Amended

Answer and Counterclaim to “clarify and simplify their interpretation of the

Easements in question.”5




____________________________________________


4Appellees advocated for a finding of two restrictions: one limiting the height
of construction and one ensuring an unobstructed view. Response at 8-9.

5   See Appellees’ Motion for Summary Judgment, 2/21/18, at ¶ 15.



                                           -6-
J-A12026-19



       On August 23, 2017, the trial court denied Appellants’ Motion for

Summary Judgment without an Opinion. 6

       On February 21, 2018, Appellees filed a Motion for Summary Judgment

on their Counterclaim.        They argued that the stated intent of the original

parties to both Easements is clearly and unambiguously “to grant an

‘easement for light, air, and view over and across existing improvements on

[the Taylor Property],’ and convey a ‘perpetual and permanent easement for

light, air, and view over and across existing improvements located on [the

Taylor Property] for the benefit of [the Sailor Property and the Marshall

Property].’” Appellees’ Motion for Summary Judgment, 2/21/18, at ¶¶ 29-30.

Appellees averred that the court had already rejected Appellants’ “illogical”

interpretation of the Easements—that the Easements did not preclude building

in a way that would obstruct Appellees’ view over and across any

improvements—as contrary to the plain language of the Easements. Id. at

39-41. They concluded, therefore, that there were no material facts in dispute

and that they were entitled to judgment as a matter of law on their

interpretation of the Easements permitting Appellants to “build a structure

rising to the bottom of the first floor containing the kitchens and living rooms,
____________________________________________


6 In its December 5, 2018 “Memorandum in Lieu of Opinion,” the trial court
explained that denying Appellants’ Motion for Summary Judgment “meant that
[Appellants] would be in violation of [Appellees’] easements[] if they built a
structure higher [than the bottom of Appellees’] first floors.” Memorandum,
12/5/18, at 3. Thus, the court did not find that there was an issue of material
fact precluding it from entering summary judgment. Rather, it simply rejected
Appellants’ interpretation of the Easements in favor of Appellees’
interpretation.

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J-A12026-19



but the building shall not be built in a manner as to obstruct the [Appellees’]

ability to have an unobstructed view over and across it.” Id. at 41-46.

      On May 25, 2018, Appellants filed a Response in opposition to Appellees’

Motion for Summary Judgment.

      On September 17, 2018, the trial court granted Appellees’ Motion for

Summary Judgment. It found that the Easements unambiguously contain two

distinct elements: (1) restricting the height of any structures on the Taylor

Property to the bottom of the first floor containing the kitchens and living

rooms of the Sailor Property and the Marshall Property; and (2) preserving

the Appellees’ unobstructed view from and above the first floor containing the

kitchens and living rooms of the Sailor Property and the Marshall Property over

and across the Taylor Property. Order, 9/17/18.

      This appeal followed. Appellants complied with Pa.R.A.P. 1925 and the

trial court filed a “Memorandum in Lieu of Opinion.”

      Appellants’ raise the following five issues on appeal, which we have

reordered for ease of disposition:

      1. Whether the within appeal should be quashed where an Order
         granting summary judgment and declaring the rights of the
         parties in a [D]eclaratory [J]udgment action has been entered
         but where a prior, interlocutory Order of the [t]rial [c]ourt was
         not immediately appealed?

      2. Whether the [c]ourt erred and/or abused its discretion in
         finding that the easements at issue are unambiguous where
         the easements are reasonably susceptible to different
         constructions and capable of being understood in more than
         one sense?



                                     -8-
J-A12026-19


      3. Whether the [c]ourt erred and/or abused its discretion in failing
         to find that the easements at issue provide only that the
         unobstructed view is only from and above [Appellees’] first
         floor containing the kitchen and living room as set forth in the
         easements?

      4. Whether the [c]ourt erred and/or abused its discretion in
         finding that the easements at issue [ ] contain an element that
         [Appellees] retain an unobstructed view over and across any
         improvement or new structure on [the Taylor Property] from
         and above [Appellees’] first floor containing the kitchen and
         living room where the express language of the easements does
         not provide for such a restriction as found by the [c]ourt below?

      5. Whether the [c]ourt erred and/or abused its discretion in failing
         to find that the easements at issue provide that [Appellants]
         may use [the Taylor Property] in any manner including
         constructing improvements or structures over the property
         subject only to the limitation that the use not rise to a height
         greater than the bottom of the first floor containing the kitchen
         and living room of [Appellees’] residences as set forth in the
         easements?

Appellants’ Brief at 3-4.

      In their first issue, Appellants argue that this appeal is timely from the

court’s September 17, 2018 Order. In its December 5, 2018 Opinion, the trial

court suggested that the instant appeal is untimely, as Appellants should have

taken an appeal from its August 23, 2017 Order denying Appellants’ Motion

for Summary Judgment in this action for declaratory judgment, but failed to

do so. We disagree with the trial court that this appeal is untimely.

      It is well-established that an appeal may properly lie from “(1) a final

order or an order certified as a final order (Pa.R.A.P. 341); (2) an interlocutory

order as of right (Pa.R.A.P. 311); (3) an interlocutory order by permission

(Pa.R.A.P. 312, 42 Pa.C.S. § 702(b)); or (4) a collateral order (Pa.R.A.P.

313).” In re Estate of McAleer, 194 A.3d 587, 592 (Pa. Super. 2018).

                                      -9-
J-A12026-19



       Pennsylvania Rule of Appellate Procedure 341 defines a final order as

follows:

       (a) General Rule.--Except as prescribed in paragraphs (d) and
       (e) of this rule, an appeal may be taken as of right from any final
       order of a government unit or trial court.

       (b) Definition of Final Order.--A final order is any order that:

       (1) disposes of all claims and of all parties; or

       (2) RESCINDED7

       (3) is entered as a final order pursuant to paragraph (c) of this
       rule.

       (c) Determination of finality.--When more than one claim for
       relief is presented in an action, whether as a claim, counterclaim,
       cross-claim, or third-party claim or when multiple parties are
       involved, the trial court or other government unit may enter a final
       order as to one or more but fewer than all of the claims and parties
       only upon an express determination that an immediate appeal
       would facilitate resolution of the entire case. Such an order
       becomes appealable when entered. In the absence of such a
       determination and entry of a final order, any order or other form
       of decision that adjudicates fewer than all the claims and parties
       shall not constitute a final order.

Pa.R.A.P. 341(c) (emphasis in original).

       We recognize that this Court has held that “interlocutory orders

dismissing various parties piecemeal from a lawsuit may not be appealed until

the case is concluded as to the final remaining party and the case is therefore

resolved as to all parties and all claims. Burkey v. CCX, Inc., 106 A.3d 736,

____________________________________________


7 Section 341(b)(2) previously stated that final orders included “any order that
is expressly defined as a final order by statute[.]” Pa.R.A.P. 341(b)(2)
(rescinded). Subsection (b)(2) was rescinded December 14, 2015 and
replaced with Rule 311(a)(8), which became effective on April 1, 2016.

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J-A12026-19



738 (Pa. Super. 2014). In this case, the lower court’s order cannot be deemed

final under Rule 341 as it did not resolve Appellees’ counterclaim against

Appellants.

       However, Rule 311, which addresses interlocutory appeals as of right,

specifically states, in part, that an “appeal may be taken as of right and

without reference to Pa.R.A.P. 341(c) from . . . [a]n order that is made final

or appealable by statute or general rule, even though the order does not

dispose of all claims and of all parties.” Pa.R.A.P. 311(a)(8).8 Relevant to the
____________________________________________


8Our Supreme Court has found the repealed Rule 341(b)(2) and the effective
Rule 311(a)(8) are “functionally equivalent in that they both explain that an
order is final if it is defined as final by statute.” Pa. Mfrs.' Ass'n Ins. Co. v.
Johnson Matthey, Inc., 188 A.3d 396, 399 n.4 (Pa. 2018). The note to Rule
341 explains the rationale for the rescission of subparagraph (b)(2) and
specifically discusses its effect on appeals from orders granting or denying a
declaratory judgment:

       The 2015 rescission of subparagraph (b)(2) eliminated a potential
       waiver trap created by legislative use of the adjective “final” to
       describe orders that were procedurally interlocutory but
       nonetheless designated as appealable as of right. Failure to
       appeal immediately an interlocutory order deemed final by statute
       waived the right to challenge the order on appeal from the final
       judgment. Rescinding subparagraph (b)(2) eliminated this
       potential waiver of the right to appeal. If an order designated as
       appealable by a statute disposes of all claims and of all parties, it
       is appealable as a final order pursuant to Pa.R.A.P. 341. If the
       order does not meet that standard, then it is interlocutory
       regardless of the statutory description. Pa.R.A.P. 311(a)(8)
       provides for appeal as of right from an order that is made final or
       appealable by statute or general rule, even though the order does
       not dispose of all claims or of all parties and, thus, is interlocutory;
       Pa.R.A.P. 311(g) addresses waiver if no appeal is taken
       immediately from such interlocutory order.



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J-A12026-19



instant case, Section 7532 of the Declaratory Judgment Act provides that

courts of record have the power to declare the rights, status, and other legal

relations and that “such declarations shall have the force and effect of a final

judgment or decree.” 42 Pa.C.S.A. § 7532.

       Whether an order declaring the rights of parties is final depends on: (1)

the effect of the lower court’s decision on the scope of the litigation; and (2)

the practical effect of the decision on the outcome of the case. Pa. Mfrs.’

Assoc. Ins. Co., 188 A.3d at 399-400 (Pa. 2018). “If the order in question

merely narrows the scope of the litigation and does not resolve the entirety of

the parties’ eligibility for declaratory relief, then the order is interlocutory and

not immediately appealable.” Id. at 400 (citation omitted).

       Appellants argue that they were not required to file an immediate appeal

from the August 23, 2017 Order. They assert that the Order was not a final

Order because it did not dispose of all claims and all parties. Appellants’ Brief

____________________________________________


       One of the further effects of the rescission of subparagraph (b)(2)
       is to change the basis for appealability of orders that do not end
       the case but grant or deny a declaratory judgment.             See
       Nationwide Mut. Ins. Co. v. Wickett, 763 A.2d 813, 818 (Pa.
       2000); Pa. Bankers Ass'n v. Pa. Dep't. of Banking, 948 A.2d
       790, 798 (Pa. 2008). The effect of the rescission is to eliminate
       waiver for failure to take an immediate appeal from such an order.
       A party aggrieved by an interlocutory order granting or
       denying a declaratory judgment, where the order satisfies
       the criteria for “finality” under Pennsylvania Bankers
       Association, may elect to proceed under Pa.R.A.P
       311(a)(8) or wait until the end of the case and proceed
       under subparagraph (b)(1) of this rule.

Pa.R.A.P. 341, Note (emphasis added).

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J-A12026-19



at 20. Rather, relying on explanation set forth by the legislature in the Note

to Rule 341, Appellants argue that, even if the August 23, 2017 Order was

interlocutory but appealable as of right pursuant to Rule 311(a)(8), they were

not required to take an immediate appeal and their failure to do so does not

result in waiver of the right to appeal. Id. at 20-21 (citing Pa.R.A.P. 341,

Note).

       This Court’s review of the record indicates that the August 23, 2017

Order denying Appellants’ Motion for Summary Judgment did not constitute a

final Order declaring the rights of the parties.    At the time the trial court

entered this Order, the court had not yet ruled on Appellees’ Counterclaim

setting forth their competing interpretation of the language of the Easements.

Thus, the order did not “resolve the entirety of the parties’ eligibility for

declaratory relief,” but rather, merely “narrow[ed] the scope of the litigation.”

Pa. Mfrs.’ Assoc. Ins. Co., 188 A.3d at 400. Appellants’ appeal is, therefore,

properly before this Court.9

       In their second issue, Appellants allege that the trial court erred in

granting summary judgment on Appellees’ Counterclaim because the

Easements are ambiguous and susceptible to different interpretations.

Appellants’ Brief at 36.




____________________________________________


9Moreover, even if the August 23, 2017 Order had been final, we would agree
with Appellants that, because of the discretion Rule 311(a)(8) offers to an
aggrieved party, this appeal is timely.

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J-A12026-19



      Our Supreme Court has clarified our role as the appellate court as

follows:

      On appellate review [ ], an appellate court may reverse a grant of
      summary judgment if there has been an error of law or an abuse
      of discretion. But the issue as to whether there are no genuine
      issues as to any material fact presents a question of law, and
      therefore, on that question our standard of review is de novo. This
      means we need not defer to the determinations made by the lower
      tribunals. To the extent that this Court must resolve a question
      of law, we shall review the grant of summary judgment in the
      context of the entire record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations

and quotation omitted).

      A trial court may grant summary judgment “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.” Id.

(citation and quotation omitted); see also Pa.R.C.P. 1035.2(1).         “When

considering a motion for summary judgment, the trial court must take all facts

of record and reasonable inferences therefrom in a light most favorable to the

non-moving party.”    Summers, supra at 1159 (citation omitted).        “In so

doing, the trial court must resolve all doubts as to the existence of a genuine

issue of material fact against the moving party, and, thus, may only grant

summary judgment where the right to such judgment is clear and free from

all doubt.” Id. (citation and internal quotation marks omitted).

      We review the trial court’s interpretation of the language in an easement

as a question of law; as such, our scope of review is plenary. PARC Holdings,

Inc. v. Killian, 785 A.2d 106, 112 (Pa. Super. 2001). “[T]he same rules of

                                    - 14 -
J-A12026-19



construction that apply to contracts are applicable in the construction of

easements[.]” McNaughton Props., LP v. Barr, 981 A.2d 222, 227 (Pa.

Super. 2009) (citation omitted).

      As with any contract the rights conferred by the grant of an
      express easement must be ascertained solely from the language
      of the deed, provided that the deed language is unambiguous.
      When the language is ambiguous, however, a court may resort to
      evidence of extrinsic circumstances as an aid to interpretation.
      When the purposes of an express easement are not specifically
      stated, the court must ascertain the objectively manifested
      intention of the parties in light of the circumstances in existence
      at the time of conveyance. Whether an ambiguity exists is a
      question of law subject to plenary review. However, resolution of
      conflicting parol evidence relevant to what the parties intended by
      an ambiguous provision is for the trier of fact.

PARC Holdings, 785 A.2d at 112 (citations omitted).

      Instantly, the trial court granted summary judgment in favor of

Appellees because it found the language of the Easements unambiguous, and

concluded that the plain language of the Easements supported Appellees’

interpretation.

      Following our review of the Easements, we are constrained to disagree

with the trial court that their terms are unambiguous. We focus, in particular,

on Subparagraph (i), which, as noted above, contains the following language:

      (i)    Grantee shall have an unobstructed view from and above
      the first floor containing the kitchen and living room of Grantee’s
      dwelling existing on [the Sailor Property and the Marshall
      Property] over and across existing improvements on the
      [Taylor Property];

Easements, 10/17/02 and 3/5/04, at 1 (emphasis added).




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J-A12026-19



       It is undisputed that the Taylor Property is now, and has always been,

undeveloped. However, the Easements refer to restrictions “over and across

existing improvements” on that lot. Use of the term “existing improvements”

in easements over a property that is undisputedly undeveloped creates an

ambiguity whose meaning requires further fact-finding.     Thus, an issue of

material fact exists as to what the parties intended by this provision in the

Easements. The entry of summary judgment was, therefore, inappropriate at

this time.10

       Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2019




____________________________________________


10 In light of this disposition, we need not address Appellants’ remaining
issues.

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