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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
                                            :
ALICIA DEE MCGRAW                           :
                                            :
                                            :     No. 762 WDA 2014


                 Appeal from the Order Entered April 17, 2014
                In the Court of Common Pleas of Greene County
               Criminal Division No(s).: CP-30-CR-0000416-2012

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 30, 2015

        The Commonwealth appeals from the order of the Greene County

Court of Common Pleas granting the suppression motion of Appellee, Alicia

Dee McGraw.1 The Commonwealth claims the trial court erred in concluding

that it failed to demonstrate reasonable suspicion justifying the traffic stop

of the vehicle Appellee was operating. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
  We note that this matter was captioned in the Court of Common Pleas as
“Commonwealth v. Alicia Dawn McGraw.”
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      The facts underlying this appeal are relatively straightforward.2    On

August 23, 2012, at 9:20 a.m., Pennsylvania State Trooper Brian Siege was

in a marked patrol vehicle traveling east on State Route 21 in Franklin

Township, Greene County, Pennsylvania. N.T., 9/24/13, at 5. He observed

an Oldsmobile “quickly” pull out from a “Seven Eleven” onto State Route 21.

Id. He saw a female operating the Oldsmobile and passengers inside. Id.

The trooper followed the Oldsmobile through Morrisville and searched the

Commonwealth Law Enforcement Assistance Network (“CLEAN”) database

for the vehicle’s license plate number. Id. at 5, 7. The trooper received a

report indicating the owner of the Oldsmobile was Crystal Wilson, a female,

whose operating privilege was suspended for a driving under the influence

(DUI) offense.3 Id. at 5. The trooper activated his emergency lights and

stopped the vehicle. Id.

      The trooper made contact with the driver, later identified as Appellee.

Appellee was not wearing a seat belt. Id. There were two other females in




2
  The trial court did not record its findings of fact when granting Appellee’s
suppression motion. See Pa.R.Crim.P. 581(I).
3
  Trooper Siege testified that he could obtain the registered owner’s driving
record when searching for a license plate. N.T. at 13. When he obtained
the report in the instant matter, “it came back as Crystal Wilson on a 1992
Oldsmobile with the same license plate that I ran and then when the owner
information came up, it came back to Crystal Wilson, same address and it
said suspension, yes DUI related.” Id.




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                                                                            4
the Oldsmobile. Id. at 6. Crystal Wilson was in the passenger seat.             Id.

When the trooper informed them of the reason for the stop, Wilson identified

herself as the owner of the vehicle. Id. at 6.

        The trooper asked Appellee for her driver’s license.     Id.   Appellee

stated she did not have it with her. Id. The trooper asked for her name,

date of birth, and if she had any other form of identification. Id. Appellee

initially stated that her name was “Jacklyn Metcalf,” her birth date was

“January 21, 1981,” and she did not have another type of identification. Id.

When the trooper asked her how he could know if her information was

correct, Appellee responded she would never lie to the police. Id.

        The trooper searched the database with the information provided by

Appellee, but was not able to find such an individual.       Id. at 6-7.    After

attempting to clarify Appellee’s information with her, she stated she was not

being truthful and gave her real name and date of birth.        Id. at 7.       The

trooper then obtained Appellee’s driving record, which indicated her driving

privilege was suspended for non-DUI offenses. Id. at 9. The trooper did not

cite Appellee at the scene.

        One month later, on October 12, 2012, the trooper filed a complaint

charging Appellee with false identification to law enforcement authorities,

driving while operating privilege is suspended or revoked, and restraint


4
    The third female was not identified by the trooper. N.T. at 12.




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systems for a seat belt violation.5   Appellee, on August 14, 2013, filed a

motion to suppress, asserting the trooper “had no reason to stop [her].”

Appellee’s Omnibus Pre-Trial Mot., 8/14/13, at 1.        A suppression hearing

was held on September 24, 2013, at which Trooper Siege testified. On April

17, 2014, after consideration of briefs from the parties, the trial court

entered an order granting Appellee’s motion to suppress. Order, 4/17/14, at

1.     The court concluded “the arresting officer did not have reasonable

suspicion that the female driving the car was the occupant who was the

suspended owner[,]” but did not enter findings of fact.                  Id.; see

Pa.R.Crim.P. 581(I).     The court further dismissed the charges against

Appellee. Id.

        The Commonwealth filed a timely notice of appeal and a certificate

that the trial court’s ruling effectively terminated its prosecution.        See

Pa.R.A.P. 311(d), 904(e).     The Commonwealth complied with the court’s

Pa.R.A.P. 1925(b) order. The trial court filed a responsive opinion holding

that the reasonable suspicion to conduct the traffic stop did not exist under

Commonwealth v. Andersen, 753 A.2d 1289 (Pa. Super. 2000). Trial Ct.

Op., 6/11/14, at 3-4.

        The   Commonwealth    presently   claims   the   trial   court   erred   in

suppressing all evidence obtained from the August 23, 2012 traffic stop.


5
    18 Pa.C.S. § 4914(a); 75 Pa.C.S. §§ 1543(a), 4581(a)(2).




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The Commonwealth contends Trooper Siege possessed reasonable suspicion

to conduct an investigatory traffic stop to determine whether the registered

owner,   who    was        under   suspension,   was   operating     the    vehicle.

Commonwealth’s Brief at 9-10.           It argues the trooper possessed the

following information relevant to his decision to stop the vehicle. First, the

Oldsmobile “pulled out abruptly from a 7-11 gas station.” Id. at 9. Second,

the Oldsmobile was owned by a female with a “DUI suspended license.” Id.

Third, “the car was being driven by a female, appearing to be around the

same age as the owner of the vehicle.”                     Id. (emphasis added).

According to the Commonwealth, these factors amounted to a specific and

articulable basis to believe Appellee was driving under a suspended license

under Commonwealth v. Hilliar, 943 A.2d 984 (Pa. Super. 2008), and

Commonwealth          v.    Farnan,    55     A.3d   113    (Pa.   Super.   2012).

Commonwealth’s Brief at 9-10.          We conclude that the record does not

support the Commonwealth’s factual assertions and that the Commonwealth

has not asserted a basis for appellate relief.

         When reviewing the propriety of a suppression order, an
         appellate court is required to determine whether the record
         supports the suppression court’s factual findings and
         whether the inferences and legal conclusions drawn by the
         suppression court from those findings are appropriate.
         Where the defendant prevailed in the suppression court,
         we may consider only the evidence of the defense and so
         much of the evidence for the Commonwealth as remains
         uncontradicted when read in the context of the record as a
         whole. Where the record supports the factual findings of
         the suppression court, we are bound by those facts and
         may reverse only if the legal conclusions drawn therefrom


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          are in error.      However, where the appeal of the
          determination of the suppression court turns on allegations
          of legal error, the suppression court’s conclusions of law
          are not binding on an appellate court, whose duty it is to
          determine if the suppression court properly applied the law
          to the facts.

Commonwealth v. Cartagena, 63 A.3d 294, 298 (Pa. Super. 2013) (en

banc) (citation and punctuation omitted), appeal denied, 70 A.3d 808 (Pa.

2013). We may affirm “for reasons other than those relied upon by the trial

court.”    Commonwealth v. Dales, 820 A.2d 807, 813 n.2 (Pa. Super.

2003).

        It is well settled that the Commonwealth bears the burden “of going

forward with the evidence and of establishing that the challenged evidence

was not obtained in violation of the defendant’s rights.”          Pa.R.Crim.P.

581(H); accord Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa.

2012). The parties and trial court here agree the appropriate standard for

justifying the underlying traffic stop was whether Trooper Siege had

reasonable suspicion to believe he observed a violation of the Motor Vehicle

Code.     See 75 Pa.C.S. § 6308(b); Commonwealth’s Brief at 7; Appellee’s

Brief at 13; Trial Ct. Op. at 3.

        Reasonable suspicion is

          a less stringent standard than probable cause necessary to
          effectuate a warrantless arrest, and depends on the
          information possessed by police and its degree of reliability
          in the totality of the circumstances. In order to justify the
          seizure, a police officer must be able to point to “specific
          and articulable facts” leading him to suspect criminal
          activity is afoot.       In assessing the totality of the


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          circumstances, courts must also afford due weight to the
          specific, reasonable inferences drawn from the facts in
          light of the officer’s experience and acknowledge that
          innocent facts, when considered collectively, may permit
          the investigative detention. Thus, under the present
          version of Section 6308(b), in order to establish
          reasonable suspicion, an officer must be able to point to
          specific and articulable facts which led him to reasonably
          suspect a violation of the Motor Vehicle Code[.]

          “[W]hether an officer had reasonable suspicion that
          criminality was afoot so as to justify an investigatory
          detention is an objective one, which must be considered in
          light of the totality of the circumstances.”

Farnan, 55 A.3d at 116 (citation and emphases omitted). The touchstone

of a reasonable suspicion inquiry is whether “the facts available to the officer

at the moment of the seizure or the search warrant a man of reasonable

caution   in   the   belief   that   the   action   taken   was   appropriate?”

Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011) (citation and

punctuation omitted).

      This Court has previously considered the quantum of evidence

necessary to stop a person for suspicion of driving while operating privilege

are suspended or revoked in Andersen, Hilliar, and Farnan.          A review of

these cases is helpful.

      In Andersen, this Court considered the following scenario:

              At approximately 2:00 a.m. on April 7, 1999, Police
          Officers Steven Hillias and Earl Clark of the Perkasie
          Borough Police Department, along with other police
          officers, responded to a police call concerning a
          disturbance in the vicinity of a local tavern. Upon arriving
          at this location, the police officers encountered [the
          defendant] conversing with his girlfriend while he was


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       seated in a black Camaro. The police officers checked the
       records of the Camaro and learned that the automobile
       was registered to [the defendant].     Furthermore, the
       record check revealed that the driving privileges of both
       [the defendant] and his girlfriend were currently
       suspended.

           As this encounter progressed, the police officers
       arrested [the defendant]’s girlfriend for disorderly conduct.
       Noting the suspension of [the defendant]’s driving
       privileges, the police officers advised [the defendant] not
       to drive his vehicle. [The defendant] informed the police
       officers that he would walk to the nearby residence of his
       friend and stay there for the night.

           Later that day, at approximately 11:00 p.m., Officer
       Hillias observed [the defendant]’s automobile parked
       unattended in a different location than where [the
       defendant] had left it during the previous encounter. On
       April 8, 1999, at approximately 2:30 a.m., Officer Clark
       communicated to Officer Hillias via radio that he was
       following the “same ones from last night.”            Although
       Officer Hillias understood this reference to mean [the
       defendant] and [the defendant]’s girlfriend, Officer Clark
       had yet to identify either driver. Officer Hillias proceeded
       in his marked police car to Officer Clark's location.

          Officer Clark had been following a black Camaro and a
       white Sable. Before the arrival of Officer Hillias, Officer
       Clark activated his emergency lights in an attempt to stop
       both vehicles.     At [t]his point, Officer Clark had not
       observed who was driving the Camaro or the Sable. The
       Camaro pulled over and the Sable continued driving with
       Officer Clark in pursuit. The record indicates that Officer
       Clark observed [the defendant] as the driver of the
       Camaro as he passed [the defendant]’s automobile in
       pursuit of the Sable. However, the record provides no
       indication that Officer Clark communicated this observation
       to Officer Hillias. After stopping the Sable, Officer Clark
       determined the driver to be [the defendant]’s girlfriend.

          When Officer Hillias arrived, he observed from a
       distance that Officer Clark’s vehicle was stopped by the
       side of the road with its emergency lights in operation. In


                                   -8-
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        addition, Officer Hillias saw a black Camaro bearing the
        same license plate as [the defendant]’s automobile. The
        Camaro was traveling at a slow rate of speed towards
        Officer Clark’s position. Although Officer Hillias did not
        observe the driver of the Camaro, he activated the
        emergency lights of his police car and proceeded to stop
        the Camaro.        Officer Hillias determined that [the
        defendant] was the driver of the Camaro and detected a
        strong odor of alcohol emanating from [the defendant]’s
        automobile.     Officer Hillias administered several field
        sobriety tests upon [the defendant] who failed each one.
        During the course of the sobriety tests, Officer Hillias
        observed a bulge in [the defendant]’s sock that turned out
        to be a baggie containing 1.09 grams of marijuana. After
        [the defendant] was arrested he underwent a blood test
        that revealed a blood alcohol content of 0.16 percent.

Andersen, 753 A.2d at 1291-92. The defendant filed a motion to suppress,

which was denied, and he was subsequently convicted for driving under the

influence, possession of a small amount of marijuana, and driving while

operating privilege was suspended. Id. at 1291.

     The Andersen Court concluded the trial court erred in denying the

defendant’s suppression motion, reasoning

        the knowledge a vehicle is owned by an individual whose
        driving privileges are suspended coupled with the mere
        assumption that the owner is driving the vehicle, does
        not give rise to articulable and reasonable grounds to
        suspect that a violation of the Vehicle Code is occurring
        every time this vehicle is operated during the owner’s
        suspension.     Therefore, based on the totality of the
        circumstances, we cannot find that Officers Clark and
        Hillias had articulable and reasonable grounds to suspect
        that a violation of the Vehicle Code had occurred.

Id. at 1294 (emphasis in original). We emphasized

        the record reveals that Officer Clark did not actually
        determine the identity of the drivers until after both


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        vehicles had been pulled over.[ ] Likewise, Officer Hillias
        did not actually know who was driving [the defendant]’s
        vehicle when he stopped it. The Commonwealth further
        supports the legality of the traffic stops by pointing to the
        following additional information: 1) Officer Hillias observed
        that the Camaro he was following possessed the same
        license plate as [the defendant]’s vehicle; 2) the traffic
        stop occurred on the same street as the tavern near where
        the police encountered [the defendant] and his girlfriend
        the day before; 3) Officer Hillias observed [the
        defendant]’s vehicle traveling at a slow rate of speed
        towards Officer Clark’s vehicle.

           In reviewing the facts set forth by the Commonwealth,
        we note that neither Officer Clark nor Officer Hillias
        specifically observed [the defendant]’s vehicle violate the
        Vehicle Code prior to the traffic stops. In addition, we fail
        to recognize the significance of the fact that [the
        defendant]’s vehicle was being driven near a location
        where the police previously had encountered [the
        defendant]. The only relevant information possessed by
        Officers Clark and Hillias prior to the traffic stops was that
        [the defendant]’s driving privileges were suspended and
        that the Camaro registered to [the defendant] was being
        operated. Thus, both traffic stops were based on the
        mere assumption that [the defendant] was driving the
        black Camaro.

Id. at 1293 (emphasis in original).

     In Hilliar,

        The arresting police officer’s attention was called to the
        defendant’s vehicle as he proceeded east on Market Street
        in West York Borough.         The police officer ran the
        defendant’s license plate, and determined that the owner
        of the vehicle’s license was under suspension. The officer
        also discovered the owner’s age and that he was a male.
        From his observation of the driver the officer believed that
        the defendant was male, and was about the same age as
        the owner. Based on the officer’s conclusion that it was
        likely that the person operating the vehicle was the owner
        because he was a male of the same age as the owner and
        had possession of the owner’s vehicle, the police officer


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         decided to stop the vehicle for suspicion of driving on a
         suspended license.

Hilliar, 943 A.2d at 987-88.      The defendant was convicted for DUI and

driving while operating privilege was suspended. Id. at 988.

      Although Hilliar ultimately considered whether the arresting officer

complied with the Municipal Police Jurisdiction Act, 42 Pa.C.S. §§ 8951-

8954, which governs an officer’s law enforcement powers outside his

primary jurisdiction, we noted

         [U]nder the facts of this case, the officer’s suspicion that
         the driver of the vehicle was also the owner was a
         reasonable one because the driver matched the description
         of the owner as a middle aged man.[ ] Consequently, had
         the officer initiated a traffic stop while in his primary
         jurisdiction it would have been entirely legal.

Id. at 990. The Hilliar Court distinguished Andersen because, inter alia,

the arresting officer in Andersen made no mention of an observation of the

physical characteristics of the driver. Id. at 990 n.1.

      In Farnan, this Court considered the following facts:

            On September 21, 2010, Sergeant David Mazza of the
         Sewickley Borough Police Department responded to a call
         received at approximately 4:40 p.m. The call involved a
         potential problem involving a custody dispute. K.L. ([the
         defendant]’s ex-wife) requested police assistance at her
         home on Bank Street. K.L. informed Sergeant Mazza that
         [the defendant] was on his way to pick up the couple’s
         children, contrary to their custody order. She indicated to
         Sergeant Mazza that she thought that there was going to
         be a problem between she and [the defendant], which was
         why she called the police. Sergeant Mazza was familiar
         with both K.L. and [the defendant], having been involved
         in past incidents between the two.



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           Sergeant Mazza was one of three (3) officers in two (2)
        marked cars who arrived at the scene. At the time of his
        arrival, [the defendant] was not present at K.L.’s. While
        the officers were speaking with K.L., she pointed to a
        vehicle that was traveling along Bank Street and said
        “Here he comes.” A vehicle approached K.L.’s house and
        then proceeded down the street without stopping.
        Sergeant Mazza was able to identify [the defendant] as the
        driver of the vehicle, as well.

           Sergeant Mazza testified that, within thirty (30) days
        before this incident, K.L. had informed him that [the
        defendant] was driving with a suspended license. Upon
        receiving the information, Sergeant Mazza had confirmed
        that [the defendant’s] license was suspended for a DUI-
        related matter. [The defendant] drove past K.L.’s house
        after looking at the officers and K.L. standing outside.
        Sergeant Mazza then got into his police car and followed
        [the defendant].      After approximately 20 seconds,
        Sergeant Mazza activated his lights and stopped [the
        defendant] Appellant. Sergeant Mazza testified that he
        pulled [the defendant] over for three (3) reasons: (1) the
        suspended license; (2) the suspicious behavior in driving
        past K.L.’s house due to the presence of police vehicles
        and personnel; and (3) the need to investigate K.L.’s
        complaint.

Farnan, 55 A.3d at 114-15 (some punctuation omitted).

     Farnan principally considered the “freshness” of the arresting officer’s

knowledge that the defendant’s license was suspended.        Id. at 118.   We

concluded that “under the totality of circumstances . . . , the 30–day delay

between the time Sergeant Mazza learned that [the defendant’s] license was

suspended and the date the officer conducted a traffic stop was not so

lengthy that it rendered the officer’s information stale.”   Id.   We further

determined “Sergeant Mazza articulated sufficient facts to support a




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reasonable belief that Appellant was in violation of the Motor Vehicle Code at

the time of the traffic stop.” Id.

        Reading Andersen,6 Hilliar, and Farnan together, it is apparent that

information that an owner of a vehicle had her license suspended alone

cannot justify the stop of the vehicle.   See Andersen, 753 A.2d at 1294.

Similarly, an observation that a vehicle “quickly pulled” into the roadway is

of little relevance where there is no indication the maneuver constituted a

reason to believe the vehicle was being operated contrary to the Vehicle

Code.     See id.    Thus, to justify a stop to investigate whether an owner

under suspension is operating the vehicle, the Commonwealth must adduce

additional evidence to justify the belief that the driver is the owner whose

license was suspended. See id.; Farnan, 55 A.3d at 114-15, 118; Hilliar,

943 A.2d at 990.

        Instantly,   the   Commonwealth   argues   it   established   reasonable

suspicion because the trial court found that Appellee was the same gender


6
  We note that the continued validity of Andersen has been questioned.
See Hilliar, 943 A.2d at 990 n.1. Specifically, the Hilliar Court observed
Andersen was decided under the prior “articulable and reasonable grounds”
standard, which was equated with “probable cause,” but later abrogated by
amendments to 75 Pa.C.S. § 6308(b) in favor of a “reasonable suspicion”
standard. Id.      Although the Andersen Court applied the “articulable and
reasonable grounds” standard, it observed that the “reasonable basis
necessary to justify a stop is less stringent than probable cause . . . .”
Andersen, 753 A.2d at 1293 (citation omitted and emphasis added).
Accordingly, Andersen remains persuasive authority with respect to the
issue raised in this appeal.




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and appeared to be the same age as the owner of the vehicle.             See

Commonwealth’s Brief at 9; Trial Ct. Op. at 3. If the record supported such

a finding, Hilliar would control the instant matter.

      Our review of the record reveals Trooper Siege, after seeing the

Oldsmobile pull into the roadway in front of him, entered the vehicle’s

license plate information into his computer.       N.T. at 5.   The trooper,

however, testified:

         The report came back that the owner of the registered
         vehicle was a female named Crystal Wilson and she was
         under a DUI related suspension. I noted at that time that
         there was a female operator driving the vehicle and there
         w[ere] also passengers inside the vehicle.

                                  *     *      *

         Driving on DUI related suspension is a serious traffic
         offense. Like I said, it came back for Crystal Wilson, you
         know, and there was a female driving the car at the time.
         I thought that would be the owner . . . would be the
         operator and wanted to verify that.

Id. at 5-6.

      On cross-examination by Appellee’s counsel, the trooper reiterated

that “the license came back to a female that was under DUI related

suspension[ and t]here was a female driving the car.”       Id. at 12.   The

trooper conceded that he was not familiar with any of the vehicles’

occupants. Id. at 13. The Commonwealth did not present further evidence

describing what additional identifying information the trooper obtained

before stopping the Oldsmobile.



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      Thus, even reviewing the record in a light most favorable to the

Commonwealth, we discern no record support for the trial court’s and the

Commonwealth’s suggestion that Appellee appeared to be the same age as

Crystal Wilson, the suspended vehicle owner, or that the trooper believed

that to be the case. See Commonwealth’s Brief at 9; Trial Ct. Op. at 3. The

Commonwealth’s instant argument thus rests upon a faulty premise, and

Hilliar, where the stop based on observations that the defendant-driver

matched the owner’s description as “a middle aged man,” does not control.

Moreover, because there is no record evidence that the trooper was familiar

with Appellee, the present matter is distinguishable from the stop based on

an identification of the driver made by an officer familiar with the defendant-

driver in Farnan.

      We are mindful that the Commonwealth established Appellee and the

owner of the vehicle were both female. However, the Commonwealth does

not assert that this similarity alone was adequate to establish reasonable

suspicion, nor did it do so before the trial court. See Commonwealth’s Brief

at 9-10; Commonwealth’s Opp’n to Suppression of Evidence, 10/16/13, at 4.

Therefore, we decline to address sua sponte whether a common gender was

a sufficient, under the circumstances of the present case, to sustain a belief

that Appellee was the registered owner subject to a license suspension. See

Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008).

      Order affirmed.



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     Judge Donohue joins the memorandum.

     Judge Mundy notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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