J-S04022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: C.A.S.T., A            :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: T.W. AND B.W.                   :
                                               :
                                               :
                                               :
                                               :   No. 1249 MDA 2017

                  Appeal from the Order Entered July 17, 2017
     In the Court of Common Pleas of Snyder County Civil Division at No(s):
                                OC-0020-2017


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

MEMORANDUM BY DUBOW, J.:                                  FILED APRIL 09, 2018

       T.W. (“Paternal Grandmother”) and B.W. (“Paternal Step-grandfather”)

(collectively, “Grandparents”) appeal from the Order entered July 17, 2017 in

the Snyder County Court of Common Pleas, which denied their Petition to

terminate the parental rights of T.M. (“Mother”) and M.T. (“Father”)

(collectively, “Parents”). We affirm in part and remand in part.1

SUMMARY OF FACTS AND PROCEDURAL HISTORY

       The trial court summarized the relevant factual and procedural history

of this case as follows.

       [C.A.S.T. (“Child”)] was born [in] March [of] 2014. The parents,
       [Father and Mother], have not resided together for a significant
       period of time and were not residing together when the current
       petition was filed or at the time of the hearing. On July 28, 2014,
       [M]other filed a custody action in this matter. In the custody
____________________________________________


1 As discussed infra, we grant Grandparent’s motion for post-submission
communication filed February 13, 2018.
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       action, the petitioner in this matter, [Paternal Grandmother],
       intervened. [M]other objected to the intervention and substantial
       litigation occurred from the filing of the complaint in July of 2014
       throughout the hearing in this matter.       … Frequent litigation
       resulted in multiple custody orders. On May 7, 2015, President
       Judge Hudock entered an order granting [Paternal Grandmother]
       primary physical custody [and sole legal custody of Child].
       However, [F]ather had physical custody at such times that he and
       his mother, the Petitioner, could agree. [M]other had physical
       custody every other weekend and every Wednesday morning until
       Thursday morning.

       On June 23, 2016, another order was entered suspending
       [M]other’s period of physical custody on Wednesday to Thursday
       if she was working more than 4 hours during that period of
       custody.

       And finally on April 12, 2017, [M]other’s periods of physical
       custody were suspended because she failed to file her criminal
       history affidavit as required by the Rules of Procedure. The issue
       was that the person with whom she resided may have had a
       criminal history in one of the enumerated offenses in the custody
       action. Upon the filing of the criminal history affidavit, [Mother’s]
       periods of physical custody were to be immediately reinstated.[2]

Trial Court Opinion, 9/15/2017, at 2-3 (internal footnotes omitted).

       On April 13, 2017, Grandparents filed a Petition to Involuntarily

Terminate Mother’s and Father’s parental rights to Child.         The trial court

appointed legal counsel for Child and held a hearing on Grandparents’ petition

on July 13, 2017.      The court incorporated the record from the prior custody

proceedings that occurred on May 7, 2015, and June 23, 2016. At the hearing

on the Termination Petition, Grandparents presented the testimony of Paternal

____________________________________________


2 As of the date of the termination hearing, Mother had not yet filed the
appropriate forms. N.T., 7/13/2017, at 45-46.




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Grandmother, Grandparents’ neighbor, and Child’s great-grandmother.

Mother and Father, each pro se, testified on their own behalf.3        The GAL

presented no witnesses and, in closing arguments, asserted that Paternal

Grandparents had not met their burden of clear and convincing evidence to

support termination under Section 2511(a)(2) or (b).

       On July 17, 2017, the trial court entered its Order on the record, denying

Grandparents’ Petition to Terminate Parents’ Parental Rights after concluding

that Grandparents had not met their burden of presenting clear and convincing

evidence to support the termination under Section 2511(a)(2).         The court

opined that custody properly belonged to Paternal Grandmother and “you

[Grandmother] proved beyond a reasonable doubt – not just clear and

convincing evidence -- that you being able to adopt [Child] was what’s best

for him in my mind. But, it’s that tough burden of that first element that I

don’t – I just think because of the facts of the case it hasn’t been met.” N.T.

at 112.




____________________________________________


3Mother had been denied IFP status. The court refused to allow her to present
witnesses, except for her own testimony, because she had not submitted a
witness list prior to trial as ordered. Mother’s testimony covered 10 lines in
which she agreed that she had not provided stability for Child or attended all
medical appointments. Mother conceded on cross-examination that she
agreed with Grandmother’s testimony. See N.T., 7/17/17, at 93-94.




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       Grandparents timely filed a Notice of Appeal on August 11, 2017, along

with a concise statement of errors complained of on appeal.4 The trial court

filed its Rule 1925(a) opinion on September 15, 2017.

ISSUES ON APPEAL

       Grandparents now raise the following issues for our review:

       [1.] Did the lower court commit error in finding that [Paternal
             Grandparents] did not establish, by clear and convincing
             evidence, grounds for termination under 23 Pa.C.S.[ ] §[
             ]2511(a)(2)?

       [2.] Did the lower court commit error in concluding that
            termination of the biological parents’ rights to the subject
            minor child was not in the best interest of the child pursuant
            to 23 Pa.C.S.[ ] §[ ]2511(b)?

Grandparents’ Brief at 4 (trial court answers omitted).

STANDARD OF REVIEW

       We review an appeal from the disposition of a Petition for the

Termination of Parental Rights for an abuse discretion. In re Adoption of

S.P., 47 A.3d 817, 826-27 (Pa. 2012). “As in dependency cases, our standard

of review requires an appellate court to accept the findings of fact and

credibility determinations of the trial court if they are supported by the

record.” Id., citing In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Once we

determine that the trial court’s factual findings are supported, we review to


____________________________________________


4 Mother filed a Petition to Modify Custody on August 28, 2017, which the
court subsequently stayed pending the outcome of this appeal. See TCO at 3;
Order, dated October 3, 2017.


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determine if the court erred as a matter of law or abused its discretion. S.P.,

supra at 826. A decision may be reversed for an abuse of discretion only

upon demonstration of manifest unreasonableness, partiality, prejudice, bias,

or ill-will.   Id.

       As we discussed in R.J.T., there are clear reasons for applying an
       abuse of discretion standard of review in these cases. We
       observed that, unlike trial courts, appellate courts are not
       equipped to make the fact-specific determinations on a cold
       record, where the trial judges are observing the parties during the
       relevant hearing and often presiding over numerous other
       hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
       Therefore, even where the facts could support an opposite result,
       as is often the case in dependency and termination cases, an
       appellate court must resist the urge to second guess the trial court
       and impose its own credibility determinations and judgment;
       instead we must defer to the trial judges so long as the factual
       findings are supported by the record and the court’s legal
       conclusions are not the result of an error of law or an abuse of
       discretion.

Id., 47 A.3d 817, 826-27 (Pa. 2012) (citation omitted).

       “As has been often stated, an abuse of discretion does not result merely

because the reviewing court might have reached a different conclusion.” Id.

ADOPTION ACT

       Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, governs

termination of parental rights and 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


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      needs and welfare of the child under the 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 termination cases, the burden is upon [the petitioner] to prove by

clear and convincing evidence that its asserted grounds for seeking the

termination of parental rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa.

Super. 2009) (emphasis added). We have explained that “[t]he standard of

clear and convincing evidence is defined as testimony that is so ‘clear, direct,

weighty and convincing as to enable the trier of fact to come to a clear

conviction, without hesitance, of the truth of the precise facts in issue.’” Id.

(quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

      In this case, Grandparents sought to terminate Parents’ parental rights

pursuant to Section 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,


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       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. With respect to any petition filed pursuant
       to subsection (a)(1), (6) or (8), the court shall not consider any
       efforts by the parent to remedy the conditions described therein
       which are first initiated subsequent to the giving of notice of the
       filing of the petition.

23 Pa.C.S. § 2511(a)(2), (b).

       “Termination proceedings often require the factfinder to evaluate

medical and psychiatric testimony, and to decide issues difficult to prove to a

level of absolute certainty, such as lack of parental motive, absence of

affection between parent and child, and failure of parental foresight and

progress.” In re Adoption of J.J., 515 A.2d 883, 892 (Pa. 1986).

TERMINATION AS TO MOTHER

       Termination Pursuant to Section 2511(a)(2)

       In their first issue, Grandparents argue that the trial court erred in

finding termination inappropriate under Section 2511(a)(2) because Mother

failed or refused to perform her parental duties for Child for over two years.

Grandparents’ Brief at 30.         Grandparents also assert that Mother did not

“exercise reasonable firmness in resisting obstacles to maintain the parent-

child relationship.”5 Id. at 34.

____________________________________________


5 We note that Grandparents’ argument appears to use the language from
subsection (a)(1) in arguing that the trial court erred in denying their Petition
to terminate Mother’s parental rights.         We note for clarification that



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       To satisfy the requirements of Section 2511(a)(2), the moving party

must produce clear and convincing evidence that the following three

conditions are met: (1) repeated and continued incapacity, abuse, neglect or

refusal; (2) such incapacity, abuse, neglect or refusal caused the child to be

without essential parental care, control or subsistence necessary for his

physical or mental well-being; and (3) the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied. In re Adoption of M.E.P.,

825 A.2d 1266, 1272 (Pa. Super. 2003) (emphasis added); 23 Pa.C.S. §

2511(a)(2).     The grounds for termination of parental rights under Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; those grounds may include acts of refusal

as well as incapacity to perform parental duties. In re A.L.D., 797 A.2d 326,

337 (Pa. Super. 2002).

       Parents have an “affirmative duty” to work toward the return of their

children.   See In re Julissa O., 746 A.2d 1137, 1141 (Pa. Super. 2000)

(citations omitted). “This ‘affirmative duty,’ at minimum, requires a showing

by the parent of a willingness to cooperate . . . to obtain the rehabilitative

services    necessary      for   the    performance   of   parental   duties   and

responsibilities.” Id. (citation omitted).


____________________________________________


Grandparents’ termination petition only asserted grounds for termination
under subsection (a)(2). Accordingly, we limit our review to whether the trial
court erred in denying to terminate Mother’s parental rights pursuant to
Section 2511(a)(2).

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      At the termination hearing, Paternal Grandmother testified that Child

came into her care in May 2015 due to Parents’ instability. N.T., 7/13/2017,

at 10-11.     She stated that Mother lacked stable housing, lacked financial

stability to provide for Child’s basic needs, and could not attend to Child’s

medical needs at that time. Id. at 11. In particular, Paternal Grandmother

noted that Mother has resided in eight different residences since 2015 and

that Mother moves to a new residence approximately every three to four

months.      Id. at 20.   In addition, Paternal Grandmother stated that, since

2015, Mother has had five different jobs, the longest one lasting five months.

Id. at 21.

      With respect to Mother’s exercise of her visitation rights, Paternal

Grandmother testified that Mother attended seventy-five percent of her visits

from May 7, 2015 through April 12, 2017. However, since the custody order

was modified on April 12, 2017, Mother has only attended ten of twenty-six

possible visits.   N.T., 7/13/2017, at 63.    Likewise, Paternal Grandmother

stated that she has offered Mother additional time to see Child, such as on his

birthday, but Mother declined extra visits with Child.         Id. at 31-33.

Grandmother also admitted that Mother had called her most times when she

was unable to exercise her visitation rights to tell her that she was sick, or

without transportation, or scheduled to work. Id. at 38. On four occasions,

Paternal Grandmother provided Mother with a car seat because Mother had

arrived to pick up Child for a visit without one. Id.


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        Paternal Grandmother also testified that Mother does not call Child or

send Child gifts or cards, although Grandmother admitted she did not know

the type of toys the Child has at Mother’s house. N.T., 7/13/2017, at 38.

Mother conducted no cross-examination.

        During her testimony, Mother admitted that she lacks stability and has

failed to attend the majority of Child’s medical appointments. Mother testified,

“I already lost one child this year, I can’t lose another and if it takes me having

to spend time with [Paternal Grandmother] to be around my son then so be

it, I don’t care. I don’t want to lose my boy.” N.T., 7/13/2017, at 94. 6

        At the close of testimony, the GAL argued that Grandparents had not

met their burden under Section 2511(a)(2) of clear and convincing evidence.

        The trial court then found that, while Mother could benefit from more

stable housing and employment, she is able to provide for Child’s “essential

care, control and subsistence” while Child is in her care. Trial Court Opinion,

9/15/2017, at 4-5. The trial court explained:

        Both parents have clearly been able to provide for the child’s
        essential care, control and subsistence on weekends and at other
        times. [Paternal Grandmother] testified that she does not know
        what takes place at the mother’s residence or what toys, clothing,
        etc. is provided by the mother.

                                          ...

        If [Paternal Grandmother] truly believed that either parent caused
        the child to be without essential parental care, control or
        subsistence, it defies logic as to why she would have allowed the
____________________________________________


6   Mother lost a child when she miscarried. See Exhibit P-6.

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      child to go with them for extended periods of time without
      supervision or checking.

      The record is void of any evidence showing that the child has been
      injured in any way other than what a normal 3 year old would
      experience as far as injuries while in the care of either parent.
      There was some testimony regarding not changing a diaper or
      wearing a diaper, but this hardly establishes that the child is
      without proper care to the point that would warrant termination
      of parental rights.

Id. at 6-7.

      The testimony of Paternal Grandmother presented at the termination

hearing raises some concerns and the facts present a close question of

whether the termination petition should be granted at this point. However, in

light of our standard of review, we cannot conclude that the trial court abused

its discretion in concluding that Grandmother had not shown by clear and

convincing evidence that “[t]he 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.”            23 Pa.C.S. §

2511(a)(2). The trial court was in a best position to determine credibility,

evaluate the evidence, and make a proper ruling. Since competent evidence

exists to support the trial court’s conclusions, we are constrained to affirm the

denial of Grandparents’ petition pursuant to Section 2511(a)(2).




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      We note, however, that if the Parents are unable to progress to

providing stability, security, and safety for the Child on a seven-day-a-week,

24-hour basis, the court should consider this factor in a subsequent Petition.

      Termination Pursuant to 2511(b)

      Even if we were to conclude that the trial court erred by not terminating

Mother’s parental rights pursuant to Section 2511(a)(2), Grandparents would

still not be entitled to relief because they failed to present clear and convincing

evidence to support the termination of Mother’s parental rights pursuant to

Section 2511(b).

      Section 2511(b) focuses on whether termination of parental rights
      would best serve the developmental, physical, and emotional
      needs and welfare of the child. As this Court has explained,
      Section 2511(b) does not explicitly require a bonding analysis and
      the term ‘bond’ is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered as part of
      our analysis. While a parent’s emotional bond with his or her child
      is a major aspect of the subsection 2511(b) best-interest analysis,
      it is nonetheless only one of many factors to be considered by the
      court when determining what is in the best interest of the child.

         [I]n addition to a bond examination, the trial court can
         equally emphasize the safety needs of the child, and should
         also consider the intangibles, such as the love, comfort,
         security, and stability the child might have with the foster
         parent. Additionally, this Court stated that the trial court
         should consider the importance of continuity of relationships
         and whether any existing parent-child bond can be severed
         without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (citations and quotation

marks omitted).


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         Here, Grandparents argue that they provide the Child “with his day to

day needs like food, clothing, and medicine. Grandparents provided health

insurance coverage for [the Child] and [Paternal] Grandmother scheduled and

took [the Child] to all of his medical appointments.” Grandparents’ Brief at

42. Grandparents assert that the Child looks to Paternal Grandmother for

comfort and that the Child appears distressed during custody exchanges with

Mother. Id. at 40.

         The trial court held that Grandparents failed to present any testimony

or evidence addressing how the termination of Mother’s parental rights would

affect the developmental, physical and emotional needs and welfare of the

Child.     Trial Court Opinion, 9/15/2017, at 7.      Accordingly, the trial court

concluded that Grandparents failed to present sufficient evidence to satisfy

the burden of proof necessary to terminate Mother’s parental rights pursuant

to Section 2511(b).

         Likewise, the Child’s legal counsel, Matthew Slivinski, Esquire, argued

against terminating Parents’ parental rights, stating on the record:

         This is a child that’s three years old. As the Court’s familiar, the
         first 18 months are important in a child’s life and there’s been
         nothing offered today as to what affect – with that continued
         contact up to this point, what affect that would have on this child.
         I can’t speak to that and there’s nothing put in here today to
         whether that would be a detriment to [Child] or not to [Child].
         There’s been no testimony as to what he refers to people as in his
         life whether they’re mom, dad. Absent some case out there that
         could be provided, I don’t know that although this child needs
         stability, I don’t know that if with what’s still hanging out here,
         whether or not we’ve gotten to that point, and that’s at no fault
         of [Grandparents]. . . .

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N.T., 7/13/2017, at 106.

      We agree that Grandparents failed to meet their burden. Our review of

the record indicates that there was no evidence presented concerning the

effect that termination would have on Child. Without such evidence, the trial

court was unable to assess the needs and welfare of Child if Mother’s parental

rights were terminated. In re C.P., 901 A.2d 516 (Pa. Super. 2006) (finding

where the record was devoid of evidence regarding effect termination would

have on the child, trial court had no way of assessing effect of termination on

needs and welfare).     Our Supreme Court has specifically noted that the

Adoption Act requires that a trial court examine the effect termination will

have on the needs and welfare of the child involved.      In re Adoption of

Godzak, 719 A.2d 365, 368 (Pa. Super. 1998) (citing In re Atencio, 650

A.2d 1065 (Pa. 1994)). Without competent evidence of record that examines

the effect termination has on Child’s needs and welfare, we are constrained to

affirm the trial court’s decision to deny Grandparents’ Petition to terminate

Mother’s parental rights to Child.

TERMINATION AS TO FATHER

      On February 13, 2018, Grandparents filed an application for post-

submission communication, asserting that Father has consented to the

voluntary termination of his parental rights.   Attached to their application,

Grandparents included Father’s signed Consent to Adoption.




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      Subchapter A of the Adoption Act provides, inter alia, for the voluntary

relinquishment of parental rights under Section 2504. Section 2504 provides

as follows:

      § 2504. Alternative procedure for relinquishment

      (a)     Petition to confirm consent to adoption.—If the parent
              or parents of the child have executed consents to an
              adoption, upon petition by the intermediary or, where there
              is no intermediary, by the adoptive parent, the court shall
              hold a hearing for the purpose of confirming a consent to an
              adoption upon expiration of the time period under section
              2711 (relating to consents necessary to adoption). The
              original consent or consents to the adoption shall be
              attached to the petition.

      (b)     Hearing.—Upon presentation of a petition filed pursuant to
              this section, the court shall fix a time for a hearing which
              shall not be less than ten days after filing of the petition.
              Notice of the hearing shall be by personal service or by
              registered mail.... Notice of the hearing shall be given to the
              other parent or parents, to the putative father whose
              parental rights could be terminated pursuant to subsection
              (c) and to the parents or guardian of a consenting parent
              who has not reached 18 years of age. The notice shall state
              that the consenting parent's or putative father’s rights may
              be terminated as a result of the hearing. After hearing,
              which shall be private, the court may enter a decree of
              termination of parental rights in the case of a relinquishment
              to an adult or a decree of termination of parental rights and
              duties, including the obligation of support, in the case of a
              relinquishment to an agency.

23 Pa.C.S. § 2504.

      Thus, pursuant to the procedures set forth in Section 2504, the

Adoption Act requires Grandparents to petition the trial court to confirm

Father’s consent to adoption and the trial court must conduct a hearing on the

petition, no less than ten days after the petition is filed.

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      Our Supreme Court has explained that the purpose of a hearing on a

petition to relinquish parental rights voluntarily is to insure an intelligent,

voluntary, and deliberate consent to the termination of parental rights. In re

Wolfe, 312 A.2d 793, 796 (Pa. 1973). A parent’s consent to terminate his

parental rights voluntarily must be “clear and unequivocal.” In re Singer,

326 A.2d 275, 278 (Pa. 1974). “Termination of parental rights is a drastic

measure that should not be taken lightly. Not only are [the parent’s] rights

at stake here, but [the child’s] right to a relationship with [his or her parent]

is also at stake.” In re K.G.M., 845 A.2d at 864 (citing In re Stickley, 638

A.2d 976, 980 (Pa. Super. 1994)).        Accordingly, we grant Grandparents’

Application for post-submission communication and remand the case with

instructions to hold a hearing on Father’s consent for adoption.

      Based upon the foregoing, we affirm the Order denying the Petition to

Involuntarily Terminate Parents’ Parental Rights to the Child without

prejudice, and remand the case for the trial court to conduct a hearing on

Father’s consent for adoption.

      Order affirmed. Application for post-submission communication granted.

Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/18

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