J-A14014-18


                                 2018 PA Super 224

 VICTORIA C. THOMAS                        :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                     Appellee              :
                                           :
              v.                           :
                                           :
 JAMES W. THOMAS                           :
                                           :
                     Appellant             :         No. 1139 EDA 2017

                Appeal from the Order Entered March 2, 2017
            In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): 2010-33188


BEFORE:     GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

OPINION BY GANTMAN, P.J.:                            FILED AUGUST 07, 2018

      Appellant, James W. Thomas (“Husband”), appeals from the order

entered in the Montgomery County Court of Common Pleas, which found

Husband in civil contempt of the court’s September 16, 2016 order and

imposed sanctions in the form of counsel fees in favor of Appellee, Victoria C.

Thomas (“Wife”). We affirm.

      The trial court opinion sets forth the relevant facts and procedural

history of this case as follows:

                   BACKGROUND AND PROCEDURAL HISTORY

          The parties were formally married. They have two (2) minor
          children. The parties were divorced pursuant to a Divorce
          Decree dated January 11, 2016. The Divorce Decree
          incorporated a settlement agreement (“PSA”) that was
          placed on the record before Equitable Distribution Master
          Bruce Goldenberg on December 17, 2015.

          Pursuant to the PSA, [Husband] agreed to transfer assets
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       totaling $575,000 to [Wife]. The $575,000 was to be
       distributed to [Wife] as follows: (1) $50,000 in accounts or
       assets that [Wife] had received as of the date of the PSA on
       December 17, 2015; (2) one-half of [Husband’s] TD IRA
       account in the amount of $101,000; (3) one-half of
       [Husband’s] TIAA-CREF account in the amount of $35,000;
       (4) three-fourths of the parties’ joint TD stock account in
       the amount of $270,000; and (5) remaining $119,000
       payment.

       On July 21, 2016, [Wife] filed an Emergency Petition for
       Contempt of Court and to Enforce Property Settlement
       Agreement (“Petition”). In this Petition, [Wife] alleged,
       inter alia, that [Husband] had failed to effectuate transfer of
       the amounts due to her pursuant to the terms of the PSA.

                                  *     *   *

       On September 13, 2016, [Husband] filed an Answer to
       [Wife’s] Petition as well as a Counterclaim. [Husband]
       contended that, inter alia, he had made all the transfers that
       were required pursuant to the PSA.

       On September 15, 2016, [the court] conducted a hearing
       regarding, inter alia, the following: (1) [Wife’s] Emergency
       Petition for Contempt of Court and to Enforce Property
       Settlement Agreement and (2) [Husband’s] Answer and
       Counterclaim.

       From the evidence presented on September 15, 2016, [the
       court] determined that of the $575,000 that [Husband] was
       required to pay [Wife] pursuant to the PSA, [Wife] had
       received the following: (1) $100,000.00 cash, (2)
       $101,000.00 which represents one-half of [Husband’s] TD
       IRA account, and (3) $273,422.57, which represents 100%
       of the value of the parties’ joint TD stock account.1 The total
       amount received by [Wife] from these three (3) sources is
       $474,422.57.

          1  See N.T., 9/15/16, Exhibit XW-3. The parties
          stipulated that [Wife] received this amount from the
          parties’ joint TD stock account.

       At the time of the hearing on September 15, 2016, the

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          parties had yet to finalize a QDRO with respect to
          [Husband’s] TIAA-CREF account. It is anticipated that one-
          half of this account will be approximately $35,000 to
          $37,000. (N.T., 9/15/16, pp. 38, 81).

          We issued an Order dated September 16, 2016,[1] that
          directed [Husband] to pay to [Wife] cash in the amount of
          $62,000 within 30 days of the date of the Order. That would
          leave a balance of $38,577.43 to be paid to [Wife] from
          [Husband’s] TIAA-CREF account via a QDRO. If one-half of
          the TIAA-CREF account is more than $38,577.43, then we
          directed [Wife] to pay the balance to [Husband] within 30
          days. Conversely, if one-half of the TIAA-CREF account is
          less than $38,577.43, then we directed [Husband] to pay
          the difference to [Wife] within 30 days so that [Wife] is paid
          a total of $575,000 as stated in the PSA.

          On October 19, 2016, [Husband] filed an appeal from our
          Order dated September 16, 2016. See [No.]3320 EDA
          2016. Pursuant to Pa.R.A.P. 1925(a), we issued our Opinion
          (dated December 14, 2016) in support of our Order dated
          September 16, 2016. By Order filed on April 28, 2017, the
          Superior Court dismissed that appeal because [Husband]
          had failed to file an appellate brief by April 19, 2017.

          [Meanwhile, on] November 23, 2016, [Wife] filed an
          Emergency Petition for Contempt and to Enforce the PSA.
          In this Emergency Petition, [Wife] alleged, inter alia, that
          [Husband] was in contempt of the Order dated September
          16, 2016, because he failed to pay her the $62,000 cash
          payment that was set forth in that Order.

          On December 2, 2016, [Wife] filed a Petition for Special
          Relief in which she requested the [c]ourt to permit each
          party to claim one child as a tax exemption on their
          respective tax returns.2

              2 During the hearing on February 23, 2017, the parties
              stipulated that each party would claim one child as a
              tax exemption. (N.T., 2/23/17, p. 112).
____________________________________________


1The trial court’s order was dated September 16, 2016, but was not docketed
and sent until September 19, 2016.

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        On January 13, 2017, [Husband] filed an Answer and
        Counterclaim. On January 23, 2017, [Husband] filed an
        Addendum to the Counterclaim he had filed on January 13,
        2017.

        On February 23, 2017, we conducted a hearing regarding:
        (1) [the] 11/23/16 Emergency Petition for Contempt and to
        Enforce the PSA filed by [Wife], (2) [the] 12/2/16 Petition
        for Special Relief filed by [Wife], (3) [the] 1/13/17 Answer
        and Counterclaim filed by [Husband], and (4) [the] 1/23/17
        Addendum to the Counterclaim filed by [Husband].

        At the conclusion of the hearing on February 23, 2017, we
        found [Husband] in contempt of the Order dated September
        16, 2016 because he had failed to pay ANY of the $62,000
        he was required to pay to [Wife] pursuant to the terms of
        that Order. We issued an Order dated March 2, 2017 that
        directed [Husband] to pay $62,000 to [Wife’s] counsel, by
        certified check, bank check, or money order no later than
        noon on Friday, March 3, 2017. Furthermore, the Order
        directed [Husband] to pay [Wife’s] counsel fees in the
        amount of $10,000 no later than March 31, 2017.

        We received correspondence from [Wife’s] counsel, dated
        March 7, 2017 stating that he had received a cashier’s check
        from [Husband] in the amount of $62,000.00 on the
        afternoon of March 2, 2017. …

        On March 10, 2017, [Husband] filed a Motion for
        Reconsideration of the Order dated March 2, 2017. By Order
        dated March 27, 2017, we denied the Motion for
        Reconsideration.

        On March 31, 2017, [Husband] filed the instant appeal.

(Trial Court Opinion, dated May 25, 2017, at 1-5). Procedurally, we add that

the trial court did not order Husband to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and Husband filed

none.


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     On appeal, Husband raises the following issues for review:

       THE [TRIAL] COURT ERRED IN REFUSING TO ALLOW EX-
       HUSBAND TO DEFEND THE CONTEMPT PETITION FOR
       UNPAID MONIES DUE EX-WIFE UNDER THEIR PROPERTY
       SETTLEMENT AGREEMENT, GIVEN THAT:

          −EX-WIFE SHOULD HAVE BEEN ESTOPPED FROM
          SEEKING EQUITABLE RELIEF FOR “UNCLEAN HANDS”
          BECAUSE SHE FALSELY TESTIFIED TO THE COURT AT
          AN EARLIER HEARING ABOUT THE AMOUNT OF
          MONIES SHE HAD ALREADY RECEIVED FROM EX-
          HUSBAND, RESULTING IN AN OVERPAYMENT OF
          OVER $25,000;

          −THE COURT WAS TAINTED AGAINST EX-HUSBAND
          BY FORMER COUNSEL’S IMPERMISSIBLE USE OF A
          PRIVILEGED E-MAIL GIVING THE IMPRESSION EX-
          HUSBAND WAS AT FAULT FOR THE DELAY IN
          ORIGINALLY PAYING EX-WIFE;

          −THE COURT PERMITTED FORMER COUNSEL TO
          UNILATERALLY STIPULATE TO AN INCORRECT
          AMOUNT    EX-HUSBAND   HAD   PAID   EX-WIFE,
          REFUSING TO ALLOW EX-HUSBAND TO OBJECT TO
          THE STIPULATION AND BINDING HIM TO THE
          STIPULATION WITHOUT HIS CONSENT; AND

          −THE COURT’S RULING THAT THE AGREEMENT BY
          EX-HUSBAND’S THEN-COUNSEL TO ACCEPT A STOCK
          TRANSFER VALUE—EVEN IF INCORRECT—ABSOLVED
          EX-WIFE OF ANY “UNCLEAN HANDS” ALLOWS EX-
          WIFE TO PROFIT FROM HER DECEIT AND OFFENDS
          THE PROPER ADMINISTRATION OF JUSTICE.

       THE [TRIAL] COURT [ERRED] IN ASSESSING A $10,000
       CONTEMPT SANCTION AGAINST EX-HUSBAND, GIVEN
       THAT:

          −THE SANCTION GIVES EX-WIFE A WINDFALL
          REWARD FOR GIVING FALSE TESTIMONY AND
          DECEIVING THE COURT; AND

          −THE SANCTION IS GROSSLY EXCESSIVE AND

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J-A14014-18


            PUNITIVE FOR A SIMPLE            “FAILURE    TO   PAY”
            CONTEMPT SANCTION.

(Husband’s Brief at 3-4).

      In his issues combined, Husband first argues Wife falsely testified at the

September 2016 hearing and knowingly provided an incorrect value of the

parties’ joint TD stock account. Husband contends Wife obtained a windfall in

the amount of $25,000.00 as a result of her inaccurate testimony. Husband

avers Wife’s “unclean hands” served as a valid defense to her contempt

petition. Husband submits the trial court erred in refusing to consider Wife’s

misrepresentations at both the September 2016 hearing and the February

2017 contempt hearing. Husband claims Wife’s deceitful conduct during the

September 2016 hearing should have precluded her second petition for

contempt, this time to enforce the September 2016 order, plus sanctions.

      Next, Husband asserts that at the September 2016 hearing, his counsel

unilaterally stipulated to Wife’s incorrect valuation of the joint TD stock

account, and duped the court into accepting that value. Husband contends

his counsel’s unauthorized stipulation at the September 2016 hearing should

not defeat his claim of Wife’s “unclean hands,” absolve Wife of her “unclean

hands,” or allow her to profit from her deceit, which offends the proper

administration of justice.

      Husband also complains the court’s award of counsel fees was excessive

and unwarranted. Specifically, Husband avers the drafting and modification

of a contempt petition is not a complex legal matter, and the sanction of

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$10,000.00 for counsel fees was inappropriate. Husband relies on Sutch v.

Roxborough Memorial Hospital, 142 A.3d. 38 (Pa.Super. 2016), appeal

denied, ___ Pa. ___, 163 A.3d 399 (2016), to support his contention that the

amount of attorney’s fees awarded was arbitrary, gratuitous, and punitive

under the circumstances.

      Further, Husband insists the trial court’s dislike for and bias against him

played a substantial role in the amount of harsh sanctions imposed. For these

reasons, Husband concludes this Court should vacate the trial court’s

contempt order and remand the matter for a new contempt hearing, where

he can present evidence of Wife’s “unclean hands.” We disagree.

      On appeal from an order holding a party in contempt of court, our scope

of review is very narrow, and we place great reliance on the court’s discretion.

Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001). “The court abuses its

discretion if it misapplies the law or exercises its discretion in a manner lacking

reason.” Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009). “Each

court is the exclusive judge of contempts against its process. The contempt

power is essential to the preservation of the court’s authority and prevents

the administration of justice from falling into disrepute.” Habjan v. Habjan,

73 A.3d 630, 637 (Pa.Super. 2013). Absent an error of law or an abuse of

discretion, we will not disrupt a finding of civil contempt if the record supports

the court’s findings. Mrozek v. James, 780 A.2d 670, 673 (Pa.Super. 2001).

      “In proceedings for civil contempt of court, the general rule is that the


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burden of proof rests with the complaining party to demonstrate that the

defendant is in noncompliance with a court order.”            MacDougall v.

MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012). “To sustain a finding of

civil contempt, the complainant must prove, by a preponderance of the

evidence, that: (1) the contemnor had notice of the specific order or decree

which he is alleged to have disobeyed; (2) the act constituting the contemnor’s

violation was volitional; and (3) the contemnor acted with wrongful intent.”

Id. Nevertheless, “a mere showing of noncompliance with a court order, or

even misconduct, is never sufficient alone to prove civil contempt.” Habjan,

supra at 637.

      “If the alleged contemnor is unable to perform and has, in good faith,

attempted to comply with the court order, then contempt is not proven.”

Cunningham v. Cunningham, 182 A.3d 464, 471 (Pa.Super. 2018). “The

contemnor has the burden to prove the affirmative defense that he lacks the

ability to comply.”   Id.   “The defense of impossibility of performance is

available to a party in a contempt proceeding if the impossibility to perform is

not due to the actions of that party.” Id.

      “The imposition of counsel fees can serve as a sanction upon a finding

of civil contempt.” Sutch, supra at 69; Rhoades v. Pryce, 874 A.2d 148,

152 (Pa.Super. 2005), appeal denied, 899 A.2d 1124 (2006). The purpose of

awarding counsel fees in this context is “to reimburse an innocent litigant for

the expenses the conduct of an opponent makes necessary, such as the cost


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of the contempt hearing, so it can be coercive and compensatory but it cannot

be punitive.”2     Sutch, supra at 69.           We review an award of contempt

sanctions in the form of counsel fees for an abuse of discretion.           Mrozek,

supra at 674.

       In response to Husband’s complaints, the court reasoned as follows:

                                           Discussion

          To find one in civil contempt, a complainant must prove by
          a preponderance of the evidence that the respondent is in
          noncompliance with a court order. The order must be clear,
          definite, and specific. To sustain a finding of civil contempt,
          the complainant must prove that: (1) the contemnor had
          notice of the specific order or decree which he is alleged to
          have violated, (2) the act constituting the contemnor’s
          violation was volitional, and (3) the contemnor acted with
          wrongful intent.

          In the case before the [court], all three (3) elements set
          forth in the preceding paragraphs have been satisfied. The
          Order dated September 16, 2016, which, inter alia, directed
          [Husband] to pay to [Wife] $62,000 cash within 30 days of
          the date of the Order was clear, definite, and specific.

          [Husband] had notice of the Order dated September 16,
          2016. We provided a copy of the Order to [Husband] as
          well as his former counsel. [Wife] demonstrated that
          [Husband’s] failure to pay her the $62,000 in cash was
          volitional, and [Husband] had acted with wrongful intent.

          It is clear that [Husband] had the means to pay the $62,000
          in cash to [Wife]. He testified [at the February 2017
____________________________________________


2An award of attorney’s fees as a sanction in a civil contempt case is “separate
and apart from the statutory provision for [attorney’s] fees under 42 Pa.C.S.A.
§ 2503(7).” Sutch, supra at 68-70 (distinguishing award of counsel fees as
sanction for civil contempt from award of counsel fees under statute, where
statutory award requires specific finding of dilatory, obdurate or vexatious
conduct).

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         hearing] that he could sell stock or borrow money. In fact,
         when [Husband] learned that he may be imprisoned due to
         his contempt of the Court Order, he paid the $62,000 on
         March 2, 2017.

         [Husband’s] contempt of the Order dated September 16,
         2016 is particularly egregious because he did not make a
         good-faith effort to pay ANY of the $62,000 in cash to
         [Wife] within 30 days of that Order.

                                    *     *      *

         The [court] reviewed [Wife’s] certification of counsel fees
         and determined that an award of $10,000.00 was
         appropriate and reasonable given the nature of the work
         performed and the length of time spent to prosecute the
         contempt allegations.

(Trial Court Opinion at 5-6). The record supports the court’s decision to hold

Husband in contempt of the court’s September 2016 order. See Mrozek,

supra.

      With respect to Husband’s arguments related to the September 15,

2016 hearing, e.g., his argument regarding Wife’s testimony at the September

2016 hearing, counsel’s alleged unauthorized stipulation at that hearing on

the value of the joint TD stock account, and the court’s purported bias against

Husband, as allegedly illustrated by the court’s preclusion of evidence at that

hearing, these claims are not properly before us now. Husband filed an appeal

from the September 2016 order, but he did not pursue the appeal with

diligence, which caused this Court to dismiss his appeal for his failure to file

an appellate brief.   As a result, Husband squandered his right to obtain

appellate review of these claims.


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      Further, in the contempt proceedings of February 23, 2017, Wife

established (1) Husband had notice of the September 15, 2016 order that

Husband disobeyed and the order was specific and directed Husband to pay

Wife $62,000.00 by a date certain, which Husband did not do; (2) Husband

had the ability to pay and chose not to pay; and (3) Husband deliberately and

willfully disobeyed the court’s order, so as to deny Wife any of the additional

funds. See MacDougall, supra. Thus, Wife’s evidence was more than just

a “mere showing of noncompliance.”       See Habjan, supra. Therefore, we

reject Husband’s current efforts to resurrect his lost claims as “defenses” and

“counterclaims” to Wife’s contempt petition, because they are invalid

justifications in the current proceedings.

      Regarding Husband’s distress over the amount of counsel fees awarded

to Wife as a sanction for Husband’s contempt of the September 15, 2016

order, Husband’s reliance on Sutch is misplaced.      In Sutch, the sanction

imposed totaled over one million dollars in attorney’s fees allegedly incurred

in a standard medical malpractice contingency fee case.        On appeal, we

reversed the award of counsel fees because the record showed the difficulties

inherent in the underlying medical malpractice case, and the hourly fees

associated with the high number of lawyers who allegedly touched the file,

were embellished without record basis, in a case that carried no novel question

of law or fact to support the extensive charges. See Sutch, supra at 79.

      Here, however, the court reviewed Wife’s certification of counsel fees


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sustained as a result of Husband’s contempt of the court’s September 2016

order. Based on the detailed accounting offered, the court awarded Wife’s

counsel about ninety percent of the fees associated with prosecuting her

contempt petition, which was a reasonable reflection of counsel’s related tasks

and hourly billing rate. The record reveals that, as respondent in the contempt

proceedings, Husband incurred comparable fees, given his counsel’s related

tasks and hourly billing rate. The record shows no abuse of discretion in the

amount of counsel fees awarded to Wife. Thus, Husband’s sanctions claim

merits no relief.

      Finally, we address Husband’s complaint about the parties’ September

2016 stipulation for the removal of Husband’s personal and patient-related

data from Wife’s laptop computer and their daughter’s cell phone.          The

stipulation was based on Husband’s bald allegation that Wife had transferred

his personal/patient files from their joint laptop to a second laptop she had

purchased after the divorce proceedings. Specifically, the parties’ stipulation

provided Wife would deliver her laptop computer and her daughter’s cell phone

to Springboard Media (“Springboard”), who would then wipe Husband’s

information from these devices.       Per the September 2016 stipulation,

Springboard    would   separate   Wife’s     personal   data   from   Husband’s

personal/patient-related data, and return a drive to Husband that contained

his information.

      Wife testified at the February 2017 hearing that, while she was unsure


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whether Husband’s information was actually on her personal laptop and cell

phone, she complied with the stipulation and turned over the devices to

Springboard for service. At the February 2017 contempt hearing, however,

Springboard owner Everett Katzen testified that his company was digitally

incapable of performing this task and took no further steps to service Wife’s

computer as contemplated in the September 2016 stipulation.

      Here, Husband did not identify his computer-records claim separately

on appeal. In just one sentence in the conclusion paragraph of Husband’s

appellate brief, he states: “[Given] that the computer stipulation [Wife’s]

counsel formulated and [Husband] was forced to sign upon threat of losing his

HIPPA protected data has not and cannot be implemented, [Wife] herself

remains in contempt of the original divorce decree for not returning the

computer and other electronic data as she was required to return, including

the additional copies of the data she improperly made.” (See Appellant’s Brief

at 23).

      That sentence is the sum and substance of Husband’s particular claim.

Absent more, we cannot intuit if Husband is complaining about the content of

the stipulation or about Wife’s alleged failure to comply with the stipulation or

about Springboard’s inability to provide the service intended in the stipulation.

To the extent Husband is complaining about the content of the stipulation, this

issue is waived because he failed to pursue that claim on his appeal from the

September 2016 order. To the extent Husband is complaining about Wife’s


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failure to comply with the stipulation, the record makes clear that she did

comply by bringing the laptop and cell phone to Springboard for service.

Finally, to the extent Husband is complaining about Springboard’s inability to

provide the service as stipulated, Husband is the party who insisted on using

Springboard and failed to offer any workable alternatives.         Therefore, as

presented, Husband’s computer data claim did not serve as a valid defense to

Wife’s contempt petition.

      Moreover, we decline to grant Husband any specific relief in this regard

at this time because he did not properly preserve the claim for appellate

review. See Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000) (stating when

appellant fails to raise or develop his issue on appeal properly, or where his

brief is wholly inadequate to present specific issue for review, this Court can

decline to address merit of appellant’s claim).     See also In re Estate of

Whitley, 50 A.3d 203, 206-07 (Pa.Super. 2012), appeal denied, 620 Pa. 724,

69 A.3d 603 (2013) (reiterating general rule that failure to cite relevant

supporting legal authority constitutes waiver of claim on appeal); Estate of

Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating appellant must

support each issue raised by discussion and analysis of pertinent authority;

without reasoned discussion of law in appellate brief, appellant hampers this

Court’s review and risks waiver; “It is not this Court’s function or duty to

become an advocate for the appellant”).       This Court is willing to construe

materials of a pro se litigant liberally, but his pro se status confers no special


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benefit upon Husband. See Wilkins v. Marsico, 903 A.2d 1281, 1284-85

(Pa.Super. 2006), appeal denied, 591 Pa. 704, 918 A.2d 747 (2007) (stating:

“To the contrary, any person choosing to represent himself in a legal

proceeding must, to a reasonable extent, assume that his lack of expertise

and legal training will be his undoing”). Thus, Husband waived his computer-

data claim on appeal. Husband will have to chart another course to enforce

and/or modify the stipulation to obtain his purported files.

      Based upon the foregoing, we hold the trial court properly found

Husband in civil contempt of the court’s September 16, 2016 order and

imposed sanctions in the form of counsel fees in favor of Wife. Accordingly,

we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/18




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