J-S64033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
MICHAEL CHRISTOPHER HAYNICK, SR.           :
                                           :
                    Appellant              :    No. 511 MDA 2017
                                           :

            Appeal from the Judgment of Sentence February 9, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
     No(s): CP-36-CR-0003915-2016, CP-36-CR-0003916-2016, CP-36-CR-
                    0003917-2016, CP-36-CR-0003918-2016

BEFORE:      PANELLA, J., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 14, 2017

        Appellant, Michael Christopher Haynick, Sr., appeals from his judgment

of sentence of four and one-half to nine years’ imprisonment following his

guilty plea to a series of second-degree felony burglaries.1 Appellant argues

that the trial court was required to sentence him under the Recidivism Risk

Reduction Incentive (“RRRI”) Act, 61 Pa.C.S. §§ 4501-4512, because his 2005

conviction for attempted first-degree burglary2 does not constitute a history

of past violent behavior. We vacate the judgment of sentence and remand

for further proceedings.


*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 3502(a)(4), (c)(2).

2   18 Pa.C.S. § 901.
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     In April and May of 2016, Appellant committed six burglaries in various

commercial establishments.    In June 2016, Appellant was arrested and

charged with six second-degree burglaries under 18 Pa.C.S. § 3502(a)(4).3




3 The version of the burglary statute under which Appellant was convicted
stated:

        (a) Offense defined.—A person commits the offense of
        burglary if, with the intent to commit a crime therein, the
        person:

           (1) enters a building or occupied structure, or separately
           secured or occupied portion thereof that is adapted for
           overnight accommodations in which at the time of the
           offense any person is present;

           (2) enters a building or occupied structure, or separately
           secured or occupied portion thereof that is adapted for
           overnight accommodations in which at the time of the
           offense no person is present;

           (3) enters a building or occupied structure, or separately
           secured or occupied portion thereof that is not adapted
           for overnight accommodations in which at the time of the
           offense any person is present; or

           (4) enters a building or occupied structure, or separately
           secured or occupied portion thereof that is not adapted
           for overnight accommodations in which at the time of the
           offense no person is present.

18 Pa.C.S. § 3502(a) (eff. 2012). Paragraphs (1) through (3) are graded as
felonies of the first degree, and paragraph (4) is graded as a felony of the
second degree, except in circumstances not relevant here.          Id. at §
3502(c)(1)-(2).     Appellant was charged with six violations of Section
3502(a)(4).




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        On February 9, 2017, Appellant entered an open guilty plea at the

above-captioned dockets and was sentenced to the aforementioned term of

imprisonment. Appellant requested sentencing under the RRRI Act, but the

sentencing judge declined on the ground that Appellant’s prior conviction in

2005 for attempted first-degree burglary4 constituted a history of violent

behavior.5 On February 17, 2017, Appellant filed timely post sentence

motions requesting, inter alia, a RRRI sentence. On February 27, 2017, a

different judge granted Appellant’s motion but vacated that order on March 6,

2017.    On March 7, 2017, the sentencing judge granted Appellant’s post-

sentence motions on a matter unrelated to this appeal but denied Appellant’s

motion for RRRI sentencing.

        On March 22, 2017, Appellant timely appealed to this Court. On March

23, 2017, the sentencing judge ordered Appellant to file a Pa.R.A.P. 1925(b)

statement within twenty-one days. On April 25, 2017, counsel for Appellant


4 Appellant concedes that he attempted to commit first-degree burglary under
the 1991 burglary statute. Appellant’s Brief at 6-8.

5 Although the sentencing transcript is not in the certified record, both parties
agree that Appellant requested RRRI treatment at sentencing, and that the
trial court denied this request due to his 2005 conviction for attempted
burglary. See Defendant’s Post Sentence Motions, at ¶ 12; Commonwealth’s
Motion For Reconsideration Of Order Granting Defendant’s Post Sentence
Motions, at ¶ 2. Thus, the absence of the sentencing transcript does not
preclude appellate review. See Pa.R.A.P. 105(a) (appellate court may
disregard requirements of any rule of appellate procedure on its own motion);
cf. Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super. 2013)
(declining to quash appeal where defects in appellant’s brief did not impede
appellate review).



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filed an untimely Pa.R.A.P. 1925(b) statement.        On May 10, 2017, the

sentencing judge filed a Pa.R.A.P. 1925 opinion.6

      Appellant raises two issues in this appeal:

         I. Whether the trial court erred in determining that Appellant
         was not RRRI eligible because of his prior conviction for
         Criminal Attempt Burglary-Felony I?

         II. Whether the trial court erred in determining that
         Appellant was not RRRI eligible because [Appellant’s]
         conviction for Felony 1 Attempted Burglary constituted a
         history of violent behavior?

Appellant’s Brief at 4. We review these questions together. The issue, as we

see it, is whether Appellant has a history of present or past violent behavior

due to (1) his convictions for second-degree burglary in the present case, (2)

his 2005 conviction for attempted first-degree burglary, or (3) both of the

above. In our view, Appellant’s convictions for second-degree burglary do not

constitute a history of present or past violent behavior, but further

proceedings are required to determine whether his 2005 conviction for

attempted first-degree burglary evinces violent behavior.




6 The Pennsylvania Rules of Appellate Procedure provide that if an appellant
in a criminal case fails to file a court-ordered Pa.R.A.P. 1925(b) statement
“such that the appellate court is convinced that counsel has been per se
ineffective, the appellate court shall remand for the filing of a Statement nunc
pro tunc and for the preparation and filing of an opinion by the judge.” Here,
counsel did not fail to file a Pa.R.A.P. 1925(b) statement but simply filed it
after the deadline, and the sentencing judge thereupon prepared his opinion.
Under these circumstances, we need not take any action other than to caution
counsel to comply with court-ordered deadlines in the future.                See
Commonwealth v. Burton, 973 A.2d 428, 432-33 (Pa. Super. 2009) (en
banc).


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      The RRRI Act is a penal statute, Commonwealth v. Chester, 101 A.3d

56, 60 n.6 (Pa. 2014), which

          seeks to create a program that ensures appropriate
          punishment for persons who commit crimes, encourages
          inmate participation in evidence-based programs that
          reduce the risks of future crime and ensures the openness
          and accountability of the criminal justice process while
          ensuring fairness to crime victims.

61 Pa.C.S. § 4502. As part of achieving that aim, the RRRI Act requires the

trial court to determine at the time of sentencing whether the defendant is an

“eligible offender.” 61 Pa.C.S. § 4505(a). If the court finds the defendant to

be an eligible offender, or if the prosecuting attorney waives the eligibility

requirements under Section 4505(b), the court must calculate minimum and

maximum sentences, and then impose the RRRI minimum sentence, which

“shall be equal to three-fourths of the minimum sentence imposed when the

minimum sentence is three years or less[,]” or “shall be equal to five-sixths

of the minimum sentence if the minimum sentence is greater than three

years.”   61 Pa.C.S. § 4505(c)(2).      If an eligible offender “successfully

completes the program plan, maintains a good conduct record and continues

to remain an eligible offender[,]” he may “be paroled on the RRRI minimum

sentence date unless the Board of Probation and Parole determines that parole

would present an unreasonable risk to public safety or that other specified

conditions have not been satisfied.” 37 Pa. Code § 96.1(b).




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      To qualify for a RRRI minimum sentence, the defendant must establish

that he is an “eligible offender,” which the RRRI Act defines, in relevant part,

as follows:

         A defendant or inmate convicted of a criminal offense who
         will be committed to the custody of the [Department of
         Corrections] and who meets all of the following eligibility
         requirements:

              (1) Does not demonstrate a history of present or past
              violent behavior.

61 Pa.C.S. § 4503(1). The determination of whether the defendant fulfills

these standards “entails statutory interpretation,” for which “our review is de

novo and plenary.” Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1241

(Pa. 2017) (citation omitted).

TREATMENT OF APPELLANT’S SECOND-DEGREE BURGLARIES UNDER
                      THE RRRI ACT

      Based on Commonwealth v. Gonzalez, 10 A.3d 1260 (Pa. Super.

2010), we hold that Appellant’s present second-degree burglary convictions

do not constitute “violent behavior” under Section 4503(1).

      The defendant in Gonzalez pleaded guilty to a drug-related charge, but

the trial court declined to impose an RRRI sentence due to one prior conviction

for second-degree burglary. We reversed and remanded for an RRRI sentence

on the basis that second-degree burglary was not “violent behavior.”

Gonzalez, 10 A.3d at 1263. The 1991 version of the burglary statute, which

was in effect at the time of the defendant’s burglary, provided:




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          (a) Offense defined. —A person is guilty of burglary if he
          enters a building or occupied structure, or separately
          secured or occupied portion thereof, with intent to commit
          a crime therein, unless the premises are at the time open to
          the public or the actor is licensed or privileged to enter.

                                      ***

          (c) Grading.—

             (1) Except as provided in paragraph (2), burglary is a
             felony of the first degree.

             (2) If the building, structure or portion entered is not
             adapted for overnight accommodation and if no
             individual is present at the time of entry, burglary is
             a felony of the second degree.

18 Pa.C.S. § 3502(a), (c) (eff. 1991) (emphasis added). In view of the bolded

text, we held that “an F2 burglary, by definition, does not involve the risk of

violence, or injury, to another person.     It is solely an offense against the

property rights of the owner of the subject premises.” Gonzalez, 10 A.3d at

1262.

        The legislature revised the burglary statute in 2012. The 2012 statute

was in force at the time of Appellant’s present convictions for burglary in 2016.

Nevertheless, for the purposes of the present appeal, the pertinent elements

of second-degree burglary in the revised statute are virtually the same as in

the 1991 version. Compare 18 Pa.C.S. § 3502(a)(4) (eff. 2012) (defining

second degree burglary as entry, with intent to commit crime therein, “into a

building or occupied structure, or separately secured or occupied portion

thereof that is not adapted for overnight accommodations in which at the time



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of the offense no person is present”) with 18 Pa.C.S. § 3502(c)(2) (eff. 1991)

(defining second degree burglary entry into “building, structure or portion

entered is not adapted for overnight accommodation and if no individual is

present at the time of entry”). Thus, Gonzalez applies to the 2012 statute,

and second-degree burglary continues to remain non-violent behavior under

the RRRI Act.7



7 We think it important to mention that some tension appears to exist between
this Court’s decision in Gonzalez and our Supreme Court’s decision in
Chester, which suggests that all burglaries involve violent behavior,
regardless of their degree. Both Chester and Gonzalez addressed the pre-
2012 version of the burglary stature. In the course of holding that first-degree
burglary is violent behavior under the RRRI Act, Chester reasoned:

         [A]lthough burglary involves the unlawful entry of another
         person’s property, and although burglary is characterized as
         a property crime for purposes of the Pennsylvania Uniform
         Crime Report, it is well established within our case law
         that “[b]urglary is a crime of violence as a matter of
         law,” signifying that first-degree burglary necessarily
         constitutes violent behavior in all contexts, including under
         Section 4503(1). See Commonwealth v. Spotz, [] 47
         A.3d 63, 104 ([Pa.] 2012) (finding appellant’s prior burglary
         convictions were properly admitted as evidence of a
         significant history of violent felony convictions pursuant to
         42 Pa.C.S.[] § 9711(d)(9)).         Indeed, as we noted in
         Commonwealth v. Rolan, [] 549 A.2d 553 ([Pa.] 1988),
         burglary has been treated as a crime of violence dating back
         to the common law of England, which defined burglary as a
         forcible invasion into the home with the intent to commit a
         felony therein, and punished burglars with death “[b]ecause
         of the great public policy involved in shielding the citizenry
         from being attacked in their homes and in preserving
         domestic tranquility.”      Id. at 558 (citing Blackstone
         Commentaries on the Law, Book IV, pp. 223–28). Based
         upon those same motivations, and wishing to “protect
         people from the threat of violence in other situations,” our



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       legislature expanded the common law scope of burglary
       when it drafted the Crimes Code, including within its
       definition various types of buildings and structures in
       addition to the home, and extending the definition to
       encompass both daytime and nighttime intrusions. Rolan,
       549 A.2d at 558.

          We continue to view burglary as a crime of violence
       today based upon the well settled notion that “non-
       privileged entry . . . poses a threat of violence to
       persons.” [Commonwealth v.] Small, 980 A.2d [549,]
       576 [(Pa. 2009)]; see also Rolan, 549 A.2d at 559 (“[T]he
       crime of burglary has always been and continues to be
       viewed as a crime involving the use or threat of violence to
       the person”); Commonwealth v. Rios, [] 920 A.2d 790,
       814 ([Pa.] 2007) (“[B]urglary is always classified as a
       violent crime in Pennsylvania.”); Commonwealth v.
       Pruitt, [] 951 A.2d 307, 321 ([Pa.] 2008) (citing cases
       noting that burglary is a crime of violence in Pennsylvania).
       While we have recognized that all burglaries are crimes of
       violence for purposes of the significant history of violent
       felony convictions aggravating circumstance for capital
       sentencing, see 42 Pa.C.S.[] § 9711(d)(9), as the Superior
       Court implied in Gonzalez, the case is even stronger for
       specifically construing the commission of the crime of first-
       degree burglary as violent behavior under Section 4503(1),
       given that, unlike second-degree burglary, first-degree
       burglary is listed as a crime of violence under the recidivist
       minimum sentencing provision in 42 Pa.C.S.[] § 9714(g),
       and the crime specifically renders an offender ineligible for
       motivational boot camp pursuant to 61 Pa.C.S.[] § 3903.

           Moreover, the Crimes Code treats first-degree burglary
       distinctly from second-degree burglary, as first-degree
       burglary contemplates the potential for confrontation,
       whereas second-degree burglary does not. At the time
       [a]ppellant was charged, the burglary statute distinguished
       first-degree burglary from second-degree burglary based
       upon whether the building or structure entered was adapted
       for overnight accommodation and whether an individual was
       present at the time of entry. . . . Only if neither of these
       conditions were true—i.e., that there was no risk of



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  WHETHER APPELLANT’S SINGLE CONVICTION FOR ATTEMPTED
BURGLARY CONSTITUTES A HISTORY OF PRESENT OR PAST VIOLENT
                        BEHAVIOR




        confrontation—was the entry a second-degree burglary.
        Thus, in light of Pennsylvania’s long-standing view of
        burglary as a violent crime, as well as the fact that first-
        degree burglary is treated distinctly, and more severely,
        under Pennsylvania law, we have no hesitancy in concluding
        a conviction for first-degree burglary constitutes “violent
        behavior” under Section 4503(1).

            Furthermore, while Appellant contends his first-
        degree burglary conviction was not “violent behavior”
        because he did not employ violence during the
        burglary, it is an offender’s non-privileged entry,
        which “invit[es] dangerous resistance” and, thus, the
        possibility of the use of deadly force against either the
        offender or the victim, that renders burglary a violent
        crime, not the behavior that is actually exhibited
        during the burglary. Rolan, 549 A.2d at 559. Thus, the
        fact that Appellant did not actually engage in any violent
        acts while committing first-degree burglary does not render
        that crime “non-violent.” Similarly, we decline to accept the
        invitation of amicus to depart from our well established case
        law—finding burglaries to be violent by their very nature—
        to instead engage in a case-by-case evaluation into whether
        a particular burglary conviction constitutes “violent
        behavior” under Section 4503(1).

Chester, 101 A.3d at 64-65. Arguably, the bolded text indicates that all
burglaries are violent, whether first or second degree. But, because the only
question before the Chester Court was whether first-degree burglary
constitutes violent behavior, its reasoning only constitutes dicta with regard
to second-degree burglary. Thus, the theory that a second-degree burglary
poses a diminished risk of violence when the structure is not adapted for
overnight accommodation and no person is present remains a valid distinction
when determining whether a burglary conviction constitutes “violent
behavior.”



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       The question thus becomes whether Appellant’s decade-old conviction

for attempted first-degree burglary, a crime of violence under Chester,

constitutes a “history of present or past violent behavior” under the RRRI Act.

The trial court here concluded that Appellant’s first-degree felony conviction

constituted violent behavior because, in part, the legislature deemed first

degree attempted burglary as a crime of violence. We conclude that it does

not.

       In Cullen-Doyle, the defendant pleaded guilty to one count of felony-

one burglary, as well as several counts of conspiracy to commit felony-one

burglary. Cullen-Doyle, 164 A.3d at 1241. The defendant requested a RRRI

sentence, which the trial court denied based on its belief that the defendant

had a prior felony-one burglary conviction. Id. The defendant appealed, and

this Court affirmed. Id. We noted that the record did not support the trial

court’s finding that the defendant had a prior record. Id. Nevertheless, we

concluded the defendant’s present conviction for felony-one burglary rendered

him ineligible for the RRRI program.8 Id. (citing Commonwealth v. Cullen-

Doyle, 133 A.3d 14 (Pa. Super. 2016)).

       The defendant appealed to the Pennsylvania Supreme Court arguing

that Section 4503(1) was not “intended to encompass a first-time, single-

count offender.” Id. The Supreme Court granted allowance of appeal, and


8 The parties in Cullen-Doyle agreed that felony-one burglary established
“violent behavior.” Cullen-Doyle, 164 A.3d at 1240.



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the defendant asserted that if the General Assembly intended to preclude such

offenders from RRRI-eligibility, it could have used broader language in Section

4503(1) to encompass any conviction involving violent behavior. 9 Id. The

defendant further suggested that excluding first-time offenders would

undermine the program’s goals of offering offenders “a second chance to

become law abiding citizens” and relieving taxpayers of some of the burdens

of “warehousing offenders[.]” Id. (citation omitted). The Commonwealth

responded that the phrase “history of present or past violent behavior” was

sufficiently broad to disqualify an offender based on a single violent crime.

Id. Alternatively, the Commonwealth asserted that a remand was necessary

to clarify the defendant’s prior record. Id. at 1241-42.

        The Pennsylvania Supreme Court vacated this Court’s order, holding

that a “single, present conviction for a violent crime does not constitute a

history of violent behavior.”      Cullen-Doyle, 164 A.3d at 1244 (citation

omitted). The Court noted that the phrase “history of present or past violent

behavior” in Section 4503(1) “could be read . . . to allow for the word history

to encompass a single, present offense[, or] to expressly authorize the

inclusion of the present offense in consideration of whether there is an overall

history, comprised of more than one offense.”        Id. at 1242 n.2 (citations

omitted).     The Court concluded that the Section 4503(1) was “materially

ambiguous” because “the word ‘history’ ordinarily concerns past events and


9   Appellant raises a similar argument in this appeal. Appellant’s Brief at 29.


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can refer to a pattern of behavior” and proceeded to construe the intent of

General Assembly in light of the purposes of RRRI. Id. at 1242.

      The Cullen-Doyle Court first noted that the RRRI program’s express

purpose was to encourage eligible offenders to participate in the program and

reduce the likelihood of recidivism. Id. (discussing 61 Pa.C.S. § 4504(b)).

The Court recognized a “commonly accepted corollary . . . that first-time

offenders are usually more amenable to reform than inmates who have

persisted in criminal conduct.” Id. (footnote omitted). In this light, the Court

concluded that the General Assembly “sought to offer greater reform

opportunities for first-time offenders than repeat offenders.” Id. at 1243.

      Second, the Court analyzed the consequences of the divergent

interpretations of the RRRI-eligibility requirements. Id. The Court concluded

that “broadly construing” Section 4503 to find a defendant ineligible based on

“a single instance of ‘violence’” would be “so stringent that a large number of

individuals   who   could   potentially   reform”   would   be   prevented   from

participating in the program. Id. Such a construction would diminish the

program’s “potential utility.” Id. (footnote omitted). The Court recognized

that Section 4503 excludes individuals based on discrete factors, such as

conviction for enumerated offenses. Id. Because those discrete factors did

not include burglary, the Court found apt the principle of statutory

interpretation that the “‘inclusion of specific matters . . . implies the exclusion

of other matters.” Cullen-Doyle, 164 A.3d at 1243 (citation omitted). The



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Court thus inferred that the General Assembly “did not intend for all crimes

of violence to be disqualifying in and of themselves.” Id. at 1244.

      Lastly, having found ambiguity in the phrase “history of present or past

violent behavior” the Cullen-Doyle Court applied the “rule of lenity” to bolster

its conclusion that a “single, present conviction for a violent crime does not

constitute a history of violent behavior.” Id. The Court emphasized that “any

ambiguity surrounding the meaning of the word ‘history’ should be resolved

in favor of those seeking admission into the program.”10 Id.

      The specific holding of Cullen-Doyle—that a defendant’s “single,

present” conviction does not render the defendant ineligible for the RRRI

program—is not dispositive of the issue raised in the instant appeal, i.e., the

effect of a past conviction for a crime of violence. Nevertheless, the Court’s

reasoning in Cullen-Doyle persuades us that a single past conviction for

attempted felony-one burglary does not render Appellant RRRI-ineligible. As

noted in Cullen-Doyle, the phrase “history of present or past behavior” is

ambiguous, and an overly broad reading of the phrase would undermine the


10 Although the Cullen-Doyle Court concluded that the defendant’s single
present conviction did not render him ineligible for the RRRI program, the
Court found that “the need for clarification concerning [the defendant’s] prior
record may now have renewed salience . . . .” Id. at 1244. The Court noted
that this Court previously denied the parties’ joint motion for remand to
determine the defendant’s prior record and whether, as the trial court
suggested, the defendant had a prior conviction for felony-one burglary. Id.
at 1241, 1244. The Pennsylvania Supreme Court, therefore, remanded the
case to this Court to resolve any further issues before remanding to the trial
court. Id. at 1244.



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purposes of the statute by unduly restricting access to the program with the

potential to reform.11    Moreover, the General Assembly’s election not to

designate burglary among numerous discrete factors disqualifying a defendant

from RRRI implies the exclusion of a single conviction for attempted burglary

as a per se disqualifying crime of violence. Lastly, we must apply the rule of

lenity to resolve the ambiguity in Section 4503(1) in favor of eligibility.

Applying this reasoning to the present case, we hold that a single, past

conviction for attempted felony-one burglary does not disqualify a defendant

from eligibility in the RRRI program.

      Accordingly, we conclude that the trial court erred in finding that

Appellant’s single, past conviction for attempted felony-one burglary

necessarily rendered him ineligible for the RRRI program under Section

4503(1).    Thus, we vacate the judgment of sentence and remand for

reconsideration of Appellant’s eligibility for the RRRI program.

      Judgment of sentence vacated in part. Case remanded for consideration

of Appellant’s eligibility for the RRRI program. Jurisdiction relinquished.

      Judge Shogan Joins the Memorandum.

      Judge Panella Notes Dissent.




11 Additionally, eligibility for the RRRI program does not create a right to be
paroled on the expiration of the RRRI minimum sentence. Rather, release on
a RRRI sentence is contingent on the defendant’s successful completion of the
program as well as a discretionary decision by the Board of Probation and
Parole.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2017




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