J. A32037/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


MANUEL D. BAHOQUE-DELEON                    :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee,         :
                                            :
                    v.                      :
                                            :
                                            :
TIMOTHY KRAWCZUK AND                        :
GARDA CL ATLANTIC, INC.,                    :
                                            :
                          Appellants        :     No. 782 EDA 2014


                Appeal from the Judgment Entered April 1, 2014
              In the Court of Common Pleas of Philadelphia County
                Civil Division No(s).: April Term 2011 No. 00622

BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 17, 2015

        Appellants, Timothy Kraczuk and Garda CL Atlantic, Inc., appeal from

the judgment entered in the Philadelphia County Court of Common Pleas in

favor of Appellee, Manuel D. Bahoque-Deleon. Appellants contend the trial

court erred by, inter alia, not reducing the amount of Appellee’s hospital bill,

permitting and precluding various testimony, holding that a fact witness was

unavailable to testify at trial, and failing to charge the jury on 75 Pa.C.S. §

3361, which addresses driving a vehicle at a safe speed. We hold Appellants

are not entitled to relief.




*
    Former Justice specially assigned to the Superior Court.
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        We adopt the facts and procedural history set forth in the trial court’s

opinion. Trial Ct. Op., 6/6/14, at 1-6. We add that the jury held Appellee

was 20% negligent.      Verdict Sheet, 1/30/14.    Appellants timely appealed1

and timely filed a court-ordered Pa.R.A.P. 1925(b) statement raising sixteen

issues.2




1
  Appellants prematurely appealed from the order denying their post-trial
motion; the court’s subsequent entry of judgment perfected Appellants’
appeal. See generally Johnston the Florist, Inc. v. TEDCO Const.
Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (en banc).
2
    We endorse the following:

           With a decade and a half of federal appellate court
           experience behind me, I can say that even when we
           reverse a trial court it is rare that a brief successfully
           demonstrates that the trial court committed more than one
           or two reversible errors. I have said in open court that
           when I read an appellant’s brief that contains ten or twelve
           points, a presumption arises that there is no merit to any
           of them.     I do not say that this is an irrebuttable
           presumption, but it is a presumption nevertheless that
           reduces the effectiveness of appellate advocacy. Appellate
           advocacy     is    measured      by    effectiveness,    not
           loquaciousness.

Andaloro v. Armstrong World Indus., Inc., 799 A.2d 71, 83-84 (Pa.
Super. 2002) (quoting Ruggero J. Aldisert, The Appellate Bar: Professional
Competence and Professional Responsibility—A View from the Jaundiced Eye
of One Appellate Judge, 11 Cap. U. L. Rev. 445, 458 (1982)); accord
Commonwealth v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993) (“[T]he number
of claims raised in an appeal is usually in inverse proportion to their merit
and that a large number of claims raises the presumption that all are
invalid.”).




                                      -2-
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      Appellants raise the following six issues:3

         Whether the trial court abused its discretion and/or
         committed an error of law in failing to reduce the amount
         of . . . Appellee’s hospital bill as required by 75 Pa.C.S. §
         1797(a) prior to instructing the jury on damages, entitling
         Appellants to a new trial.

         Whether the trial court abused its discretion and/or
         committed an error of law by allowing Appellee’s medical
         expert to offer an opinion on the reasonableness of
         Appellee’s medical bills when such information was not
         contained within the expert’s reports, was not disclosed in
         Appellee’s discovery answers, and was otherwise outside
         the expert’s area of expertise, entitling Appellants to a new
         trial?

         Whether the trial court abused its discretion and/or
         committed an error of law by precluding Appellants’
         medical expert from testifying in rebuttal to the trial
         testimony of Appellee’s medical expert and precluding
         opinions which were otherwise admissible, entitling
         Appellants to a new trial?

         Whether the trial court abused its discretion and/or
         committed an error of law by precluding an eyewitness to
         the accident from providing permissible testimony
         regarding personal observations made by him at the time
         of the collision, entitling Appellants to a new trial?

         Whether the trial court abused its discretion and/or
         committed an error of law for deeming a fact witness

3
  Appellants’ brief exceeds the 14,000 word limit set forth in Pa.R.A.P. 2135.
We decline to find waiver, however. See generally Commonwealth v.
Briggs, 12 A.3d 291, 343 (Pa. 2011) (“The briefing requirements
scrupulously delineated in our appellate rules are not mere trifling matters of
stylistic preference; rather, they represent a studied determination by our
Court and its rules committee of the most efficacious manner by which
appellate review may be conducted so that a litigant’s right to judicial review
as guaranteed by Article V, Section 9 of our Commonwealth’s Constitution
may be properly exercised.”).




                                     -3-
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            “unavailable” for trial and permitting . . . Appellee to use
            the witness’s deposition testimony where . . . Appellee did
            not even attempt to procure the witness’s attendance at
            trial, and in denying Appellants’ Motion in Limine to
            preclude the testimony of the witness without even
            considering the grounds set forth in the motion, entitling
            Appellants to a new trial?

            Whether the trial court abused its discretion and/or
            committed an error of law by failing to charge the jury with
            respect to 75 Pa.C.S. § 3361 when evidence was
            presented at trial from which the jury could have inferred
            that Appellee was comparatively negligent per his violation
            of this statute, entitling Appellants to a new trial?

Appellants’ Brief at 5-6.

      Appellants, in support of their first issue, argue that 75 Pa.C.S. §

1797(a) of the Motor Vehicle Financial Responsibility Law (“MVFRL”) applies.

They reason that Appellee did not suffer any life-threatening or urgent

injuries.     Appellants refer this Court to medical records purportedly

establishing the absence of “acute injury” and testimony that Appellee “only”

suffered “(1) a cervical sprain/strain and (2) a bone bruise, aggravation of

arthritic changes, and joint fluid in the left knee.”     Id. at 9.   Accordingly,

Appellants maintain that Appellee’s medical bill “was subject to reduction”

under the MVFRL. Id. at 10. We hold Appellants are not entitled to relief.

      With respect to an order resolving a motion for a new trial, the

standard of review is abuse of discretion.        Harman v. Borah, 756 A.2d

1116, 1122 (Pa. 2000). The analysis has two stages.

            First, the trial court must decide whether one or more
            mistakes occurred at trial. These mistakes might involve
            factual, legal, or discretionary matters. Second, if the trial


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         court concludes that a mistake (or mistakes) occurred, it
         must determine whether the mistake was a sufficient basis
         for granting a new trial. The harmless error doctrine
         underlies every decision to grant or deny a new trial. A
         new trial is not warranted merely because some
         irregularity occurred during the trial or another trial judge
         would have ruled differently; the moving party must
         demonstrate to the trial court that he or she has suffered
         prejudice from the mistake.

Id. (citations omitted).    If the alleged mistake involved a discretionary

matter, then our standard of review is abuse of discretion; if the alleged

mistake involved an error of law, then our standard of review is de novo.

Id. at 1123 (citations omitted).

           Our standard of review for statutory interpretation is de
         novo.

         The object of interpretation and construction of all statutes
         is to ascertain and effectuate the intention of the General
         Assembly. When the words of a statute are clear and free
         from all ambiguity, their plain language is generally the
         best indication of legislative intent. A reviewing court
         should resort to other considerations to determine
         legislative intent only when the words of the statute are
         not explicit. In ascertaining legislative intent, this Court is
         guided by, among other things, the primary purpose of the
         statute,    and    the   consequences      of   a    particular
         interpretation.

         Moreover, it is axiomatic that in determining legislative
         intent, all sections of a statute must be read together and
         in conjunction with each other, and construed with
         reference to the entire statute.

         Absent a definition, statutes are presumed to employ
         words in their popular and plain everyday sense, and
         popular meanings of such words must prevail.




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Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 606-07 (Pa. Super.

2014) (citations omitted).

      Section 1797(a) of the MVFRL states as follows, in relevant part:

         (a) General rule.— . . . If acute care is provided in an
         acute care facility to a patient with an immediately life-
         threatening or urgent injury by a Level I or Level II trauma
         center accredited by the Pennsylvania Trauma Systems
         Foundation under the act of July 3, 1985 (P.L. 164, No.
         45), known as the Emergency Medical Services Act, or to a
         major burn injury patient by a burn facility which meets all
         the service standards of the American Burn Association,
         the amount of payment may not exceed the usual and
         customary charge. Providers subject to this section may
         not bill the insured directly but must bill the insurer for a
         determination of the amount payable. The provider shall
         not bill or otherwise attempt to collect from the insured the
         difference between the provider’s full charge and the
         amount paid by the insurer.

75 Pa.C.S. § 1797(a) (footnote omitted). “[T]he MVFRL is to be construed

liberally to afford the greatest possible coverage to injured claimants.”

Sturkie v. Erie Ins. Group, 595 A.2d 152, 157 (Pa. Super. 1991).

      “The Insurance Commissioner’s regulations, as set forth at 31 Pa.

Code §§ 69.1–69.55 implement and interpret § 1797 of the MVFRL.”

Pittsburgh Neurosurgery Associates, Inc. v. Danner, 733 A.2d 1279,

1283 (Pa. Super. 1999) (citation omitted). Section 69.3 of the Pennsylvania

Code defines “life-threatening injury” and “urgent injury” as follows:

         Life-threatening injury—The term shall be as defined by
         the American College of Surgeons’ triage guidelines
         regarding the use of trauma centers for the region where
         the services are provided.




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         Urgent injury—The term shall be as defined by the
         American College of Surgeons’ triage guidelines regarding
         use of trauma centers for the region where the services
         are provided.

31 Pa. Code. § 69.3. Section 69.12 of the Pennsylvania Code expands upon

Section 1797:

         (a) Acute care treatment and services for life-threatening
         or urgent injuries, and services for burn injury patients
         rendered by providers during transport to and while at a
         trauma center or a burn facility, shall be paid at the usual
         and customary charge when the insured’s condition meets
         the definition of urgent or life-threatening injury, based
         upon information available at the time of the insured’s
         assessment. When the initial assessment at the trauma
         center determines that the insured’s injuries are not
         urgent or life-threatening, the exemption shall apply only
         to the initial assessment and the transportation to the
         facility. A decision by ambulance personnel that an injury
         is urgent or life[-]threatening shall be presumptive of the
         reasonableness and necessity of the transport to a trauma
         center or burn facility unless there is clear evidence of a
         violation of the American College of Surgeons’ Triage
         Guidelines.

31 Pa. Code. § 69.12.

      As a prefatory note, we observe that Appellants’ argument collaterally

attacks the necessity of Appellee’s medical treatment. See Appellants’ Brief

at 9-10. This Court is not in a position to address, as an initial finder of fact,

whether Appellee actually suffered a life-threatening or urgent injury. See

generally Morin v. Brassington, 871 A.2d 844, 852 (Pa. Super. 2005).

Instantly, as the trial court observed, Appellee’s medical expert testified that

due to his “significant trauma, he was admitted to what they call the trauma

unit, which is a very expensive operation at a University Hospital.” Trial Ct.


                                      -7-
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Op. (quoting N.T., 6/21/13, at 33).        Accordingly, because the fact-finder

found in Appellee’s favor, we discern no error in the trial court’s application

of the statute.4 See Harman, 756 A.2d at 1123.

        Appellants, for their second issue, argue the trial court erred by

permitting Dr. Abraham to testify outside the scope of his expert report.

Specifically, they assert Dr. Abraham should not have been able to testify

“that the charges set forth in the hospital bill were necess[a]ry and

reasonable.” Appellants’ Brief at 13.      Appellants reason that Dr. Abraham

was not qualified to opine on the charges and such testimony was outside

the fair scope of his report. Appellants, we hold, are due no relief.

        By way of background, Appellants had objected to a line of questioning

regarding the amount of the medical bills from the Hospital of the University

of Pennsylvania.       N.T. Trial Dep. of Dr. Abraham, 6/21/13, at 33-36.

Appellants’ counsel objected as follows:

           [Appellants’ counsel]: I don’t believe [Dr. Abraham] is
           capable of testifying to the reasonableness of the bills for
           an entity that’s not his. Further, these bills have not been
           reduced by Act 6,[5] nor have they been reduced per
           insurance . . . . [T]herefore, I don’t think his testimony
           with respect to the amount of these bills or the
           reasonableness is appropriate for this witness.



4
  Regardless, even if we could address, in the first instance, whether
Appellee’s medical treatment was justified, we are bound to construe the
MVFRL in his favor. See 31 Pa. Code. § 69.12; Sturkie, 595 A.2d at 157.
5
    I.e., the MVFRL.




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                                  *    *     *

         [Appellee’s counsel]. Doctor, do you find that those bills
         from    the   University  of   Pennsylvania   emergency
         department were fair and reasonable?

         [Dr. Abraham]. Yes.

Id. at 34-36.

      Before presenting the video of Dr. Abraham’s trial deposition to the

jury, the parties raised their various objections with the court for its rulings.

The trial court overruled the above objection, and both counsel responded

for the record.   N.T., 1/24/14, at 49-52.       The substance of the responses

was whether Act 6 operated to reduce the monetary values set forth in

Appellee’s medical bills; no party challenged whether Dr. Abraham could

opine on whether the bills were fair and reasonable.        See id.   In its Rule

1925(a) opinion, the trial court held that Dr. Abraham was qualified to opine

on the reasonableness of Appellee’s medical bills. Trial Ct. Op. at 14-15.

      “It is axiomatic that questions concerning the admission or exclusion

of evidence are within the sound discretion of the lower court and will be

reversed on appeal only where a clear abuse of discretion exists.”

Bucchianeri v. Equitable Gas Co., 491 A.2d 835, 838 (Pa. Super. 1985).6

         Before a court will order a new trial, it must conclude that
         the errors at trial led to an incorrect result. Unless there is

6
 We may rely on cases predating the adoption of the Pennsylvania Rules of
Evidence to the extent those cases do not contradict the rules.      See
Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).




                                      -9-
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         a substantial reason therefor, a new trial should not be
         granted in a negligence case. In an appeal from a jury
         trial, where the moving party alleges reversible error he
         must show not only the existence of the error, but also
         that the jury was misled by this error to his detriment. It
         is only when improperly admitted evidence may have
         affected a verdict that a new trial will be the correct
         remedy.

Warren v. Mosites Const. Co., 385 A.2d 397, 401 (Pa. Super. 1978)

(citations omitted).   Further, “a physician has been held to be qualified

generally to testify on the reasonableness of medical charges for services

rendered by other doctors and hospitals.” Ratay v. Liu, 260 A.2d 484, 486

(Pa. Super. 1969) (citation omitted). We may also affirm on any basis. In

re Strahsmeier, 54 A.3d 359, 364 n.17 (Pa. Super. 2012).

      Instantly, Appellants waived their objection that Dr. Abraham was not

qualified to opine on the reasonableness of the medical bills.     As noted

above, the parties’ objections focused on the applicability of Act 6.   See

N.T., 1/24/14, at 49-52; see also Pa.R.A.P. 302.      Regardless, Appellants

cite no case for the proposition that a physician must be qualified as an

expert in emergency medicine in order to opine on the reasonableness of an

emergency room bill.    Cf. Ratay, 260 A.2d at 486.      Accordingly, having

discerned no abuse of discretion, see Bucchianeri, 491 A.2d at 838, we

affirm Appellants’ second issue, albeit on other grounds.        See In re

Strahsmeier, 54 A.3d at 364 n.17.

      For their third issue, Appellants argue that the trial court erred by

precluding Dr. Anthony Salem from testifying on five discrete areas: (1)


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whether Appellee suffered a concussion; (2) what he considered important in

his review of Appellee’s medical records; (3) whether Appellee was disabled;

(4) whether Dr. Abraham’s treatment was reasonable and necessary; and

(5) whether the Hospital of the University of Pennsylvania bill was

reasonable. Appellant’s Brief at 20. We hold Appellants waived this issue on

appeal for failure to explain how or why the trial court abused its discretion.

See Connor v. Crozer Keystone Health Sys., 832 A.2d 1112, 1119 (Pa.

Super. 2003) (holding appellant’s failure to develop legal claim meaningfully

results in waiver).    Appellants simply failed to identify with sufficient

particularity how they suffered prejudice by not having Dr. Salem testify on

each of the five prohibited topics.    Appellants’ bald assertion of prejudice

results in waiver of their claim. See id.

      In support of their fourth issue, Appellants contend the trial court

should have permitted a lay witness to testify whether he observed anyone

was injured after the accident.   Appellants referred this court generally to

nineteen pages of testimony, within which at least thirteen objections were

raised.   See N.T., 1/29/14, at 29-48.         Because Appellants have not

specifically identified which objections are at issue, they have waived it on

appeal.7 See Pa.R.A.P. 2117(c)(4).


7
 Even if Appellants had preserved their claims, we would have found waiver
based on an undeveloped claim of prejudice. See Connor, 832 A.2d at
1119.




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      Appellants’ penultimate claim is that the trial court erred by holding

Joes Gomez, a fact witness, was unavailable to testify and thus the court

should not have permitted Appellee to use Mr. Gomez’s deposition testimony

at trial.    They argue Appellee’s counsel did not sufficiently establish his

attempts to contact Mr. Gomez to testify. Appellee’s counsel countered that

Mr. Gomez, at the time of his deposition, resided in Jersey City, New Jersey,

outside this Commonwealth.          Appellee’s counsel also represented to the

court that he did not advise Mr. Gomez to leave the Commonwealth. N.T.,

1/23/14, at 7-8. Appellants, we hold, are not entitled to relief.8

      Pennsylvania Rule of Civil Procedure 4020 governs use of depositions

at trial when the witness is unavailable:

               (a) At the trial, any part or all of a deposition, so far as
            admissible under the rules of evidence, may be used
            against any party who was present or represented at the
            taking of the deposition or who had notice thereof if
            required, in accordance with any one of the following
            provisions:

                                     *     *      *




8
  To the extent Appellants argued Mr. Gomez’s deposition transcript was
inadmissible hearsay, that argument was not raised in their post-trial
motion, at trial, or in their motion in limine; thus, it is waived. See Hall v.
Owens Corning Fiberglass Corp., 779 A.2d 1167, 1169 (Pa. Super. 2001)
(“Essentially, post-trial relief may not be granted unless the grounds for
such relief are specified in the post-trial motion. Grounds not specified in
the post-trial motion are deemed waived.” (citation omitted)); see
generally Pa.R.A.P. 302.




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               (3) The deposition of a witness, whether or not a
            party, may be used by any party for any purpose if
            the court finds

                                 *     *      *

                  (b) that the witness is at a greater distance than
               one hundred miles from the place of trial or is
               outside the Commonwealth, unless it appears that
               the absence of the witness was procured by the
               party offering the deposition . . . .

Pa.R.C.P. 4020 (emphases added).

        The proponent of a deposition at trial must demonstrate
        the unavailability of the witness or the exercise of due
        diligence on his part in attempting to locate the witness.
        The determination of the sufficiency of proof of
        unavailability is within the trial court’s discretion, and,
        once the trial court is satisfied that the witness is
        unavailable, the witness’s deposition may be admitted as
        substantive evidence.

Hall, 779 A.2d at 1171 (emphasis added and citations and quotation marks

omitted).

     Instantly, Mr. Gomez, at the time of his deposition, resided outside the

Commonwealth. We discern no error in the trial court’s determination that

Appellee established the unavailability of Mr. Gomez. See Pa.R.C.P. 4020;

Hall, 779 A.2d at 1171.       Appellee’s counsel, moreover, attempted to

telephone Mr. Gomez several times but was unable to reach him. We need

not, however, ascertain whether Appellee’s counsel’s efforts to contact Mr.

Gomez constituted due diligence. See Hall, 779 A.2d at 1171.

     Lastly, Appellants argue the court erred by not instructing the jury

regarding 75 Pa.C.S. § 3361, which states:


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          § 3361. Driving vehicle at safe speed

          No person shall drive a vehicle at a speed greater than is
          reasonable and prudent under the conditions and having
          regard to the actual and potential hazards then existing,
          nor at a speed greater than will permit the driver to bring
          his vehicle to a stop within the assured clear distance
          ahead. Consistent with the foregoing, every person shall
          drive at a safe and appropriate speed when approaching
          and crossing an intersection or railroad grade crossing,
          when approaching and going around curve, when
          approaching a hill crest, when traveling upon any narrow
          or winding roadway and when special hazards exist with
          respect to pedestrians or other traffic or by reason of
          weather or highway conditions.

75 Pa.C.S. § 3361. Appellants reference testimony that Appellee’s vehicle

was traveling at least as twice as fast as their vehicle prior to the collision.

Appellant’s Brief at 39. Appellants claim that if the jury was instructed on

Section   3361,   they   could   have     established   Appellee’s   comparative

negligence for the accident because he failed to drive at a safe speed. We

hold Appellants are due no relief.

      As noted above, the standard of review for an order resolving a motion

for a new trial is abuse of discretion.    Harman, 756 A.2d at 1122.       With

respect to an allegation of trial court error regarding a jury charge:

          [T]he standard of review for this issue is one of abuse of
          discretion. [O]ur courts have made clear that an appellant
          must make a timely and specific objection to a jury
          instruction to preserve for review a claim that the jury
          charge was legally or factually flawed.

          In reviewing a claim regarding error with respect to a
          specific jury charge, we must view the charge in its
          entirety, taking into consideration all the evidence of
          record to determine whether or not error was committed.


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           If we find that error was committed, we must then
           determine whether that error was prejudicial to the
           complaining party. Error will be found where the jury was
           probably misled by what the trial judge charged or where
           there was an omission in the charge which amounts to
           fundamental error.

                                   *     *      *

           The court is vested with substantial discretion in fashioning
           the charge and may select its own language cognizant of
           the need to adequately apprise the jury of the law as it
           applies to the evidence adduced at trial. Unless the
           language the court chose incorrectly states the law or
           mischaracterizes the evidence in a way that prejudiced the
           jury’s consideration and thereby undermined the accuracy
           of the verdict, we will not interfere with the court's
           exercise of discretion.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 968 (Pa. Super. 2011)

(citations omitted and emphasis added), aff’d, 106 A.3d 656 (Pa. 2014).

      Instantly, Appellants timely preserved their objection. N.T., 1/29/14,

at 88.     Upon review of the record, the parties’ briefs, and the decision of

Judge Overton, we discern no basis for granting relief on this issue.      See

Trial Ct. Op. at 24-25 (discussing conflicting testimony about the parties’

speed).     Regardless, the jury found Appellee was 20% negligent.         See

Verdict Sheet.     Thus, we cannot say that the court’s omission of Section

3361 amounted to a fundamental error undermining the accuracy of the

verdict.     See Braun, 24 A.3d at 968; Warren, 385 A.2d at 401.

Accordingly, we affirm.

      Judgment affirmed.




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     Judge Panella joins the memorandum.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2015




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