J-A24026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARLYN M. ZAWROTNY, EXECUTRIX OF                 IN THE SUPERIOR COURT OF
THE ESTATE OF EMILY A. CLARK,                          PENNSYLVANIA
DECEASED

                          Appellant

                     v.

RAYMOND J. CLARK

                          Appellee                   No. 3015 EDA 2015


           Appeal from the Judgment Entered December 8, 2015
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2011-29461


BEFORE: BOWES, J., OTT, J., and SOLANO, J.

MEMORANDUM BY OTT, J.:                                 FILED JUNE 26, 2017

     Marlyn M. Zawrotny, executrix of the estate of Emily A. Clark,

Deceased, (“the Estate”) appeals from the judgment entered on December

8, 2015, in the Montgomery County Court of Common Pleas, in favor of

Raymond J. Clark and against the Estate.         On appeal, the Estate raises

weight and sufficiency claims.       Upon review, we vacate the judgment and

remand for further proceedings.

     The facts and procedural history are summarized from the certified

record as follows.   Emily A. Clark (“Decedent”) gave her son, Raymond J.

Clark (“Son”), three checks in the amount of $20,000.00 each, totaling

$60,000.00, so that he could pay premiums on a John Hancock Life

Insurance Company policy that was owned by him on the life of Decedent.
J-A24026-16


See Complaint, 10/19/2011, at ¶ 4.1 On the memo of each check, the word

“loan” was written. See id. at Exhibit A.

       On August 21, 2011, Decedent passed away. Her other child, Marlyn

M. Zawrotny (“Daughter”), was named executrix of the Decedent’s will. The

Estate alleged Son never repaid his mother for this “loan.” On October 19,

2011, the Estate filed a lawsuit against Son, seeking the amount owed.

       On February 1, 2012, Son filed an answer and new matter.           He

admitted the money received was a loan but stated he “fully repaid the loan

to his mother, Emily A. Clark, prior to her death, according to the terms of

the loan.” Answer with New Matter, 2/1/2012, at ¶ 6.

       The case proceeded to a bench trial on July 9, 2015. At the conclusion

of the trial, the court found in favor of Son and against the Estate.    The

Estate filed a motion for post-trial relief. Oral argument was held, and the

court denied the motion on September 14, 2015.        The Estate then filed a

notice of appeal on October 5, 2015.2

       On October 30, 2015, this Court, in a per curiam order, observed that

no judgment had been entered on the trial docket. See Order, 10/30/2015.

Accordingly, the order directed the Estate “to file with the Prothonotary of
____________________________________________


1
    The policy had the face value of $1,200,000.00.
2
   On October 16, 2015, the trial court ordered the Estate to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Estate filed a concise statement on November 3, 2015. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 22, 2016.



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the Superior Court within ten days a certified copy of the trial court docket

reflecting the entry of the judgment.” Id. The order also warned the Estate

“that failure to comply with these directives may result in dismissal of this

appeal without further notice.” Id. (citation omitted).

      The Estate’s praecipe for judgment was rejected by the Montgomery

County Prothonotary’s Office for procedural defects on November 19, 2015,

November 24, 2015, and December 1, 2015.            See Trial Court Opinion,

2/22/2016, at 2. On December 8, 2015, the Estate successfully requested

entry of judgment, and then filed a direct appeal. The trial court requested

this Court quash this appeal because the Estate did not file a timely praecipe

for entry of judgment. See id. at 1-2 (stating quashal should be imposed

because: (1) the Estate prematurely filed the appeal prior to entry of

judgment; and (2) the Estate did not properly request entry of judgment

until well outside the time limitations afforded by this Court in our October

30, 2015, order). The trial court also indicated the Estate failed to comply

with Pennsylvania Rule of Appellate Procedure 1911 by failing to request

transcripts and stated it did not have the July 9, 2015, trial transcript to

prepare its opinion. See Trial Court Opinion, 2/22/2016, at 1-2.

      On appeal, we declined to quash, stating:

      “[I]n the interests of judicial economy, we shall ‘regard as done
      that which ought to have been done.’” Peterson v. Schreiner,
      822 A.2d 833, 835 n.1 (Pa. Super. 2003), quoting McCormick
      v. Northeastern Bank of Pennsylvania, 561 A.2d 328, 330
      n.1 (Pa. 1989). While not in direct compliance with our October


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      30, 2015, order, the Estate did eventually succeed in filing a
      praecipe for judgment.

Zawrotny v. Clark, __ A.3d __, [3015 EDA 2015] (Oct. 4, 2016)

(unpublished memorandum at 4). Consequently, we remanded the matter

for the Estate’s counsel to ensure that the July 9, 2015, trial transcript was

prepared and filed, and for the trial court to provide a Rule 1925(a) opinion

addressing the substantive issue on appeal. Zawrotny, __ A.3d __, [3015

EDA 2015] (Oct. 4, 2016) (unpublished memorandum at 5). Subsequently,

the trial court complied with our directive and filed a Rule 1925(a) opinion

on October 26, 2016.     We may now address the merits of the Estate’s

appeal.

      The Estate raises the following claim:

      Whether the weight and sufficiency of the evidence presented by
      [the Estate] established a presumption of loan and lack of
      repayment? [Son] chose to introduce no evidence rebutting loan
      or proving any repayment.

Estate’s Brief at 2 (some capitalization removed).    Specifically, the Estate

asserts:

            [The Estate] established [a] $60,000.00 loan was made by
      decedent to [Son] by way of three $20,000.00 installments on
      June 29, 2009, September 30, 2009 and August 25, 2010.
      Furthermore, in his answer [Son] admitted these loans were
      made. No issue has been raised as to whether there is the
      presumption of gift, or whether payments in question were a gift
      to [Son].

            This Court has found individual notations, or memo
      indicating “loan” establishing the existence or presumption of the
      loan to the individual in question. Estate of Andrews, 92 A.3d


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      1226 (Pa. Super. 2014); See also, Hornyak v. Sel, 629 A.2d 138
      (1993).

            This Commonwealth recognizes a presumption that, after
      [a] lapse of twenty years, all debts, including judgments, have
      been paid. However, prior to the lapse of twenty years, the
      debtor has [the] burden of proving that debt has been paid.
      Rosenbaum v. Newhoff, 152 A.2d 763 (1959).

             Here, the loan has been established and admitted by
      [Son]. [The Estate] has provided testimony and evidence that
      there are no records of satisfying that loan.      In Estate of
      Andrews, 92 A.3d 226 (Pa. Super. 2014), the Court specifically
      found that checks made payable to the original Executrix
      indicating “loan” in the memo established a loan to the
      Executrix. Her failure to attempt to recoup those assets for the
      Estate, where a derogation of her fiduciary duty to garner
      estate’s assets.    Failure to do so resulting in removal of
      individual as Executrix of the Estate.

            Since the existence of the loan was admitted and not
      contested, the weight of the evidence establishes [the] loan.
      [The Estate] provided evidence establishing lack of proof of
      repayment of loan. [Son] introduced no evidence for the fact
      finder to weigh regarding any repayment. Failing to provide any
      evidence, not even [Son]’s own statement regarding repayment,
      deprives the fact finder of any evidence to weigh on behalf of
      [Son]. Furthermore, the fact finder has not been provided with
      any evidence with which to sufficiently find in favor of [Son].

Id. at 7-8.

      We begin with our well-settled standard of review.     Our review of a

non-jury case is:

        limited to a determination of whether the findings of the
        trial court are supported by competent evidence and
        whether the trial court committed error in the application of
        law. Findings of the trial judge in a non-jury case must be
        given the same weight and effect on appeal as a verdict of
        a jury and will not be disturbed on appeal absent error of
        law or abuse of discretion. When this Court reviews the
        findings of the trial judge, the evidence is viewed in the

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J-A24026-16


        light most favorable to the victorious party below and all
        evidence and proper inferences favorable to that party
        must be taken as true and all unfavorable inferences
        rejected. “With regard to such matters, our scope of
        review is plenary as it is with any review of questions of
        law.” Id.

      Hart v. Arnold, 2005 PA Super 328, 884 A.2d 316, 330-331
      (Pa. Super. 2005), appeal denied, 587 Pa. 695, 897 A.2d 458
      (2006) (citations omitted).     “The [trial] court’s findings are
      especially binding on appeal, where they are based upon the
      credibility of the witnesses, unless it appears that the court
      abused its discretion or that the court’s findings lack evidentiary
      support or that the court capriciously disbelieved the evidence.”
      Id. (citations omitted). “Conclusions of law, however, are not
      binding on an appellate court, whose duty it is to determine
      whether there was a proper application of law to fact by the
      lower court.” Tagliati v. Nationwide Insurance Co., 720 A.2d
      1051, 1053 (Pa. Super. 1998), appeal denied, 559 Pa. 706, 740
      A.2d 234 (1999).

                                      …

      “Our standard of review [of an order] denying a motion for a
      new trial is to decide whether the trial court committed an error
      of law which controlled the outcome of the case or committed an
      abuse of discretion.” Angelo v. Diamontoni, 2005 PA Super
      120, 871 A.2d 1276, 1279 (Pa. Super. 2005), appeal denied,
      585 Pa. 694, 889 A.2d 87 (2005) (citation omitted).

Christian v. Yanoviak, 945 A.2d 220, 224-225 (Pa. Super. 2008).

      Moreover, “[w]hen reviewing the sufficiency of the evidence ... this

Court must determine whether the evidence and all reasonable inferences

therefrom, viewed in the light most favorable to the verdict winner, was

sufficient to enable the factfinder to find against the losing party.” Zeffiro

v. Gillen, 788 A.2d 1009, 1013 (Pa. Super. 2001) (citation omitted).

      A sufficiency analysis, whether in the context of an appeal from
      the granting of judgment n. o. v. or compulsory non-suit, must

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       begin by accepting the credibility and reliability of all evidence,
       viewed in the light most favorable to the verdict winner
       regardless of whether the appellant thinks that the evidence was
       believable. See Mahan v. Am-Gard, Inc., 2003 PA Super 510,
       841 A.2d 1052 (Pa. Super. 2003). Alternatively, a claim that the
       verdict was against the weight of the evidence concedes that the
       evidence presented by the verdict winner was sufficient to satisfy
       the elements of the cause of action but contends that the
       evidence was unreliable and untrustworthy to such a degree that
       a verdict based upon it would shock one’s sense of justice, and,
       therefore, a new trial would be necessary to cure the injustice.
       See West, 803 A.2d at 759. Further, under the standard of
       review for challenges to the weight of the evidence, this Court is
       under no obligation to view the evidence in a light most
       favorable to the verdict winner. Pittsburgh Constr. v. Griffith,
       2003 PA Super 374, 834 A.2d 572, 584 (Pa. Super. 2003).

Morin v. Brassington, 871 A.2d 844, 851 (Pa. Super. 2005).

       Initially, as the Estate points out, we agree that, in his answer, Son

admitted the three checks constituted “loans.” See Son’s Answer with New

Matter, 2/1/2012, at ¶¶ 6-7 (“6.               Denied.   It is specifically denied that

despite demand for payment having been made by [the Estate], [Son] has

refused and/or neglected to repay the referenced loan, with interest. To

the contrary, [Son] fully repaid the loan to his mother, Emily A. Clark, prior

to her death, according to the terms of the loan. Strict proof to the contrary

is demanded. 7. Denied. It is specifically denied that the loan described in

the Complaint is due and owing. To the contrary, [Son] repaid the loan.

Strict proof to the contrary is demanded.”) (emphasis added).3

____________________________________________


3
   See also Son’s Pre-Trial Memorandum, 6/17/2015, at 1 (“Emily Clark
loaned [Son] Sixty Thousand Dollars ($60,000.00) to assist him in paying
(Footnote Continued Next Page)


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J-A24026-16


       As provided in Pocono Summit Realty, LLC v. Ahmad Amer, LLC,

52 A.3d 261 (Pa. Super. 2012), averments of fact properly pleaded by the

adverse party “must be taken as true, or as admitted, unless their falsity is

apparent from the record.”             Id. at 267 (emphasis removed) (citation

omitted).4   Here, the record supports the fact that Son considered these

checks as loans, where Decedent gave Son the checks so he could pay

premiums on a life insurance policy, owned by him, but taken out on her life,

and the memo line on each check stated “loan.”                 See Complaint,

10/20/2011, at Exhibit A. Moreover, the trial court also deemed the checks

were “loans” in its Rule 1925(a) opinion.             See Trial Court Opinion,

10/26/2016, at 3 (“As fact finder, the trial court properly ruled in favor of

[Son] on [the Estate’s] action to collect the loaned monies.”) (emphasis

added).5 Therefore, we reject any argument by Son that this admitted fact

is still in dispute. See Son’s Brief at 10-11.

       Second, we note that while legal authority is limited on the subject,

case law has repeatedly held that the burden of showing repayment of a

loan is on the debtor. For example, in Snyder Estate, 84 A.2d 318, 319
                       _______________________
(Footnote Continued)

the premiums for the aforementioned policy. The loan was advanced to
[Son] in three (3) Twenty Thousand Dollar ($20,000.00) installments[.]”).
4
   See also Hodge v. Me-Bee Co., 240 A.2d 818, 821 (Pa. 1968) (noting
loan could be established where the complaint alleged the existence of the
loan and the answer explicitly admitted this fact).
5
    See also Trial Court Opinion, 10/26/2016, at 2.



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(Pa. 1951), the decedent left a will, which gave all his estate to his wife. At

the audit, the decedent’s father, the claimant, presented eight judgment

notes, totaling $3,700.00, which he alleged were loans he and his wife gave

to the decedent. The court noted:

      The auditing judge, who saw and heard the witnesses, believed
      claimant’s testimony that the notes had never been paid and
      allowed the claim; and his findings and decision were approved
      by the court in banc. “… 'the possession of an instrument in
      writing for the payment of money affords proof, prima facie, of a
      right in the holder to recover upon it according to its terms. The
      holder is not required to prove that it has not been paid. His
      case is made by his production of the instrument in the first
      instance, and the burden of showing payment is on him who
      alleges it’”: Cauffiel v. Glenn, 345 Pa. 181, 184, 27 A. 2d 30.

                                      …

      Long lapse of time, plus facts and circumstances from which an
      inference of payment may be legitimately inferred, raise a
      presumption of payment, but “the presumption of payment…
      does not work an extinguishment of the debt….             It is a
      presumption merely of fact, and amounts to nothing more than a
      rule of evidence which reverses the ordinary burden of proof and
      makes it incumbent upon the creditor to prove,… that the debt
      was not actually paid. This burden may be met by direct
      testimony as to non-payment, or by proof of circumstances
      tending to negative the likelihood of the claim having been [paid
      or] satisfied and explaining the delay of the creditor in
      attempting to enforce it…”: Grenet's Estate, 332 Pa. 111, 113, 2
      A. 2d 707.      Evidence sufficient to raise a presumption of
      payment cannot prevail against positive credible evidence of
      non-payment: Grenet’s Estate, 332 Pa. 111, 2 A. 2d 707;
      Sheafer v. Woodside, 257 Pa. 276, 101 A. 753; Krewson v. Erny,
      158 Pa. Superior Ct. 380, 382, 45 A. 2d 240.

Snyder Estate, 84 A.2d at 320-321 (emphasis in original).           See also

Brown’s Estate, 60 A. 149, 149 (Pa. 1904) (per curiam) (“The evidence is

clear and the court has found it to be credible, that the decedent received

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the money from the claimant either as a loan or for purpose of investment

for her.   He was therefore charged with the burden of showing either

payment or an accounting. His sudden death left the matter in obscurity but

the burden of proof was still upon his representatives and they have failed to

meet it.”); Rosenbaum v. Newhoff, 152 A.2d 763, 765-766 (Pa. 1959)

(“After the lapse of twenty years, all debts ... not within the orbit of the

Statute of Limitations are presumed to have been paid.... Until the passage

of twenty years it is the burden of the debtor to prove payment; after the

passage of twenty years, it is the burden of the creditor to establish

nonpayment and for the satisfaction of such burden the evidence must be

clear and convincing and must consist of proof other than the specialty

itself…. If, during the twenty year period, the creditor has made an attempt

in good faith to enforce the judgment by the institution of legal process;

such action on the part of the creditor is sufficient to prevent the creation of

the presumption of payment and the burden remains upon the debtor to

affirmatively establish payment of the judgment[.]”) (citations omitted and

emphasis in original); Wyatt v. Mt. Airy Cemetery, 224 A.2d 787 (Pa.

Super. 1966) (relies on Rosenbaum).

      Here, the trial court found the following:

            As fact finder, the trial court properly ruled in favor of
      [Son] on [the Estate]’s action to collect the loaned monies. As
      explained by the trial court, even assuming that the checks at
      issue were loans, [the Estate] failed to establish the repayment
      terms of the loan. In order for the court to find either non-
      payment or repayment, the court needed to know the parties’

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     agreement with reference to how and when the loaned money
     had to be re-payed. [The Estate] was unable to provide such
     evidence thereby precluding recovery on the terms of the oral
     contract. The court explained,

           THE COURT: All right. The problem – I find that [the
        Estate] has not met their burden of proof. I find in favor
        of [Son].

           The problem you’ve got is you have no proof of the
        terms of the loan, the terms of repayment. We just know
        none of this.    So you just haven’t met your burden.
        Thank, you.

     (Please See, Notes of Testimony from Bench Trial, 7/7/15, pg.
     79)[.]

          This point was further reiterated on the record at Post-Trial
     Motion argument.

           MR. WATT [the Estate’s counsel]: So my basic position,
        Your Honor, is that I established – I met my burden of
        introducing the checks with the loan. By the way, the loan
        was admitted in the pleadings in the paragraphs in front of
        you.

           In point of fact, Your Honor, I actually went beyond that
        and presented the evidence of the bank accounts of the
        decedent to show that there wasn’t payment, at least by
        check, of the $60,000 in the loan because, if you recall, I
        went through all of the deposits with the witness and none
        of them were checks from [Son. …]

           MR. MULLANEY [Son’s counsel]: Your Honor, same
        arguments that apply at trial. I think at no fault of Mr.
        Watt’s it’s just a case that can’t be proven because, like it
        or not, even if you were to agree that these checks were
        loans, there’s no way the Court can determine whether or
        not there was a repayment, whether there was
        forgiveness, a partial payment, partial forgiveness. You
        just can’t get around that.

        THE COURT: We just have no terms.


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        MR. MULLANEY: Nothing.

        THE COURT: That was part of my struggle was we have a
        notation that says “loan,” but we don’t know what that
        means. We don’t know what kind of loan. We don’t know
        whether there was forgiveness of that loan at some point
        in time. It just leaves too much up to speculation. […]

        THE COURT: So, that cause[d] me a lot of concern and
        that’s why I held the way I did. […]

        THE COURT: […] Maybe it was paid back. Maybe it was
        paid back in a different way. Just because you did go and
        show the bank account, that was one bank account. There
        was just too many --- too much up in the air for me. I
        know you don’t always get the benefit of knowing our
        reasoning, but I think that that really is a lot of reasoning
        that went into the decision.

     (Please See, Notes of Testimony          from   Post-Trial   Motion
     Argument, 9/14/15, pgs. 4-6)

            Thus, [the Estate] had the burden of showing an oral
     contract/loan and its’ terms, including [the Estate]’s promise to
     loan the money and [Son]’s promise to pay the money back.
     [Son] admitted that the Decedent loaned him the money.
     However, [the Estate] presented absolutely no evidence
     concerning [Son]’s promise to repay the same. The court had
     no way of knowing if the loan was to be paid back by check only,
     cash only, a combination of the two, by other means, into a
     different bank account, by a certain date, paid in full or in part,
     etc? There are just too many unanswered questions. [The
     Estate] provided no evidence showing a meeting of the minds
     concerning the terms of repayment so that the court could
     determine if such terms had been fulfilled.

           As explained by the trial court above, [the Estate]
     presented evidence that established [Son] was given three (3)
     loans by the Decedent in the amount of $20,000.00 each for a
     total of $60,000.00. The Plaintiff/Estate contended that the
     monies were never paid back as evidenced by the fact that the
     records from the Decedent’s bank account failed to show any
     checks/deposits from [Son] paying back those monies. [The
     Estate] also argued that the loan could not have been paid back

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J-A24026-16


       in cash because the cash in the Decedent’s home dwindled,
       rather than increased, prior to her death.            These vague
       allegations were presented in the form of bank records and the
       testimony of the Estate/Executrix and sole beneficiary under the
       will, Decedent’s daughter, Marilyn M. Zawrotny. However, such
       assertions even if believed, did not advance the case, because,
       [the Estate] failed to establish that [Son] was obligated to pay
       back the loans in either of those ways.1 It is entirely possible
       that the parties agreed to have [Son] repay the loan in a
       different way, a combination of ways, pay it partially, or even
       forgive the loan at some point. The evidence, as provided, could
       lead only to the court’s speculation.2
       _______________________
           1
              The trial court notes that, given the cross-examination of
           Ms. Zawrotny on pages 33-46 of the Notes of Testimony
           from 7/9/15, it was not persuaded by Ms. Zawrotny’s
           claims concerning any missing cash.
          2
             Please note, on appeal [the Estate] contends that [Son]
          failed to present any evidence showing [Son]’s repayment.
          In response, the trial court cites to the Notes of Testimony
          from 7/29/15, pgs. 56-62, and the testimony of
          subpoenaed witness David Eckhart whom the court found
          credible and persuasive establishing a cash payment from
          [Son] to Decedent. However, given the analysis herein,
          the trial court did not utilize such testimony.

Trial Court Opinion, 10/26/2016, at 3-6.

       Based on the case law, we are constrained to disagree with the court’s

conclusion for several reasons. First, the court incorrectly placed the burden

on the Estate to prove repayment of the loan when Snyder Estate, and the

other cases, explicitly provide that it is the burden of the debtor, here Son,

to do so.6     Furthermore, we find the evidence regarding Decedent’s bank

____________________________________________


6
  It also merits mention that the trial court did not provide any case law to
support its analysis regarding who carries the burden to show repayment.



                                          - 13 -
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account, which demonstrated a lack of any checks/deposits from Son in

repayment of those loans, did not constitute vague allegations, as the trial

court suggests. The Estate again was attempting to adhere to the principles

of Snyder Estate, which provided that the Estate may show the debt was

not paid “by proof of circumstances tending to negative the likelihood of the

claim having been paid or satisfied[.]” Snyder Estate, 84 A.2d at 320.

      Second, the court improperly focused on the terms of repayment and

engaged in speculation while providing no authority that a loan is not

enforceable unless such terms are provided for and proven. The issue in this

case is that there was an outstanding loan, and Son, as the debtor, carried

the burden of proving he repaid Decedent the money owed to her.           The

Estate was not required to demonstrate the terms of the loan before it could

establish Son breached the loan agreement.

      Because the court improperly placed the burden on the Estate to prove

repayment of the loan, we are compelled to vacate the December 8, 2015,

judgment. Accordingly, we remand for the trial court to analyze the matter

pursuant the correct burden of proof regarding the Estate’s claim.

      Judgment    vacated.     Case   remanded    for   further   proceedings.

Jurisdiction relinquished.




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J-A24026-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2017




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