J-S26015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ROBERT WALKER                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    EDWARD AIKEN, JR.                          :   No. 1640 WDA 2019

                 Appeal from the Order Dated October 15, 2019
       In the Court of Common Pleas of Allegheny County Civil Division at
                            No(s): GD-17-008522


BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                 FILED JUNE 11, 2020

        Robert Walker (Appellant) appeals from the order granting the motion

for summary judgment filed by Edward Aiken, Jr. (Aiken) in this personal

injury case. Upon review, we reverse and remand for further proceedings.

        On the morning of December 2, 2016, Appellant was driving his pickup

truck on Browns Hill Road in Pittsburgh.            Appellant had motor vehicle

insurance at the time. As discussed below, he had opted for a “limited tort”

policy, as defined by the Motor Vehicle Financial Responsibility Law (MVFRL).

Aiken was driving behind Appellant. When Appellant slowed his vehicle, Aiken

failed to stop in time and collided with the rear of Appellant’s truck. Appellant

was transported by ambulance to a nearby emergency room.               Appellant


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*   Retired Senior Judge assigned to the Superior Court.
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informed the treating physician that he was suffering from back and neck pain.

X-rays of Appellant’s spine did not reveal any fractures. Appellant’s doctor

diagnosed him with “acute lumbar strain,” prescribed ibuprofen, and released

him that day, with instructions to follow up with his primary care physician.

        Two days later, Appellant returned to the emergency room with similar

complaints of back and neck pain. An MRI was performed, which revealed

worsening of pre-existing degeneration of vertebrae in Appellant’s cervical

spine.1 Appellant was prescribed muscle relaxants and analgesic medication,

and instructed to follow up with a repeat MRI and consultation with

neurosurgery.

        On several occasions between February and September 2017, Appellant

sought treatment for his back and neck pain at Revive Chiropractic and

Rehabilitation.    Appellant reported little success with pain reduction from

chiropractic treatments.

        Beginning in June 2017, Appellant sought treatment at the DNA

Advanced Pain Treatment Center. He was treated by Yeshvant Navalgund,

M.D. (Dr. Navalgund), and his partner, Louis Olegario, M.D. (Dr. Olegario).

Appellant complained of neck and back pain, shoulder pain, muscle spasms,

and impaired range of motion.           Dr. Navalgund determined that Appellant

would benefit from a cervical epidural steroid injection. Thereafter, Appellant



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1   It is undisputed that Appellant had cervical issues prior to the accident.

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followed up with Dr. Olegario, and reported a 60% reduction in his overall

pain, but stated that he still suffered cervical pain. Accordingly, Dr. Olegario

performed a “bilateral facet joint block” on Appellant’s cervical spine, which,

according to Appellant, relieved 50% of his cervical pain.

        On June 9, 2017, Appellant filed a complaint against Aiken, asserting

one count of negligence. Appellant sought economic and non-economic (pain

and suffering) damages. Concerning the latter, Appellant claimed that the

accident caused him to suffer “serious injuries” to his back and neck, such that

he was entitled to non-economic damages under his limited tort insurance

policy.2,   3   Appellant additionally claimed that Aiken’s negligence caused

“aggravation of pre-existing medical conditions … and injuries, including a C7-



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2   Section 1705 of the MVFRL provides:

      (d) Limited tort alternative.-- Each person who elects the limited tort
      alternative remains eligible to seek compensation for economic loss
      sustained in a motor vehicle accident as the consequence of the fault
      of another person pursuant to applicable tort law. Unless the injury
      sustained is a serious injury, each person who is bound by the
      limited tort election shall be precluded from maintaining an action for
      any noneconomic loss ….

75 Pa.C.S.A. § 1705(d) (emphasis added). There are certain exceptions set
forth in subsection 1705(d); however, none of them apply in this case.

3 Section 1702 of the MVFRL defines “serious injury” as a “personal injury
resulting in death, serious impairment of body function or permanent
serious disfigurement.” 75 Pa.C.S.A. § 1702 (emphasis added).




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T1 disc bulge[.]” Complaint, 6/9/17, at ¶ 12.       Aiken filed an answer and

new matter in response. Appellant filed a reply to the new matter.

       Appellant retained Dr. Navalgund as a medical expert. On July 13, 2018,

Dr. Navalgund issued a report, which we discuss further below. Appellant also

testified by deposition on July 19, 2018.

       On October 3, 2019, Aiken filed a motion for partial summary judgment

(S/J Motion),4 asserting that Appellant failed to present sufficient evidence to

sustain a claim for non-economic damages.        Appellant filed a response in

opposition.

       In the interim, Appellant gave Aiken notice of a scheduled deposition of

Appellant’s expert, Dr. Navalgund. Additionally, a pre-trial conference was

scheduled to occur on October 21, 2019.

       On October 15, 2019, the trial court conducted an evidentiary hearing

on the S/J Motion. Argument was confined to whether Appellant was entitled

to non-economic damages under the circumstances. At the close of argument,

the trial court entered an order granting the S/J motion (the S/J Order).5



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4 Though the S/J Motion did not contain the word “partial,” it is undisputed
that Aiken was not seeking dismissal of the entire case.

5 The trial court utilized the proposed order submitted by Aiken’s counsel; the
trial court signed and dated the order, and crossed out the language
underlined in the following excerpt:




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       On October 23, 2019, Appellant filed a motion for reconsideration. That

same day, Aiken filed an emergency motion for protective order, requesting

that the trial court cancel the deposition of Dr. Navalgund. The trial court

granted Aiken’s emergency motion and cancelled Dr. Navalgund’s deposition.

The court entered an order the next day denying Appellant’s motion for

reconsideration.6

       Appellant filed a timely notice of appeal, followed by a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) concise statement.           On

January 3, 2020, the trial court issued a two-page memorandum in lieu of

opinion. Initially, the court stated that Appellant’s “selection of the limited

tort auto insurance precluded only the non-economic damages.             Whether

[Appellant] suffered any injuries related to the accident for which [Aiken] may

be held responsible shall first be decided in court.”       Trial Court Opinion,

1/3/20, at 2 (underline in original, capitalization omitted); see also id.

(stating that the S/J Order is not appealable, as it “did not preclude [Appellant]

from proceeding to trial on the damages permitted under [Appellant’s] Limited

Tort Option.”). The court further opined:


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       “[I]t is hereby ordered … that the within Motion for Summary
       Judgment Based on Lack of Evidence to Support Pain and
       Suffering Damages … is hereby granted[.]”

Order, 10/15/19 (some capitalization omitted).

6 Further, the pre-trial conference scheduled for October 21, 2019 was
cancelled.

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      Some of [Appellant’s] alleged injuries were actually symptoms.
      The argument and evidence available established that
      [Appellant’s] cervical pain was not specifically caused by the
      accident, given the fact that preexisting cervical degeneration had
      been diagnosed and acknowledged.            There was insufficient
      evidence as to what degree did the accident impact [Appellant], if
      at all. Segments of [Appellant’s] deposition referenced by defense
      counsel also convinced this court that the problems [Appellant]
      experienced were not serious as defined by [section 1702 of the
      MVFRL].

Id. (underline in original, capitalization omitted).

      On appeal, Appellant presents nine issues for review:

      I.     Whether the Trial Court abused its discretion and/or
             otherwise committed an error of law in granting … [Aiken’s]
             Motion for Partial Summary Judgment when genuine issues
             of material fact exist as to the nature and extent of
             Appellant’s injuries and whether [] Appellant sustained a
             serious impairment of a body function, when the issue
             should have been determined by the trier of fact?

      II.    Whether the Trial Court abused its discretion and/or
             otherwise committed an error of law in ruling that a genuine
             issue of material fact did not exist in this case?

      III.   Whether the Trial Court abused its discretion and/or
             otherwise committed an error of law in granting [Aiken’s]
             Motion for Partial Summary Judgment in violation of
             Pa.R.C.P. 1035.2(1)[,] when a genuine issue of material fact
             exists as to whether [] Appellant suffered a serious
             impairment of a body function in the accident at issue?

      IV.    Whether the Trial Court abused its discretion and/or
             otherwise committed an error of law in granting [Aiken’s]
             Motion for Partial Summary Judgment where Appellant was
             entitled to trial by jury on all issues?

      V.     Whether the Trial Court abused its discretion and/or
             otherwise committed an error of law in dismissing the case
             in its entirety in granting [Aiken’s] Motion[,] which was not
             on its face seeking dismissal of the civil action in total[,] but
             rather only sought partial summary judgment on the issue

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              of serious impairment of a body function[,] which would
              have precluded Appellant from recovering only noneconomic
              damages?

       VI.    Whether the Trial Court abused its discretion and/or
              otherwise committed an error of law in dismissing the entire
              case and disposing of Appellant’s economic damages
              claims[,] when [Aiken’s] Motion only specifically sought to
              dismiss noneconomic damages claims, which would have
              allowed Appellant’s economic damage claim to proceed to
              trial by jury?

       VII.   Whether the Trial Court abused its discretion and/or
              otherwise committed an error of law in its entirety when
              genuine issues of material fact remained regarding
              Appellant’s ability to plead, prove, and recover economic
              damages in the form of past excess medical bills?

       VIII. Whether the Trial Court abused its discretion and/or
             otherwise committed an error of law in dismissing
             Appellant’s case in its entirety when genuine issues of
             material fact remained regarding Appellant’s ability to
             plead, prove, and recover economic damages in the form of
             future projected reasonable and necessary medical costs?

       IX.    Whether the Trial Court abused its discretion and/or
              otherwise committed an error of law by granting [Aiken’s]
              Motion for Partial Summary Judgment by failing to properly
              apply the legal standard of review, i.e., viewing the facts in
              the light most favorable to the non-moving party ([]
              Appellant), when in fact[,] Appellant adduced sufficient
              evidence in the form of medical records, deposition
              testimony, and a medical expert report to support his
              contention that he sustained a serious impairment of a
              bodily function and thus, precluding the grant of summary
              judgment in [Aiken’s] favor?

Appellant’s Brief at 5-8 (citations to record omitted).7

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7 The headings of the issues Appellant sets forth in the argument section of
his brief do not correspond to the issues in the statement of questions



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       We first address whether this appeal is premature and interlocutory.

See Bombar v. W. Am. Ins. Co., 932 A.2d 78, 85 (Pa. Super. 2007) (stating

“an appeal will not lie from an order granting partial summary judgment.”

(citation omitted)). Appellant, pointing to the trial court’s opinion, states that

he “agrees [] this case should have proceeded to trial on the issue of economic

damages, and then the issue of whether the trial court improperly granted

[Aiken’s S/J M]otion should have been appealed.”         Appellant’s Brief at 36

(citing Trial Court Opinion, 1/3/20, at 2, supra (expressing that matters of

liability and any economic damages shall first be decided in court)). Appellant

contends “[t]he trial court is opining that this case should have gone to trial

on economic damages, but [it] also played the key role in dismissing this case.

The trial court has now issued orders and an opinion in direct contradiction of

each other.” Appellant’s Brief at 37. Appellant asserts that “[t]he trial court

took away all means of Appellant to proceed to trial by canceling the pre-trial

conference, the video-taped expert deposition, and the jury trial.” Id. We

agree.

       Our review reveals that Appellant’s arguments are supported by the

record. We likewise discern contradictory actions/representations by the trial

court. The court, by its S/J Order and subsequent actions (i.e., cancellation

of Dr. Navalgund’s deposition and the pre-trial conference), dismissed


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presented. See Pa.R.A.P. 2119(a). However, we overlook this minor defect,
as it does not impede our review.

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Appellant’s entire case and put him out of court.          Therefore, Appellant’s

appeal is not interlocutory. See Pa.R.A.P. 341(a) (providing that “an appeal

may be taken as of right from any final order of a … trial court,”); see also

Gordon v. Gordon, 439 A.2d 683, 686 (Pa. Super. 1981) (en banc) (stating

“if the practical consequence of the order by the trial court is effectively to put

an appellant ‘out of court’ the order will be treated as final.” (citation

omitted)).

      Moreover, the trial court correctly opined that Appellant is entitled to a

jury trial on matters of liability and economic damages.         Accordingly, we

reverse the trial court’s order and remand to the trial court for further

proceedings on these matters.

      However, we also must determine whether the trial court appropriately

concluded that Aiken was entitled to summary judgment on Appellant’s claim

for non-economic damages.

      Appellant argues that a genuine issue of material fact exists concerning

the nature and extent of his injuries, as well as whether he sustained “serious

impairment of body function,” which should have been determined by a fact-

finder. See Appellant’s Brief at 16, 24-29.

      We apply the following standard in reviewing the grant of a motion for

summary judgment:

      [S]ummary judgment is only appropriate in cases where there are
      no genuine issues of material fact and the moving party is entitled
      to judgment as a matter of law. Pa.R.C.P. 1035.2(1). When
      considering a motion for summary judgment, the trial court must

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      take all facts of record[,] and reasonable inferences therefrom[,]
      in a light most favorable to the non-moving party[,] and must
      resolve all doubts as to the existence of a genuine issue of material
      fact against the moving party. An appellate court may reverse a
      grant of summary judgment if there has been an error of law or
      an abuse of discretion. Because the claim regarding whether
      there are genuine issues of material fact is a question of law, our
      standard of review is de novo and our scope of review is plenary.

Nicolaou v. Martin, 195 A.3d 880, 891-92 (Pa. 2018) (some citations

omitted). “Only when the facts are so clear that reasonable minds could not

differ can a trial court properly enter summary judgment.” Straw v. Fair,

187 A.3d 966, 982 (Pa. Super. 2018) (citation omitted); see also Cadena v.

Latch, 78 A.3d 636, 639 (Pa. Super. 2013) (explaining “[i]f there is evidence

that would allow a fact-finder to render a verdict in favor of the non-moving

party, then summary judgment should be denied.” (citation omitted)).

      Moreover, the Pennsylvania Supreme Court has explained that in

determining whether a motorist has suffered a serious injury under Section

1705 of the MVFRL, “the threshold determination [i]s not to be made

routinely by a trial court judge …, but rather[, should] be left to a

jury unless reasonable minds could not differ on the issue of whether a serious

injury had been sustained.” Washington v. Baxter, 719 A. 2d 733, 740 (Pa.

1998) (emphasis added).

      In determining whether a plaintiff suffered serious impairment of a body

function under Section 1702 of the MVFRL, courts employ a two-prong inquiry:

      a) What body function, if any, was impaired because of injuries
      sustained in a motor vehicle accident?


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      b) Was the impairment of the body function serious? The focus of
      these inquiries is not on the injuries themselves, but on how the
      injuries affected a particular body function. Generally, medical
      testimony will be needed to establish the existence, extent, and
      permanency of the impairment. In determining whether the
      impairment was serious, several factors should be considered: the
      extent of the impairment, the length of time the impairment
      lasted, the treatment required to correct the impairment, and any
      other relevant factors. An impairment need not be permanent to
      be serious.

Id. at 740 (citation and ellipses omitted); see also McGee v. Muldowney,

750 A.2d 912, 915 (Pa. Super. 2000) (stating that a plaintiff must generally

present “objective medical evidence as to the degree of any impairment and

extent of any pain suffered” relative to an automobile accident). Additionally,

“evidence of how a particular injury affects a specific plaintiff, including how

that injury negatively impacted the person’s ability to perform his or her

chosen profession, is relevant in determining whether a plaintiff has suffered

a serious impairment of a body function.” Vetter v. Miller, 157 A.3d 943,

948 (Pa. Super. 2017).

      Here, Appellant argues that the trial court erred in determining that:

     (1) “[s]ome of [Appellant’s] alleged injuries were          actually
         symptoms”; Trial Court Opinion, 1/3/20, at 2;

     (2) The injuries were not specifically caused by the accident,
         particularly “given the fact that preexisting cervical
         degeneration had been diagnosed and acknowledged.” Id.

     (3) Appellant’s injuries were not “serious,” under section 1702 of
         the MVFRL. See id.

     Appellant counters that the evidence, when viewed in the proper light,

establishes:

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      Appellant presented evidence that, although there [were] pre-
      existing cervical issues, he sustained cervical radiculopathy,
      cervical facet injuries, and exacerbation of preexisting cervical
      degenerative disc disease as a direct result of the December 2,
      2016 crash. This was brought into evidence through Dr. []
      Navalgund’s expert report. The evidence is in direct contradiction
      with the trial court’s opinion. There is evidence of record of actual
      injuries, and not just symptoms, directly related to the accident
      at issue. In addition, there was escalated treatment and a clear
      exacerbation of his pre-existing condition.

Appellant’s Brief at 25 (citations to record omitted).

      The record supports Appellant’s argument.          In his expert report, Dr.

Navalgund recounted Appellant’s treatment history, concluding:

             [Appellant] … suffered injuries to the cervical spine following
      the motor vehicle accident.        These injuries include cervical
      radiculopathy with cervical disc herniation, cervical facet
      injuries    and     exacerbation      of preexisting         cervical
      degenerative disease[.] Based on my personal examination,
      clinical expertise and review of [Appellant’s] records, it is my
      medical opinion that these injuries occurred as a direct result
      of the rear-end motor vehicle accident on 12/02/16. There
      is no evidence that the prior cervical issues were a problem
      prior to the motor vehicle accident on 12/02/2016.

             [Appellant’s] injuries that occurred on 12/02/2016 are a
      result of traumatic force being applied to the cervical spine at the
      level of the intervertebral disc and cervical facet joint. The cervical
      herniation causes pressure around the cervical nerves leading to
      inflammation and damage to the corresponding nerve roots. This
      is evidenced by the EMG/NCS demonstrating the cervical
      radiculopathy. In addition, the cervical facet joint space and
      surrounding tissue was injured in the motor vehicle accident. This
      occurred with the uncontrolled movement of the spine when
      [Appellant] was struck from behind. Unfortunately, there is a
      scarring and thickening of the joint capsule once this injury occurs,
      leading to permanent and persistent cervical spine pain.
      Therefore, it is in my medical opinion that [Appellant] will
      require further treatment moving forward.




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             It is also my medical opinion that the prognosis for
       [Appellant] is guarded. There is a high medical probability that
       [Appellant] will need to undergo [] repeated [medical procedures
       on his cervical spine in the near future.8]

Report, 7/13/18, at 4-5 (unnumbered; emphasis and footnote added).

       Moreover, Appellant in his deposition testified:

       (1) Appellant was forced to miss three months of work, in his field
       as a “stationary” engineer/plumber, N.T, 7/19/18, at 12;

       (2) following Appellant’s return to work, he was unable, and
       remains unable, to perform duties that he had been capable of
       prior to the accident (including climbing onto boilers and turning
       pipe wrenches), id. at 27;

       (3) Appellant cannot turn his head without feeling significant pain,
       and this hampers his ability to operate a car, id. at 28;

       (4) Appellant cannot lift his arms for more than several seconds
       without feeling pain, and the pain sometimes causes sleep
       difficulties, id. at 22, 28;

       (5) the pain has rendered Appellant unable to perform many daily
       activities that he could do before the accident; these include
       cutting the grass, carrying groceries or heavy objects, engaging
       in swimming, baseball, fishing and golf, and picking up and playing
       with his grandchildren. Id. at 28-29, 31, 32.

       We conclude that this evidence, when properly viewed in the light most

favorable to Appellant, could cause reasonable minds to differ as to whether

Appellant sustained a serious injury attributable to the motor vehicle


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8 Dr. Navalgund opined that these procedures, and other follow-up care, will
cause Appellant to incur significant expenses, which will total well over
$50,000. See Report, 7/13/18, at 5 (unnumbered); see also id. (stating that
Appellant must undergo these procedures for “no less than 10 years.”).



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accident.9 See Cadina, 78 A.3d at 643 (holding that an issue of fact existed

concerning whether plaintiff suffered a serious injury attributable to an

automobile accident where plaintiff (1) proffered her treating physician’s

opinion that plaintiff’s multiple ailments resulted from the accident; (2) stated

how her daily life has changed due to the pain she continued to endure; (3)

treated at a hospital, missed one week of work, and was prescribed pain

medication). See also Kelly v. Ziolko, 734 A.2d 893, 899-900 (Pa. Super.

1999) (holding that issue of fact existed regarding whether plaintiff suffered

a serious injury from an automobile accident where plaintiff (1) went to the

emergency room following the accident and was discharged two hours later;

(2) had an MRI that revealed a herniated disc; (3) “suffers pain in his neck,

back, and knees, and intermittent numbness in two toes on his left foot[,]”

(4) underwent a course of physical therapy and sought treatment for his pain

from a chiropractor; and (5) “asserted that his back pain occurs as a result of

physical activity or sitting for long periods of time; he has trouble sleeping,


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9 The fact that Appellant had pre-existing degenerative cervical disease does
not alter our conclusion. See, e.g., Boggavarapu v. Ponist, 542 A.2d 516,
518 (Pa. 1988) (stating that “[p]ain, of varying degree, may indeed follow
small injury and be greater in its consequence than the initial blow. It may
aggravate existing defects of the person, exploding latent diseases or
precipitate, into present pain, what otherwise might have passed or been long
delayed, absent the immediate injury.” (emphasis added)); see also Cingota
v. Milliken, 428 A.2d 600, 602, 604 (Pa. Super. 1981) (stating that a
defendant may be held liable for his or her negligence regardless of whether
the personal injuries suffered by the plaintiff originated from the injury
occasioned by defendant’s negligence or aggravation of plaintiff’s pre-existing
injury/disease).

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cannot run, is unable to walk or sit for longer than 15 minutes, and finds it

difficult to play with his child[.]”); cf. Washington, 719 A.2d at 741

(concluding that reasonable minds could not differ as to whether plaintiff’s

alleged injury from an automobile accident – arthritis in his foot – was

“serious” under sections 1702 and 1705, where the emergency room physician

stated the injury was mild; plaintiff missed only five shifts of his employment

(where he performed most of his work on his feet); the treatment of the injury

was not extensive; and plaintiff was able to engage in normal work and daily

activities).   Accordingly, we reverse the trial court’s order and remand for

further proceedings as to Appellant’s claim for non-economic damages.

      Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2020




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