J-A17044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.J.                                            IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

M.C. AND D.T.


APPEAL OF M.C.
                                                     No. 412 EDA 2014


               Appeal from the Order Entered January 27, 2014
              In the Court of Common Pleas of Delaware County
                        Civil Division at No: 12-09900


BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.

DISSENTING MEMORANDUM BY STABILE, J.:             FILED JANUARY 09, 2015

       Because I believe the circumstances of the extramarital affair between

M.C. and J.J., which occurred prior to the birth of P.T., are not sufficient to

overcome the longstanding common law presumption that a child born into

an intact marriage is the child of the married couple, I respectfully dissent.

Binding precedent from our Supreme Court dictates that the presumption

applies in this case and is irrebuttable. Strauser v. Stahr, 726 A.2d 1052,

1053 (Pa. 1999). I would therefore reverse the trial court’s order.

       The underlying facts are not substantially in dispute.   M.C. and D.T.

are legally married and have been since June 21, 2007. Minor Child P.T. was

born on September 8, 2012, and D.T. is listed as P.T.’s father on P.T.’s birth

certificate. As explained in the Majority’s Memorandum, M.C. engaged in an
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extensive extramarital affair with J.J. that continued through the time of

P.T.’s conception. While the trial court chronicled in detail the extramarital

events leading up to the time of P.T.’s birth, the trial court found no facts to

support similar conduct as of the time of P.T.’s birth and J.J.’s paternity

challenge. To the contrary, the record evinces since the time of P.T.’s birth,

M.C. and D.T. have reconciled, remain married, and together are raising P.T.

as their child. J.J.’s paternity challenge, however, culminated in the January

27, 2014 order directing M.C., D.T., J.J. and Minor Child P.T. to undergo

genetic testing.1

       On appeal, M.C. argues the trial court failed to apply the presumption

of paternity. Our Supreme Court addressed that doctrine in Strauser. In

Strauser, the appellant putative father sought to establish paternity of a girl

born to appellee mother during her marriage. Strauser, 726 A.2d at 1052-

53. Appellee mother remained married to appellee husband throughout the

litigation.   Id. at 1053.       Blood tests indicated a 99.99% probability of

appellant’s fatherhood.       Id.    The appellant alleged that appellee mother

allowed him frequent visits with the child and occasionally left her in the

appellant’s care.     Id.   The appellees argued the presumption of paternity

barred the appellant’s paternity challenge. The Supreme Court wrote: “The

____________________________________________


1
  An order directing or denying genetic testing to determine paternity is
immediately appealable. Barr v. Bartolo, 927 A.2d 635, 638-39 (Pa.
Super. 2007).



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presumption at issue–that a child born to a married woman is the child of

the woman’s husband–has been one of the strongest presumptions known to

the law.” Id. at 1054. “Traditionally, the presumption can be rebutted only

by proof either that the husband was physically incapable of fathering a child

or that he did not have access to his wife during the period of conception.”

Id.

             Thus, it has been held that, where the presumption
       applies, blood test results (existing or potential) are irrelevant
       unless and until the presumption has been overcome. It has
       also been held that, in one particular situation, no amount
       of evidence can overcome the presumption: where the
       family (mother, child, and husband/presumptive father)
       remains intact at the time that the husband’s paternity is
       challenged, the presumption is irrebuttable. This is such a
       case.

Id. (emphasis added).          “This presumption arose (a) to protect marital

integrity and (b) to prevent a child from being labeled a ‘bastard’ child, a

classification that carried both a social and a legal2 stigma.”   Brinkley v.

King, 701 A.2d 176, 184 (Pa. 1997) (plurality) (Newman, J. concurring and

dissenting). “The public policy in support of the presumption of paternity is

____________________________________________


2
   At common law, children born out of wedlock could not inherit from their
fathers and had no right of support from their fathers. Brinkley, 701 A.2d
at 184 n.3. The legal disadvantages to children born out of wedlock have
been eliminated by statute. 23 Pa.C.S.A. § 5102 (“All children shall be
legitimate irrespective of the marital status of their parents, and, in every
case where children are born out of wedlock, they shall enjoy all the rights
and privileges as if they had been born during the wedlock of their parents
except as otherwise provided in Title 20 (relating to decedents, estates and
fiduciaries).”).



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the concern that marriages which function as family units should not be

destroyed by disputes over the parentage of children conceived or born

during the marriage.” Id. at 180 (Flaherty, C.J., announcing the judgment

of the Court). “Third parties should not be allowed to attack the integrity of

a functioning marital unit, and members of that unit should not be allowed

to deny their identities as parents.” Id.

      In Strauser, the appellant argued the presumption should not apply

because appellees’ ongoing marriage was not loving and intimate and

existed in “name only.”     Strauser, 726 A.2d at 1056.        In other words,

appellees’ conduct evinced the absence of a functioning marital unit.        The

Supreme Court rejected that argument:

             While [a]ppellant’s assertions may be factual, they are not
      unique. To the contrary, they indicate that the marriage of
      Mother and Husband, like many, has encountered serious
      difficulties. It is in precisely this situation, as was suggested in
      [John M. v. Paula T., 571 A.2d 1380 (Pa. 1990), cert. denied,
      498 U.S. 850 (1990)] that the presumption of paternity serves
      its purpose by allowing husband and wife, despite past mistakes,
      to strengthen and protect their family.

Id.

      The Strauser court distinguished the facts of Brinkley. In Brinkley,

the mother was married while the child was conceived, but her husband

moved out before the child was born. Brinkley, 701 A.2d at 177. Mother

was having sexual relations with putative father but not with her husband

during the time of conception. Id. The husband filed for divorce when he

learned mother was pregnant. Id. at 177-78. Putative father was present

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at the child’s birth and saw her weekly for the first two years of her life. Id.

at 178.    Putative father placed the child on his health insurance and paid

some support, but mother eventually filed a complaint alleging the support

was insufficient. Id.

       Putative father argued mother could not pursue a child support action

against him because she failed to rebut the presumption that her former

husband fathered the child. Id. The Supreme Court plurality disagreed:

               In the case at bar, at the time of the complaint for
       support, there was no marriage. Lisa and George Brinkley had
       separated before the birth of the child and were divorced at the
       time of the complaint. The presumption of paternity, therefore,
       has no application to this case, for the purpose of the
       presumption, to protect the institution of marriage, cannot be
       fulfilled.

Id. at 181 (emphasis added).

       In summary, the presumption applied in Strauser, where the married

couple reconciled prior to the third party complaint. In Brinkley, where the

married couple divorced prior to the complaint, the presumption did not

apply.3

       Justice Newman authored a concurring and dissenting opinion in

Brinkley and a dissent in Strauser. She wrote: “The Majority posits that

in this case, where the marriage is intact, ‘public policy’ requires that the

presumption be irrebuttable.          I disagree.”   Strauser, 726 A.2d at 1057
____________________________________________


3
   The Brinkley court agreed unanimously that the presumption did not
apply. No rationale garnered a majority.



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(Newman, J. dissenting). She argued the presumption “should be open to

rebuttal by reliable blood test evidence.” Id.4




____________________________________________


4
  In my view, blood test evidence is irrelevant under the traditional rationale
for the presumption. As explained in the main text, the presumption was
created to protect marriages and to protect children from the ramifications
of illegitimacy. While the legal consequences of illegitimacy have been
removed by statute, the goal of protecting an intact marriage remains the
policy of this State, as per the Majority opinion in Strauser. Admission of
blood test evidence does not advance that goal. This debate has been
ongoing at least since the 1950’s. See Commonwealth ex rel. O’Brien v.
O’Brien, 136 A.2d 451, 453-54 (Pa. 1957) (noting the admissibility into
evidence of blood grouping tests in certain cases, though not those where
the presumption applies).

     Concerning the goal of protecting an intact marriage, Justice Newman,
however, advanced the following argument in Brinkley:

             The goal of protecting marital integrity is also futile in a
       society where legal marital status does not always translate into
       a loving, intimate, monogamous relationship. The presumption
       that a child born to a married woman is a child of the marriage is
       dubious at best and in many cases, such as here, is absurd. We
       are living a fable, both morally and legally, if we think that a
       family is typified by ‘Father Knows Best,’ where parents and
       children love and respect each other and where husband and
       wife are faithful to each other and adultery is merely a figment
       of one’s imagination. Thus, the presumption that a child born
       during coverture is a child of the marriage has lost its place in
       modern society, especially considering the scientific testing
       available both to prove and to disprove paternity.

Brinkley, 701 A.2d at 185 (footnote omitted). Justice Newman’s argument
has yet to garner the support of a majority of the Supreme Court. As an
intermediate court of appeals, we must faithfully apply binding Supreme
Court precedent.



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       Justice Newman argued the majority’s irrebuttable presumption

contradicted the Uniform Act on Blood Tests to Determine Paternity, 23

Pa.C.S.A. § 5104(c). That statute provides, in relevant part, as follows:

       (c) Authority for test. --In any matter subject to this section in
       which paternity, parentage or identity of a child is a relevant
       fact, the court, upon its own initiative or upon suggestion made
       by or on behalf of any person whose blood is involved, may or,
       upon motion of any party to the action made at a time so as not
       to delay the proceedings unduly, shall order the mother, child
       and alleged father to submit to blood tests. If any party refuses
       to submit to the tests, the court may resolve the question of
       paternity, parentage or identity of a child against the party or
       enforce its order if the rights of others and the interests of
       justice so require.

23 Pa.C.S.A. § 5104(c).          Justice Newman believed, therefore, that the

Strauser majority’s public policy pronouncement contradicted that of the

legislature, as set forth in § 5104(c). She argued the Supreme Court was

not the appropriate body to make such public policy pronouncements,

especially in light of advances in scientific evidence.   “We would be both

naïve and remiss to perpetuate the strength of this presumption and ignore

the results of reliable scientific tests.”       Strauser, 726 A.2d at 1058

(Newman, J. dissenting).5

____________________________________________


5
   The Supreme Court assessed the relationship between the presumption
and the Act in John M. The John M. court held that the Act does not permit
a putative father who stands outside the marriage to compel the
husband/presumed father to submit to blood tests. John M., 517 A.2d at
1385. “Alleged father,” as that term is used in § 5104(c) (the John M.
opinion refers to 42 Pa.C.S.A. § 6133; it has since been renumbered), does
not refer to the husband/presumed father. Id. The John M. court reasoned
(Footnote Continued Next Page)


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        Courts continue to rely on Strauser in applying the presumption of

paternity.    For example, in E.W. v. T.S. and C.S., 916 A.2d 1197 (Pa.

Super. 2007), the putative father sought custody of a child born during the

marriage of husband and mother. Mother had an affair with putative father

during her marriage to husband, and she was sexually active with both men

throughout the time of conception.               Id. at 1199-1200.   Mother told both

putative father and husband the child was his. Id. at 1200. Husband was

present at the birth and baptism and assumed all parental duties.                 Id.

Mother and husband never filed for divorce and intended to continue their

marriage.     Id.   This Court affirmed the order dismissing putative father’s

custody complaint because he could not overcome the presumption. Id. at

1206.     Citing Strauser, this Court reasoned:              “[T]he Strauser Court

recognized that in a situation where a marriage into which a child is born
                       _______________________
(Footnote Continued)

that the presumption remained valid after the passage of the Act because
the presumption protects the interests of the mother, the husband, the
family unit and it facilitates the Commonwealth’s interest in protecting the
family unit. Id.

        There is, in short, a family involved here. A woman and a man
        who have married and lived together as husband and wife,
        giving birth to and raising four children, have obvious interests in
        protecting their family from the unwanted intrusions of outsiders
        (even ones who have had serious relationships with the mother,
        father or children). The Commonwealth recognizes and seeks to
        protect this basic and foundational unit of society [. . .] by the
        presumption that a child born to a woman while she is married is
        a child of the marriage.

Id. at 1386.



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continues and, despite marital problems, the mother and her husband never

separated and ‘have chosen to preserve their marriage and to raise as a

family the . . . children born to them. . .’ the presumption continues to

apply.” Id. at 1201 (internal citation omitted).

      In C.W. v. L.V. and G.V., 788 A.2d 1002 (Pa. Super. 2001), this

Court addressed facts similar to those of E.W.        Specifically, mother and

husband never     separated, were      sexually active    during the    time   of

conception, the child was born during their marriage, husband was present

at the child’s birth, husband was named father on the birth certificate, and

husband assumed parental responsibilities.      Id. at 1006.    The C.W. court

quoted with approval the trial court’s description of an intact family and held

that the presumption applied:

            An intact family is a family that is a functional family; let’s
      put it that way, as opposed to a dysfunctional family. When a
      child lives in a household and has two parents there on a
      regular, recurring basis and who interacts with each other on a
      daily basis. And with all the normal things that go on in families,
      the discipline, communication, the making of meals, going to bed
      at night, getting up in the morning. And interaction with other
      community things; church, extended family.

Id. at 1005.

      Nonetheless, application of the presumption continues to draw

criticism, especially given readily obtainable scientific evidence confirming or

refuting a putative father’s parentage.     In Vargo v. Schwartz, 940 A.2d

459, 461 (Pa. Super. 2007), four children were born to a married couple,

and the mother filed suit against the putative father for support of the two

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girls born to the marriage.           Consensual genetic testing confirmed that

putative father, not the husband, fathered the two girls. Id. Putative father

argued that, in the eyes of the law, the husband was the father of the two

girls based on the presumption of paternity. Id. Putative father also argued

that the mother was estopped6 from seeking support from him because she

and her husband held the girls out as their own. Id.

       Citing Brinkley, the Vargo court noted that “the presumption of

paternity applies only where the underlying policy to preserve marriages

would be advanced by application of the presumption.”              Id. at 463

(emphasis in original; citing Brinkley, 701 A.2d at 181).            Thus, the

presumption applies only where it can preserve an intact marriage. Id. The

Vargos separated several times during their marriage, including after the

mother revealed to her husband that the two girls were not his. Id. at 467.

The husband stayed with the mother only when he had nowhere else to go.

Id. The mother filed for divorce, though the divorce was not final as of the

time of the support hearing.7 Id. Under these circumstances, we did not

____________________________________________


6
    Paternity by estoppel may apply if the presumption of paternity is
inapplicable or has been rebutted. Id. at 464. Given the circumstances of
the case on appeal, this Court has no occasion to analyze paternity by
estoppel.
7
   The Vargo opinion indicates the mother filed her support complaint in
February of 2004 and her divorce complaint in November of 2003. Id. at
461, 467 n.4. Thus, the divorce action was pending prior to the paternity
challenge. The Vargo court noted that the “presumption of paternity is
(Footnote Continued Next Page)


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disturb the trial court’s finding that the Vargo’s did not have an intact

marriage.    Id.       We therefore affirmed the trial court’s holding that the

presumption of paternity did not apply.             Id.; see also Martin v. Martin,

710 A.2d 61, 62 (Pa. Super. 1998) (presumption not applicable where a

paternity challenge–pertaining to a child born during the mother’s second

marriage but conceived during her first–post-dated the married couple’s

separation); Jones v. Trojak, 634 A.2d 201, 207 (Pa. 1993) (presumption

overcome where the husband was impotent and not sexually involved with

the wife during the time of conception).

      M.C. and D.T. rely heavily on B.S. v. T.M., 782 A.2d 1031 (Pa. Super.

2001), where the trial court refused to apply the presumption to a couple

who remained married at the time of the paternity challenge.             There, the

mother separated from her husband briefly after she became pregnant with

putative father’s child and remained separated from him, living with her

parents, until after the child’s birth in May 1999. Id. at 1032-33. Putative

father was present at the birth, named as the father on the child’s birth

certificate, participated in the child’s baptism as his father, and purchased a

life insurance policy to provide for the child in the event of the putative

father’s death.        Id. at 1033.        Putative father and mother voluntarily
                       _______________________
(Footnote Continued)

unrebuttable when, at the time the husband’s paternity is challenged,
mother, her husband, and the child comprise an intact family wherein the
husband has assumed parental responsibilities for the child.” Id. at 463
(emphasis added).



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underwent paternity testing and were aware of the results.          Id. at 1032.

Mother filed a complaint in divorce in February of 1999, but withdrew it on

September 13, 1999. Id. at 1033.

      In June of 1999, mother abruptly ended her romantic relationship with

putative father.    Her posts on an Internet board indicated she was

considering reconciling with her estranged husband and moving in with him

in order to improve her legal position with respect to the child born of her

relationship with putative father.   Id. at 1034.    Putative father sought to

preserve his rights by filing a petition for special relief on September 9, 1999

and a complaint for partial custody on September 21, 1999.

      In ruling the presumption inapplicable, this Court reasoned:        “Here,

[mother] and [husband] separated from the time of [child’s] conception until

well after birth, a period of approximately one year.” Id. at 1036. “During

that time, [mother] acted as if the separation would be permanent and she

would be with [putative father] indefinitely.”    Id.   “Additionally, [putative

father] undertook the role of father.”    Id.   The B.S. court considered the

facts before it to fall somewhere in between Strauser, where the marriage

remained intact at all times, and Brinkley, where the marriage had ended

before any party asserted the presumption of paternity.       Id.   “Here, after

living apart for one year, [mother and husband] reconciled and then sought

to apply the presumption in order to defeat [putative father’s] paternity

claim.”   Id.   Essentially, mother and husband “voluntarily gave up the


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benefit of the presumption for approximately one year after which they

claimed the benefits of its existence for the first time.” Id. at 1037.

      Cognizant of the Brinkley court’s reasoning that the presumption does

not apply where its purpose–to protect a marriage–cannot be fulfilled, the

B.S. court determined that the presumption did not apply.             No dispute

existed as to the child’s parentage, and the court did not believe putative

father’s custody petition would do further harm, “as this hellish marital

situation has already occurred.” Id. at 1036-37. Thus, the Court reasoned

the “marriage will succeed or perhaps will fail with or without the application

of the presumption.”      Id. at 1037.         Finally, the B.S. court reasoned

“application of the presumption could have a deleterious effect on [mother

and husband’s] family, especially on [child], in the future.” Id. at 1037.

      The instant facts do not mesh perfectly with any of the foregoing

precedents. M.C.’s conduct during the pregnancy plainly evinced an intent

to raise the child-to-be with J.J. Nonetheless, M.C. did not entirely separate

herself from the marriage to D.T., instead leasing an apartment with J.J. and

spending part of the week with him and the remainder in the marital home.

For whatever reason, this arrangement failed to arouse the suspicion of D.T.

M.C. and D.T. never filed for divorce, and they reaffirmed their marriage as

of the time of P.T.’s birth despite M.C.’s adulterous relationship with J.J.

Additionally, D.T. has assumed parenting responsibility for D.T., despite his

knowledge of the strong possibility that J.J. is the biological father.


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      In   summary,      the   record    evinces     M.C.   and   D.T.’s   apparent

reconciliation and intent to remain together and raise P.T. In this regard,

the facts align themselves with Strauser and E.W. Despite M.C.’s lack of

fidelity to the marriage, the apparent reconciliation predated both P.T.’s birth

and J.J.’s paternity challenge. As noted above, Strauser indicates that the

inquiry into an intact marriage must take place as of the time of the

paternity challenge.     Strauser, 726 A.2d at 1054.         Vargo reiterated that

proposition.   Vargo, 940 A.2d at 463.           Following Strauser, this Court in

E.W. applied the presumption of paternity where the married couple chose

to reconcile despite the marriage’s troubled past.

      Vargo, however, teaches that the existence of an intact marriage is a

finding of fact and thus within the province of the trial court. Here, the trial

court found no intact marriage and that M.C., given her highly duplicitous

conduct, had no credibility as a witness.         Essentially, the trial court found

that the reconciliation of M.C. and D.T. was a sham and therefore no

impediment to compelling blood tests. Under the Majority’s analysis, this is

the end of the matter.

      In my view, based on the applicable law and the record before us, the

trial court lacked authority to deem M.C. and D.T.’s reconciliation a sham.

Our case law provides very limited authority for such action, as in B.S. and

Vargo. Both cases are distinguishable.            In B.S., mother posted on an

Internet board that she was reuniting with her husband in order to improve


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her legal position with respect to the child of her adulterous affair. Thus, the

record contained direct evidence of the mother’s ulterior motives for the

reconciliation.   Further, the putative father was present at the birth, was

named on the child’s birth certificate, and lived with the mother and

assumed parenting duties for one year. Further, the mother in B.S. filed a

complaint for divorce, withdrawing it only one week before putative father’s

custody complaint, and several days after putative father’s petition for

special relief. Similarly, in Vargo, the couple separated and the mother filed

for divorce prior to the paternity challenge. None of these circumstances is

present instantly.

      When a married couple reconciles prior to a paternity challenge and

raises the child as part of the marital family unit, as happened here,

Strauser indicates the presumption of paternity–which is simply a legal

fiction–applies and is irrebuttable.    Strauser recognized that parties to a

seemingly ruined marriage sometimes resolve their differences and remain

together. The Strauser Court expressly rejected putative father’s argument

that the marriage existed in name only, despite the married couple’s

troubled past. Strauser, 726 A.2d at 1056.

      I recognize that the trial court judge conducted an extensive review of

M.C.’s duplicitous and adulterous conduct prior to P.T.’s birth, and I do not

quibble with the trial court’s findings of fact or with its credibility

determinations. Under controlling law, however, M.C.’s duplicity during the


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adulterous affair does not, indeed cannot, control the outcome of this case.

The record plainly indicates that M.C. and D.T. lived together at the time of

the birth, and welcomed P.T. into their marriage as their child. These facts

are not in dispute, and they are not altered by the trial court’s well-founded

rejection of M.C.’s credibility.

      Every case in which the presumption of paternity is at issue will

involve a marriage that was troubled at some time.         The presumption of

legitimacy cannot arise absent the occurrence, or at least an allegation, of

an adulterous affair. In every case, the trial court will have a potential basis

to reject the credibility of the mother of a child whose paternity is in dispute.

In no case will there be any guarantee of a lasting reconciliation.

      Under the Majority’s analysis, trial       courts will have     seemingly

unfettered discretion to reject a married couple’s reconciliation based on

prior duplicitous conduct.     To permit this state of affairs is to render the

presumption of paternity meaningless, as trial courts will have discretion to

apply it–or not–based on their assessment of the authenticity of a marital

reconciliation. My review of Strauser and its progeny convinces me that the

presumption of paternity exists precisely to give reconciled married couples

a chance to succeed in their marriage despite prior infidelities and without

interference from a third party. In my view, the Majority and the trial court

have erred in failing to apply the presumption of paternity in this case.




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      I am aware that the presumption of paternity has long been under

attack as unworkable and unfair, given advances in the science of paternity

testing and the prevalence in modern society of divorce and children born

out of wedlock. I further recognize the difficulty in consistent application of

the presumption as well as the difficulty in defining an “intact” marriage and

discerning whether the presumption of paternity will in fact protect the

marriage in question.     Perhaps the time has come to dispense with the

presumption entirely, or to reassess the circumstances under which it is

applicable and can be rebutted. If so, such action must come either from

our Supreme Court or from the General Assembly.          In light of all of the

foregoing, I would vacate the order on appeal.

      I respectfully dissent.




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