J-S01017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    C.T.                                            :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
    v.                                              :
                                                    :
                                                    :
    A.W.T.                                          :
                                                    :
                             Appellant              :   No. 2716 EDA 2019


                    Appeal from the Order Entered August 20, 2019,
                 in the Court of Common Pleas of Philadelphia County,
                     Domestic Relations at No(s): No. 0C1500178.


BEFORE:         BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY KUNSELMAN, J.:                                  FILED MARCH 30, 2020

           In this matter, Appellant A.W.T. appeals from the trial court’s order,

which denied her petition to relocate with the parties’ six-year-old daughter,

S.T. (Child), but granted, in part, the request of Appellee C.T. to modify

custody.1 Because the court did not conduct a full hearing, we vacate the

order and remand for further proceedings.

           The record discloses the relevant factual and procedural history:

           Child was born in June 2013. Although the record is unclear whether

the parties ever married, testimony revealed that they ended their relationship

at some point in 2014.                  Recent history began with the previous custody
____________________________________________
*   Retired Senior Judge assigned to the Superior Court.

1 The parties, both women, were in a same-sex relationship when Child was
born, and they are Child’s legal parents. The record indicates that A.W.T. is
the biological mother of Child, and C.T. is the adoptive mother.
J-S01017-20



arrangement, which the parents entered into by consent order on August 16,

2018.      The order provided primary custody to A.W.T. and partial physical

custody to C.T. every other weekend from Friday to Sunday and alternate

weekends from Friday to Saturday. The parties shared legal custody. The

order further provided that the parties may change custody by mutual

agreement.

        In April 2019, A.W.T. filed a notice of a proposed relocation, seeking to

move with Child from the Philadelphia area to North Chesterfield, Virginia,

near Richmond. C.T. objected and filed the requisite counter-affidavit; she

also filed a petition to modify the 2018 custody consent order. Subsequently,

A.W.T. filed her own modification petition. The trial court consolidated the

three pending petitions and held a hearing on August 20, 2019. Both parties

appeared with counsel.

        During the hearing, A.W.T. initiated her case-in-chief for relocation by

her direct examination. A.W.T.’s testimony began with pertinent information

regarding Child’s current and previous custody arrangements and the

potential benefits Child would receive if the court granted her request to

relocate. A.W.T. testified that her current day job is with Verizon, but that

she also assists women during labor as a doula.2        She explained that the

reason she sought relocation to Virginia is because she wants to advance her

career as a midwife. According to A.W.T., it is illegal to be a lay midwife in

____________________________________________
2A doula is a person trained to provide advice, information, emotional support,
and physical comfort to a mother before, during, and just after childbirth.


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Pennsylvania, whereas in Virginia, she could obtain a certified professional

midwife certificate without first having to become a registered nurse. See

N.T., 8/20/19, at 12. A.W.T. also testified that she would have familial support

in Virginia, including her fiancée, who already resides there. Id. at 26.

      The court interjected throughout A.W.T.’s testimony. Most critically, the

court asked A.W.T. whether Delaware, New Jersey, or Maryland have similar

midwife programs to that of Virginia, the inference being that she could still

advance her career without relocating Child. Id. at 42. A.W.T. explained that

while those states did have a similar program, Virginia was unique for several

reasons, including the fact that she would have a support network. Id. at 43.

      The trial court then questioned A.W.T.’s motives directly. As A.W.T.

attempted to explain why Virginia was a more suitable choice, the court

ultimately stopped hearing A.W.T.’s case-in-chief and concluded that A.W.T.’s

proposed relocation was “invalid” as it determined that A.W.T.’s true

motivation was to be with her fiancée. See N.T., at 60, 65, 75, 76. A.W.T.

did not present any other witnesses or evidence. C.T. did not cross-examine

A.W.T., nor did C.T. take the stand.

      The court immediately transitioned to C.T.’s petition to modify custody.

But instead of hearing from witnesses or allowing the parties to present their

evidence, the trial court essentially limited the modification portion of the

proceeding to arguments from counsel. See N.T. at 76-87. The court then

announced it would keep primary custody with A.W.T. Id. at 87-88.

Thereafter, the court elicited further argument from the attorneys and asked


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questions of the parents as it ironed out the finer details, including holiday

and summer vacation. Id. at 88-94. The court announced that its order would

be ready soon, and the court officer asked the parties to step out. Id. at 95.

The custody order was issued the same day.

      The order denied A.W.T.’s petition to relocate, kept primary custody with

A.W.T., but adjusted the weekend schedule. C.T. was awarded partial custody

every weekend, Friday afternoon to Monday morning, except for the third

weekend, which belonged to A.W.T. Most drastically, the court divided the

summer schedule in half, granting each parent six consecutive weeks of

physical custody, which A.W.T. had proposed if relocation was granted.

      The court did not delineate its reasons for its decision under either 23

Pa.C.S.A. § 5337(h) (relating to the relocation factors) or 23 Pa.C.S.A. §

5328(a) (relating to the custody factors). See 23 Pa.C.S.A. § 5323(d). Even

after A.W.T. filed her timely notice of appeal, the court did not analyze the

pertinent factors.

      A.W.T. raises the following issues for our review, which we reorder for

ease of disposition:

              1. Where the court did not hold a full and complete
                 hearing on the proposed relocation as required by 23
                 Pa.C.S.A. § 5337(g)(1) and Pa.R.C.P. 1915.17, did it
                 abuse its discretion and commit legal error?

              2. Where the trial court granted in the part [C.T.’s]
                 petition to modify custody without holding a full and
                 complete hearing on the custody petitions, did the
                 trial court abuse its discretion and commit legal error?




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              3. Where the trial court failed to give proper weight to
                 the evidence and testimony of the witnesses, did it
                 abuse its discretion and commit legal error?

              4. Where the trial court’s opinion failed to delineate its
                 findings with respect to the relocation factors in 23
                 Pa.C.S.A. § 5337(a), did it commit legal error?

              5. Where the trial court’s opinion fails to delineate its
                 findings pursuant to the custody factors in 23
                 Pa.C.S.A. § 5328[,] did it abuse its discretion and
                 commit legal error?

A.W.T.’s Brief at 4.

       Our scope and standard of review of child custody orders are settled:

         In reviewing a custody order, our scope is of the broadest
         type and our standard is abuse of discretion. We must
         accept findings of the trial court that are supported by
         competent evidence of record, as our role does not include
         making independent factual determinations. In addition,
         with regard to issues of credibility and weight of the
         evidence, we must defer to the presiding trial judge who
         viewed and assessed the witnesses first-hand. However, we
         are not bound by the trial court's deductions or inferences
         from its factual findings. Ultimately, the test is whether the
         trial court's conclusions are unreasonable as shown by the
         evidence of record. We may reject the conclusions of the
         trial court only if they involve an error of law, or are
         unreasonable in light of the sustainable findings of the trial
         court.

S.T. v. R.W., 192 A.3d 1155, 1160 (PA. Super. 2018) (citation omitted).

      Our review differs when an appellant presents a due process challenge:

         A question regarding whether a due process violation
         occurred is a question of law for which the standard of
         review is de novo and the scope of review is plenary.

Id. (citations omitted).




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      A.W.T.’s first two issues pertain to the trial court’s process, and thus we

address those issues contemporaneously. A.W.T. contends that the trial court

committed reversible error when it failed to conduct a full hearing on her

relocation petition and the parties’ cross-filed modification petitions.     She

alleges the court abruptly denied her relocation, in the middle of her direct

examination and before she presented all of her evidence, without addressing

all of the relocation and custody factors. Similarly, A.W.T. asserts that the

court then granted, in part, C.T.’s petition for modification without conducting

a full hearing.

      It is well-settled that the trial court must consider all 10 relocation

factors and all 16 child custody factors when making a decision on relocation

that also involves a custody decision. See A.M.S. v. M.R.C., 70 A.3d 830, 836

(Pa. Super. 2013); see also 23 Pa.C.S.A. § 5337(h)(1-10); and see 23

Pa.C.S.A. § 5328(a)(1-16).      Moreover, “[i]f a counter-affidavit regarding

relocation is filed with the court which indicates the nonrelocating party

objects either to the proposed relocation or to the modification of the custody

order […], the court shall modify the existing custody order only after

holding a hearing to establish the terms and conditions of the order pursuant

to the relocation indicating the rights, if any, of the nonrelocating parties.” 23

Pa.C.S.A. § 5337(f) (emphasis added). The trial court “shall hold an expedited

full hearing on the proposed relocation after a timely objection had been filed

and before the relocation occurs.” See 23 Pa.C.S.A. § 5337(g)(1)(emphasis

added).


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      In custody hearings, parents have at stake fundamental rights: namely,

the right to make decisions concerning the care, custody, and control of their

child. S.T., 192 A.3d at 1160-1161 (citing Troxel v. Granville, 530 U.S. 57

(2000); see also U.S.C.A. Const. Amends. 5, 14; and see generally D.P. v.

G.J.P., 146 A.3d 204 (Pa. 2016)).

      Due process must be afforded to parents to safeguard these

constitutional rights. “Formal notice and an opportunity to be heard are

fundamental components of due process when a person may be deprived in a

legal proceeding of a liberty interest, such as physical freedom, or a parent's

custody of her child.” S.T., 192 A.3d at 1161 (citing J.M. v. K.W., 164 A.3d

1260, 1268 (Pa. Super. 2017) (en banc).        Moreover, both notice and an

opportunity to be heard must be afforded at a meaningful time in a

meaningful manner. Id. at 1164 (emphasis original) (citation omitted).

Without notice and an opportunity to be heard, a party cannot properly

advocate his or her position, nor expose all relevant factors from which the

finder of fact may make an informed judgment. See id. (citing Everett v.

Parker, 889 A.2d 578, 580 (Pa. Super. 2005)). That said, due process is

flexible and calls for such procedural protections as the situation demands. Id.

at 1161.

      The instant hearing addressed three petitions: A.W.T.’s relocation

petition and the parties’ respective modification petitions. In other words, the

court was obligated to conduct a full hearing and analyze both the relocation

factors under Section 5337(h) as well as the custody factors under Section


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5328(a). Due process attached, and with it the mandate that each party have

an opportunity to heard in a meaningful manner.

      Examination of A.W.T.’s claims necessitates a de novo review of the cold

transcript.    In our review, we have discovered a lack of procedural due

process.      Throughout A.W.T.’s direct examination, the court frequently

interjected.     A certain level of interaction is entirely appropriate and

necessary, especially when the court sits as the finder of fact and must

manage the proceedings in the interest of judicial economy. Here, however,

the court adopted an increasingly adversarial role.

      For instance, A.W.T.’s testified that the proposed elementary school in

Virginia has a farming program, which would provide a unique opportunity for

Child, as Child has shown an interest in the birthing of farm animals. See N.T.

at 36; see also 23 Pa.C.S.A. § 5337(h)(7) (“Whether the relocation will

enhance the general quality of life for the child, including, but not limited to,

financial or emotional benefit or educational opportunity”).          The court

interposed with its own knowledge of farm life, doubting that Child could be

legitimately interested, and suspected that Child only told A.W.T. this interest

because A.W.T. was involved with midwifery. See N.T. at 36-40.

      In another instance, A.W.T. attempted to explain that she and Child

moved back to her mother’s home so Child could attend a better school and

out of the “hustle and bustle of Philadelphia, because it is dangerous in

Philadelphia.” Id. at 64-65. The court interrupted:




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         The Court:      Oh, please […] Do not go down that road. […]
                         I have lived here for 30 years. […] Nothing
                         has happened to me, and I don’t find the city
                         of Philadelphia to be some dangerous,
                         horrible place. Oh yeah, there you – go
                         ahead, roll your eyes.

Id. at 65.

      A.W.T. denied rolling her eyes. The court stated that crime happens

everywhere and alluded to the killing of a protester during a white supremacist

rally in Charlottesville, Virginia. The court then stated rhetorically, “I forgot,

[A.W.T.’s] going to be in the elite Chesterfield County, as if somehow – that

they wiped it clean of crime.” Id. at 65-66.

      At this point, the court revisited A.W.T.’s motivation for seeking

relocation. The court concluded that the A.W.T. was not credible, and that

her real motivation for the propose relocation was A.W.T.’s desire to be with

her fiancée:

         The Court:            All I’m saying is, at this point, I don’t
                               have any belief that you are relocating
                               because you’re doing it for career
                               reasons. I don’t believe you, not based
                               on what I just read, and not based on
                               your own testimony. It looks like your
                               career moves are basically whatever is
                               going to work to get you and your new
                               partner down [in] Virginia.

Id. at 66-67.

      A.W.T. had already testified about her motivation. See 23 Pa.C.S.A. §

5337(h)(8) (“The reasons and motivation of each party for seeking or

opposing the relocation.”); see generally N.T. at 12-16, 42-43, 46-58. She




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had explained that Virginia allows those with a certified professional midwife

certificate direct entry into the field without first becoming a registered nurse.

Id. at 55. A.W.T. had testified that she does not have this certificate, that

she would have to complete a program to ascertain one, and that she already

began a registered nurse program.         These facts notwithstanding, A.W.T.

testified that completion of a certified professional midwife program was still

the fastest way she could enter the field. A.W.T. conceded that closer states,

like New Jersey, Maryland, and Delaware, have similar programs to that of

Virginia. Id. at 42. However, A.W.T. had testified that midwifery in these

states poses a different set of problems, because a midwife’s services are not

covered by insurance, limiting the clientele to the affluent; A.W.T. intends to

work primarily with lower income individuals and people of color. Id. at 42,

47. A.W.T. testified that Virginia offers insurance coverage. Id. at 47-48.

      Furthermore, A.W.T. had also testified that Virginia is the best

opportunity because her new career would require a necessary support

system. Id. at 42-43. Presumably, A.W.T. would retain her job with Verizon

while she completes the midwifery program (A.W.T. had testified that Verizon

approved a transfer to Virginia and that the change of roles was a promotion).

Id. at 30.    She explained that her aunt, family friends, and other personal

friends would live in close proximity to her proposed location in Virginia. Id.

at 25. And, most critically for the court, A.W.T. had also testified that her

fiancée lives there. Id. at 26.




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      When A.W.T. attempted to explain these nuances, in response to the

court’s inquires, the court hardly allowed A.W.T. to finish her sentences. See

id. at 53-66. The court ultimately deemed this reason to be “not valid.” See

N.T. at 75; see also id. at 71. Notwithstanding the court’s statement, it was

unclear whether the court found the entire proposed relocation to be invalid

or whether the court found A.W.T.’s position on Section 5337(h)(8)(relating

to motivation) to be unpersuasive:

         The Court:           She doesn’t have to go to Virginia. I’m
                              not finding that to be a valid relocation.
                              I’m not finding that that is in the best
                              interest of the child, because I think
                              her motivation is not acting in the
                              child’s best interest.

Id. at 75.

      Although this exchange occurred during A.W.T.’s direct examination,

C.T.’s counsel then immediately launched into her petition, without requesting

to cross-examine A.W.T.:

         C.T.’s Counsel:      Your Honor, [C.T.] is requesting
                              primary custody, regardless of the
                              results of the relocation, just to be
                              clear on our position.

Id. at 75-76.

      Counsel for A.W.T. felt compelled to respond:

         A.W.T.’s Counsel: And our argument definitely would be
                           that [C.T.] should not have primary
                           custody of [Child].

Id. at 76.




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      Only then did the court state clearly that it was not going to grant the

relocation and, in the same breath, proceeded to C.T.’s modification petition:

         The Court:           Ok. So, I’m not going to grant the
                              relocation. So, she doesn’t want to
                              give her primary. I understand that.
                              She’s been the primary for a while. Is
                              there any possibility of increasing the
                              amount of time that [C.T.] is getting,
                              over what she has now?

Id.

      Counsel for C.T. responded first, outlining the reasons C.T. sought

primary custody. Id. at 76. During this response, counsel for A.W.T. objected.

Neither the court nor C.T. waited to address the objection, and we cannot

discern whether the objection concerned the court’s process or whether the

objection concerned opposing counsel’s averment. Id. at 76-77. Such was

indicative of the haphazard process.

      From this juncture onward, the court engaged in an informal dialogue

with both the litigants and their respective counsels, eliciting their specific

preferences on custody as the court made rapid decisions. See id. at 77-93.

Neither parent took the stand, and as far as we can tell, C.T. was never

actually sworn in. Just as the court terminated the relocation portion of the

hearing, so did the court abruptly decide custody. See id. at 87-88.

      In response to A.W.T.’s argument that she was deprived of a full

hearing, the trial court explained that it denied A.W.T.’s proposed relocation,

because A.W.T. brought it “solely for the purpose of pursuing a romantic




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relationship with her new paramour.” See T.C.O., 10/10/19, at 3.3 Thus, the

court determined that A.W.T. “failed to meet her burden regarding the

proposed relocation” under 23 Pa.C.S.A. § 5337(i). Id. at 4. Notably, the

court opines it reached this decision “[u]pon [A.W.T.] concluding her

testimony[.]” Id. at 3. The court posits that, in any event, if A.W.T. desired

to supplement the record, she forfeited her chance with her silence when the

court asked if there was anything else before ending the proceedings. Id. at

5; see also N.T. at 95. Finally, the court concludes that the resulting modified

custody order “occurred as a result of an agreement between the parties,

which the [previous August 2018 custody] order permits.” T.C.O. at 4-5.

        C.T.’s argument tracks that of the trial court. She argues that A.W.T.

failed to object to the denial of her relocation, and that A.W.T. waived her

challenge to the custody modification because she agreed to the modified

order. See C.T.’s Brief at 5-6. “At no point during the hearing did counsel for

A.W.T. indicate that A.W.T. objected to the agreed modification. In fact,

A.W.T. and her counsel were active participants in the negotiation of the

agreement regarding custody modification.” Id. at 6 (citation to the record

omitted).

        We disagree with C.T. and the trial court’s portrayal of events.    The

characterization that A.W.T. finished her case-in-chief, or that she consented

to the modified order, is supremely disingenuous. We conclude that A.W.T.
____________________________________________
3 We observed that A.W.T. testified that she and her fiancée have been
together for over two years and have known each other since A.W.T. was 14
years old. See N.T. at 26.


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was not afforded an opportunity to be heard in a meaningful manner. See

S.T., supra.          We disagree that A.W.T. waived this challenge for failing to

preserve the issue by objection.               For one, we note that A.W.T. did object,

about some issue, but that objection went unheeded.                   As the testimony

revealed, it would be impossible for a party to object to the lack of opportunity

to be heard while being deprived of the same. We certainly do not agree with

the court’s depiction that A.W.T. concluded her testimony, so much as the

court concluded it for her.

        Given the incomplete hearing, we also disagree with the court’s

conclusion that A.W.T. failed to meet her burden for relocation.              A party’s

motivation is, of course, a legitimate factor that the court must consider in its

the relocation analysis. See 23 Pa.C.S.A. § 5337(h)(8). We also recognize

that this Court defers credibility and weight determinations to the trial court.

See, e.g., C.M. v. M.M., 215 A.3d 588, 591 (Pa. Super. 2019). We cannot

affirm the court’s denial of relocation, however. Even if the trial court assigned

dispositive weight to the motivation factor, the court prevented A.W.T. from

presenting the rest of her case.4
____________________________________________
4 For this reason, we need not address C.T.’s counterargument that the court
actually considered all the relevant factors. We mention it here, however, for
two reasons. First, we disagree that the court considered anything but
A.W.T.’s motivation for relocation. Although the court did not delineate its
reasons for its decision, pursuant to 23 Pa.C.S.A. § 5323(d), it appears from
the court’s Rule 1925(a) opinion that this was the sole factor. See T.C.O. at
4, 6, 8. Second, and more concerning, is C.T.’s use of creative license in her
Brief. For instance, C.T. argues that “the court correctly considered that there
is an established pattern of conduct by A.W.T. to thwart the relationship of
the child and the other party[,]” pursuant to Section 5337(h)(5). See C.T.’s


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        Relocation aside, we must also address the court’s process as it pertains

to the modification of custody.                C.T. argues A.W.T. waived her claim by

engaging in the process of what she describes as a mediation. See C.T.’s Brief

at 4. Similarly, the trial court concluded A.W.T. waived her claim by remaining

silent when the court concluded the proceeding by asking if there was anything

else. See N.T. at 95. Again, we do not agree with the assertion made by C.T.

and the trial court that A.W.T. consented to the modified order. See C.T.’s

Brief at 6; see also T.C.O. at 7. This is factually inaccurate. Nowhere does

the order reference A.W.T.’s consent.                   Moreover, because the proceeding

devolved from an evidentiary hearing into an oral argument, A.W.T. could no

longer make proper objections. We also note that a certain point, a party

cannot be expected to repeatedly voice its concerns without jeopardizing its

position by further agitating the court. For instance, when the court decided

to award six weeks of consecutive summer custody to each party, without

input from A.W.T., her counsel raised the concern:

             A.W.T.’s Counsel:                 Your Honor, I would – I would
                                               ask for there not be six weeks
                                               consecutive time. I think that’s
____________________________________________

Brief at 12. But upon closer inspection, C.T. merely cites the portion of the
transcript where the court noted that it read the parties’ pre-trial memoranda.
See N.T. at 9. C.T. concludes that because her pre-trial memorandum
documented A.W.T.’s alleged efforts to thwart the relationship, and because
the court read this pre-trial memorandum, then it follows that the court found
the same. See C.T.’s Brief at 12. The court made no such finding, and C.T.
comes dangerously close to misrepresenting the record to this Court. See also
C.T.’s Brief at 11-12 (paraphrasing the testimony and stating that the court
considered Child’s preference under Section 5337(h)(4) even though the court
did not interview Child).


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                                    a lot of time for a six-year-old to
                                    be away from either parent.

         The Court:                 All right, well, you’re overruled.


N.T. at 92-93

       Thus, we conclude that the court’s process during the modification

portion of the consolidated hearing also deprived A.W.T. an opportunity to be

heard in a meaningful manner.     The court was obligated to conduct a full

hearing on the merits of these petitions. When it did not do so, the court

inadvertently violated A.W.T.’s right to procedural due process and therefore

committed reversible error. On remand, the court shall conduct a full hearing

on A.W.T.’s proposed relocation and on both parties’ respective petitions for

modification.

      To be clear, nothing in this decision should be construed as favoring or

disfavoring either party’s position on relocation or modification. The hearing

was incomplete, so we refrain from commenting on A.W.T.’s final issues;

namely, whether the court’s determination of A.W.T.’s motivation was

supported by the record and whether the court failed to delineate its reasons

for the custody award, pursuant to 23 Pa.C.S.A. § 5323(d).         We caution,

however, that Section 5323(d) applies to cases involving custody and

relocation. A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (emphasis

added) (citation omitted).

      As a final matter, we note that A.W.T. has not sought the trial court’s

recusal, and when no such request is made, this Court has no authority to



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remove a trial judge. See Commonwealth v. Whitmore, 912 A.2d 827,

834 (Pa. 2006). Given our disposition and the fact that the trial court made

specific credibility determinations, the court might consider for itself whether

it still possesses the ability to be a neutral arbiter of this matter.

      Order vacated. Case remanded. Jurisdiction relinquished.

      Judge Strassburger joins this memorandum.

      Judge Bowes concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2020




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