J-A25003-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

DARLENE C. ROBERTS,                        : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
             v.                            :
                                           :
CHARLES D. LOCKMAN,
                              :
APPEAL OF: COMMONWEALTH OF :
PENNSYLVANIA    ON BEHALF  OF :
DARLENE C. ROBERTS/DEPARTMENT :
OF PUBLIC WELFARE             : No. 543 EDA 2014

              Appeal from the Order entered January 10, 2014,
                Court of Common Pleas, Philadelphia County,
    County Domestics Relations at No. 008103635 – PACSES No. 818004672

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED OCTOBER 10, 2014

       The Commonwealth of Pennsylvania, on behalf of Darlene C. Roberts

(“Mother”) and the Department of Public Welfare (“DPW”) (collectively, the

“Commonwealth”), appeals from the January 10, 2014 order entered by the

Philadelphia County Court of Common Pleas following its grant of the petition

for special relief filed by Charles D. Lockman (“Father”), setting the arears

owed to DPW to zero. After careful review, we affirm.

       The record reflects the following facts.    Mother and Father are the

parents of Shimel Roberts (“Shimel”),1 born February 16, 1978. Mother is

now deceased. On May 13, 1982, DPW filed a complaint for child support

against Father naming itself and Mother as plaintiffs based upon Mother’s




1
    Shimel is also referred to in the certified record as Shimel Lockman.


*Retired Senior Judge assigned to the Superior Court.
J-A25003-14


receipt of public assistance from DPW.2       Father began paying $25.00 per

week in temporary child support on May 19, 1983, effective May 12, 1982.

On July 30, 1985, the trial court entered an order requiring Father to pay

$25.00 per week in support and $10.00 per week in arrears to DPW. The

order further stated that the beneficiary shall be changed to Mother effective

July 23, 1984. On June 30, 1987, the trial court entered a subsequent order

purporting to “correct” its prior order regarding the change in beneficiary,

stating that the beneficiary should be changed to Mother effective July 23,

1984, not July 23, 1985, as it erroneously believed it had previously

ordered. The trial court entered an order terminating Father’s child support

obligation on September 17, 1997 based upon Shimel’s emancipation.

       On December 13, 2012, Father filed a petition for special relief stating,

in relevant part, that the arrears obligation owed to DPW are less than that

reflected   in   the   Pennsylvania   Child   Support   Enforcement     System

(“PACSES”), as those arrears are actually owed to Mother, not DPW.           An

audit conducted on January 9, 2013 revealed that Father was to make child

support payments to DPW (“TANF3 arrears”) in the amount of $2,875.00

from May 12, 1982 through July 22, 1984.          The beneficiary changed to

Mother (“non-TANF arrears”), as reflected in the aforementioned orders,

from July 23, 1984 through January 9, 1995, for which Father owed her

2
    See 23 Pa.C.S.A. § 4378.
3
  TANF stands for Temporary Assistance for Needy Families, and is the cash
assistance that DPW provides to individuals receiving public benefits.


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$13,675.00. There is a notation on the audit that indicates a “sweep from

NON TANF to TANF” occurred, moving $11,535.54 of non-TANF arrears to

become TANF arrears, without explanation.        Commonwealth Exhibit 1.

Additional TANF arrears accrued in the amount of $875.00 from January 10,

1995 through September 11, 1995, when Father acknowledges that Mother

was again receiving public assistance. The beneficiary then changed back to

Mother from September 12, 1995 through August 4, 1997, with Father

owing her $2,475.00 for that time period. The audit further indicates that

since 1984, Father had made payments of $8,243.00 on the TANF arrears

and $4,689.46 on the non-TANF arrears. Thus, the audit concluded the total

adjusted amount owed by Father was $6,967.24 in TANF arrears, which was

the amount owed to DPW according to PACSES.

       The trial court scheduled a hearing on Father’s petition for special

relief. After several continuances, the hearing took place on September 27,

2013, at which the Commonwealth presented Shawn Parker (“Parker”), a

DPW employee, to testify regarding the client information screens (also

known as “scopes”), which indicated that Shimel received cash assistance

from    DPW    from   August   24,   1988   through   January   24,   1995.4

Commonwealth’s Exhibit 2.      Parker testified that he did not compile the


4
  The record indicates that there were multiple grants spanning various time
periods, but this summary provides the amount of time Shimel was
reportedly receiving DPW cash assistance. See Commonwealth’s Exhibit 2.
The scopes also state that Shimel began receiving cash assistance again on
January 25, 1995, but there is no end date indicated. Id.


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scopes in question, could not say whether these scopes were used to

conduct the January 9, 2013 audit, and did not testify regarding the amount

of money that Shimel received or with whom Shimel was living at the time

he received the money.     At the conclusion of the hearing, the trial court

granted Father’s petition and set the arrears owed to DPW to zero.

      The Commonwealth filed a timely motion for reconsideration on

October 3, 2013. The trial court granted the Commonwealth’s motion and

scheduled a hearing on January 10, 2014.             At that hearing, the

Commonwealth attempted to enter into evidence documents and witness

testimony that it failed to present at the September 27, 2013 hearing. The

trial court refused to allow the evidence and denied the Commonwealth’s

request for reconsideration.

      This timely appeal followed, wherein the Commonwealth raises three

issues for our review:

            I. Did the trial court abuse its discretion when it
            retroactively modified [Father]’s arrears, which
            accumulated 18 years prior to petition’s filing,
            without a showing that [Father] was precluded from
            a timely filing of a petition?

            II. Did the trial court err in granting [Father]’s
            petition for special relief when at the hearing of
            September     27,    2013,   the   [Commonwealth]
            presented evidence showing the audit sweep from
            non-TANF to TANF was true and correct pursuant to
            23 Pa. C.S. [§]4378 (b), and [Father] did not
            present any evidence showing the court’s audit to be
            inaccurate?




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             [III.] Did the trial court err in denying the
             [Commonwealth]’s petition for reconsideration at the
             hearing of January 10, 2014, by not allowing the
             [Commonwealth] to present the court file, electronic
             record, and testimony of the audit’s author when the
             court previously granted the [Commonwealth]’s
             petition for reconsideration on October 8, 2014?

Commonwealth’s Brief at 4.

      The standard by which we review an order pertaining to child support

is well settled:

             When evaluating a support order, this Court may
             only reverse the trial court's determination where the
             order cannot be sustained on any valid ground. We
             will not interfere with the broad discretion afforded
             the trial court absent an abuse of the discretion or
             insufficient evidence to sustain the support order. An
             abuse of discretion is not merely an error of
             judgment; if, in reaching a conclusion, the court
             overrides or misapplies the law, or the judgment
             exercised is shown by the record to be either
             manifestly unreasonable or the product of partiality,
             prejudice, bias or ill will, discretion has been abused.

W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa. Super. 2014) (citation omitted).

      In its first argument raised on appeal, the Commonwealth contends

that the trial court abused its discretion by granting Father’s request to

retroactively modify his child support arrears without a showing that he was

precluded from previously filing for modification because of a significant

physical or mental disability. Commonwealth’s Brief at 11-12. In support of

its argument, the Commonwealth relies upon 23 Pa.C.S.A. § 4352(e) and

associated case law. Id. at 11-15. Although raised in the Commonwealth’s




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concise statement of errors complained of on appeal, the trial court did not

address this issue in its written opinion.

      Section 4352(e) states:

               Retroactive modification of arrears.--No court
               shall modify or remit any support obligation, on or
               after the date it is due, except with respect to any
               period during which there is pending a petition for
               modification. If a petition for modification was filed,
               modification may be applied to the period beginning
               on the date that notice of such petition was given,
               either directly or through the appropriate agent, to
               the obligee or, where the obligee was the petitioner,
               to the obligor. However, modification may be applied
               to an earlier period if the petitioner was precluded
               from filing a petition for modification by reason of a
               significant     physical    or    mental     disability,
               misrepresentation of another party or other
               compelling reason and if the petitioner, when no
               longer precluded, promptly filed a petition. In the
               case of an emancipated child, arrears shall not
               accrue from and after the date of the emancipation
               of the child for whose support the payment is made.

23 Pa.C.S.A. § 4352(e).

      Our review of the record reveals that this was not a “retroactive

modification of arrears” as the Commonwealth contends.                 Section 4352(e)

expressly      applies   to   retroactive   modification    of   a   person’s   “support

obligation.”     “Support” is defined by statute as “[c]are, maintenance and

financial assistance.”        23 Pa.C.S.A. § 4302.         Father did not contest his

obligation to make payments of support, nor did he contest the amount of

arrears he owed, but instead argued that his arrears were going to the

incorrect beneficiary. N.T., 9/27/13, at 45. By granting Father’s motion, the



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trial court simply found that DPW was not the party entitled to the arrears

owed.

        Looking at the clear and unambiguous language of section 4352(e), we

disagree with the Commonwealth that the statute is applicable in the case

before us.    See 1 Pa.C.S.A. § 1921(b) (“When the words of a statute are

clear and free from all ambiguity, the letter of it is not to be disregarded

under the pretext of pursuing its spirit.”). As such, the trial court did not

abuse its discretion by failing to adhere to the prohibition against retroactive

modification of arrears contained in section 4352(e).

        The Commonwealth next asserts that the trial court abused its

discretion by granting Father’s petition based upon the evidence presented

by the Commonwealth and Father’s failure to satisfy his burden of proving

that the audit was inaccurate.    Commonwealth’s Brief at 16-24.       The trial

court found that the evidence presented by the Commonwealth was not

relevant to and did not answer the question of whether the non-TANF

payments were properly converted to TANF payments, as provided in the

audit. Trial Court Opinion, 4/15/14, at 6. It further found, “based on the

evidence presented and the totality of the circumstances[,] that Father met

his burden of proving by [a] preponderance of the evidence that the

$11,535.54 was unjustifiably swept from non-TANF to TANF arrears.”          Id.

at 7.




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      We begin with the Commonwealth’s claim that the trial court

improperly required it to shoulder the burden of proof in this matter. In its

argument, the Commonwealth again erroneously refers to this as a support

modification case. Commonwealth’s Brief at 21. As stated above, this is not

a modification of support, but a question as to the appropriate beneficiary of

the child support ordered.    The law requires that if there is a “reported

absence of a legally responsible relative from the household or the presence

of a putative father,” it is a condition precedent to a custodial parent

receiving financial assistance from DPW that the custodial parent seek

support for the child. 23 Pa.C.S.A. § 4378(a). The acceptance of financial

assistance from DPW “shall operate as an assignment to [DPW], by

operation of law, of the assistance recipient’s rights to receive support on his

or her own behalf and on behalf of any family member with respect to whom

the recipient is receiving assistance. Such assignment shall be effective only

up to the amount of assistance received.”           23 Pa.C.S.A. § 4378(b)

(Amended May 13, 2008, effective Oct. 1, 2009).5


5
    As the assignment of child support in the case at bar pre-dates the
effective date of the 2008 amendments to the subsection (b) of the statute,
we use the pre-amended version in assessing the case. Effective October 1,
2009, the legislature amended section 4378(b) as follows, with the added
provisions in bold:

            Acceptance of assistance shall operate as an
            assignment to the department, by operation of law,
            of the assistance recipient's rights to receive support
            on his or her own behalf and on behalf of any family
            member with respect to whom the recipient is


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     The record reflects that Father presented the trial court with court

orders from July 30, 1985 and June 30, 1987, indicating that the beneficiary

of child support payments made for Shimel reverted from DPW to Mother

beginning on July 23, 1984.    See Defendant’s Petition for Special Relief,

12/12/12, at Exhibits D, E; N.T., 9/27/13, at 43. The burden then shifted to

the Commonwealth to contradict the order and show that Mother was

receiving DPW assistance from July 23, 1984 through January 9, 1995 of at

least $11,535.54, or that the amount of aid provided while Mother was

receiving DPW benefits exceeded the amount of support DPW received from

Father by $11,535.54, either of which would entitle it to sweep that amount

of the non-TANF arrears originally allocated to Mother pursuant to the

aforementioned orders.

     The Commonwealth cites to no statute, rule or case establishing the

burden of proof at a hearing questioning DPW’s entitlement to child support

payments.6 Our research likewise reveals none. However, as the version of

section 4378(b) in effect at the time of the sweep makes clear, DPW was

           receiving assistance. Such assignment shall be
           effective only up to the amount of assistance
           received during the period that a family receives
           assistance.     The assignment shall exclude
           arrears that accrued prior to receipt of
           assistance.

23 Pa.C.S.A. § 4378(b) (emphasis added).
6
   As noted above, the Commonwealth relies on case law concerning a
hearing on support modification. See Commonwealth’s Brief at 21-22.
Father failed to file a brief on appeal.


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only entitled to capture child support payments made for a child whose

custodial parent is receiving assistance up to the amount of cash assistance

given by DPW to that parent. Thus, in the face of evidence that DPW was

not in fact entitled to capture some or all of the child support arrears that it

did, it is only logical that DPW must come forward with evidence that it was

entitled to that money. To find that the burden was on Father to prove that

the sweep was conducted improperly would make him responsible for

obtaining and interpreting documents to which he has no access, and are

unintelligible to a person without experience reviewing the documents. See

N.T., 9/27/13, at 27 (Parker’s testimony indicating that you must have

“proper access[] and proper credentials” to obtain the scopes to trace a

person’s history of receiving financial assistance from DPW).

      Father filed a petition for relief alleging that Mother, not DPW, was

entitled to the child support arrearages DPW obtained in its sweep and

presented evidence in support of his claim. We find no error with the trial

court’s requirement that DPW come forward with evidence that the sweep of

the arrearages in question was proper.

      The record further supports the trial court’s conclusion that the

Commonwealth failed to present evidence that DPW was entitled to sweep

the $11,535.54 of arrears. As stated above, acceptance of public benefits

constitutes an assignment by operation of law of any support received by

that individual on his or her own behalf or on behalf of a family member.



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23 Pa.C.S.A. § 4378(b) (Amended May 13, 2008, effective Oct. 1, 2009).

However, DPW is only entitled to obtain the support payments up to the

amount it paid in assistance for that individual. Id. At the September 27,

2013 hearing, the Commonwealth presented Shimel’s history of DPW

assistance, and although Parker testified that, as a minor child, Shimel

would be on the same record number as the person with whom he lived,

DPW presented no testimony or other evidence that the record number on

Shimel’s scopes was Mother’s record number.7       N.T., 9/27/13, at 38-39.

The trial court found that the Commonwealth’s failure to tie Shimel’s records

to Mother rendered his scopes irrelevant and fatal to the Commonwealth’s

case. Id. at 47, 58; Trial Court Opinion, 4/15/14, at 6. The record further

reflects that the Commonwealth provided no evidence of the amount of DPW

assistance Mother received during her lifetime for Shimel’s benefit, or any

evidence that the amount of aid provided while Mother was receiving DPW

benefits exceeded the amount of support payments DPW received from

Father by $11,535.54.

     In a footnote, the Commonwealth asserts that the trial court’s file

“contains documents revealing the assistance provided [by DPW to Mother]

exceeded the child support paid in the amount of over $27,000.”



7
  The record reflects that the Commonwealth asked Parker about the record
number on Shimel’s scopes, and after an objection by Father’s counsel and
questions by the trial court, the Commonwealth failed to follow up and get
the answer to the question.


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Commonwealth’s Brief at 18 n.11. This evidence was not presented at the

hearing, and thus cannot constitute a basis for reversing the trial court’s

decision.

      The Commonwealth further states that it called Parker to explain the

welfare scopes “by request of [Father], and by agreement of the parties,”

and that it failed to have the audit’s author testify at the September hearing

because Father reportedly conceded at the May hearing that he did not have

an issue with the audit. Commonwealth’s Brief at 24-26. Our review of the

certified record on appeal, however, reveals that the notes of testimony from

the May 29, 2013 hearing are not contained therein.

            It is black letter law in this jurisdiction that an
            appellate court cannot consider anything which is not
            part of the record in the case. It is also well[]settled
            in this jurisdiction that it is Appellant’s responsibility
            to supply this Court with a complete record for
            purposes of review. A failure by Appellant to insure
            that the original record certified for appeal contains
            sufficient information to conduct a proper review
            constitutes waiver of the issue sought to be
            examined.

Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007)

(internal citations omitted). The fact that the Commonwealth appended the

May notes of testimony to its appellate brief does not cure the problem, as

“[t]his Court has regularly stated that copying material and attaching it to a

brief does not make it a part of the certified record.” Commonwealth v.

Johnson, 33 A.3d 122, 126 n.6 (Pa. Super. 2011) (citation omitted).




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      As its third and final issue on appeal, the Commonwealth asserts that

the trial court erred by denying its request for reconsideration. It raises two

arguments in support of this claim:    (1) reconsideration should have been

granted because the Commonwealth showed both that the trial court

committed an error of law in making its decision and that reconsideration

was required to prevent a manifest injustice; and (2) because it satisfied the

standard for reconsideration, the trial court erred by failing to allow the

Commonwealth     to   present   evidence     at   the   reconsideration   hearing.

Commonwealth’s Brief at 26-35.      The trial court states that there was no

error of law or manifest injustice here, that it gave the Commonwealth

multiple opportunities to present its evidence and arguments at the hearings

on Father’s petition, and its failure to do so resulted in waiver. Trial Court

Opinion, 4/15/14, at 6-7.

      A trial court has the authority to reconsider its own judgment, and the

decision of whether or not to do so is left to its sound discretion. Moore v.

Moore, 634 A.2d 163, 167 (Pa. 1993). It is likewise within the trial court’s

discretion to determine whether to permit additional testimony, briefs,

and/or argument in reassessing its decision. Id.

      Both the trial court and the Commonwealth rely upon a statement of

law espoused by the Federal District Court of the Eastern District of

Pennsylvania, presented by Father at the reconsideration hearing, which

states: “Courts should grant [reconsideration] sparingly, reserving them for



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instances when: (1) there has been an intervening change in controlling law;

(2) new evidence has become available; or (3) there is a need to prevent

manifest injustice or correct a clear error of law or fact.” Evans v. United

States,   173   F.     Supp.   2d   334,   335   (E.D.   Pa.     2001);      see   also

Commonwealth’s Brief at 27; Trial Court Opinion, 4/15/14, at 7; N.T.,

1/10/14, at 6-7.        No Pennsylvania appellate court has adopted this

statement of the law.      Nonetheless, the Commonwealth invokes the third

instance – reconsideration should have been granted to correct an error of

law or fact or to prevent a manifest injustice – which we agree would

warrant reconsideration, as it constitutes an abuse of discretion.                 See

W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa. Super. 2014) (“if, in reaching a

conclusion, the court overrides or misapplies the law, or the judgment

exercised is shown by the record to be either manifestly unreasonable or the

product of partiality, prejudice, bias or ill will, discretion has been abused”).

      The Commonwealth presents three errors of law allegedly committed

by the trial court. First, it claims that the trial court erroneously required the

Commonwealth      to    shoulder    the    burden   of   proof    at   the    hearing.

Commonwealth’s Brief at 27. As we have already disposed of this argument

in the previous issue, it warrants no further discussion.

      Second, the Commonwealth states that the trial court incorrectly relied

upon the amended version of section 4378(b), and because the arrears in

question predate the 2009 amendments, reconsideration should have been



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granted. Id. at 27-28. Although the Commonwealth is correct that the trial

court erroneously quotes the amended version of the section 4378(b) in its

written opinion (see Trial Court Opinion, 4/15/14, at 6), the court does not

rely upon the amended portion of the statute in reaching its decision. See

supra, n.5. Moreover, as we have already determined that the trial court

appropriately granted Father’s petition pursuant to the correct version of

section 4378(b), we find no error in the trial court’s failure to grant

reconsideration on this issue.

      The third error of law claimed by the Commonwealth is the trial court’s

finding that an argument it presented at the reconsideration hearing was

waived pursuant to Rule of Appellate Procedure 302(a) based upon the

Commonwealth’s failure to present it at the time of trial. Commonwealth’s

Brief at 28; see Trial Court Opinion, 4/15/14, at 7-8; N.T., 1/10/14, at 27;

see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”).     The case was still

before the trial court and not yet on appeal, and we therefore agree with the

Commonwealth that Rule 302(a) was inapplicable. The record reflects that

the argument the Commonwealth wished to present was that the pre-2009

version of section 4378(b) applied and “was not a dollar for dollar, on

again/off again sweep.” N.T., 1/10/14, at 27. As stated, we have already

found that the trial court appropriately granted Father’s petition pursuant to

the pre-amended version of 4378(b), and we therefore find no abuse of



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discretion in the trial court’s denial of the Commonwealth’s motion for

reconsideration.

      The Commonwealth further contends that the trial court’s ruling

results in a manifest injustice.            Specifically, the Commonwealth states,

without citation to any authority, that because Mother is deceased, the

arrears in question “are remitted,” and the Commonwealth loses over

$6,000 in arrears that “were never proven erroneous.”                  Commonwealth’s

Brief at 29.   We have found no authority to support the Commonwealth’s

bald claim that Mother’s death necessarily means that the arrears will be

remitted. Furthermore, we need not address the sufficiency of the evidence

argument again raised by the Commonwealth as we have repeatedly stated

throughout the memorandum that there was no error in the trial court’s

grant of Father’s petition for special relief.

      Lastly, the Commonwealth asserts that the trial court abused its

discretion   by    not   permitting    it    to    present   certain   evidence   at   the

reconsideration hearing – testimony by the person who conducted the audit

to explain the sweep, a document that ties Shimel’s scopes to Mother’s

history of DPW benefits, and a document that indicates the amount of

money Mother received from DPW in excess of the amount of child support

DPW obtained from Father – which would prove that DPW was entitled to

sweep     $11,535.54       from       non-TANF         arrears    to    TANF      arrears.

Commonwealth’s Brief at 29-35.                    This argument is based upon the



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Commonwealth’s belief that it satisfied the Evans test for reconsideration.

Id. at 26-27. As we have already found that the Commonwealth failed to

prove that reconsideration was necessary to prevent a manifest injustice or

to correct a clear factual or legal error, this argument merits no relief.

         The trial court found that the Commonwealth had several opportunities

to present this evidence, as there was a hearing scheduled which was

continued twice at the Commonwealth’s request.                   Trial Court Opinion,

4/15/14, at 6-7. For no reason apparent in the record, the Commonwealth

failed    to   present   the   evidence    it   later   sought   to   present   at   the

reconsideration hearing. The trial court found that this did not amount to a

change in the law, newly available evidence, or the correction of a manifest

injustice or a clear error of law or fact, and thus it declined to allow the

evidence. Id. at 7; see Evans, 173 F. Supp. 2d at 335. We find no abuse

of discretion in the trial court’s decision.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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