J-A32015-14

                               2015 PA Super 29
R.L.P.,                                  :     IN THE SUPERIOR COURT OF
   Appellant                             :          PENNSYLVANIA
                                         :
                   v.                    :     No. 1540 EDA 2014
                                         :
R.F.M.                                   :

                Appeal from the Order Entered October 14, 2014
             in the Court of Common Pleas of Montgomery County
                      Family Division, at No. 2010-06638

BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.

OPINION BY PANELLA, J.                           FILED FEBRUARY 11, 2015

       Initially, the trial court entered an order in this custody case that

directed the court reporter to transcribe as the custody order 46 pages of

trial transcript. Mother filed an appeal from the order directing transcription

and we entered an order stating that an order directing the transcription of

the notes of testimony is not an appealable order and directing the trial

court to enter a separate custody order. The trial court complied with our

directive. The custody order awarded shared legal custody of L.M. [Child],

born to the parties in May 2007, primary physical custody to Mother, partial

physical custody to Father, and made provisions for vacations and holidays.

We affirm the custody order. We publish to clarify Rule 1915.10(b) of the

Pennsylvania Rules of Civil Procedure to insure that the terms and intent of

future custody orders are clear:     We hold that, in order to be sufficiently





    Former Justice specially assigned to Superior Court.
J-A32015-14


specific to be enforced, an order of custody must be entered as a separate

written order, or as a separate section of a written opinion.

      Before we address the merits of this case, we must dispose of a

question of procedure.1 The trial court conducted a hearing in this matter on

April 14, 2014. The next day, the trial court delivered its decision in open

court, stated the reasons for its decision, and rendered its order in the case.

The trial court then entered an order on the following day directing the court

reporter to transcribe the “Order Portion of the Notes of Testimony which

shall constitute the Order of the Court.” Order, filed 4/16/14. Mother filed a

notice of appeal from the April 16 order. This Court responded to Mother’s

appeal by entering the following order:

      This appeal has been taken from the April 1[6], 2014, Order in
      custody that directs the court reporter to transcribe the notes of
      testimony that shall constitute the order of the court. The April
      1[6], order is not appealable or enforceable. See Pa.R.A.P. 102
      (an order is defined as a judgment, decision, decree, sentence
      and adjudication). The rule does not define an order as the
      transcribed notes of testimony. See also Pa.R.A.P. 301(b)
      (every order shall be set forth on a separate document).
      Therefore, the trial court is directed to enter an order of court in
      this matter within fourteen (14) days, no later than June 6,
      2014.

Superior Court Order, 5/23/14.2


1
   Mother raises this question as her first issue on appeal. We consider it
significant enough to discuss it as a threshold matter.
2
   Mother’s appeal is, nonetheless, timely. Rule 905 of the Pennsylvania
Rules of Appellate Procedure states, in pertinent part, that “[a] notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the


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      The transcribed notes of testimony from the hearing on April 14, 2014,

a total of 46 pages, were entered on the trial court docket on May 20, 2014.

According to the trial court, in its opinion, “[t]he order portion of the Notes

of Testimony were transcribed and entered upon the docket on May 20,

2014. Therefore, the actual Custody order was entered upon the docket on

May 20, 2014.” Trial Court Opinion, 6/20/14, at 1.

      The trial court did not enter a written order by the June 6, 2014,

deadline set by this Court in the order entered May 23, 2014.        However,

after additional urging from this Court, the trial court finally entered a two-

page order of custody on October 14, 2014.

      In its opinion, the trial court explained why the transcript filed on May

20, 2014, was lengthy:

      A Custody Order has to consider the 16 custody factors set forth
      at 23 Pa.C.S.A. § 5328(a). Therefore, in many cases, the Order
      discussing these custody factors will be lengthy. The reason the
      Order was 48 pages was because the [c]ourt addressed each of
      these custody factors. It would be error not to have addressed
      these factors.

Id., at 4.

      Rule 1915.10 of the Pennsylvania Rules of Civil Procedure governs a

trial court’s decision and order and provides, in pertinent part:

      Rule 1915.10. Decision. Order



day thereof.”   Pa.R.A.P. 905(a)(5).        We have corrected the appeals
statement on the caption.



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      (a) The court may make the decision before the testimony has
      been transcribed. The court shall state the reasons for its
      decision either on the record in open court, in a written opinion,
      or in the order.

      (b) The terms of the order shall be sufficiently specific to enforce
      the order.

Pa.R.C.P. 1915.10(a)-(b).

      Our concern with the trial court’s transcript is that it is not “sufficiently

specific to enforce the order.” The portion of the transcript in which the trial

court recites its order begins on page twenty-one and covers the following

twenty-seven pages. It includes exchanges between the trial court and the

parties such as this:

      THE COURT: Okay. Is it any issue for you, Dad, to get [Child] to
      school on Wednesday if I give you that overnight?

      [Father]: Back to North Penn for school?

      THE COURT: Yes.

      [Father]: It will be difficult but I could try to work it out.

      THE COURT: Okay. If you can work it out you will have [Child]
      overnight on Tuesday and take him to school on Wednesday.

N.T., 4/16/14, at 23.

      It also includes this passage:

      THE COURT: Dad will have alternate weekends. And those
      weekends will be alternated from . . . [sic] the one weekend will
      be alternated from Thursday after school until Monday morning.
      The other weekend will be alternated from Friday after school to
      Monday morning. And I am trying to keep this in line with
      having whole weekends instead of splitting weekends down the
      middle, which especially with summer coming can be very
      disruptive to the child’s schedule.


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     [Attorney for Mother]: I was going to ask: After week four to
     week one, do you want to do it that way?

     THE COURT: Here’s what we are going to do. And I’m sorry, I
     am confusing myself now. Every Tuesday dad is going to have
     overnight until Wednesday, take the child to school on
     Wednesday. Every other weekend he will have from Friday after
     school until Monday morning. In the opposite weeks, he is going
     to have Thursday overnight to Friday. And dad’s weekend will
     necessarily include the weekend that mom is working so you will
     alternate from that.

Id., at 25-26.

     As well as this:

     THE COURT: Are there any other particular issues that either
     side wants me to address?

     (Discussion was held off the record at this time.)

     [ATTORNEY FOR MOTHER]: Your Honor, are you asking about
     the schedule that you just made in particular?

     THE COURT: Any issues?

     [ATTORNEY FOR MOTHER]: Is this a year-around schedule, or
     are you going to break it into a school year versus summertime?

     THE COURT: With an exception. Since mom works Tuesdays,
     two Thursdays a month, and Friday during the day, it seems to
     me that mom is not going to be with the child. Of course dad
     isn’t either. But there is no reason that [Stepmother] can’t be
     with [Child] during the day when she is off and mom works. So,
     on Tuesdays that lead up to dad’s overnight, instead of picking
     the child up after school, if somebody wants to pick him up
     Tuesday morning so that [Stepmother] can have [Child] all day
     Tuesday, that’s fine. Same with the Tuesdays that mom works
     and the Fridays that mom works. Well, she works every Friday
     7:00 to 3:00. And then he can be returned to mom by the
     normal time that would be after school, in other words, four
     o’clock, if [Stepmother] chooses to have him on the days that
     mom works.


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      [ATTORNEY FOR FATHER]: Excuse me, Your Honor.            We are
      therefore giving [Stepmother] custody?

      THE COURT: No, I am letting her take care of the child in lieu of
      dad and mom. Who should I give custody to when mom is not
      available and dad is not available?

      [ATTORNEY FOR MOTHER]: What mom has always done. Mom
      has family that are closer than [Stepmother].

      THE COURT: [Stepmother] is a step-parent now, okay.

      [ATTORNEY FOR MOTHER]: So is              [Mother’s   paramour]
      Sometimes he is home during the day.

      THE COURT: Not a step-parent. Not a step-parent.

      [ATTORNEY FOR MOTHER]: Your Honor, may I ask you a
      question. I think I heard you correctly, on Tuesdays when mom
      is working and there is no school, I think you said in the next
      frame again Tuesday and Friday. Did you mean Thursday?

      THE COURT: Thursday. The two Thursdays a month that mom
      works and Fridays. But I don’t want to interfere with mom’s
      custodial time, so the child has to be returned to mom Fridays at
      4:00 on her weekend. And of course on dad’s weekend, you can
      just keep him through.        On the Thursdays when dad has
      Thursday overnight, [Stepmother] can keep [Child] on Friday
      and return him at 4:00 to mom. Instead of, since she is not
      returning to school in the morning, she can return him to mom
      at four o’clock.

Id., at 32-35.

      There are more exchanges like these, but the above will suffice to

demonstrate that this transcript must be read and re-read to determine

exactly which party should have custody at any given time. This “order” is

not sufficiently specific to be enforceable.




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J-A32015-14


     The trial court’s two-page order entered on October 14, 2014, on the

other hand, is a model of clarity. It reduces the convoluted, back and forth

discussion of April 15, 2014, to two pages of easily understood explanation

of which parent has custody and when. Enforcement is possible because the

order specifies which party has custody at any given time.

     Accordingly, in order to clarify Rule 1915.10(b) to insure that the

terms and intent of future custody orders are clear: we hold that, in order

to be sufficiently specific to be enforced, an order of custody must be

entered as a separate written order, or as a separate section of a written

opinion.   If entered as a separate section of an opinion, it must be

designated as such by the use of the heading entitled “Order.” A custody

order may not be entered as a transcript from any trial or hearing.3




3
  In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained the
following:

     “All of the factors listed in section 5328(a) are required to be
     considered by the trial court when entering a custody order.”
     J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
     in original). Section 5337(h) requires courts to consider all
     relocation factors. E.D., supra at 81. The record must be clear
     on appeal that the trial court considered all the factors. Id.

           Section 5323(d) provides that a trial court “shall delineate
     the reasons for its decision on the record or in open court or in a
     written opinion or order.” 23 Pa.C.S.A. 5323(d). Additionally,
     “section 5323(d) requires the trial court to set forth its
     mandatory assessment of the sixteen [Section 5328 custody]
     factors prior to the deadline by which a litigant must file a notice
     of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
     appeal denied, ___ Pa. ___, 70 A.3d 808 (2013). Section


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      We now turn our attention to the merits.         The record supports the

following recitation of the basic facts of this case. Father lives in Coatesville,

Pennsylvania, and is married to K.M. (Stepmother). Stepmother is a teacher

in the Downingtown Area School District.         Father works as a pharmacy

technician at Temple University Hospital Monday to Friday from 6:30 a.m. to

3:00 p.m. Mother works as a nurse in the neonatal unit at the Children’s

Hospital of Philadelphia (CHOP) every Tuesday from 7 a.m. to 7 p.m., every

Friday for eight hours, two Thursdays each month from 7 a.m. to 7 p.m.,

and twelve-hour shifts every fourth Saturday and Sunday.             Mother also

teaches self-defense once or twice per week for an hour at a time.

      Mother lives with her boyfriend, K.S. (Boyfriend), and their son, L.S.

(born in November 2011), in North Wales, Pennsylvania.          Boyfriend has a



      5323(d) applies to cases involving custody and relocation.
      A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013).

            In expressing the reasons for its decision, “there is no
      required amount of detail for the trial court’s explanation; all
      that is required is that the enumerated factors are considered
      and that the custody decision is based on those considerations.”
      M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal
      denied, ___ Pa. ___, 68 A.3d 909 (2013). A court’s explanation
      of reasons for its decision, which adequately addresses the
      relevant factors, complies with Section 5323(d). Id.

Id., at 822-823.

       Our decision today is not intended to in any way abrogate the
instruction set forth in section 5323(d) regarding the trial court’s reasons for
its decision, as explained in A.V., but to address the necessary form of the
trial court’s custody order.



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seven-year-old daughter who lives with Mother and Boyfriend on alternate

weekends.     Boyfriend works as a karate instructor.        He also teaches

“stranger danger” and “bully buster” programs at daycare centers.

       At the time the parties separated, they had been living in Pottstown,

Pennsylvania. The parties never married and separated toward the end of

2009. At the time of the hearing, Mother had primary physical custody of

Child and Father had partial physical custody.    Child attends first grade in

the North Penn School District.      The travel time between the parties’

households in Coatesville and North Wales is about 75 minutes.

       The parties have been litigating this matter since Mother filed a

complaint for custody on March 16, 2010. Father commenced this round of

litigation when he filed a petition to modify custody in May 2013. The trial

court held a hearing on that petition, at which Mother and Father testified,

and entered the order complained of on October 14, 2014. Mother filed her

notice of appeal and, in response to this Court’s order, filed her statement of

errors complained of on appeal.4

       Mother presents the following questions for our consideration:

       1. Does the Order entered on April 1[6], 2014 satisfy the
       requirements of 231 Pa.Code Rule 1915.10[sic]5?



4
   As there was no objection or claim of prejudice from Father, we have
accepted Mother’s late filing in reliance on our decision in In re K.T.E.L.,
983 A.2d 745 (Pa. Super. 2009).
5
    We assume that Mother refers to Pa.R.C.P. 1915.10.


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      2. Did the trial err by forcing [M]other to relinquish her custody
      when she is unavailable during her custodial time for a period of
      four hours or more when [F]ather is unavailable most custodial
      days, but [Stepmother] is permitted to have custody?

      3. Did the trial court err by conferring a custody award onto
      [Stepmother]?

      4. Was it error for the trial court to disallow [Stepmother’s]
      testimony regarding her use of central nervous depressant
      medication purportedly used during the litigation?

      5. Did trial court commit error in disallowing [Stepmother] to
      testify as to her disagreement with paternal grandfather’s wife
      that resulted in estrangement between grandfather and [Child]?

      6. Did trial court err by ignoring the testimony in finding that
      alienation was “more on mom’s side... and it is very subtle”?

      7. Did trial court err by disallowing evidence on Motion for
      Reconsideration?

      8. Did trial court err in finding that both parties intentionally
      moved farther apart from each other in an effort to distance
      themselves from each other?

      9. Did trial court commit error in finding that the parties have
      equal amounts of support to care for the minor?

      10. Did trial commit error by ignoring the differences in school
      districts of the parents?

      11. Did trial court err by glossing over the disruption the order
      caused to [Child’s] relationship with his half-sibling?

Mother’s Brief at 4-6.

      Our scope and standard of review is as follows:

      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


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         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.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

         We have stated that

         the discretion that a trial court employs in custody matters
         should be accorded the utmost respect, given the special nature
         of the proceeding and the lasting impact the result will have on
         the lives of the parties concerned. Indeed, the knowledge
         gained by a trial court in observing witnesses in a custody
         proceeding cannot adequately be imparted to an appellate court
         by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

         The primary concern in any custody case is the best interests of the

child.     “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004)).

         We must accept the trial court’s findings that are supported by

competent evidence of record, and we defer to the trial court on issues of




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credibility and weight of the evidence. See J.R.M. v. J.E.A., 33 A.3d 647,

650 (Pa. Super. 2011). Additionally,

      [t]he parties cannot dictate the amount of weight the trial court
      places on evidence. Rather, the paramount concern of the trial
      court is the best interest of the child. Appellate interference is
      unwarranted if the trial court’s consideration of the best interest
      of the child was careful and thorough, and we are unable to find
      any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (quoting Robinson v.

Robinson, 645 A.2d 836, 838 (Pa. 1994)).

      We discussed Mother’s first issue, regarding the trial court’s order,

above.

      Mother begins her second issue by stating:

      Items within matters complained of at numbers 4, 5, 6, 7, 8, 9,
      10 and 11 are incorporated herein because they are all
      objectionable on the same or similar bases, i.e., the court
      ignored the testimony is [sic] drawing its bald conclusions as set
      forth within the opinion.

She then recites the types of custody a trial court may order and the sixteen

custody factors before concluding:

      It has been held that the appellate court is not bound by the
      deductions or inferences made by the trial court from its findings
      of fact, nor must the reviewing court accept a finding that has no
      competent evidence to support it. Wailers v. Wailers, 757
      A.2d 966, 967 (Pa. Super. 2000).

Mother’s Brief, at 12-14.

      We find no argument here, simply what appears to be a general

complaint that the trial court reached the wrong conclusions on the issues

Mother raises in her questions 4, 5, 6, 7, 8, 9, 10 and 11. Mother fails to


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J-A32015-14


develop any legal arguments in her second issue and has waived any claims

she might have raised there.      “[A]rguments which are not appropriately

developed are waived. Arguments not appropriately developed include those

where the party has failed to cite any authority in support of a contention.”

Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (internal

citations omitted). See also Chapman-Rolle v. Rolle, 893 A.2d 770, 774

(Pa. Super. 2006) (“It is well settled that a failure to argue and to cite any

authority supporting an argument constitutes a waiver of issues on

appeal.”).

      In Mother’s third issue, she claims that the trial court erred in granting

custody to Stepmother.      We disagree.    In its order entered October 14,

2014, the trial court directs:

      (8) [Stepmother] may have custody of [Child] if she is available
      and both Mother and Father are working. We stress that this
      is only when BOTH Mother and Father are unavailable.
      Clearly, Mother’s and Father’s right to custody of [Child] trumps
      that of [Stepmother] as she is not [Child’s] biological parent[.]

Trial Court Order, 10/14/14, at (8) (emphasis in original). The trial court did

not err in granting custody to Stepmother at those times when neither

Mother nor Father is available to care for Child, especially where, according

to the record before us, Stepmother has clearly acted in loco parentis to

Child. See 23 Pa.C.S.A. § 5324. Mother’s third issue is without merit.

      In her fourth issue, Mother complains that the trial court abused its

discretion by finding, in regard to Stepmother, “[t]he use of anti-anxiety or



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antidepressant medication alone does not indicate that a person cannot

properly care for a child. This may be a different situation if a person was

prescribed antipsychotic medication.”      Trial Court Opinion, 6/20/14, at 6.

The trial court also found, “[s]imply because [Stepmother] took anti-anxiety

medication during the custody litigation does not affect her ability to care for

[Child].   Furthermore, the custody evaluator found that [Stepmother] had

taken antidepressants prescribed by her general practitioner.” Id. Mother

does not tell us how Stepmother’s use of anti-depressants affected or might

have affected her ability to care for Child. Rather, she states that

      [t]he trial court also fails to acknowledge that if [Stepmother]
      does in fact take anti-depressants, then she may suffer from a
      psychosis and not just a garden variety neurosis. Nonetheless,
      the court refused appellant an opportunity to inquire about this
      matter from the step-mother, and it substituted its opinion in
      lieu of evidence.

Mother’s Brief, at 15.

      Mother   engages    in   pure   speculation   when   she   suggests   that

Stepmother may suffer from a psychosis. Nothing in the record supports her

contention. We reject it out of hand. Mother then goes on to suggest that

the trial court may have prevented Mother’s counsel from questioning

Stepmother on her use of anti-depressants. But Mother gives us no citation

to the record, no context.      We are unable to consider her complaint.

Mother’s fourth issue is without merit.

      In her fifth issue, Mother complains that the




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      [t]rial court likewise decided that it was unimportant to learn
      why [S]tepmother had a falling out with paternal grandfather’s
      wife that led to the minor being alienated from his paternal
      grandfather at matter number five in the matters complained of
      on appeal.

Id.   Once again, Mother gives us no citation to the record.     We have no

context in which to consider her complaint. In addition, Mother provides no

citation to our law to support her argument and she has, therefore waived it.

See Lackner.

      In her issue number six, Mother complains primarily that the trial court

should have interpreted certain evidence regarding Stepmother’s actions to

favor her rather than Father. This is a claim we cannot review. See S.M..

      Mother also complains that the trial court refused to accept documents

after trial that she was unable to produce during the proceeding. The trial

court responded succinctly and correctly to Mother’s complaint, “[i]f these

documents existed before the trial, then they should have been available at

trial.” Trial Court Opinion, at 7. This claim lacks merit.

      Mother further alleges, “[i]f the court found the parents to be equally

suitable parents, then the [C]hild’s uncoached and pure expression of

preference for [M]other should have been considered, but it was not.”

Mother’s Brief, at 18. Concerning Child’s preference, the trial court found,

“[n]o one has asked me to talk to the [C]hild. And I am assuming that that

means that neither party feels that the [C]hild is capable of making a

mature judgment in terms of where he wants to live or why he likes one



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house over the other, et cetera.”      N.T., 4/15/14, at 3.       Mother’s claim

regarding Child’s preference is without merit.

      In her eleventh issue,6 Mother complains “that it was error for the

court to disregard the separation of [Child] from his sibling, L.S.” Mother’s

Brief, at 21. The trial court did not disregard the separation of Child from

his sibling. The trial court considered the relationship and found:

           The [C]hild has no siblings in dad’s house; and in mom’s
      house he has a half sibling with whom apparently he does have a
      good relationship. The age difference in these two children is
      not so different that they would not have a relationship with
      each other as they are growing up.

             On the other hand, it seems to me that the           time that
      [Child] is out of the house and away from his little       brother is
      something that kind of segregates their relationship       with each
      other. But I don’t at this point in time think that this   is a major
      issue.

N.T., 4/15/14, at 2-3.

      Mother makes no legal argument that the trial court erred beyond

citing a quote from Jane Austen’s novel Mansfield Park found in our decision

in Speck v. Spadafore, 895 A.2d 606 (Pa. Super. 2006), that speaks of the

uniqueness of close family ties.    See id., at 613 (“Children of the same

family, the same blood, with the same first associations and habits, have

some means of enjoyment in their power, which no subsequent connections

can supply ....”). Mother has waived her eleventh issue. See Lackner.

6
  Mother fails to discuss issues seven, eight, nine and ten in her brief. By
failing to discuss them, she has failed to develop a coherent legal argument
and she has waived those issues on appeal. See Lackner.



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     Order affirmed.

     Justice Fitzgerald joins the Opinion.

     Judge Olson files a concurring/dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/11/2015




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