J-A23015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.P.W., JR.,                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                    Appellee

               v.

A.N.H.,

                    Appellant                         No. 170 WDA 2015


                Appeal from the Order entered December 24, 2014,
               in the Court of Common Pleas of Washington County,
                        Civil Division, at No(s): 2010-10883

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED OCTOBER 29, 2015

        A.N.H. (“Mother”) appeals from the Order entered on December 24,

2014, granting the Motion for special relief filed by J.P.W., Jr. (“Father”), and

placing certain restrictions on Mother with respect to the final custody Order

(“Final Custody Order”), entered on March 25, 2014, regarding custody of

the parties’ minor child, A.J.W. (“Child”).1 We deny Father’s Motion to quash

the appeal, and affirm the trial court’s December 24, 2014 Order.

        The Final Custody Order awarded sole legal custody of Child to Father,

and shared physical custody to the parties until Child began to attend

preschool, at which time Father would have primary physical custody, and

Mother would have partial physical custody.        Mother appealed the Final

Custody Order.


1
    Child was born in November 2010.
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     While Mother’s appeal was pending, on July 24, 2014, Father filed a

Motion for contempt of custody and Motion for clarification of the Final

Custody Order. On July 24, 2014, the trial court entered an Order clarifying

that Father would have primary physical custody of Child beginning August

20, 2014, and directing Mother to comply with the Final Custody Order.

     On September 17, 2014, Father filed a Motion for special relief,

seeking further clarification and enforcement of the Final Custody Order.

Father alleged several instances of Mother’s non-compliance with provisions

of the Final Custody Order. Father alleged that Mother exhibited “bizarre”

behavior at Child’s preschool and at Child’s medical examinations.     Father

requested that the trial court order Mother to undergo a mental health

evaluation. In particular, Father asserted that Mother had told the principal

of Child’s preschool that Child is autistic. On September 17, 2014, the trial

court entered an Order further clarifying its Final Custody Order, and

scheduling a hearing for November 21, 2014, regarding Mother’s alleged

non-compliance with the Final Custody Order.      The September 17, 2014

Order directed Mother to immediately cease telling anyone that Child is

autistic, or developmentally delayed, and imposed the following restrictions

on Mother:

     3. That Mother shall not be at John F. Kennedy Catholic School
     [“JFK School”] except to pick [] Child up at dismissal at the end
     of [] Child’s school day or to drop him off at the beginning of the
     school day, as the case may be, as provided under the [Final]
     Custody Order and such other times as [] Child shall be involved
     in activities at or through the school for which parents are to be

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     present, for example, programs, parent teacher conferences,
     open houses and at such times as Mother may be signed up to
     volunteer for [] Child’s classroom activities.

     4. That, while Mother shall be permitted to be [sic] the doctor’s
     office for any doctor’s appointment involving [] Child and to talk
     to the doctor before or after the doctor’s examination of [] Child,
     Mother shall not be present in the examination room during a
     doctor’s examination of [] Child. Mother shall communicate any
     concerns she has regarding [] Child to Father via Our Family
     Wizard and Father shall report Mother’s concerns to the doctor.

Trial Court Order, 9/17/14, at 1-2 (unnumbered).

     On October 28, 2014, while her appeal of the Final Custody Order was

pending, Mother filed a Petition for a writ of mandamus in this Court,

requesting an order (1) restraining the trial court’s enforcement of the

September 17, 2014 Order; (2) directing the trial court to vacate the Order;

and (3) restraining the trial court from holding a hearing on November 21,

2014, for lack of jurisdiction under Pa.R.A.P. 1701. In an Order entered on

November 12, 2014, this Court deferred the disposition of Mother’s Petition

to the merits panel of this Court hearing oral argument on Mother’s appeal,

and directed the parties to prepare to present argument regarding Mother’s

Petition at oral argument before the panel. Our Order also directed the trial

court to conduct the November 21, 2014 hearing, as scheduled.

     The trial court held hearings on Father’s Petition for special relief on

November 21, 2014, and December 19, 2014.           At the hearings, Father

presented the testimony of several witnesses, including Child’s pediatrician,

as well as the principal and various teachers from JFK School. Edward Foley,


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M.D. (“Dr. Foley”) testified that (1) there is no indication that Child is autistic

or developmentally delayed, (2) Child’s developmental milestones were

appropriate for his age, and (3) Child is a “normal,” healthy child. Dr. Foley

further testified that, since the trial court restricted Mother from attending

Child’s medical appointments, there has been a noticeably positive difference

in Child’s behavior. Both the principal and a preschool teacher at JFK School

testified that Mother led them to believe that Child is autistic.          Child’s

teacher at JFK School, Paula Matthews (“Matthews”), testified that she has

seen no developmental issues or problems with Child. Additionally, the trial

court was presented with evidence that Mother told the school principal and

other school officials that Child was not potty trained, when, in fact, Child is

potty trained.

      In its Order entered on December 24, 2014, the trial court stated as

follows:

            [T]he [c]ourt finds that Mother is not acting in [C]hild’s
      best interest by continuing to assert that [C]hild is autistic and
      suffering from developmental delays[,] when he has no such
      diagnosis or behavioral issues or developmental issues. The
      [c]ourt finds that Mother continues to refuse to accept the
      reports of the medical providers that [C]hild is not autistic or
      developmentally delayed. The [c]ourt further finds that Mother’s
      behavior in this regard is detrimental to the welfare of [C]hild.

           The [c]ourt restates its Order of September 17, 2014, that
      Mother shall cease and desist from stating to anyone or inferring
      that [C]hild has autism or developmental delays or other
      behavioral issues.

            Further restrictions from the Order of September 17, 2014
      shall be restated as follows: Mother shall not attend JFK []

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     School, except to pick up [C]hild at the dismissal at the end of
     [C]hild’s school day or to drop him off at the beginning of the
     school day, as the case may be, as set forth in the [Final]
     Custody Order, and only at such other times as [C]hild is
     involved in activities at the school which provide for parents to
     be in attendance, such as the Christmas program,
     parent/teacher conferences, open houses or other times that she
     is, specifically, authorized by the school to be in attendance;
     [and] Mother shall continue to be restricted from attending the
     medical appointments in the examination room with [C]hild.
     Mother may still have access to the information and access to
     the medical professionals that are treating [C]hild[,] and shall
     communicate any concerns regarding [C]hild to Father through
     My Family Wizard.

           The [c]ourt shall not order a mental health evaluation[;]
     however, the [c]ourt recommends that Mother submit to a
     mental    health    evaluation    and     follow   all   treatment
     recommendations because of the behavior she has exhibited, per
     the [c]ourt’s findings.      In the event Mother violates the
     provisions of this Order[,] or continues to exhibit other irrational
     behavior, the [c]ourt shall order a mental health evaluation for
     Mother.

Trial Court Order, 12/24/14, at 1-3 (unnumbered).

     On January 14, 2015, a panel of this Court affirmed the Final Custody

Order, and denied Mother’s Petition for a writ of mandamus.       See J.P.W.,

Jr. v. A.N.H., 118 A.3d 446 (Pa. Super. 2015) (unpublished memorandum).

     On January 23, 2015, Mother filed a Notice of Appeal of the trial

court’s December 24, 2014 Order, along with a Concise Statement of Errors

Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On

February 3, 2015, Father filed a Motion to quash Mother’s appeal.

     On appeal, Mother raises the following issues for our review:

     I. Whether the trial court committed an abuse of discretion in
     ordering Mother to “cease and desist” from stating to anyone or

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J-A23015-15


      inferring that [C]hild has autism or developmental delays or
      other behavior issues?

      II. Whether the trial court committed an abuse of discretion in
      limiting Mother’s attendance and/or presence at [C]hild’s school
      and at [C]hild’s medical appointments?

Mother’s Brief at 6.

      Initially, we observe that, as the hearings in this matter were held on

November 21, 2014, and December 19, 2014, the Child Custody Act (“the

Act”), 23 Pa.C.S.A. §§ 5321 to 5340, is applicable. See C.R.F. v. S.E.F., 45

A.3d 441, 445 (Pa. Super. 2012) (holding that, if the custody evidentiary

proceeding commences on or after the effective date of the Act, i.e., January

24, 2011, the provisions of the Act apply).

      In custody cases, our 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
      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.

Id. at 443 (citation omitted).

      Additionally,

      [t]he discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature

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J-A23015-15


      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)).

      At the outset, we must address Father’s Motion to quash the instant

appeal. Father contends that this Court previously ruled on Mother’s issues.

Motion to Quash at 7.2        Specifically, Father claims that, because the

provisions of the December 24, 2014 Order restated the provisions of the

September 17, 2014 Order, this Court has already ruled upon such

provisions when it denied Mother’s Petition for a writ of mandamus. Id.

      In response, Mother contends that the trial court’s September 17,

2014 Order was temporary in nature, given that the court withheld its final

ruling on Father’s Petition for special relief until after an evidentiary hearing

had been conducted. Mother’s Brief in Opposition to Motion to Quash at 3.

Mother asserts that the trial court’s December 24, 2014 Order, issued

following the hearings on Father’s Petition for special relief, is a final

appealable order pursuant to Pa.R.A.P. 341, and that she has not yet had an

2
   In his Motion, Father references an issue raised in Mother’s Concise
Statement, i.e., that the trial court lacked jurisdiction to hold the evidentiary
hearings and to modify the Final Custody Order. Motion to Quash at 7.
Father asserts that this Court already ruled on the issue when it denied
Mother’s Petition for a writ of mandamus. Id. Notably, Mother failed to
include this issue in her brief on appeal. Therefore, Mother has waived the
issue. See Pa.R.A.P. 2119(a).


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J-A23015-15


opportunity to argue the merits of the December 24, 2014 Order in an

appeal to this Court. Id.

     We reject Father’s contention that this Court has already ruled on the

issues raised in Mother’s instant appeal. In denying Mother’s Petition for a

writ of mandamus, this Court merely indicated that the trial court retained

jurisdiction to clarify and enforce the Final Custody Order. See J.P.W., Jr.

v. A.N.H., 118 A.3d 446 (Pa. Super. 2015) (unpublished memorandum at

13) (citing Glynn v. Glynn, 789 A.2d 242, 246 n.4 (Pa. Super. 2001)

(noting that, absent supersedeas, a trial court retains its power to enforce

orders, despite an appeal therefrom)).     To date, the substance of the trial

court’s September 17, 2014, and December 24, 2014 Orders have not been

addressed by this Court.3 Thus, we deny Father’s Motion to quash.4

     In her first issue, Mother contends that the provision in the trial court’s

December 24, 2014 Order forbidding her from speaking to anyone about


3
   The trial court suggests that the December 24, 2014 Order is not an
appealable order, and that we quash the appeal. See Trial Court Opinion,
3/20/15, at 8. The trial court reasons that, because its December 24, 2014
Order did not modify the award of custody issued in the Final Custody Order,
did not grant Father’s request to compel a mental health evaluation of
Mother, and did not find Mother in contempt or issue sanctions, it is not a
final order. See id. However, the December 24, 2014 Order disposed of all
claims that had been raised by the parties; thus, we reject the trial court’s
suggestion that the Order is not a final order. See Pa.R.A.P. 341(b)(1).
4
  For the same reason, we reject the trial court’s suggestion that Mother’s
second issue should be waived because she failed to raise it following the
entry of the Final Custody Order. See Trial Court Opinion, 3/20/15, at 12,
13. As noted above, the substance of the trial court’s September 17, 2014
and December 24, 2014 Orders have not been addressed by this Court.
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J-A23015-15


Child   being   autistic,   or   her   concerns    regarding   his   behavioral   and

developmental issues, unduly encumbers her fundamental liberty interest in

her care and custody of Child. Mother’s Brief at 17. Mother asserts that the

trial court’s restriction also encumbers her right to free speech, as

guaranteed by the First Amendment to the Constitution of the United States.

Id. at 17-18. Mother claims the trial court’s restriction on her speech does

not serve a compelling public interest, is not narrowly tailored, and does not

leave open ample alternative channels.            Id. at 18.   Additionally, Mother

asserts that the language of trial court’s Order, i.e., forbidding her from

speaking to anyone about Child being autistic or her concerns regarding his

behavioral and developmental issues, is unreasonably vague. Id. at 19-20.

Mother challenges the trial court’s determination that her comments are not

in Child’s best interest as against the weight of the evidence, because

Mother did not make her comments in front of Child.                      Id. at 21.

Additionally, Mother argues that, because she has no legal custodial rights

over Child, her comments are of no effect, as no one can act on them. Id.

at 21-22.   Mother contends that the trial court’s prohibition is “incredibly

overbroad,” “unduly burdensome, intrusive and vague[,] and was a gross




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abuse of discretion.” Id. at 22-23.5

     Mother’s claim implicates two highly important values:            the free

exercise of speech, as guaranteed by the First Amendment to the

Constitution of the United States; and the fundamental right of parents to

make decisions concerning the care, custody, and control of their children,

as protected by the Due Process Clause of Fourteenth Amendment.             See

Troxel v. Granville, 530 U.S. 57, 65-66 (2000); see also Shepp v.

Shepp, 906 A.2d 1165, 1168-69 (Pa. 2006) (addressing the traditional

interest of parents with respect to the religious upbringing of their children).

     A state’s interest is not totally free from a balancing process when it

impinges on fundamental rights and interests, such as those specifically

protected by the Free Exercise Clause of the First Amendment, and the

traditional interest of parents with respect to the upbringing of their children.

See Shepp, 906 A.2d at 1169; see also Wisconsin v. Yoder, 406 U.S.

205, 214 (1972). Furthermore, only those interests of the highest order and

those not otherwise served can overbalance legitimate claims to a free

exercise right.   See Shepp, 906 A.2d at 1169 (discussing court imposed


5
   Mother also argues that the trial court’s restriction on her speech
implicates equal protection issues, as the trial court could not have imposed
the same restriction if Mother and Father were an intact family. Mother’s
Brief at 19. Mother contends that the trial court should not be permitted to
limit her right to free speech based on the “best interests of Child” simply
because she and Father are not married. Id. However, Mother failed to
provide any legal authority, or discussion thereof, in support of these
assertions. See Pa.R.A.P. 2119(a). Accordingly, they are waived on appeal.


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restrictions on the free exercise of religion).      However, when the free

exercise clause is implicated in conjunction with other constitutional

protections, such as the freedom of speech and the right of parents with

respect to the upbringing of their children, “a hybrid situation” is presented,

which is subject to strict scrutiny.    See id. at 1172 (citing Employment

Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 881 n.1,

882 (1990) (“Smith II”) (reaffirming a higher level of scrutiny for cases

involving a free exercise claim made in conjunction with other constitutional

protections, such as the right of a parent to direct the upbringing and

education of his child). The instant matter, combining a free exercise claim

with the fundamental right of parents to raise their children, is a “hybrid

case.” See Shepp, 906 A.2d at 1172. Thus, we will apply a higher level of

scrutiny.

     As previously noted, only those interests of the highest order and those

not otherwise served can overbalance legitimate claims to a free exercise

right. See id. at 1169. “Applying strict scrutiny, ‘[t]he [g]overnment may

... regulate the content of constitutionally protected speech in order to

promote a compelling interest if it chooses the least restrictive means to

further the articulated interest.’” Shepp, 906 A.2d at 1173 (quoting Sable

Communications, 492 U.S. at 126).           The government has an interest in

protecting “the physical or mental health of the child.” Shepp, 906 at 1173

(citing Yoder, 406 U.S. at 230). Indeed, “there is a compelling interest in


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protecting the physical and psychological well-being of minors.” Shepp, 906

at 1173 (citing Sable Communications of California v. FCC, 492 U.S.

115, 126 (1989)). Thus, “[t]he power of the parent, even when linked to a

free exercise claim, may be subject to limitation … if it appears that parental

decisions will jeopardize the health or safety of the child, or have a potential

for significant social burdens.” Shepp, 906 A.2d at 1173 (citing Yoder, 406

U.S. at 233-34). “The state’s compelling interest to protect a child in any

given case, however, is not triggered unless a court finds that a parent’s

speech is causing or will cause harm to a child’s welfare.” Shepp, 906 A.2d

at 1173.

        Here, as noted above, Dr. Foley, Child’s pediatrician, testified that

there is no indication that Child is autistic or developmentally delayed. See

Trial Court Opinion, 3/20/15, at 3-4 (citing N.T., 11/21/14, at 9-10, 12). Dr.

Foley    further   testified   that   Child’s    developmental   milestones   were

appropriate for his age, and that he is a “normal,” healthy child. See Trial

Court Opinion, 3/20/15, at 4 (citing N.T., 11/21/14, at 16).           Finally, Dr.

Foley testified that, since Mother has been restricted from attending Child’s

medical appointments, there has been a noticeably positive difference in

Child’s behavior.     See Trial Court Opinion, 3/20/15, at 4-5 (citing N.T.,

11/21/14, at 13). The principal at JFK School testified that Mother led her to

believe that Child is autistic. See Trial Court Opinion, 3/20/15, at 5 (citing

N.T., 11/21/14, at 45).        Child’s teacher at JFK School, Matthews, testified


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J-A23015-15


that she has seen no developmental issues or problems with Child.             See

Trial Court Opinion, 3/20/15, at 6 (citing N.T., 11/21/14, at 31).             A

preschool teacher from Child’s school, Janice Woods, testified that Mother

told her that Child is autistic. See Trial Court Opinion, 3/20/15, at 5 (citing

N.T., 12/19/14, at 6, 14-15).       Additionally, the trial court was presented

with evidence that Mother told the school principal and other school officials

that Child was not potty trained, when in fact the Child was potty trained.

See Trial Court Opinion, 3/20/15, at 6 (citing N.T., 12/19/14, at 8, 16, 29;

N.T., 11/21/14, at 32, 42-43, 50-51).

      Based on this evidence, the trial court found that Mother’s untrue

statements    regarding   Child’s   mental     health   and   developmental   and

behavioral progress are detrimental to Child’s welfare.          See Trial Court

Opinion, 3/20/15, at 3, 11. The findings and analysis of the trial court are

amply supported by the competent evidence of record. See id. at 3-6, 9-

11; see also id. at 11 (stating that “Mother’s desire to disparage and

defame her Child by telling others that he is developmentally delayed or that

he is not potty trained is not constitutionally protected, and Mother’s right of

free speech cannot supersede the health, safety and welfare of her Child.”).

      Additionally, we conclude that the trial court chose the least restrictive

means to protect the psychological well-being of Child, by narrowly

proscribing that “Mother shall cease and desist from stating to anyone or

inferring that [C]hild has autism or developmental delays or other behavioral


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issues.” See Trial Court Opinion, 12/24/14, at 2 (unnumbered). Based on

the facts and circumstances of this particular case, we discern no error of

law or abuse of discretion by the trial court, and affirm the trial court’s Order

as to this issue.

      In her second issue, Mother argues that the trial court abused its

discretion in limiting Mother’s presence at (1) at Child’s preschool to pick-up

and drop-off Child, and regularly scheduled events that parents would

attend; and (2) Child’s medical appointments, where Mother is prohibited

from being in the examination room. Mother’s Brief at 23. Mother discusses

the testimony of various individuals presented to the trial court during the

hearings, and claims that the restrictions imposed by the trial court

constitute an impermissible restriction on her periods of partial custody. Id.

at 25-26.6

      Notably, in its Final Custody Order, the trial court indicated that both

Mother’s access to Child’s school and medical appointments was not

unrestricted. Specifically, the trial court ordered that


6
   Mother also asserts that the trial court improperly failed to conduct an
analysis of the sixteen factors set forth at 23 Pa.C.S.A. § 5328 when issuing
its December 24, 2014 Order. Mother’s Brief at 28. We disagree. As
discussed herein, the December 24, 2014 Order was not a custody
modification order, as no aspect of custody was changed. Rather, the
December 24, 2014 Order clarified and enforced the Final Custody Order.
Thus, there was no need for the trial court to address the section 5328(a)
factors in that Order. See M.O. v. J.T.R., 85 A.3d 1058, 1063-64 (Pa.
Super. 2014) (holding that the trial court need not address the section
5328(a) factors where it is not affecting the type of custody and, therefore,
not modifying the custody award).
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     [w]hen Father schedules medical appointments[,] he shall notify
     Mother on the date the appointment is made[,] and shall
     attempt to schedule the appointment so that both parents can
     attend, provided that the parties can remain civil and not
     interfere with the medical service providers. Both parents
     are permitted and encouraged to attend all school activities of
     [C]hild, including participation in parent-teacher conferences and
     other activities intended for parents.

Trial Court Order, 3/25/14, at 16-17 (emphasis added).

     Following   the   evidentiary   hearings,   the   trial   court   entered   its

December 24, 2014 Order, wherein it restricted Mother as follows:

     Mother shall not attend JFK [] School, except to pick up [C]hild
     at the dismissal at the end of [C]hild’s school day or to drop him
     off at the beginning of the school day, as the case may be, as
     set forth in the [Final] Custody Order, and only at such other
     times as [C]hild is involved in activities at the school which
     provide for parents to be in attendance, such as the Christmas
     program, parent/teacher conferences, open houses or other
     times that she is, specifically, authorized by the school to be in
     attendance; [and] Mother shall continue to be restricted from
     attending the medical appointments in the examination room
     with [C]hild. Mother may still have access to the information
     and access to the medical professionals that are treating
     [C]hild[,] and shall communicate any concerns regarding [C]hild
     to Father through My Family Wizard.

Trial Court Order, 12/24/14, at 2 (unnumbered).

     Based on our independent review of the record, and the facts and

circumstances of this particular case, we conclude that the trial court’s

findings are supported by competent evidence of record, and its restrictions

on Mother are not unreasonable in light of its sustainable findings. As we

discern no error of law or abuse of discretion, we affirm the trial court’s

remaining restrictions on Mother.


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     Motion to quash denied. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2015




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