K.L. Horner v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kristie L. Horner, :
:
Petitioner :
:
v. : No. 967 C.D. 2018
: Submitted: November 30, 2018
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: June 19, 2019
Kristie L. Horner (Claimant) petitions for review of the May 17, 2018
order of the Unemployment Compensation Board of Review (Board) that affirmed
a referee’s determination and held that Claimant was ineligible for benefits under
Section 402(e) of the Unemployment Compensation Law (Law).1 We affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) provides that an employee shall be ineligible for compensation for any
week in which her unemployment is due to her discharge from work for willful misconduct
connected to her work.
While the Law does not define the term willful misconduct, our courts have defined it as:
an act of wanton or willful disregard for the employer’s interests; a deliberate violation of the
employer’s rules; disregard for standards of behavior which the employer can rightfully expect
(Footnote continued on next page…)
Claimant was employed by the Westmoreland County Commissioners
(Employer) full-time as a 911 telecommunicator from January 9, 2017, until
January 9, 2018. Finding of Fact (F.F.) No. 1. Claimant lives and owns property
in Johnstown, Pennsylvania. F.F. Nos. 2, 9. As a condition of employment,
Claimant agreed to relocate to Westmoreland County within 180 days of hire and
maintain County residence throughout her employment.2 F.F. No. 3.
Claimant had difficulty finding suitable housing in Westmoreland
County because of her credit score, the financial difficulty of maintaining two
residences, and the challenge in finding a rental property that accepted large dogs.
F.F. No. 8. Upon realizing that a credit score would be required to rent an
apartment, Claimant stopped applying for housing that required providing a credit
(continued…)
of an employee; or negligence indicating an intentional disregard of the employer’s interest or an
employee’s duties or obligations. Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 (Pa. Cmwlth. 2014).
2
Claimant signed a residency statement on January 18, 2017, which stated:
I, [Claimant], acknowledge and understand that in accepting a
position with Westmoreland County, I am subject to the Residency
Requirement of Westmoreland County. Under the Residency
Requirement, employees who are not County residents must move
into Westmoreland County within 180 days of hire and must
remain a Westmoreland County resident throughout their
employment with the County. I understand that failure to become
a Westmoreland County resident during said 180 days period shall
result in my termination from employment with Westmoreland
County.
Certified Record (C.R.) Item No. 3, p. 6 (emphasis added).
2
score. F.F. No. 11. Claimant did not advertise her Johnstown property for sale or
rent as was her stated intention at the time of hire. F.F. No. 10.
Claimant did not move to Westmoreland County within 180 days of
hire. F.F. No. 4. Employer granted Claimant an extension to secure County
residence by November 11, 2017, but Claimant did not relocate to Westmoreland
County within that time. F.F. No. 5. On December 15, 2017, Employer granted
Claimant a second extension with notice that her failure to comply with the
residency requirement by January 9, 2018, would result in her termination.3 F.F.
No. 6. Employer discharged Claimant on January 9, 2018, for failing to relocate to
Westmoreland County in compliance with Employer’s residency requirement. F.F.
Nos. 7, 12.
The local service center determined that Claimant was not ineligible
for unemployment compensation benefits under Section 402(e) of the Law.
Employer appealed and a hearing was held before the referee.
At the March 29, 2018 hearing, Amanda Bernard, Employer’s director
of human resources, testified that Claimant was discharged for failing to move to
Westmoreland County, as was required by Employer’s policy. Notes of
Testimony, March 29, 2018, (N.T.) at 6. Ms. Bernard said that Claimant was
3
The residency statement addendum provided:
On January 18, 2017, you voluntarily signed the attached
Residency Statement agreeing to relocate into Westmoreland
County within 180 days of your hire date. As you are aware, you
failed to comply with the County policy. A second deadline of
January 9, 2018 has been established. If you do not meet the
residency requirement by that date, your employment with
Westmoreland County will be terminated.
C.R. Item No. 3, Appendix 8, p. 17.
3
aware of Employer’s residency requirement at the time of hire. Id. Ms. Bernard
explained that the residency requirement was provided as a condition of
employment in all of Employer’s job postings and that each employee signed a
residency statement during orientation. Id. Ms. Bernard stated that Employer does
not recognize permanent and temporary employment positions. N.T. at 18. She
testified that while trainees are not eligible for union benefits, they are otherwise
considered to be full-time employees. N.T. at 18, 19. Ms. Bernard said that
Employer’s residency requirement is uniformly enforced and is calculated from
180 days of the employee’s start date. N.T. at 7, 18.
Claimant testified that she never received clarification of whether the
180-day residency compliance deadline was calculated by her initial date of hire or
the date that she completed her training and became a permanent employee. N.T.
at 9. Claimant stated that she attempted to clarify the triggering calculation date
with both her union representative, Carrie Wallace, and Employer’s chief of
operations, Tim Halland, but neither could confirm which date was used to
calculate the 180 days. N.T. at 9.
Claimant stated that she began her employment as a trainee and was
told that her training would be divided into two sessions: a four- to six-week
classroom training session at a pay rate of $12.80 an hour; and a six- to eight-week
mentor training session at a pay rate of $13.10 an hour, during which her work
hours would be limited to 76 hours per pay period. N.T. at 10, 14. Claimant
testified that the actual duration of both training sessions was nearly twice as long
as she expected: the classroom training session lasted 16 weeks and the mentor
training session occurred over 12 weeks. N.T. at 14. Claimant testified that she
worked at a lower rate of pay for longer than she had initially planned, which
4
contributed to her inability to find suitable housing. N.T. at 14. Claimant said that
she did not begin making $18.53 an hour until late July 2017, when she became a
permanent employee. N.T. at 10.
Claimant testified that before she applied to work with Employer, she
searched apartment rentals and discovered several suitable and affordable housing
possibilities. N.T. at 13. Claimant also said that after beginning her job with
Employer, she consulted coworkers for housing recommendations as well. N.T. at
13. However, Claimant said that because she had never rented an apartment, she
was not aware that a credit check would be required with rental applications. N.T.
at 13.
Claimant acknowledged that while owning a large dog made it
difficult to find affordable housing, her greatest challenge in finding County
residence was her financial situation. N.T. at 11. Claimant indicated that she had
poor credit and had recently filed for bankruptcy. N.T. at 11. Claimant stated that
while receiving her trainee’s salary, she did not apply for housing because she
knew that her credit check would ultimately fail. N.T. at 11, 12. Additionally, she
stated that because of her commute, her car required repairs which cost additional
money. N.T. at 10. Claimant stated that she had considered listing her Johnstown
property for sale or rent but acknowledged that she never did. N.T. at 13.
Claimant said she could not sell or rent her home until she found another place to
live. Id.Claimant testified that after receiving notice that her failure to relocate
to Westmoreland County by January 9, 2018, would result in her termination, she
asked Employer if there were any actions she could take to maintain her
employment. N.T. at 8. Claimant stated that in order to resolve her residency
5
problems, she made several phone calls within Employer’s departments before
making contact with both Ms. Bernard and Mr. Halland. N.T. at 7-8. According to
Claimant, Employer said that Claimant had already been granted an extension to
comply with its residency requirement and would not be afforded any further
recourse. N.T. at 8.
Ms. Wallace testified that she spoke with Mr. Halland after December
15, 2017, when he threw the residency statement addendum, which was not on
official letterhead, to Claimant and ordered her to sign it. N.T. at 16. Ms. Wallace
stated that she requested an extension of time to comply with Employer’s
residency requirement on Claimant’s behalf, but she was told by Mr. Halland that
the situation was out of Employer’s hands. N.T. at 16. According to Ms. Wallace,
Mr. Halland told her that Employer did not want to lose Claimant because she was
a great employee and explained that if Claimant moved to Westmoreland County,
she could return to her job with Employer. N.T. at 16. Ms. Wallace testified that
she sought clarification on the date used to calculate the 180-day residency
compliance deadline, but “[n]o one knew.” N.T. at 16.
In an April 16, 2018 decision, the referee determined that Claimant
was aware at the time of her hire that relocating her residence to Westmoreland
County was a condition of employment. The referee noted that Employer doubled
its 180-day compliance policy to afford Claimant an entire year to secure suitable
County residence. The referee found that Employer satisfied its burden of showing
that Claimant violated its work policy. The referee concluded that Claimant failed
to show that she made good faith efforts to relocate to Westmoreland County and
thus failed to demonstrate good cause for violating Employer’s policy. The referee
reversed the local service center’s determination and held that Claimant was
6
ineligible for unemployment compensation benefits under Section 402(e) of the
Law.
Claimant appealed to the Board, arguing that she was unable to find
suitable housing in Westmoreland County because she made less money as a
trainee than as a permanent employee and that her training period was twice as
long as she had expected.4 Claimant asserted that she could not afford rent or a
security deposit for most apartments during her training phase and could only
realistically search for housing once she became a permanent employee. Claimant
argued that she was unaware that the 180-day residency requirement was
calculated from her date of hire. Claimant maintained that she should have been
permitted to locate suitable and affordable County residency housing until January
18, 2018, which was 180 days from the initiation of her permanent employment
status.
By its May 17, 2018 decision, the Board adopted the referee’s
findings of fact and conclusions of law. The Board found that because Claimant
was aware of the residency requirement, she also should have been aware that the
180 days would be calculated from her date of hire, especially because this
information was provided on the residency statement signed by all employees upon
hire. The Board determined that Claimant failed to demonstrate good cause for
waiting five months after being hired in January 2017, to begin looking for housing
in Westmoreland County.
Claimant also disagreed with Ms. Bernard’s testimony that Employer did not have
4
“temporary” or “permanent” employees, and argued that she was hired as a “temporary trainee
telecommunication officer.” Claimant’s Brief at 7.
7
The Board noted that although Claimant admitted that she did not
apply for housing that involved credit checks, she had not shown that such
applications would have been futile. The Board emphasized that Claimant was
afforded two deadline extensions. The Board noted that Claimant began receiving
an increased salary on July 23, 2017, and expressly rejected her testimony that
between then and January 9, 2018, she was unable to find suitable and affordable
housing.5 The Board concluded that Claimant did not have good cause for failing
to relocate to Westmoreland County within 180 days of hire or before Employer’s
second extension of January 9, 2018. Accordingly, the Board affirmed the
referee’s decision that Claimant was ineligible for benefits under Section 402(e) of
the Law.
On appeal to this Court,6 Claimant essentially repeats and elaborates
on her testimony before the referee.7 We construe Claimant’s arguments before
5
In unemployment compensation cases, the Board, as factfinder, is empowered to
determine the credibility of witnesses and resolve conflicts in evidence. Curran v.
Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000).
6
Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law and whether necessary findings
of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2
Pa. C.S. §704; Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843-
44 (Pa. Cmwlth. 1987). The Board’s findings are binding and conclusive on appeal if the record,
when examined as a whole, is supported by substantial evidence. Halloran v. Unemployment
Compensation Board of Review, 188 A.3d 592, 597 (Pa. Cmwlth. 2018). “Substantial evidence
is such relevant evidence as a reasonable mind would accept as adequate to support a
conclusion.” Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa.
Cmwlth. 1999). We view the record in the light most favorable to the party prevailing before the
Board and afford that party the benefit of all reasonable inferences that can be drawn from the
evidence to determine if substantial evidence exists. Big Mountain Imaging v. Unemployment
Compensation Board of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012).
8
this Court to aver that the Board’s finding that Claimant failed to establish good
cause under Section 402(e) of the Law is not supported by substantial evidence.
Where the allegation of willful misconduct is based on a violation of
the employer’s work rule, the employer must show the existence of a reasonable
work rule and the claimant’s violation of the rule. Williams v. Unemployment
Compensation Board of Review, 926 A.2d 568, 571 (Pa. Cmwlth. 2007). Once the
employer meets its burden, the burden then shifts to the claimant to establish good
cause for her conduct. Metropolitan Edison Company v. Unemployment
Compensation Board of Review, 606 A.2d 955, 957 (Pa. Cmwlth. 1992).
This Court has previously held that a violation of a residency
ordinance can constitute willful misconduct. See, e.g., City of Greensburg v.
Unemployment Compensation Board of Review, 590 A.2d 388, 389 (Pa. Cmwlth.
1991) (holding that when an employee is advised that a residency requirement will
be strictly enforced, even when it had not been enforced previously, violation of
such policy, without good cause, constitutes willful misconduct); Rodgers v.
Unemployment Compensation Board of Review, 397 A.2d 1286, 1288 (Pa.
Cmwlth. 1979) (holding that the claimant’s maintenance of a residence outside of
the city of Philadelphia constituted willful misconduct of the employer’s residency
requirement). Here, Ms. Bernard’s testimony established the existence of
Employer’s policy, and Claimant acknowledges that she did not secure housing in
(continued…)
7
To the extent Claimant’s brief sets forth facts for the first time, we note that our review
is limited to facts of record. Sanders v. Workers’ Compensation Appeal Board (Marriott
Corporation), 756 A.2d 129, 133 (Pa. Cmwlth. 2000) (finding that briefs are not part of the
record and this Court may not consider facts outside of the record).
9
Westmoreland County as required by Employer.8 Therefore, substantial evidence
exists to support the Board’s findings that Claimant violated Employer’s
established work policy by failing to relocate to Westmoreland County within the
deadlines provided.
In Graham v. Unemployment Compensation Board of Review, 840
A.2d 1054 (Pa. Cmwlth. 2004), we addressed whether a claimant exercised good
faith efforts to comply with an employer’s directive to relocate. The employer’s
written employment agreement did not include a relocation requirement, but the
claimant was aware at the start of his employment that he was expected to move
from Indiana, Pennsylvania, to State College, Pennsylvania as soon as practicable.
The employer discharged the claimant for not devoting enough time to the job,
largely in part for his failure to relocate. The local service center found the
claimant ineligible for benefits and the claimant appealed to the referee. The
claimant testified that his greatest obstacle in moving was his inability to sell his
house. However, the claimant presented no evidence that he made good faith
efforts to sell his house. In fact, he admitted that he took his house off the market.
While the claimant and his spouse made two trips to State College to look for a
suitable residence, the claimant never made an offer on a home there.
The referee reversed the local service center’s determination and
found that the claimant was not ineligible for benefits. The Board reversed,
holding that the claimant was aware he was expected to move and failed to
demonstrate that he made a good faith effort to sell his Indiana house and purchase
8
If a residency requirement is not uniformly enforced, termination pursuant to that
requirement may not constitute willful misconduct. City of Beaver Falls v. Unemployment
Compensation Board of Review, 441 A.2d 510, 512 (Pa. Cmwlth. 1982). Claimant does not
argue that Employer’s policy was unreasonable or disparately enforced amongst the employees.
10
a home in State College. Consequently, the Board concluded that he did not
establish good cause for failing to comply with the employer’s reasonable directive
to relocate. On appeal, we affirmed the Board’s decision, concluding that the
claimant’s failure to relocate to State College constituted willful misconduct,
rendering him ineligible for unemployment compensation benefits under Section
402(e) of the Law.
Like the claimant in Graham, Claimant was aware of Employer’s
residency requirement when she accepted her job. The residency statement that
Claimant signed during orientation afforded her notice of the need to relocate to
Westmoreland County within 180 days of hire. Similarly, Claimant also received
explicit notice on December 15, 2017, that her failure to secure housing within
Westmoreland County by January 9, 2018, would result in her termination.
Although, Claimant began receiving her regular salary later than she
expected, she still had from July 23, 2017, until January 8, 2018, over five months,
to locate a suitable residence in Westmoreland County. Claimant contends that she
was unable to find affordable housing for herself and her large dog, but she
admittedly did not attempt to rent or sell her Johnstown home. Employer granted
her two deadline extensions to comply with Employer’s residency requirement,
which afforded Claimant a total of 360 days, double that provided by Employer’s
initial 180-day deadline. Because the Board rejected Claimant’s testimony that she
was unable to relocate her residence within that timeframe, the Board concluded
that she did not establish good cause for failing to comply with Employer’s
residency requirement.
11
Accordingly, we affirm the Board’s determination that Claimant is
ineligible for unemployment compensation benefits under Section 402(e) of the
Law.
MICHAEL H. WOJCIK, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kristie L. Horner, :
:
Petitioner :
:
v. : No. 967 C.D. 2018
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 19th day of June, 2019, the order of the
Unemployment Compensation Board of Review, dated May 17, 2018, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kristie L. Horner, :
Petitioner :
:
v. : No. 967 C.D. 2018
: Submitted: November 30, 2018
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT FILED: June 19, 2019
Respectfully, I dissent. Kristie L. Horner (Claimant) had knowledge of
her employer’s residency policy and did not comply. However, there has not been
a determination that her conduct in this regard was intentional and deliberate, which
is necessary to a legal conclusion that she committed willful misconduct. I would
vacate and remand for the Board to determine whether Claimant intentionally defied
her employer’s residency requirement or acted with mere neglect.
Claimant worked as a 911 Telecommunicator for Westmoreland
County (County) when she was discharged for not complying with the County’s job
requirement that she reside within the County. When Claimant started her
employment at the County in January 2017, she was classified as a temporary
trainee, which lasted 16 weeks and paid $12.80 per hour. This was followed by 12
more weeks of training, during which she earned $13.10 an hour. In July of 2017,
upon successfully completing her training, Claimant’s probation ended. She began
earning $18.53 an hour.
Claimant testified that she tried to find an apartment in the County. She
pursued a number of rental advertisements and reached out to co-workers for help.
Some rental agents did not respond. Others responded that their rental properties
had pet restrictions, which would not allow Claimant to keep her two dogs. Because
of her past financial difficulties, Claimant had a low credit score, which also impeded
her search for a rental.
When an employer discharges an employee for a work rule violation,
the employer has the burden of showing the rule’s existence, its reasonableness, and
its violation. Patnesky v. Unemployment Compensation Board of Review, 200 A.3d
107, 112 (Pa. Cmwlth. 2018). The employer must also show that the claimant’s
violation of the work rule was intentional and deliberate. Cambria County Transit
Authority (“CamTran”) v. Unemployment Compensation Board of Review, 201
A.3d 941, 950 (Pa. Cmwlth. 2019). See also Miller v. Unemployment Compensation
Board of Review, 415 A.2d 454 (Pa. Cmwlth. 1980) (because referee did not find
whether claimant’s conduct was deliberate, intentional, or incompetent, this Court
could not determine whether claimant’s conduct constituted willful misconduct).
This Court has explained:
Requiring an employer to show that its employee deliberately or
intentionally violated a work rule before the employee is found
ineligible for [unemployment compensation] benefits is
consistent with the [Unemployment Compensation] Law’s [1]
remedial purpose, which mandates that the “‘disqualification
provisions, such as Section 402(e), [43 P.S. §802(e),] should be
narrowly construed and a claimant must not be denied
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-
918.10.
MHL-2
compensation unless he is unequivocally excluded by the plain
language of these provisions.’” Diehl v. Unemployment
Compensation Board of Review, [57 A.3d 1209, 1217 (Pa. 2012)]
(quoting Penflex, Inc. v. Bryson, [485 A.2d 359, 365 (Pa. 1984)]).
Durand v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1129
C.D. 2013, filed February 7, 2014), slip op. at 10 (unreported). 2 If the employer
meets its burden, the burden shifts to the claimant to show good cause for the
conduct.3 Oyetayo v. Unemployment Compensation Board of Review, 110 A.3d
1117, 1121 (Pa. Cmwlth. 2015).
The Board adopted the Referee’s findings that the County required its
employees to live in Westmoreland County; that Claimant did not move into
Westmoreland County; and that Claimant received two extensions to comply with
the residency policy. See Referee Decision, 3/30/2018, Findings of Fact Nos. 3-7;
C.R. Item No. 12. Based on these findings, the Board concluded that Claimant’s
failure to relocate to Westmoreland County constituted willful misconduct.
However, the Board did not determine that Claimant acted intentionally and
deliberately.4 See Eshbach v. Unemployment Compensation Board of Review, 855
2
Pursuant to Commonwealth Court Internal Operating Procedures §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as
binding precedent.
3
“‘Good cause’ is established when a claimant’s actions are justified or reasonable under the
circumstances.” Klampfer v. Unemployment Compensation Board of Review, 182 A.3d 495, 502
(Pa. Cmwlth. 2018).
4
In the adjudication, the Board stated that Claimant did not show “good cause” for violating the
residency rule, explaining, in part, that it did not “credit [Claimant’s] testimony that … [she] was
unable to locate suitable housing in Westmoreland County that was within her budget and that
would accept her large dog[.]” Board Adjudication, 5/17/2018, at 2; C.R. Item No. 14. The good
cause inquiry is only appropriate after it is held that Claimant’s misconduct was willful and not
negligent. “[W]illful misconduct requires a certain state of mind.” Durand, slip op. at 10. That
state of mind is whether the violation was deliberate and intentional. Id. The Board found that
Claimant “had difficulty finding a suitable residence because of her credit score, the financial
MHL-3
A.2d 943, 947 n.6 (Pa. Cmwlth. 2004) (willful misconduct includes “consciousness
of wrongdoing on the part of the employee”). Instead, the Board assumed that a
violation of a policy per se constitutes willful misconduct. This was error.
Employer compares this case to Graham v. Unemployment
Compensation Board of Review, 840 A.2d 1054 (Pa. Cmwlth. 2004), wherein this
Court affirmed the Board’s decision that the claimant’s failure to relocate constituted
willful misconduct, rendering him ineligible for benefits. However, in Graham, the
Board specifically found that the claimant’s conduct was deliberate. Id. at 1059. In
City of Greensburg v. Unemployment Compensation Board of Review, 590 A.2d 388(Pa. Cmwlth. 1991), the claimant was in full compliance with her municipal
employer’s residency policy until she took the affirmative step of moving outside
the city in spite of being warned against doing so. In Rodgers v. Unemployment
Compensation Board of Review, 397 A.2d 1286 (Pa. Cmwlth. 1979), the claimant
was also in compliance with the residency policy until she decided to violate it by
moving outside the city. This Court held that the claimant’s “conduct amounted to
a deliberate violation of the [city]’s rule[.]” Id. at 1288. Indeed, it takes a deliberate
and concerted effort to move one’s home to a new location.
Here, Claimant did not leave an existing residence in Westmoreland
County; rather, she did not succeed in making a move into the County. I would
vacate the Board’s adjudication and remand for a finding of whether Claimant’s
violation of the residency policy was intentional and deliberate.
_____________________________________
MARY HANNAH LEAVITT, President Judge
difficulty of maintaining two residences, and the difficulty in finding a rental property that accepts
large dogs.” Referee Decision at 2, Finding of Fact No. 8; C.R. Item No. 12. The Board must
determine, taking into consideration Claimant’s financial and situational difficulties, whether her
actions in not complying with Employer’s residency policy were intentional and deliberate.
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