Com. v. Abbazio, R.

J-S02038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD ABBAZIO :
:
Appellant : No. 848 EDA 2021
Appeal from the Judgment of Sentence Entered April 9, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-SA-0000234-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD ABBAZIO :
:
Appellant : No. 849 EDA 2021
Appeal from the Judgment of Sentence Entered April 9, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-SA-0000235-2019
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 03, 2022
In these consolidated appeals,1 Richard Abbazio (Appellant) appeals
from the judgments of sentence imposed in the Monroe County Court of
Common Pleas, following his trial de novo and conviction of two summary
offenses, careless driving resulting in an unintentional death and failure to
____________________________________________
1 This Court consolidated these related appeals sua sponte. See Order,
6/21/21.
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yield while turning left.2 On appeal, Appellant argues he should not have been
convicted of careless driving pursuant to Section 3714(b) — a violation which
results in an unintentional death — because he was not charged with careless
driving under subsection (a), and, in any event, the evidence was insufficient
to support his conviction. For the reasons below, we affirm.
Appellant’s summary convictions stem from a motor vehicle accident
that occurred on May 31, 2019, at approximately 7:00 p.m., at the
intersection of Silver Spring Boulevard and Borger Road in Eldred Township,
Monroe County, Pennsylvania. See N.T., 4/9/21, at 6. Pennsylvania State
Trooper Peter Krajnak responded to the accident. His testimony at Appellant’s
April 9, 2021, de novo trial revealed the following. Appellant was driving a
white Infiniti SUV traveling southbound on Silver Spring Boulevard and looking
for Borger Road. See id. at 8-9. “It was daylight, it was clear, [and] there
were no adverse conditions at the time[.]” Id. at 7. Because he was
unfamiliar with the area, Appellant was using the GPS on his cell phone. Id.
at 9. As he was making a left turn from Silver Spring Boulevard onto Borger
Road, he noticed a motorcycle traveling northbound on Silver Spring
Boulevard at “the last second.” Id. Although he attempted to accelerate to
avoid the collision, he was unable to and “felt the impact of the vehicle.” Id.
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2 75 Pa.C.S. §§ 3714(b) and 3322, respectively. Appellant was convicted of
violating Section 3714(b) at trial docket 234 SA 2019, and violating Section
3322 at trial docket 235 SA 2019. His appeals are listed at 848 EDA 2021 and
849 EDA 2021, respectively.
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Appellant estimated he was “traveling approximately 35 miles per hour when
he attempted to make the left turn.” Id. The operator of the white Kawasaki
motorcycle, Jeremy Schessler, died at the scene. Id. at 8.
Trooper Krajnak issued Appellant two traffic citations: (1) operating a
vehicle in careless disregard unintentionally causing a death, and (2) failing
to yield to oncoming traffic when making a left turn. See Traffic Citations,
6/13/19. On November 26, 2019, Appellant was convicted of both summary
offenses by a magisterial district judge. He filed two timely appeals, one at
each docket, seeking a trial de novo in the Monroe County Court of Common
Pleas.
The trial de novo was conducted on April 9, 2021. The Commonwealth
presented three witnesses in its case-in-chief. First, Trooper Krajnak testified
regarding his initial investigation and Appellant’s statements to him at the
scene — Appellant told the trooper (1) he was unfamiliar with the area, (2) he
was using the GPS on his cell phone, (3) he did not “see the motorcycle when
he initially turned[,]” (4) he was traveling approximately 35 miles per hour
when he made the turn, and (5) he did not “stop at the intersection” before
making the turn. See N.T. at 9, 40. Upon his investigation, the trooper
believed speed was not a factor, “[o]n either side,” in causing the accident.
Id. at 20-21 (emphasis added). He also determined that Schessler was not
licensed to drive a motorcycle and was not wearing a helmet at the time of
the accident. Id. at 24, 29. Although there were headphones and a cell phone
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found on the scene, Trooper Krajnak could not determine whether Schessler
was listening to music while operating the motorcycle. Id. at 29-30.
Next, eyewitness Shirley Vogel testified that she was driving her vehicle
behind Appellant’s SUV at the time of the accident. N.T. at 47. According to
Vogel, Appellant was stopped at the intersection of Borger Road for “one or
two minutes” before making the left turn. Id. at 49. He had his blinker light
on. Id. at 50. She described the scene, moments before the crash, as follows:
I was behind [Appellant’s] vehicle. Waiting for him to turn and we
sat there for a little while and all [of a] sudden this motorcycle
came up the hill. I could see [the motorcyclist]. I could see him
over [Appellant’s] vehicle and [Appellant] all [of a] sudden dashed
across the road and turned.
Id. at 47. Vogel testified that the motorcycle “hit the back” of Appellant’s
vehicle, and its operator “flew in the air . . . like a rag doll.” Id. She stated
that Appellant “got out of his [vehicle] with his phone in his hand.” Id. When
asked if the motorcyclist had any time to react to Appellant’s turn, she replied,
“I don’t think so, no.” Id. at 48. Under cross-examination, Vogel
acknowledged she did not actually see the motorcycle or Schessler hit
Appellant’s SUV. Id. at 54-55.
The Commonwealth’s final witness was Pennsylvania State Trooper
Jennifer Wieboldt, who testified as an expert in the field of accident
reconstruction. See N.T. at 61. Following her investigation, Trooper Wieboldt
determined that, “more likely than not, [Schessler] decided to dump his
motorcycle prior to the collision.” Id. at 68. She concluded that the cause of
the accident was Appellant’s improper left turn and his “fail[ure] to yield to”
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Schessler. Id. at 70. Trooper Wieboldt also testified she did not believe
Schessler’s body flew through the air because she agreed that he “laid the
bike down” prior to impact. Id. at 85-86.
Appellant did not testify at trial, and presented one witness —William
Camlin, an expert in accident reconstruction. See N.T. at 100. Camlin opined
that the cause of the accident was “not just one item in itself[, but] several
different things.” Id. at 112. Although he acknowledged that “[p]art of the
collision was obviously [Appellant] making a left turn[,]” Camlin emphasized
the “second part” was Schessler’s failure to properly respond when he could
see the intersection from a distance of 500 feet away.3 Id. at 112-13. He
described what he believed occurred as follows:
[Appellant was] approaching the intersection, slows down, and
attempts to turn left, did not see Mr. Schessler approaching. As
he starts into the turn, obviously at this point Mr. Schessler is
approaching. Mr. Schessler in my opinion reacted to that by
dumping the motorcycle on the ground and not attempting to
break, not attempting to swerve. Those were two options
available to him prior to this. If he had attempted to swerve he
would have only had to move four to five feet to completely avoid
that vehicle turning in front of him. That would have given him
an additional five feet in the northbound lane to travel in without
impacting that vehicle and he could have done that easily within
the time and distance he had. . . .
* * *
I believe that Mr. Schessler, one way or another ejected
from the motorcycle. Whether he was self-ejected and jumped
off or whether he just fell off of whatever, and that was in fact Mr.
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3 Camlin estimated that Appellant’s “line of sight would have stopped at the
hillcrest which is about 250 feet north of the intersection.” N.T. at 105.
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Schessler that impacted the [SUV] because it was so close to the
edge of the road. . . .
Id. at 118-20. Camlin further opined that Schessler’s action in laying the
motorcycle down was “an incorrect evasive maneuver.” Id. at 131. Following
Camlin’s testimony, the Commonwealth recalled Trooper Wieboldt to respond
to Camlin’s conclusions. See N.T., 4/9/21, at 134-57. She opined, inter alia,
that if Schessler had swerved to avoid Appellant’s car he would have most
likely hit Vogel’s vehicle, which was right behind Appellant’s. Id. at 148-49.
She noted, too, that if Appellant, himself, had “waited 1.5 seconds more
before making his turn, the collision would not have happened[.]” Id. at 150.
At the conclusion of the trial de novo, prior to announcing its verdict,
the trial court commented on the testimony presented by both parties:
[I]t’s clear to me that Mr. Schessler . . . had the right of way as
he approached that intersection . . . and he ended up laying his
motorcycle down and the reason for that was because
[Appellant’s] vehicle was in his lane of travel and [Appellant] has
an obligation to yield the right of way.
And a lot of focus here has been put on Mr. Schessler, what
he did or should have done, or how he was supposed to handle
the situation. The fact that he didn’t have a motorcycle license,
the fact that he didn’t wear a helmet, the fact that he may have
had Bluetooth headphones in, the fact that he may not have been
paying attention, but really the focus here today is not on his
conduct but the conduct of [Appellant].
[Appellant’s] obligation was to yield the right of way to Mr.
Schessler and he failed to do that and unfortunately, it resulted in
an accident and the death of Mr. Schessler. Ms. Vogel testified
she was . . . behind [Appellant’s] vehicle — you know her
testimony was somewhat believable by the same token some of it
was not believable. The fact that she was sitting there for one or
two minutes doesn’t sound consistent with what happens [on] a
country road. Things move pretty quickly in my experience. I
don’t think it was a high volume or high traffic area. Her
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description of the accident and what happened to Mr. Schessler as
he either collided with the vehicle, the motorcycle collided with
the vehicle, or his body collided with [Appellant’s] vehicle, is
somewhat incredible; the fact that it flew up into the air.
. . . I don’t think her description of it was very accurate. But
clearly, she was there. Perhaps [Appellant] may have had his
blinker on. But . . . even if he did that didn’t relieve him of his
obligation to yield the right of way. I don’t know if he was
distracted. I don’t know if he just didn’t see the motorcycle
clearly. . . .
. . . And perhaps, Mr. Schessler, if he had the benefit of . .
. education through [a motorcycle] course, if he had the license
or at least had his permit, maybe he would have been more
cautious, but again in this criminal context, I don’t believe that
relieves [Appellant] of his obligations at that intersection. . . .
N.T. at 169-72. The trial court then found Appellant guilty of both summary
offenses and imposed a fine of $500 plus costs for the careless driving offense,
and a fine of $25 plus costs for the left turn offense. Appellant filed two,
timely notices of appeal, one at each trial court docket.4 As noted supra, this
Court consolidated the appeals for disposition.
Appellant presents the following two issues for our review:
[1] Does 75 Pa.C.S. § 3714(b) require a finding of guilt under
Careless Driving provisions of 75 Pa.C.S. § 3714(a)?
[2] If [A]ppellant was on notice of the traffic offense of “Careless
Driving” in that the current matter was properly before the trial
court de novo, then can a driver be convicted of “careless driving”
under an ordinary negligence standard?
Appellant’s Brief at 7.
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4 Appellant complied with the trial court orders to file a Pa.R.A.P. 1925(b)
statement for each appeal.
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Preliminarily, we note that although Appellant properly appealed his
summary conviction of Section 3322 — failure to yield when turning left — he
fails to address the propriety of that conviction in his brief.5 Thus, we conclude
he has waived any challenge to that conviction and, accordingly, affirm the
judgment of sentence at 849 EDA 2021. See Pa.R.A.P. 2119(a) (argument of
each issue in brief must include “such discussion and citation of authorities as
are deemed pertinent”); Commonwealth v. Jones, 815 A.2d 598, 604 n.3
(Pa. 2002) (appellant’s failure to pursue claim in “the body of his brief” waived
claim for appellate review).
In his first issue, Appellant asserts that, because the Commonwealth
failed to charge him with careless driving under Section 3714(a) “at the
magisterial court, or by amendment, prior to [the] trial de novo in the Court
of Common Pleas,” the trial court could not convict him of violating Section
3714(b). Appellant’s Brief at 8. He insists that the question of whether he
was guilty of “careless driving” under subsection (a) “was never before the
summary court for disposition.” Id. at 9. Moreover, Appellant notes that
Pa.R.Crim.P. 403 requires every criminal citation include “the specific
section and subsection of the statute or ordinance allegedly violated,
together with a summary of the facts sufficient to advise the defendant of the
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5 In fact, Appellant’s only reference to his Section 3322 conviction is his claim
that “his conviction for improper left-hand turn must involve something more
than ordinary negligence to establish a conviction for careless driving.”
Appellant’s Brief at 13.
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nature of the offense charged[.]” Id. at 10, citing Pa.R.Crim.P. 403(A)(6)
(emphasis added). He concludes that his conviction for careless driving
resulting in an unintentional death must, therefore, be dismissed. Id. at 12-
13.
Section 3714 of Pennsylvania’s Vehicle Code defines the summary traffic
offense of careless driving, in relevant part, as follows:
(a) General rule.—Any person who drives a vehicle in careless
disregard for the safety of persons or property is guilty of careless
driving, a summary offense.
(b) Unintentional death.—If the person who violates this
section unintentionally causes the death of another person as a
result of the violation, the person shall, upon conviction, be
sentenced to pay a fine of $500.
75 Pa.C.S. § 3714(a)-(b).
Appellant correctly notes that the traffic citation issued to him in the
present case cited only a violation of Section 3714(b). See Traffic Citation,
6/13/19. The same is true for the Order entered by the trial court finding
Appellant guilty after the trial de novo. See Order, 4/9/21. Nevertheless,
Appellant is entitled to no relief.
First, we agree with the Commonwealth that Appellant’s challenge to a
purported defect in his charging documents is waived for failure to raise it
before the trial court. See Commonwealth’s Brief at 8-9. Pennsylvania Rule
of Criminal Procedure 109 provides:
A defendant shall not be discharged nor shall a case be dismissed
because of a defect in the form or content of a complaint, citation,
summons, or warrant, . . . unless the defendant raises the defect
before the conclusion of the trial in a summary case or before the
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conclusion of the preliminary hearing in a court case, and the
defect is prejudicial to the rights of the defendant.
Pa.R.Crim.P. 109. Indeed, after being convicted of Section 3714(b) by the
magisterial district court, Appellant failed to challenge the propriety of that
charge at any time before or during the trial de novo. Thus, his objection on
appeal is waived.
Moreover, the record reveals Appellant was clearly on notice that he was
defending against the offense of careless driving. Trial counsel’s closing
argument focused on Appellant’s mens rea at the time of the accident — or as
counsel asserted, Appellant’s lack thereof. See N.T. at 161-66. This Court’s
decision in Commonwealth v. Ford, 141 A.3d 547 (Pa. 2016), is instructive.
In Ford, the defendant was convicted of, inter alia, failure to stop at a
stop sign pursuant to 75 Pa.C.S. § 3323(b). Ford, 141 A.3d at 550.
However, the criminal information filed by the Commonwealth charged the
defendant with failure to stop at a yield sign, a violation of Section 3323(c).
Id. at 553. Because “no yield sign existed on [the defendant’s] road of travel,”
and all of the evidence and testimony referred to his failure to stop at a stop
sign, the defendant argued that the evidence was insufficient to support his
conviction. Id.
On appeal, this Court concluded that although the defendant framed his
issue as a challenge to the sufficiency of the evidence, his argument “relate[d]
to a defect in the criminal information.” Ford, 141 A.3d at 554. Because the
defendant failed to raise that defect in the trial court, the panel concluded the
issue was waived on appeal. Id. at 554-55. Nevertheless, the Ford Court
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noted that “[e]ven if not waived, the defect with the criminal information,
standing alone, does not warrant relief.” Id. at 555. The Court explained that
pursuant to Pa.R.Crim.P. 560, an “omission of or error in” the citation of the
crime contained in a criminal information does “not affect the validity or
sufficiency of the information.” Id., citing Pa.R.Crim.P. 560(C). Relying on
case law concerning the amendment of criminal informations, the Ford panel
opined:
Here, it is beyond cavil that [the defendant] knew of the
facts surrounding the failure to stop offense. The only material
difference in the elements of the offenses is the distinction
between a stop sign and a yield sign. Had [the defendant] raised
the issue, the Commonwealth could have amended the
information because it would not have alleged a different set of
events or resulted in [the defendant] having to advance a
materially different defense. . . .
[T]he charge of failing to stop at a stop sign did not add any new
facts that [the defendant] did not know and the entire factual
scenario was developed at his preliminary hearing. As discussed,
[he] defended against a failure to stop offense and therefore
neither his defense strategy nor his trial preparation was
implicated. Accordingly, [the defendant] suffered no prejudice
and is not entitled to relief.
Id. at 555-56 (citations omitted).
Although the present appeal involves a traffic citation and summary trial
de novo, as opposed to a criminal information, we conclude the analysis is the
same. Appellant was on notice he was defending a careless driving charge.
Had he raised the issue below, the Commonwealth could have amended the
citation to charge him with a violation of Section 3714(a) and (b).
Nevertheless, the facts would remain the same. Indeed, in his closing
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remarks, the Commonwealth’s attorney argued that Appellant “acted
carelessly, unintentionally causing the death [of] another individual.” N.T.
at 166 (emphasis added). As in Ford, we conclude Appellant suffered no
prejudice as a result of the omission of reference to Section 3714(a) in his
traffic citation. Thus, his first claim fails.
Next, Appellant argues that even if we conclude the “act of careless
driving was properly before the court for adjudication[,]” the evidence
presented at trial was insufficient to establish he acted “in a ‘careless
disregard.’” Appellant’s Brief at 13-14. He insists the “only evidence” that
would support such a finding was the testimony of Vogel, who claims Appellant
“waited one to two minutes before suddenly turning left in the path of”
Schessler. Id. at 14. However, Appellant notes that the trial court, as fact
finder, “was not persuaded by this portion of Vogel’s testimony.” Id. He cites
the court’s comments, at the conclusion of the trial de novo, that Vogel’s
testimony was “somewhat believable,” “not believable,” and “somewhat
incredible.” Id. at 15, citing N.T. at 170-71. Appellant insists that the trial
court found him guilty of careless driving based solely on the fact that he made
an improper left turn. Id. at 19. However, he argues “careless driving is not
a strict liability offense and that something more than ordinary negligence
must be established to find him criminally liable.” Id. at 18-19. Because his
improper left turn established only ordinary negligence, Appellant maintains
the trial court “improperly applied the law in finding him guilty of careless
driving.” Id. at 19.
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Our review of a challenge to the sufficiency of the evidence is well-
settled:
We view that evidence in a light most favorable to the
Commonwealth, drawing all reasonable inferences in favor of the
Commonwealth. The evidence need not preclude every possibility
of innocence and the fact-finder is free to believe all, part, or none
of the evidence presented. Only where the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances[,] is a defendant
entitled to relief. We do not re-weigh the evidence and substitute
our judgment for that of the fact-finder. As the question of the
sufficiency of the evidence is one of law, we consider the evidence
de novo.
Ford, 141 A.3d at 552-53 (citations and internal quotation marks omitted).
In order to secure a conviction for careless driving, the Commonwealth
must establish the defendant drove a vehicle “in careless disregard for the
safely of persons or property[.]” 75 Pa.C.S. § 3714(a). “The mens rea
requirement applicable to § 3714, careless disregard, implies less than willful
or wanton conduct but more than ordinary negligence or the mere absence of
care under the circumstances.” Commonwealth v. Sanders, 259 A.3d 524,
529 (Pa. Super. 2021) (en banc), citing Commonwealth v. Gezovich, 7 A.3d
300, 301 (Pa. Super. 2010). Pursuant to subsection (b) of the statute, “[i]f
the person who violates this section unintentionally causes the death of
another person as a result of the violation, the person shall, upon conviction,
be sentenced to pay a fine of $500.” 75 Pa.C.S. § 3714(b).
Here, Appellant does not contest the fact that Schessler died as a result
of the accident. Rather, he maintains “there was insufficient evidence that
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[he] acted in careless disregard, or that his conduct was more than ordinary
negligence.” Appellant’s Brief at 19. We disagree. As the trial court points
out in its opinion, Trooper Krajnak testified that, at the scene of the accident,
Appellant told him he was “looking for Borger Road [and] was using his GPS
on his cell phone because he was unfamiliar with the area.” Trial Ct. Op.,
5/28/21, at 2 (unpaginated); see N.T. at 9.6 Appellant also told the trooper
he did not see the motorcycle until the last minute, despite the fact that
Trooper Krajnak determined that neither Appellant nor Schessler were
speeding. Trial Ct. Op. at 2.
Furthermore, Vogel testified that she observed the motorcycle
approaching the intersection before Appellant initiated the left turn. N.T. at
47. Although the trial court found some of her testimony unbelievable — i.e.,
that Appellant stopped for one to two minutes before making the left turn,
and that Schessler’s body “flew up into the air” upon impact — the court also
concluded that her testimony was “somewhat believable.” N.T. at 170-71.
Moreover, accepting Appellant’s statement to Trooper Krajnak as true — that
he did not stop before making the left turn at 35 miles per hour7 — we
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6 We note the trial court initially concluded that Appellant’s claims were waived
because he did “not set forth citation to any case law in support of his
arguments” in his Pa.R.A.P. 1925(b) statement. Trial Ct. Op. at 1. However,
Rule 1925 requires only that an appellant “concisely identify each error” they
intend to raise, and precludes the trial court from requiring “citation to
authorities or the record[.]” Pa.R.A.P. 1925(b)(4)(ii). Thus, Appellant had no
obligation to cite relevant authority in his Rule 1925(b) statement.
7 See N.T. at 9.
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conclude that provides further support for the court’s determination that he
drove with careless disregard for the safety of others. Indeed, Appellant’s
own expert testified that during his investigation, the left turn “started to
become uncomfortable” when he was traveling at a speed of only 15 miles per
hour — 20 miles per hour slower than the speed Appellant reported. Id. at
125. Considering the fact that neither Appellant nor Schessler was speeding,
and at the time of the accident, “[i]t was daylight, it was clear, [and] there
were no adverse conditions[,]” we conclude the Commonwealth presented
sufficient evidence to establish Appellant acted in careless disregard for the
safety of Schessler when he initiated a left turn as the motorcyclist
approached, without sufficient time to avoid the collision. Viewing the
evidence in the light most favorable to the Commonwealth, as verdict winner,
we conclude the evidence established “more than ordinary negligence or the
mere absence of care[.]” See Ford, 141 A.3d at 552; Sanders, 259 A.3d at
529. Accordingly, Appellant’s second claim fails.8
Thus, we affirm the judgments of sentence imposed at both dockets.
Judgments of sentence affirmed.
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8We note that in its Pa.R.A.P. 1925(a) opinion, the trial court concluded that
Appellant’s claims were waived because he did “not set forth citation to any
case law in support of his arguments.” Trial Ct. Op. at 1.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2022
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