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HomeMy WebLinkAbout01-1309 FX "",,-, , . " ^ ~. '':~"-''_K, - , CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: DEPARTMENT OF TRANSPORTATION COMMONWEALTH OF PENNSYLVANIA v. ELLEN A. McNAMARA NO. 01-1309 CIVIL TERM 1426 CD 2001 The documents comprising the record have been numbered from No.1 to 28 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable defmiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 7-20-01 An additional copy of this certificate is enclosed. Please si~n and date copy, thereby acknowled~in~receipt qfthis record. Date Signature & Title --1.:.- III I"~~,;i" I Among the Records and Proceedings enrolled in the court of Common Pleas in and for the COPY OF CUMBERLAND 1426 CD 2001 01-1309 CIVIL TERM Term, 19 COMPLETE in the Commonwealth of Pennsylvania county of to No. is contained the following: DOCKET ENTRY DEPARTMENT OF TRANSPORTATION COMMONWEALTH OF PENNSYLVANIA v. ELLEN A. McNAMARA SEE ATTACHED CERTIFIED DOCKET ENTRIES. Ii _C --' Iilln.'-"." ......1#_. Commonwealth of Pennsylvania County of Cumberland } ss I, Curtis R. Long . Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full. true and correct copy ofthe whole record ofthe case therein stated, wherein Department of Transportation Coom::mwealth of Pennsylvania Plaintiff. and Ellen A. McNamara Defendant _, as the same remains of record before the said Court at No. 01-1309 of Civil Term, A.D. 19_. hereunto set my hand and affixed the seal of said Court day of Julv _A.D..il,QOl. . ( L-L.\..k 6'1'....~. ., 1fL I. (;prorUp F. Hroff"r lJesident Judge of the Judicial District. c9mposed of the County of Cumberland. do certify that Curt lS R. Long . by whom the annexed record, certificate and attestation were made and given, and who. in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County., was, at the time of so doing, and now is Prothonotary in and for said County of Cumberlani'l in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record. certificate and attestation are in due form of law and made by the er of' e In TESTIMONY WHEREOF, I have this 20th Commonwealth of Pennsylvania County of Cumberland } ss: I, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable George E. Hoffer, P. J . by whom the foregoing attestation was made. and who has thereunto subscribed his name. was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given. as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this ?1~~~ t!u~;:; ~OOL- 8y~ .~.~ J ./d, ~.'.//CO~.~O ~n:~~ ([ . (~)Ii// . . i \j . PAGE 00. 2 - 9 1 10 - 13 14 - 17 18 19 20 - 27 28 _I_H_''''~ ~,~ ~,,-.... -lllIil'~ ~ -, . ~.':lt.~:i . "c". PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry 2001-01309 PA DEPT OF TRANSPROTATION (vs) MCNAMARA ELLEN A Page Reference No. . : Case Type.....: APPEAL - LICENSE SUSP Judgment. . . . . . . 00 Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial.. . . Disposed Date. Hlgher Crt 1.: Higher Crt 2.: 3/07/200: 4: If O/O%ooe %%ooe 1426 CD 20C ******************************************************************************* General Index Attorney Info DEPARTMENT OF TRANSPORTATION APPELLANT COMMONWEALTH OF PA OFFICE OF CHIEF COUNSEL-3RD FL RIVER FRONT OFFICE CENTER HARRISBURG PA 17104 MCNAMARA ELLEN A APPELLANT ABELN GREGORY B ******************************************************************************* * Date Entries ******************************************************************************* - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PETITION FOR APPEAL OF LICENSE SUSPENSION ------------------------------------------------------------------- ORDER OF COURT - DATED 3/14/01 - IN RE PETITION FOR APPEAL OF LICENSE SUSPENSION - A HEARING IS SET FOR THE 21ST DAY OF MAY AT 10:30 AM IN CR 4 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 3/14/01 ------------------------------------------------------------------- 5/22/2001 OPINION AND ORDER - DATED 5/21/01 - IN RE APPEAL OF DRIVER'S LICENSE SUSPENSION - APPEAL OF ELLEN A MCNAMARA IS SUSTAINED AND THE ACTION OF THE DEPARTMENT SUSPENDING HER OPERATING PRIVILEGES IS REVERSED - BY KEVIN A HESS J - COPIES MAILED 5/22/01 ------------------------------------------------------------------- 6/20/2D01 NOTICE OF APPEAL TO THE COMMONWEALTH COURT OF PENNSYLVANIA - BY TIMOTHY P WILE ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1426 CD 2001 ------------------------------------------------------------------- TRANSCRIPT LODGED ~ITs- - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************* * Escrow Information * Fees & Debits Beq Bal Pvmts/Ad-i End Bal c ********************************~**********************************************" 3/07/2001 3/14/2001 6/26/2001 7/06/2001 APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL .00 .00 .00 .00 .00 35.00 .50 5.00 5.00 30.00 35.00 .50 5.00 5.00 30.00 75.50 75.50 .00 *******************************************************************************~ * End of Case Information ' *******************************************************************************j TRUEOOPY FROM RECORD In TestinlOny Whereof. I here unto set my hand and sea of salcl Court.-at CarlIsiePl. r .. '.loo ( ::::::" ,_,_", _,'.c__ -5:-,';';; .' ;, -~, -;.,;- ;, ;-, -,-. --: ?C",,""."-_",,"'" ,,0'........ "'~ ~ " 'I :'U , ~ j 1 ,,", - _I . "" . _ ~1-_~ .i..' ~ ~- ,.," o~~ 'ilIIiI~:' IN THE COMMONWEALTH COURT OF PENNSYL VANIA Ellen A. McNamara v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 1426 C.D. 2001 It 0(- /BCCj ~ 0 0 -n 0 .,.---{ '"Om .., ;:1:~ ;;g ~m n ':xi N .*Tl zS;; C:J ~- _... c.J .<. ,<::C ;Do _oj-To ~o :Jt ;::l:}:!J ~0 :p;8 - ~m ,-' ,. ~ ~ I'" u:> '-< ORDER AND NOW, this 20th day of December , 2001, the order of the Court of Common Pleas of Cumberland County, dated May 21,2001, is hereby reversed. !2A1ilp ~-A "J",N~'~ ROCHELLE S. FRIEDMAN, Judge Certified from the Record DEe 2 0 ZOOl and Order Exit ~'!l:t'JlA'+ii-:liii"-".itim!f.'*,,'1jjf;"")'$"~!!iI'if.'l:ir.;&i!:f1i';H'-'i!~Bi,~Vi;rjJ':;;""~'>f"'.;-"";t"''!i;>>..J~~~~~~;\lil~~~'''''''''-'''--~Utilr1''~_:'''',,[j!~ -~ - ~W-'" JllMlliillMlr On appeal to this court,3 DOT argues that the trial court erred in concluding that the New Jersey DUI law is not substantially similar to Pennsylvania's DUI law. We agree. The remand of Kiebort I was not a rejection of this court's determination that the New Jersey DUI law is substantially similar to Pennsylvania's DUI law. See Kiebort v. Department of Transportation. Bureau of Driver Licensing, 778 A.2d 773 (Pa. Cmwlth. 200 I) (Kiebort II). Indeed, in Kiebort II, we held again that the New Jersey DUI law is substantially similar to Pennsylvania's DUI law. Id. Accordingly, we reverse. ~~P.uilt .J.aLOJp~-~ ROCHELLE S. FRIEDMAN, Judge . 3 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence and whether the trial court committed an error of law or abuse of discretion in reaching its decision. Carlin v. Department of Transportation. Bureau of Driver Licensing, 739 A.2d 656 (Pa. Cmwlth. 1999), appeal denied, 563Pa. 678, 759 A.2d 924 (2000). . 3 ~.C~ l~=~ ,- ~" -^ ,~-"""" I \, ~i Ii. t ~. , !/ Iii l ti ,J ~"I! -- ~ , .", ',. '.'- "~--~ '~'W,.. herein as evidence in any civil or administrative proceeding." (Trial court op. at 1.) Subsequent to her New Jersey conviction, DOT suspended Licensee's operating privileges, and Licensee filed an appeal with the trial court. Licensee argued that the civil reservation precluded admission of the conviction as evidence; however, the trial court rejected this argument. 2 (See Trial court op. at 1.) Licensee also argued that the New Jersey DUI law is not substantially similar to Pennsylvania's DUI law; therefore, it was not proper for DOT to suspend Licensee's operating privileges under the Driver's License Compact. On this issue, the trial court recognized this court's holding in Seibert v. Department of Transportation. Bureau of Driver Licensing, 715 A.2d 517 (Pa. Cmwlth. 1998), and in Kiebort v. Department of Transportation. Bureau of Driver Licensing, 719 A.2d 1139 (Pa. Cmwlth. 1998) (Kiebort I), reversed and remanded, 564 Pa. 33, 764 A.2d 18 (2001), that the New Jersey DUI law is substantially similar to Pennsylvania's DUI law. The trial court even acknowledged that it is bound by the holdings of this court. (Trial court op. at 2.) Nevertheless, because our Supreme Court recently had remanded Kiebort I to this court for proceedings consistent with Commonwealth v. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000), the trial court sustained Licensee's appeal. (Trial court op. at 1-3.) 2 DOT argues in its brief that the trial court correctly decided this issue; Licensee argues that the trial court erred. However, because Licensee did not file a cross appeal, we decline to address the matter further. 2 ^,,"'~'_;""'-'<":"'!""\"""~"&'~.Jlli.i:\~MiiI,jill~I~LIJMoii~tll~jll~M~~~~~I~ "J il ~ " I I IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ellen A. McNamara v. No. 1426 C.D. 2001 Submitted: November 16, 2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: December 20, 2001 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the May 21, 2001 order of the Court of Common Pleas of Cumberland County (trial court), which sustained Ellen A. McNamara's (Licensee) statutory appeal from DOT's suspension of her driver's license pursuant to the interstate Driver's License Compact. I We reverse. Licensee was convicted in New Jersey of driving under the influence of alcohol (DUI). The New Jersey court granted a civil reservation "prohibiting the use of the defendant's plea, the fact of conviction or the sentence imposed I Section 1581 of the Vehicle Code, 75 Pa. C,S. 91581. ~I"" _", ~','~. ~ '" .' ,_ _,,~",_~. "",,__'~,~,',"._ ~.'. ~ .,1, ~_~~~ ," ,. , . -~~ > ". - _, > _ ^~~" ,L._ IN THE COMMONWEALTH COURT OF PENNSYL VANIA Ellen A. McNamara v. No. 1426 C.D. 2001 ORDER ~.~= ~'.~ - -kc :::> )> 0 :E: ~g - :z; N =< \.0 Commonwealth of Pennsylvania, .A . Department of Transportation, tlO- ot ~. gDCj Bureau of Driver Licensing, Appellant AND NOW, this 20th day of December , 2001, the '.' "'f''';c;' '-11=-~ , --.:-tf'TI :tj>V C)(~..\ ~,::j ~f; ,"c<-."'"'T! ~o ocn ~ -< order of the Court of Common Pleas of Cumberland County, dated May 21, 2001, is hereby reversed. !2A1-UP AI-~.. J'H~'~ ROCHELLE S. FRIEDMAN, Judge Certified from Ihe Record DEe 2 0 2001 WlCi Qrdlir \;.xiI ~:_<,-,.",-." ~ill~:;'" --k:..~",""1~<1iJj,mWt~~~'KU;r~.r.1i~~:<!iifi$)iilV<!ji'k,;rtd'b.""-~"'f:;""_"'''r,..,~!~~Ui!!~~:~:.liIr;;tw.iIK~n''<-''-Milf\l:~l;i!:.lThf10ii.1I!i''---"'Ajjaa-~ .. ,~- m:1;"g;~ 1"11 On appeal to this court,3 DOT argues that the trial court erred m concluding that the New Jersey DUl law is not substantially similar to Pennsylvania's DUllaw. We agree. The remand of Kiebort I was not a rejection of this court's determination that the New Jersey DUI law is substantially similar to Pennsylvania's DUI law. See Kiebort v. Department of Transportation. Bureau of Driver Licensing, 778 A.2d 773 (pa. Cmwlth. 2001) (Kiebort II). Indeed, in Kiebort II, we held again that the New Jersey DUllaw is substantially similar to Pennsylvania's Dill law. Id. Accordingly, we reverse. iZJ!uil1 .J.;;;;'o J ~~ - ~ ROCHELLE S. FRIEDMAN, Judge 3 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence and whether the trial court committed an error of law or abuse of discretion in reaching its decision. Carlin v. Department of Trans1)ortation. Bureau of Driver Licensing, 739 A.2d 656 (Pa. Cmwlth. 1999), appeal denied, 563 Pa. 678, 759 A.2d 924 (2000). 3 ""...0 "'_~~ ~-, ,.~~-- ,... ~'"- ,,--~ - , ,. -~ .' ~ .'"""",-" . herein as evidence in any civil or administrative proceeding." (Trial court op. at 1.) Subsequent to her New Jersey conviction, DOT suspended Licensee's operating privileges, and. Licensee filed an appeal with the trial court. Licensee argued that the civil reservation precluded admission of the conviction as evidence; however, the trial court rejected this argument. 2 (See Trial court op. at 1.) Licensee also argued that the New Jersey DUI law is not substantially similar to Pennsylvania's DUI law; therefore, it was not proper for DOT to suspend Licensee's operating privileges under the Driver's License Compact. On this issue, the trial court recognized this court's holding in Seibert v. Department of Transportation. Bureau of Driver Licensing, 715 A.2d 517 (Pa. Cmwlth. 1998), and in Kiebort v. Department of Transportation. Bureau of Driver Licensing, 719 A.2d 1139 (Pa. Cmwlth. 1998) (Kiebort I), reversed and remanded, 564 Pa. 33, 764 A.2d 18 (2001), that the New Jersey DUllaw is substantially similar to Pennsylvania's DUI law. The trial court even aclrnowledged that it is bound by the holdings of this court. (Trial court op. at 2.) Nevertheless, because our Supreme Court recently had remanded Kiebort I to this court for proceedings consistent with Commonwealth v. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000), the trial court sustained Licensee's appeal. (Trial court op. at 1-3.) 2 DOT argues in its brief that the trial court correctly decided this issue; Licensee argues that the trial court erred. However, because Licensee did not file a cross appeal, we decline to address the matter further. 2 !d~--~'!IilliU~m.[ki~'i"",.j*-;i!..1\'JM!;.ij~~iJlll1$Jla~J@<iffi.,!i"""!%&\ffuM",::!:,;.kwr',t!iJ"',":~II.,i',,*ft!i-M~~1Yt~~~~~if'lF'"< .,=~~"'''''t'7''= . . ~ k:P '1,' IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ellen A. McNamara v. No. 1426 C.D. 2001 Submitted: November 16,2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: December 20, 2001 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the May 21, 2001 order of the Court of Common Pleas of Cumberland County (trial court), which sustained Ellen A. McNamara's (Licensee) statutory appeal from DOT's suspension of her driver's license pursuant to the interstate Driver's License Compact.! We reverse. Licensee was convicted in New Jersey of driving under the influence of alcohol (DUI). The New Jersey court granted a civil reservation "prohibiting the use of the defendant's plea, the fact of conviction or the sentence imposed ! Section 1581 of the Vehicle Code, 75 Pa. C.S. g1581. .-=.,. .~~, ,_' 1 ~- - ~oL.' ,. -'-~~" ( 6/~ IJo"l IN THE COMMONWEALTH COURT OF PENNSYL VANIA Ellen A. McNamara v. No. 1426 C.D. 2001 Submitted: November 16,2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY mDGE FRIEDMAN FILED: December 20, 2001 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the May 21, 2001 order of the Court of Common Pleas of Cumberland County (trial court), which sustained Ellen A. McNamara's (Licensee) statutory appeal from DOT's suspension of her driver's license pursuant to the interstate Driver's License Compact.! We reverse. Licensee was convicted in New Jersey of driving under the influence of alcohol (DUI). The New Jersey court granted a civil reservation "prohibiting the use of the defendant's plea, the fact of conviction or the sentence imposed 1 Section 1581 of the Vehicle Code, 75 Pa. c.s, 91581. ~ildvt. J' J.'"~~~i:!ki!!i;~~;W;i1ffi1!W\~~...&ft~('!,itii;~~;;;-,,r-l1,iti,;Jj:-:-,,?,'-,';:<';"H_NW~!.2i>"~fiW..Jt.\Ii!;;im~j;jojjlll~_~i!i;!lOll~~~~-'H"iiill!l~h;,,4h; , -. ') herein as evidence in any civil or administrative proceeding." (Trial court op. at 1.) Subsequent to her New Jersey conviction, DOT suspended Licensee's operating privileges, and Licensee filed an appeal with the trial court. Licensee argued that the civil reservation precluded admission of the conviction as evidence; however, the trial court rejected this argument. 2 (See Trial court op. at 1.) Licensee also argued that the New Jersey DUI law is not substantially similar to Pennsylvania's DUI law; therefore, it was not proper for DOT to suspend Licensee's operating privileges under the Driver's License Compact. On this issue, the trial court recognized this court's holding in Seibert v. Department of Transportation. Bureau of Driver Licensing, 715 A.2d 517 (Pa. Cmwlth. 1998), and in Kiebort v. Department of Transportation. Bureau of Driver Licensing, 719 A.2d 1139 (Pa. Cmwlth. 1998) (Kiebort I), reversed and remanded, 564 Pa. 33, 764 A.2d 18 (2001), that the New Jersey DUI law is substantially similar to Pennsylvania's DUI law. The trial court even acknowledged that it is bound by the holdings of this court. (Trial court op. at 2.) Nevertheless, because our Supreme Court recently had remanded Kiebort I to this court for proceedings consistent with Commonwealth v. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000), the trial court sustained Licensee's appeal. (Trial court op. at 1-3.) 2 DOT argues in its brief that the trial court correctly decided this issue; Licensee argues that the trial court erred. However, because Licensee did not file a cross appeal, we decline to address the matter further. 2 ~= 'f"'=-" . ,. j ~ " ."~ i ;' ", ..- "~'~ ( On appeal to this court,3 DOT argues that the trial court erred in . concluding that the New Jersey Dill law is not substantially similar to Pennsylvania's Dill law. We agree. The remand of Kiebort I was not a rejection of this court's determination that the New Jersey Dill law is substantially similar to Pennsylvania's DUI law. See Kiebort v. Department of Transportation. Bureau of Driver Licensing, 778 A.2d 773 (Pa. Cmwlth. 2001) (Kiebort II). Indeed, in Kiebort II, we held again that the New Jersey Dill law is substantially similar to Pennsylvania's DUI law. Id. Accordingly, we reverse. !f2.a ~ il1 .f}. ~J " ./ r' e( ~ ROCHELLE S. FRIEDMAN, Judge 3 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence and whether the trial court committed an error of law or abuse of discretion in reaching its decision. Carlin v. Department of Transportation. Bureau of Driver Licensing, 739 A.2d 656 (Pa. Cmwlth. 1999), appeal denied, 563 Pa. 678, 759 A.2d 924 (2000). 3 ~' . i'_, I~ ~~ii~'Il~ljii;.,;'iid-~W,$..,':"""""~%i!.e~,,*~1i%'li!<!;ik>-";:;;;"i1'";,:,"_,!I';'-"';i;"-~''-&''.;IL;'\f~jW;!\illJ''I\~~1j~iI1iIf.l~"~~,-,-"",~.1;U",,,~!Gii1~:1~~I!;~,;\'~--.l!lii'~,Jii - ' ,~w r; IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ellen A. McNamara v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 1426 C.D. 2001 4- Dl- f7:Jo9 ~ ORDER ~ AND NOW, this 20th day of December , 2001, the order of the Court of Common Pleas of Cumberland County, dated May 21, 2001, is hereby reversed. ".. "'~,~,,~<~""=.~=.~~~~ "'~''''_~>>..., ..""_~'."'~" ,~~~..~.~ ,o_~;.~~~~~_.I.",.~ _~ , __1 t,.J1ilP Af!-~-, .. J~"~'~ ROCHELLE S. FRIEDMAN, Judge o c <" l}r-,,: Q)(j.:, '-<~.J :<::i-- (r) :.- ~5" ,- ~~ =j -, ~ .f'::-' r.- ::::> en r. r~\ -;.~ :',;"~ .-..r ;:'0 ,......i ?J ~<.