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HomeMy WebLinkAbout02-1079 Ii JOSEPH M. TOPICHAK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2002- I01? CIVIL ACTION-LAW IN DIVORCE CIVIL TERM LISA M. TOPICHAK, Defendant NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Cumberland County Court House, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, MARITAL PROPERTY, COUNSEL FEES OR EXPENSES BEFORE THE FINAL DECREE OF DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 JOSEPH M. TOPICHAK, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002- /079 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE LISA M. TOPICHAK, Defendant COMPLAINT UNDER SECTIONS 3301 (C) AND 3301 (0) OF THE DIVORCE CODE 1. Plaintiff is Joseph M. Topichak, an adult individual who currently resides at 5072 Pajabon Drive, Apt. 101, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant is Lisa M. Topichak, an adult individual who currently resides at 103 Edna Street, Wormleysburg, Cumberland County, Pennsylvania. 3. Plaintiff and Defendant have been bona fide residents in the Commonwealth of Pennsylvania for at least six months immediately previous to the filing of this Complaint. 4. The Plaintiff and Defendant were married on November 18, 1995, in Lancaster County, Pennsylvania. COUNT I - DIVORCE 5. Plaintiff hereby incorporates by reference paragraphs 1 through 4 above. 6. There have been no prior actions of divorce or for annulment between the parties as to their current marriage. 7. Neither Plaintiff nor Defendant is in the Armed Forces of the United States. 8. Plaintiff avers that the marriage between the parties is irretrievably broken. II 9. The Plaintiff has been advised of the availability of counseling and that he may have the right to request that the court require the parties to participate in counseling. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter a decree in divorce. COUNT II -EQUITABLE DISTRIBUTION 10. Plaintiff hereby incorporates by reference paragraphs 1 through 9 above. 11. The parties have acquired personal property, including automobiles, bank accounts and other items of miscellaneous property during the course of their marriage, some of which is marital property. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter a decree which effects an equitable distribution of marital property. Respectfully submitted, O'BRIEN, BARIC & SCHERER DATE: 3.l.o'Z-- ~qM: Michael A. Scherer, Esquire I.D. # 69174 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dir/domestic/divorce/topichak.com VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. ~. Topichak DATED: 2 - ?()- 6 '2. 1~ - ~ ~ -<;:~ ~ -<l-~ !'1f/)r;X ~. r;"th~ o ~o' .V( , 8 ~J If ~ ,v :p - g- 1=- r ~ ff -lQ - (') c ? -oro rpc:::, ""--,, ZC ~",.:. ~C) ~o ;;:(J ~C' z ~ - c::> I',.) :x :r:- ;:0 I <.J1 (") .:n -"." :':;.-D ....'...'9 "':;'.':J :~jc, :',: :.0 .,...... _0'",'1 ~ ',~;C) 25rn '''1 ~ ".. ::~:.: 'P. ::> eJl v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-1079 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE JOSEPH M. TOPICHAK, Plaintiff LISA M. TOPICHAK, Defendant ACCEPTANCE OF SERVICE AND NOW, this "2/ day of March, 2002, I, Lisa M. Topichak, Defendant above, hereby accept service of the Complaint filed in the above case pursuant to Pa. R.C.P. 1920.4(e) and acknowledge receipt of a true and attested copy of said Complaint. rll{;l"';",~o..,';h'" "'''~''_ (") Cl 0 C' rV I ""(Jfi-' rt .. .:'! n1;; ;:';.:1 ;::: :J:. ~) iTl I ~ ~ CJ ..-:".---.. .-.J g;;~c 'L? <c.~ v -n S:C' ....':0. '-'J?) ......C,I ';<;) :;:5fT1 j;:C:: ::;::! ~ -. -jJ , (,j -< ....,,,,, , O~-I()f9 C;\I"/ DEFENDANT'S AFFIDAVIT OF CONSENT, ACCEPT NCE OF SERVICE AND WAIVER OF NOTICE OF INTENTION TO R QUEST ENTRY OF DIVORCE DECREE UNDER SECTION 3301(C) OF THE DIVORCE CODE 1. A complaint in divorce under Section 3301 (C) of the Divorce Code was filed on March 5,2002. 2. Defendant acknowledges receipt and accepts servi of the Complaint on March 21,2002. 3. The marriage of the Plaintiff and Defendant is irretri vably broken and ninety days have elapsed from the date of the filing of the Compl int. 4. I consent to the entry of a final decree in divorce wit out notice. 5. I understand that I may lose rights concerning alimo y, division of property, lawyer's fees or expenses if I do not claim them before divorce is granted. 6. I understand that I will not be divorced until a Divor by the Court and that a copy of the Decree will be sent to me imm with the Prothonotary. Decree is entered diately after it is filed 7. I have been advised of the availability of marriage c unseling and understand that I may request that the court require counseling. do not request that the court require counseling. I verify that the statements made in this affidavit are true a d correct. I understand that false statements herein are made subject to the enalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: (q'- 2/-0"2 'fi.~ :odt/ isa M. Topichak Notarial al Melody O'Brien, Notary Public MyLoweCo r ~n lWp., Dauphin County mmisslon expires Sept. 26, 2005 Member, Pennsylvania AssocIation 01 Notaries /~,Q;,kJd~ 0 0 0 c: N ." ?: c... '~ -0 CD ,- ~ mrn ~:e r- 2::r, N "'1m 2 C. ~, )? en - :::0 ~e,~ -0 r-' " ~r, ,:.:',:;,=n -'k. ':-"~(") $8 N >~,:~ fn '.-.-' ~ Z ~.J :.0 =< (X) -< Plaintiff ~ f'h 1O~'.~~ IN THE COURT OF COMMON PLEAS o I J 11,hv' \( ~ COUNTY, PENNSYLVANIA vs. No. ().OO~ -0 I en 0 Defendant U set \Op~chcJ... NOTICE OF ELECTION TO RESUME PRIOR NAME CNIL ACTION - LAW IN DNORCE Notice is hereby given that the Plaintiff in the above matter, having been granted a final Decree in Divorce from the bonds of matrimony on the ~ day of ~ 2002, hereby elects to c,";/'- In'.c\\~€ resume and hereafter use her prior name of "D l...~\cr and gives this written notice avowing her intention in accordance with the provisions of the Act of December 16, 1982, P.L. 1309,54 Pa. C.S.A., Section 704, as amended. ~~ ~'-1J~lfi}- c.he. \Ie. " ihc,-R ~(fttD ~\~, {n',chelle 1) Ll.-duck Date: -/-Y!, -02 COUNTY OF ~1 qlll bo(i11a COMMONWEALTH OF PENNSYLVANIA : SS: On the c;: day of '3 u.. \ '1 ' 2002, before me, a Notary Public, personally ll~O\. (Ill '((he/If' appeared be-. {' AQC t , known to me to be the person whose name is subscribed to the within document, acknowledged that she executed the foregoing for the purpose therein contained .-?~t:~~ Notary Public If Notarial Sea Melody O'Brien, Notary Public Lower Paxton Twp., Dauphin County My Commission Expires Sept. 26, 2005 Member, Pennsylvania Alsociation of Notaries ~ -:+. -- 'V ....J ~ ~ ':-.i ~ '\ ~ ~ , l o f; ;:gffi z9J zr- co ".. ~~~,~; <"C. 5-C -"'C"" Pc :::: :;f , o N c... c:: r- o -q ,-' -1-- :":j1:TJ ,-- nl ? .0 ~.::)3J .,.~~~ ;~J 5J -< ~ ~....". ~.:~ :.0 .,,- 11 J . PLAINTIFF'S AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF DIVORCE DECREE UNDER SECTION 3301(C) OF THE DIVORCE CODE 1. A complaint in divorce under Section 3301 (C) of the Divorce Code was filed on March 5,2002, 2. The marriage of the Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the Complaint. 3. I consent to the entry of a final decree in divorce without notice. 4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 5. I understand that I will not be divorced until a Divorce Decree is entered by the Court and that a copy of the Decree will be sent to me immediately after it is filed with the Prothonotary. 6. I have been advised of the availability of marriage counseling and understand that I may request that the court require counseling. I do not request that the court require counseling. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: ~-lo' 0 '2... JoSP~~~!! ... JOSEPH M. TOPICHAK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.2002-1079 CIVIL TERM LISA M. TOPICHAK, Defendant CIVIL ACTION - LAW IN DIVORCE MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT, made this 2.~ 711day Of~ 2002, by and between Lisa M. .:r"", c.. Topichak, hereinafter referred to as "Wife", and Joseph M. Topichak, hereinafter referred to as "Husband." WITNESSETH: WHEREAS, the parties are Husband and Wife who were married on November 18, 1995, and have been separated since January 16, 2002; and, WHEREAS, Husband has instituted divorce proceedings in the Court of Common Pleas of Cumberland County to No. 2002-1079 Civil Term by complaint filed on March 5, 2002; and, WHEREAS, no children were born of the marriage; and, WHEREAS, diverse, unhappy differences, disputes and difficulties have arisen between the parties and the parties have decided that their marriage is irretrievably broken, and it is the intention of the parties to live separate and apart for the rest of their natural lives. The parties are therefore desirous of settling fully and finally their respective 1 ~. II financial and property rights and obligations as between each other, including without limitation: the ownership and equitable distribution of all property owned by the parties; and the settling of all related economic claims including but not limited to spousal support, alimony and alimony pendente lite; and in general the settling of any and all claims or possible claims of one against the other or against their respective estates; and, WHEREAS, each party is fully familiar with the all of the property owned by the parties and each party acknowledges having sufficient opportunity to investigate and evaluate the property owned by the parties, and both parties now desire to settle and determine his and her property rights and claims under the Divorce Code. NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and for other good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hereto, the parties, intending to be legally bound hereby, do covenant and agree as follows: 1. DIVORCE The parties agree to the entry of a Decree in Divorce pursuant to Section 3301 (c) of the Divorce Code. Both parties shall execute and file the requisite Consents and Waivers with the Court at the conclusion of the ninety day waiting period set forth in the Divorce Code. Husband's counsel shall withdraw Husband's claim for economic relief. Husband's attorney shall file the Praecipe to Transmit the record and obtain a Decree in Divorce without delay. Should either party do anything to delay or deny the entry of such a Decree, or fail to do anything required to obtain the Divorce Decree in breach of this 2 ------------...-----------------..---- II Agreement, the other party may, at his or her option, declare this Agreement null and void. 2. INCORPORATION BUT NOT MERGER INTO DIVORCE DECREE This Agreement and all warranties and representations contained herein shall survive the Divorce Decree and shall continue to be enforceable in accordance with its terms. No Court may change the terms of this Agreement, and it shall be binding and inclusive upon the parties. An action may be brought at law, in equity or pursuant to the provisions of the Divorce Code to enforce this Agreement by either Husband or Wife. In the event of a reconciliation, attempted reconciliation or other cohabitation of the parties hereto after the date of this Agreement, this Agreement shall remain in full force and effect in the absence of a written agreement signed by the parties expressly stating that this Agreement has been revoked or modified. 3. ADVICE OF COUNSEL Husband is represented by Michael A. Scherer, Esquire, who is his separate legal counsel and he has been advised of his respective rights, privileges, duties and obligations relative to the parties' property rights and interests under the Divorce Code and regarding alimony and spousal support. Wife is unrepresented in this matter but understands that she has the right to retain an attorney to assist her and to advise her of her rights, privileges, duties and obligations relative to the parties' property rights and interests under the Divorce Code and regarding alimony and spousal support. Husband and Wife acknowledge that each of them has read this Agreement and understands his and her rights and responsibilities under this Agreement, that he and she have executed 3 . II this Agreement under no compulsion to do so but as a voluntary act, being apprised of its consequences. 4. TANGIBLE PERSONAL PROPERTY Wife shall become the sole owner of the 2000 Pontiac Grand Am, while Husband shall become the sole owner of the 1999 Ford Explorer. Husband agrees that he shall be responsible for the payment of the remaining loan balance on his truck to the Ford Motor Credit Company and does hereby agree to indemnify and hold wife harmless from any responsibility for repayment of the loan. Additionally, wife shall become the sole owner of Caesar. Aside from the foregoing, the parties have divided between them to their mutual satisfaction all items of tangible personal property which had heretofore been used by them in common and neither party shall make any claim to such property in the possession of the other. Each party will execute any and all documents necessary to effectuate the transfer of ownership of any items of personal property titled in both names as set forth above. 5. OTHER PROPERTY DISTRIBUTION PROVISIONS A. REAL ESTATE: The marital residence is located at 103 Edna Street, Wormleysburg, Pennsylvania. Wife shall become the sole owner of the marital residence after paying husband a sum equal to one-half of the equity in the marital residence. Equity is defined as the difference between the fair market value of the real estate and the payoff amount of any mortgages existing against, including the home equity loan. The marital 4 . II residence has been appraised for $116,000.00, however, the parties have agreed to use a value of $113,000.00 as the fair market value of the marital residence for purposes of this paragraph. Wife shall be responsible to pay $3,800.00 towards the balance owed on the home equity loan, and husband shall be responsible to pay the remaining balance of the home equity loan. Wife shall immediately begin the process of making application to a lender to refinance the joint indebtedness on the property so that she can pay husband his share of the equity. Husband shall sign a Quitclaim Deed transferring all his right, title and interest to the real estate to wife upon her refinance of the property. Husband shall pay wife the sum of five hundred dollars per month during the pendency of the divorce provided the divorce is concluded in a prompt manner without delay from either party. Should wife fail to begin the refinance process immediately, the house shall be listed for sale with a licensed real estate agent, and the proceeds split equally between the parties. B. WAIVER OF RETIREMENT BENEFITS: Each party hereby expressly waives any right to claim any pension, profit sharing, retirement rights and/or 401 k plans of the other, vested or contingent, each party to retain full ownership of such rights as his or her sole and separate property. C. INTANGIBLE PERSONAL PROPERTY: The parties have divided 5 . I between them to their mutual satisfaction all intangible personal property consisting of cash, bank accounts, annuities, securities, insurance policies and all other such types of property. The parties hereby agree that all such intangible property presently in the possession of or titled in the name of Husband shall be his sole and separate property, and that in the possession or titled in the name of the Wife shall be her sole and separate property. 6. DEBTS AND OBLIGATIONS Each party represents that she and he have not heretofore incurred or contracted any debt or liability or obligation for which the other may be held responsible or liable. Each party agrees to indemnify and hold harmless the other from and against all such debts, liabilities or obligations of any kind which may have heretofore been incurred between them, and debts which have been incurred since the date of separation, except the obligations arising out of this Agreement. 7. INDEMNIFICATION Both parties covenant, warrant, represent and agree that each will now and at all times hereafter save and keep each other indemnified against all debts, charges, or liabilities incurred by the other after the execution of this Agreement, except as may be otherwise specifically provided for by the terms of this Agreement and neither of them shall hereafter incur any liability whatsoever for which the Estate of the other may be liable. Each party further agrees to indemnify and save and hold harmless the other from any and all liabilities he or she may incur upon the obligations of or assumed by the other, which 6 . II indemnification as to all provisions of this Agreement shall include the right to recover out of pocket expenses and reasonable attorney's fees actually incurred. 8. EQUITABLE AGREEMENT Both parties agree that the hereinabove set forth Agreement constitutes an equitable distribution of their marital property and equitable resolution of all other economic claims pursuant to the provisions of the Divorce Code and each party irrevocably waives, releases, and remises any claim to ownership of or interest in any property designated as the property of the other by virtue of the provisions of this Agreement except as otherwise may be provided pursuant to the provisions of this Agreement. 9. MUTUAL RELEASES Husband and Wife do hereby mutually release, remise, quitclaim and forever discharge the other and the estate of the other from any and all claims either party has now, ever may have or can at any time have against the other or the other party's estate or any part thereof, whether arising out of formal contracts, engagements or liabilities of the other party, arising by way of widower's right or under the Intestate Law, arising by any right to take against the Will of the other party, arising out of the Divorce Code, Act No. 26 of 1980, as amended, including, alimony, alimony pendente lite, counsel fees and expenses, arising as a right to spousal support or arising from anything of any nature whatsoever, excepting only those rights accorded to the parties under this Agreement. 7 10. BREACH If either party to this Agreement resorts to a lawsuit or other legal action pursuant to the provisions of the Divorce Code or otherwise to enforce the provisions of this Agreement, the successful party shall be entitled to recover his or her reasonable attorney fees, actually incurred, from the other as part of the judgment entered in such legal action, whether in law, in equity, pursuant to the provisions of the Divorce Code or otherwise as the same shall be determined by the Court. 11. COMPLETE DISCLOSURE The parties do hereby warrant, represent and declare and do acknowledge and agree that each is and has been fully and completely informed of and is familiar with and is cognizant of the wealth, real and/or personal property, estate and assets, earnings and income of the other and that each has made a full and complete disclosure to the other of his or her entire assets and liabilities and any further enumeration or statement thereof in this Agreement is specifically waived 12. ENTIRE AGREEMENT This Agreement constitutes the entire understanding of the parties. There are no covenants, conditions, representations or agreements, written or oral, of any nature whatsoever, other than those herein contained, 13. MODIFICATION This Agreement is subject to modification only by a subsequent legal writing signed by both parties, It shall be construed according to the laws of the Commonwealth of 8 . " Pennsylvania. 14. AGREEMENT BINDING ON HEIRS This Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 9 . II 15. CONTRACT INTERPRETATION For purposes of contract interpretation and for the purpose of resolving any ambiguity herein, Husband and Wife agree that this Agreement was drafted and prepared jointly by their respective counsel. 16. SEVERABILITY AND INDEPENDENT COVENANTS The parties agree that each separate obligation contained in this Agreement shall be deemed to be a separate and independent covenant and agreement. If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement, and in all other respects this Agreement shall be valid and continue in full force and effect. 17. COSTS AND ATTORNEYS' FEES Neither party shall reimburse the other for any court costs or filing fees associated with this case, and each party shall be responsible to pay his or her own attorneys' fees. 18. LAW AND JURISDICTION APPLICABLE This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. 19. OTHER DOCUMENTATION The parties agree that they shall within ten days of the date of this Agreement execute any and all written instruments or documents required to effectuate the terms of this Agreement. 10 . II 20. WAIVER OF ALIMONY Husband and Wife do hereby waive, release and give up any rights which either of them may have against the other to receive alimony or other Post-divorce spousal maintenance or support. Pd!:~ Date: Cr2)~'(;~ Date: U - \ (l-f5Z ~o~ isa M. TOPiC~k STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND On this, the ~ day of , 2002, before me, the undersigned officer, personally appeared Joseph Topichak known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained. SS In witness hereof, I hereunto set my hand and official seal. ~~~~ Notarial Seal . Jennifer S. Lindsayb,No,ta;r 6~~~~~ Carlisle Bora, Cun: er an , 03 My Commission Expires Nov. 29, 20 I c Member, PennsylvanlaAssoclationol Nolartes II STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. On this, the \'i!;41'\ day of ~u tJ , 2002, before me, the undersigned officer, personally appeared Lisa M. Topichak known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that she executed same for the purposes therein contained. In witness hereof, I hereunto set my hand and official seal. ~L~~,- - .j}- i Notarial Seal M ody O'Brien, Notary Public Lowe, Paxton lWp., Dauphin County My Commission Expires Sept. 26, 2005 Member. f'ennsyIwnle Asaodalion 01 Notariea C') \):J '1 ,....~, .,'--1 ;-:>- :J:J -< :Jl ell I' " vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOSEPH M. TOPICHAK, Plaintiff LISA M. TOPICHAK, Defendant NO. 2002 - 1079 IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THE PROTHONOTARY: Transmit the record, together with the following information, to the Court for entry of a divorce decree: 1. Ground for divorce: irretrievable breakdown under Section 3301 (C) of the Divorce Code. 2. Date and manner of service of the Complaint: The defendant signed an Acceptance of Service form on March 21,2002. 3. (complete either paragraph (a) or (b).) A. Date of execution of the affidavit of consent required by Section 3301 (c) of the Divorce Code: by Plaintiff on June 20, 2002; and Defendant on June 21, 2002. B. (1) date of execution of the Plaintiffs Affidavit required by Section 3301 (d) of the Divorce Code: N/A (2) date of service of the Plaintiff's Affidavit upon the Defendant: N/A 4. Related claims pending: None 5. Indicate date and manner of service of the notice of intention to file praecipe to transmit record, and attach a copy of said notice under section 3301 (d)(1 )(1) Code: None Respectfully submitted, ~~ Michael A. Scherer, Esquire o C ? lli:,' ~~? ~.-;- Si~:~. Ce. ~;( -:~.'( .' ):>~.' :~~ .' -.;.... CJ r" L- ~ o -,"'/ f"...) 0) ~.~: \..i....; :Jl (J') . j Jlpz~ ~~ ~~~~~';h -'., .,,~ <:-,.. ' . ~?J.< :> <""VI- c: .:S'