HomeMy WebLinkAbout21-09-0204
IN RE: : IN THE COURT OF COMMON PLEAS OF
ESTATE OF DAVID H. CLOUSER : CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 21-09-0204 ORPHANS’ COURT
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a)
Ebert, J., August 15, 2012 –
FACTS
On February 22, 2009, David H. Clouser died at the age of 75. The
decedent had executed a Last Will and Testament on February 17, 2009. This
Last Will and Testament was filed with the Clerk of the Orphans’ Court on March
3, 2009, along with a Petition for Probate and Grant of Letters. Pursuant to the
provisions of the Will, the decedent’s children, Douglas G. Clouser and Debra A.
Houseman were to serve as co-executors of the Will. The Register of Wills
granted Letters Testamentary to Douglas G. Clouser and Debra Houseman on
March 3, 2009.
The Will contained the following provision:
V.
My daughter, Debra A. Houseman, currently resides
with me at my residence. If Debra should continue to
reside there at my death, then I give her the opportunity
to continue to reside there with the condition that she
immediately after my death start paying all utilities.
After passage of three (3) months after my death, she
may continue to reside there if she pays not only the
utilities but also taxes and insurance, as well as making
a monthly payment of THREE HUNDRED DOLLARS ($300.00)
to my son, DOUGLAS G. CLOUSER.
This provision lies at the crux of this litigation. It’s clear that David Clouser’s
estate in not extensive. At best, the largest asset is in the estate is the real
estate located at 1204 Mitchell Drive, Mechanicsburg. During a hearing held on
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September 9, 2010, a comparative market analysis of this property listed its
value anywhere from $149,000.00 to $168,000.00 depending on the amount of
required repairs and improvements done to the home. All prices assumed that
the home would be vacant. In addition to the home, the only other assets are an
unstated quantity of “antiques and collectibles.” Some of these are in the home
at 1204 Mitchell Drive and some are stored in various commercial storage units
in Perry County. Debra Houseman continues to live in the home at 1204 Mitchell
Drive without paying the required rent. Testimony taken before this Court on
September 9, 2010, also indicated that she had an adult son who has a bedroom
in the home and who stays there sometimes three days a week. He also pays no
rent.
Now more than three years after David H. Clouser’s death, this litigation
continues. To say that brother and sister co-executors have had a falling out
would be a gross understatement. It is one of the saddest things in law to watch
the lure of gaining a little advantage in some inheritance tear apart what should
be a normally loving relationship between siblings.
On November 13, 2009, Douglas Clouser filed a “Petition for the Removal
of Co-Personal Representative of Estate.” Debra Houseman filed an Answer to
the Petition, and the matter was heard before this Court on January 12, 2010.
On January 12, 2010, the Court issued the following Order:
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AND NOW, this 12 day of January, 2010, after hearing
in the above-captioned matter, IT IS HEREBY ORDERED
AND DIRECTED that petitioner’s request to remove
Debra Houseman as a co-personal representative is denied.
IT IS FURTHER ORDERED AND DIRECTED that the house
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in question will be appraised by the Remax appraiser on
January 18, 2010. A copy of appraisal shall be supplied to the
Court.
Debra Houseman shall supply the defendant with a key
to the property as of this date. Both parties are hereby
prohibited from moving any personal property, selling any
personal property, or in any way disposing of any personal
property which would be part of this estate. The parties are
directed through counsel to supply this court with the name
of an appraiser capable of appraising the personal property
in this case to include antique items which may have significant
value. The items will be inventoried in the presence of both
parties pursuant to a schedule provided to this court by counsel.
Debra Houseman shall pay rent to the petitioner, Douglas Clouser,
from July 1, 2009, to the present. (emphasis added). Appointments
for Douglas Clouser to enter the home in question shall be
arranged through counsel.
On June 9, 2010, Debra Houseman filed a Petition to Appoint Personal
Representative, which alleged in paragraph 12 the following:
12. The following portions of the Court’s Order have not
been complied with:
A. The real property located at 1204 Mitchell Drive,
Mechanicsburg, Pennsylvania, has not been appraised by
an appraiser, but has merely been viewed by a real estate
sales person for an estimated sales price;
B. The personal property consisting of a substantial
amount of antiques which are currently being stored
at 1204 Mitchell Drive and in storage units located in
Perry County, Pennsylvania, have not been inventoried
or appraised nor has an appraisal been scheduled; and
C. The filing of an Inheritance Tax Return with the
Pennsylvania Department of Revenue has not been done
and, therefore, penalties and interest continue to accumulate.
A hearing on the petition was held on September 9, 2010. After the hearing, the
Court held a series of status conferences with counsel in order to assist the
parties in resolving their differences. Status conferences were scheduled for
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November 15, 2010, and February 16, 2011. At the status conference on
February 16, 2011, this Court noted that the parties had really done nothing in
the case and had certainly not complied with this Court’s previous order.
The attorney for Debra Houseman related to the Court at a status
conference held on February 11, 2011, that the house was deteriorating and that
the borough may in fact condemn the home such that his client could no longer
live there. The attorney went on to state that his client had not been paying the
$300.00 required rent and that the house was no longer insured because the
insurance company would not insure it in its present condition. Both attorneys
related to the Court that an independent appraisal should be completed and that
one of the parties might then move to purchase the home which would end the
impasse. After this status conference, the Court entered an Order on February
16, 2011, directing that Certified Appraiser Larry Foote would do an appraisal of
the property at 1204 Mitchell Drive Mechanicsburg, PA.
On March 23, 2011, Douglas Clouser filed a Motion for Relief requesting
(1) that he be allowed to sell some of the antique assets, (2) that his sister
contribute to the cost of storing the antiques, and (3) that his sister begin making
the rental payments and pay an arrearage in the amount of $2,100.00. A hearing
on this Motion was held on June 23, 2011. On June 27, 2011, the Court entered
the following Order:
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AND NOW, this 27 day of June, 2011, upon
consideration of Douglas Clouser’s Motion for
Relief, Debra Houseman’s Answer thereto and
after hearing; IT IS HEREBY ORDERED AND
DIRECTED that:
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1. The home and real estate located at 1204
Mitchell Drive, Mechanicsburg, PA shall be listed
for sale on or before July 15, 2011.
2. All other assets of the estate to include the
antiques, rare collectibles and any other personal
property currently located in the home at 1204
Mitchell Drive, Mechanicsburg, PA and/or the rental
storage units in Perry County shall be assembled at
a single location where they will be sold by an auctioneer
suitable to both Douglas Clouser and Debra Houseman.
If the parties cannot agree to an auctioneer, an auctioneer
will be selected by the Court.
3. An auction of all items described in paragraph 2 above
shall be concluded on or before September 30, 2011.
4. On or before September 9, 2011, the Parties may by
mutual agreement assign title and ownership of any particular
asset to either party. Such items will become the personal
property of the agreed upon party and shall not be
subject to the auction.
5. Neither party will dispose of any of the assets of the
estate. The auctioneer selected by the parties will
conduct an immediate inventory of all of the assets and
provide a copy of the assets to the Court. Any party who
removes or disposes of any asset of this estate other than
through the auction will be subject to criminal prosecution.
6. All proceeds collected from the sale of the home
and the assets shall be placed in the escrow account
of Michael Palermo, Esquire.
7. Douglas Clouser shall pay for the rental of the storage
units located in Perry County. He will be given credit for
payment of these storage units in the estate’s final
accounting.
8. Debra Houseman will not be required to pay the $300 rent
pending sale of the home, however, the amount of the rent
due and owing will be deducted from her share of the final
distribution from the estate.
9. Douglas Clouser shall provide Debra Houseman with copies
of all financial records of the original estate account and the
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new account he created solely in his name in October 2009 on
or before July 7, 2011.
Had the parties complied with this Order, this relatively small estate should have
been resolved. The Court notes that it did grant Debra Houseman permission
not to pay the required $300 rent pending sale of the home. Thus she continued
to benefit by living in the home rent free.
Of course, true to the history of this case, nothing happened. On
December 22, 2011, Douglas Clouser filed another Petition to Enforce Rents,
Share Costs and Set Deadlines. A Rule was issued upon Debra Houseman to
show cause why the relief requested by Douglas Clouser should not be granted.
Debra Houseman, Respondent, filed an Answer on January 22, 2012, in which
she requested the following relief:
“Respondent prays that this Court will establish
new deadlines within which both parties must
move and sell all personal property belonging
to the estate and further Respondent requests
this Court to set a date by which the real
property is to be listed for sale considering the
property as in its current condition.”
By Order of Court dated January 3, 2012, a “Hearing/Argument” (emphasis
added) on the matter was scheduled to be held on March 21, 2012. On the
scheduled date, March 21, 2012, the Court met with counsel for the parties in
chambers. When it became evident that absolutely nothing had been done to
comply with this Court’s previous order of June 27, 2011, the Court, honoring
Debra Houseman’s prayer for relief, worked through a detailed plan with counsel
to settle this estate equitably for both parties. The following Order was entered:
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AND NOW
, this 21 day of March, 2012, upon
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consideration of Douglas Clouser’s Motion for
Relief, Debra Houseman’s Answer thereto
and after consultation with counsel;
IT IS HEREBY ORDERED AND DIRECTED
that:
1. Debra Houseman may continue to stay in the
home located at 1204 Mitchell Drive,
Mechanicsburg, PA but must vacate the premises
by July 2, 2012. Debra Houseman will not be
required to pay rent prior to vacating the premises
but the issue of whether any rent will be owed will
be determined after liquidation of the estate.
2. The Parties will engage the services of Beth Williamson,
realtor with Jack Gaughen Realtor and both parties
will execute a listing agreement with her.
3. All items located at the residence are to be
auctioned by either Costea’s of Camp Hill or
Rowe’s of Carlisle. In either event, the contract
with the auctioneer must be jointly executed
within 3 weeks of today’s date.
4. The items located in storage sheds located
in Perry County shall be sold by Nevin Fahnestock,
Auctioneer, New Bloomfield, PA. The agreement
with Nevin Fahnestock must also be executed
within 3 weeks of today’s date. All remaining assets,
if any, are to be liquidated on or before July 2, 2012.
5. Neither party will dispose of any of the assets
of the estate. Any party who removes or disposes
of any asset of this estate other than through the
auction will be subject to criminal prosecution.
6. All proceeds collected from the sale of the home
and the assets shall be placed in the escrow account
of Michael Palermo, Esquire.
7. Douglas Clouser shall pay for the rental of the
storage units located in Perry County. He will be given
a credit for payment of these storage units in the
estate’s final accounting.
8. Both parties agree that all parties are allowed
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to be present for the removal of any items from the
house or storage sheds and the Parties shall provide
each other with sufficient notice of any scheduled
appointments with auctioneers and realtors.
It is patently evident given the detail included in the Order that all parties were
given an opportunity to provide input into how to finally conclude this matter.
Things like the name of the realtor chosen, the auctioneers to be used, and the
precise dates when each party had to complete certain obligations were
discussed. These details would not have been dictated by the Court without
precise input from the parties. Again, Debra Houseman was allowed to stay in
the home for three additional months without paying any rent.
In his Statement of Matters of on Appeal, the Attorney for Debra
Houseman specifically states:
“3. Over objection of Debra Houseman’s counsel
to the Order to Vacate, the Court simply stated that
it was the only way this estate would ever be settled.
6. Debra Houseman was never given an opportunity
to be heard. Even in the last hearing, the Court stopped
the proceedings and issued an order before Debra
Houseman had an opportunity to testify or introduce
evidence.”
These claims are, at best, misguided. At worst, it would appear that Debra
Houseman’s counsel has distorted the facts as to what occurred on March 21,
2012. This Court has searched diligently with the assistance of our court
reporters to find any evidence that Attorney Thomas placed any objection on the
record. This record is totally devoid of anyone ever requesting that “objections”
to the Order be placed on the record. This Court is fully aware of its obligations
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to the parties appearing before it and would never surreptitiously deny a party’s
request to make a record.
Counsel never requested a rehearing and never filed a Motion to
Reconsider the Court Order of March 21, 2012. Finally, Counsel never appealed
the Order of Court dated March 21, 2012, within 30 days of the date of the Order.
Counsel did absolutely nothing until Thursday, June 28, 2012, one business day
before Debra Houseman was to have vacated the property on Monday, July 2,
2012. The Petition for Emergency Relief was filed at 12:52 p.m. on Thursday,
June 28, 2012. It is highly unlikely, given this Court’s system of hand carried
distribution of motions, that this Court even got the petition for review until July 1,
2012, at the earliest. It was denied by Order of Court which was filed at 10:55
a.m. on July 2, 2012.
DISCUSSION
There is some question as to whether or not the appellant has filed this
appeal in a timely manner. Given the fact that Appellant is disputing our
Orphans’ Court Order that she vacate a home which belonged to her descendant
Father, we will consider this matter a “collateral order” which deals with assets of
the estate. Interestingly, the Notice of Appeal filed by the Appellant appeals both
the orders of this Court dated March 21, 2012, and July 2, 2012. The July 2,
2012, order denied Debra Houseman’s Petition for Emergency Relief.
Initially, it would appear that that appeal for the Order of March 21, 2012,
may be untimely. Normally one would expect that the Orphan’s Court Order
dated March 21, 2012, would have resulted in a Motion for Reconsideration
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within ten days or the filing of an appeal within thirty days of the date of the
Order. However, given the holding in In Re: Estate of Petro, 694 A.2d 627
(Pa.Super. 1997), and given the fact that the Emergency Petition also dealt with
the collateral order, we will give the Appellant the benefit of the doubt that the
appeal was timely filed. Appellant’s Statement of Matters Complained of on
Appeal are as follows:
1. The issues before the court on March 21, 2012, were:
a. the payment of rent which the court had
previously ordered to be held in abeyance
until resolution of other estate issues;
b. a request for contributions to the
rental of storage units;
c. an unnecessary request for a notice
deadline since Debra Houseman had
already agreed to put the house on
the market; and
d. a request for attorney fees.
2. Without a hearing the court ordered Debra
Houseman to vacate her residence on or
before July 2, 2012.
3. Over objection of Debra Houseman’s counsel
to the order of vacate, the court simply stated that
it was the only way this estate would ever be settled.
4. Under the laws of descent in Pennsylvania, and
by virtue of the Will of David H. Clouser, Debra
Houseman is a joint owner of the property where
she resides.
5. As the legal owner of the residence, even if a
joint owner, she cannot be deprived of that property
or the beneficial use thereof, without due process
of law.
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6. Debra Houseman was never given an opportunity
to be heard. Even in the last hearing, the court stopped
the proceedings and issued an order before Debra
Houseman had an opportunity to testify or introduce
evidence.
7. The deprivation of Debra Houseman’s property rights
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without due process of law violates both the 5 and 14
Amendments to the U.S. Constitution.
8. Even a tenant, under Pennsylvania’s Landlord Tenant
Act, has more rights regarding due process than those
afforded to Debra Houseman by the court.
9. The Petitioner, Douglas Houseman, has legal
remedies he could pursue through Partition of the
property. He never sought that remedy, nor did
he request that Debra Houseman be removed
from the property.
10. The court’s order of March 21, 2012, is
unconstitutional, and is an abuse of the court’s
discretion.
11. Pa. Rules of Appellate Procedure, Rule 313
allows appellant to appeal this order because of
the irreparable harm it will cause appellant.
Basically, this all boils down to a claim that the Appellant did not get “due
process.” Due process is defined in Black’s Law Dictionary as “the conduct of
legal proceedings according to established rules and principles for the protection
and enforcement of private rights, including notice and the right to a fair hearing.”
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Black’s Law Dictionary, 538 (8 Ed. 2004). There is no question in this case that
the Defendant did have notice. The Court advised the parties that a
“hearing/argument” (emphasis added) would be held on March 21, 2012. At that
time, the attorneys for the parties appeared and the case was discussed at
length in chambers. No one requested an evidentiary record. The court reporter
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assigned to this Courtroom for that day has filed an affidavit that no testimony
was taken and that no attorney requested anything to be put on the record.
Thus, based on the actual record in this case, Appellant did have an
opportunity for a fair hearing and chose not to make any record. It is clearly
obvious by the detail of this Court’s March 21, 2012, order that lengthy and
detailed discussions were held in order to attempt to resolve the disputes
between the parties. In essence, this Court gave the Appellant exactly what she
prayed for in her January 22, 2012, Answer to the Rule to show cause. She
wanted new deadlines to move and sell all personal property and to set a date by
which the real estate property was to be listed for sale. Again, as shown in the
Exhibit Number 1 filed during the hearing of September 9, 2010, all estimated
prices for the home were based on the assumption that the home would be
vacant. This Court has tried everything to assist the parties in settling this estate.
As shown in the record of Appellant’s Counsel’s call to this Court on November
23, 2010, and this Court’s own action, we attempted to find a professional trustee
to administer this estate. Unfortunately, the cost of such a trustee was prohibitive
given the small value of the estate.
One thing is patently clear. In the three years since the decedent’s will
was admitted to probate, Appellant has consistently ignored the orders of this
Court. The motive for this delay is obvious. By doing nothing, she continues to
live in the home without paying any rent.
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A. Equitable Considerations
The jurisdiction of Orphans’ Court is statutory. In the exercise of this
jurisdiction, the Orphans’ Court applies rules and principles of equity. Estate of
Freihofer, 174 A.2d 282 (Pa. 1961) This Court has been more than fair to the
Appellant. We did not remove her as a co-executor. We have allowed her to live
in the home for well over three years without paying any rent. Appellant has
been granted ample time to arrange for financing to purchase the home from the
estate, but she has failed to do so. Again, one must remember that it was Debra
Houseman in her January 22, 2012, Answer to Douglas Clouser’s Petition to
Enforce Rents, Share Costs and Set Deadlines who requested that the Court
“establish new deadlines within which both parties must move and sell all
personal property belonging to the estate and further respondent requests this
court to set a date by which the real property is to be listed for sale…” Any fair
reading of this Court’s Order of March 21, 2012, gave the Appellant exactly what
she requested. It is clearly disingenuous at this time to try and claim that this
estate case has now somehow morphed into a landlord tenant action.
Given these circumstances and the fact that this Orphans’ Court is a court
of equity, the doctrines of clean hands and laches come into play. The clean
hands doctrine states that a party cannot seek equitable relief or assert an
equitable defense if the party has violated any equitable principle. Here,
decedent, David Clouser’s clear admonition to his daughter, the Appellant, was
that “after passage of three months after my death, she may continue to reside
there if she pays not only the utilities but also taxes and insurance as well as
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making a monthly payment of $300.00 to my son Douglas G. Clouser.” This
requirement to pay rent to her brother Douglas Clouser was clearly stated in this
Court’s Order of January 12, 2010. She did not comply. While this Court has
now allowed her not to pay rent, this benefit was not to go on indefinitely. The
benefit of not paying rent was based on the expectation that the home would be
sold and the estate would be settled. Selling the home requires the Appellant to
vacate the premises. Accordingly, she does not have clean hands and is not
entitled to any further equitable relief.
Additionally, the equitable doctrine of laches applies in this case. Where a
party unreasonably delays a claim in a way that prejudices the other party, the
claim will be denied. In this case, Appellant did not file a Motion for
Reconsideration of this Court’s Order of March 21, 2012, nor did she appeal the
Order within 30 days of its entry. Rather, the Appellant “slept on her rights” and
waited until the last minute to take an appeal in order to obtain a stay of the
March 21, 2012, Order and thereby continue to benefit by remaining in the home,
which is the only major asset of the estate, rent free. Had she filed a Motion for
Reconsideration or requested a hearing on the matter, this Court would have had
the opportunity to address this problem in a timely manner. Clearly, the
Appellant did not want such clarification but simply continues to delay resolution
of this estate for her benefit. Accordingly, the doctrine of laches applies, and she
is not entitled to relief.
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B. Ethical Considerations
The timing of this appeal and certain facts stated by the Appellant in her
Concise Statement of Matters Complained of on Appeal raise two ethical
considerations. Rule 3.2 of the Rules of Professional Conduct “Expediting
Litigation” require that “a lawyer shall make reasonable efforts to expedite
litigation consistent with the interests of the client.” As stated in the comments to
the Rule, “dilatory practices bring the administration of justice into disrepute.”
Here, after this Court’s good faith efforts to finally resolve this estate after three
years of litigation, Appellant’s counsel did not request a Motion for
Reconsideration or file any appeal of the Order of March 21, 2012. Instead,
Counsel waited until the last moment to request emergency relief one business
day before the deadline for his client to vacate the home in question. This appeal
was then taken in order to further delay resolution of this estate. There is no
question that the Appellant is realizing a financial benefit by this delay. As stated
in the comments to Rule 3.2 “realizing financial or other benefit from otherwise
improper delay in litigation is not a legitimate interest of the client.”
Consideration must be given to Rule 3.3 “Candor Toward the Tribunal.”
Under this Rule “(a) a lawyer shall not knowingly: (1) make a false statement of
material fact or law to a tribunal…” Additionally, Article 2, paragraph 8 of the
Code of Civility dictates that “A lawyer shall should not misrepresent,
mischaracterize, misquote or miscite facts or authorities in any oral or written
communications to the Court.” In the Appellant’s Statement of Matters
Complained of on Appeal, Appellant’s lawyer stated the following:
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“2. Without hearing the Court ordered Debra
Houseman to vacate her premises on or before
July 2, 2012.
3. Over objection of Debra Houseman’s
Counsel to the Order of Vacate, the Court simply
stated it was the only way the estate would ever be settled.”
While this may be Appellant’s Counsel’s recollection of what transpired on March
21, 2012, the record does not support these allegations. Again, the Order
scheduling the March 21, 2012, proceedings indicated that it was to be a
hearing/argument. Appellant’s Counsel did not insist upon a hearing or make
any record that he ever requested a full evidentiary hearing. It is obvious by the
detail of the March 21, 2012, Order that he did participate in trying to finalize
resolution of this estate. Appellant got exactly what she asked for in her prayer
for relief that she filed on January 22, 2012. There is absolutely nothing on the
record that indicates counsel “objected” to the Order. Common sense and
common courtesy dictate that had he done so, this Court certainly would have
entertained an evidentiary hearing or further argument. These averments in the
Appellant’s Statement of Matters Complained of on Appeal do not evidence
candor toward this tribunal or to the Superior Court.
CONCLUSION
Practically speaking, even if Debra Houseman’s appeal is granted and the
matter remanded back to this Court, we are left in the same situation as we were
on March 21, 2012. The house cannot be sold unless it is vacated. Appellant
apparently cannot afford to purchase the home from the estate. Douglas Clouser
is entitled to having the estate concluded so that he may receive his share of the
inheritance, to include the back rent which Debra Houseman’s dying father
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required her to pay. The appeal should be denied and this matter moved to
closure.
By the Court,
M. L. Ebert, Jr., J.
Michael Palermo, Jr., Esquire
Attorney for Petitioner
R. Mark Thomas, Esquire
Attorney for Respondent
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