Judges Opinions, — April 18, 2018 10:00 — 0 Comments

Maritsa Montilla, Michael Daub and Heather Daub v. Harold Dice and Audrey Dice v. Nicholas Pappas No. 2010-01603

Civil Action-Law-Arson-Apartment-Negligence-Injuries to Tenant and Firefighter-Motion for Summary Judgment-Duty of Landlord to Tenant-Fire Escape Door-Noxious Odors-Criminal Background Checks-Assumption of the Risk

Defendant Nicholas Pappas (“Pappas”) ignited a fire in his apartment to destroy the corpse of a man who had died of a drug overdose, and the fire spread to an apartment owned by landlords Harold and Audrey Dice (“Dice”) wherein Plaintiff Maritsa Montilla (“Montilla”) was located. Plaintiff Michael J. Daub, a firefighter, fell to the ground with Montilla during an attempted rescue with both Montilla and Daub sustaining fractures and Montilla suffering third degree burns over twenty percent (20%) of her body. Plaintiffs filed a Complaint in negligence against Dice and Pappas. Dice filed a Motion for Summary Judgment asserting that Plaintiffs are unable to establish negligence based upon the failure of the fire escape door of the premises to operate that trapped Montilla inside the structure, the failure of Dice to investigate the reported odor of the decaying body in the apartment that would have prevented the fire and the failure of Dice to perform a background check upon Pappas before renting the apartment to him, as well as seeking judgment as a matter of law with regard to the causes of action on behalf of Daub on the basis that he assumed the risk of harm by participating in firefighting activities.

1. The court must view the record in the light most favorable to the nonmoving party. The court’s job when assessing a motion for summary judgment is not to weight the evidence or to determine the truth of the matter. Summary judgment may be granted only if the record reveals the complete absence of any genuine issue of material fact.
2. In light of the deposition testimony of Montilla that she ran to the fire escape door, pushed the door repeatedly, it failed to open and she ran to the window and screamed that she was trapped and the expert report from a professional engineer indicating that fire escape doors are designed to be used in high stress situations in which occupants are panicking, the record clearly establishes a material fact relative to the functioning of the fire escape door.
3. A landlord has a duty to maintain his or her property in a reasonably safe manner. Encompassed within this general duty is the obligation of a landlord reasonably to respond when notice is given of a dangerous condition.
4. A landlord is not automatically responsible for injuries suffered by a tenant on leased property. There is no general duty on the part of a landlord to protect a tenant against criminal conduct of others.
5. The question of whether Dice should have responded to the complaint about a foul odor should be answered by the finder of fact, who will be in a much better position to evaluate the totality of the information about the noxious smell, when the same was communicated to Dice and the language used to communicate the same.
6. A landlord has no duty to protect a tenant from crime unless the landlord knows or has reason to know that the criminal acts of a third person are occurring or are about to occur.
7. A landlord cannot be vicariously liable for criminal conduct committed by a third person, even if the third person is another tenant.
8. In light of the fact that a landlord is not under a duty to conduct a background check regarding a prospective tenant, Plaintiffs are unable to sustain their cause of action based upon Dice’s failure to perform a criminal background check upon Pappas.
9. A firefighter in the Commonwealth of Pennsylvania can recover against a tortfeasor provided the traditional concepts of premises liability pertaining to licensees otherwise are established.
L.C.C.C.P. No. 2010-01603, Opinion by Bradford H. Charles, Judge, December 14, 2017.

CIVIL ACTION – LAW NO. 2010-01603




AND NOW, this 14th day of December, 2017, upon consideration of the DEFENDANTS’ Motions for Summary Judgment, the Order of this Court is as follows:
1. The DEFENDANTS’ Motions for Summary Judgment seeking to dismiss causes of action set forth in PLAINTIFFS’ complaint are denied.
2. Although PLAINTIFFS will be permitted to proceed based upon their factual arguments pertaining to the failure of the fire escape door to open and the failure of DEFENDANTS to respond to complaints of a noxious odor, PLAINTIFFS will not be permitted to proceed on any count based upon the argument that DEFENDANTS should have performed a background check on Nicholas Pappas before leasing an apartment to him.
3. Any party shall be at liberty to list the above-referenced for trial at any time following thirty (30) days from the date of this Order. In the event that no party lists this case for trial on or before March 1, 2018, then PLAINTIFFS’ counsel is to file a Motion with this Court seeking a Status Conference.




Arthur Bugay, Esquire For Plaintiff Maritsa Montilla

Loren Schrum, Esquire For Plaintiffs Michael Daub &
Andrew Race, Esquire Heather Daub

Stephen Greecher, Esquire For Defendants Harold Dice &
Audrey Dice

OPINION BY CHARLES, J., December 14, 2017
On July 14, 2008, Nicholas Pappas (hereafter PAPPAS) intentionally ignited a fire in his apartment that was intended to destroy the corpse of a man who had died as a result of a drug overdose. Sadly, the fire quickly spread out of control. Two people, Marissa Montilla (MONTILLA) and Michael Daub (DAUB) were injured as a result of the blaze. Both have sued Harold and Audrey Dice (hereafter DICE), who were the owners of the destroyed property. Three factual theories of recovery have been proffered by the PLAINTIFFS. They are:
(1) That a fire door at the premises would not operate and essentially trapped occupants inside the structure;
(2) That the noxious odor of the decaying body in PAPPAS’ apartment should have been investigated by DICE; and
(3) That DICE should have conducted a background check of PAPPAS before renting an apartment to him.
Before us today is a request by DICE to dismiss all three of the factual theories outlined above. For reasons we will articulate in more detail below, we will grant DICE’s Motion for Summary Judgment as it relates to the background check theory. However, we will permit the remaining two theories proffered by PLAINTIFFS to proceed forward to a trial.
At all times pertinent hereto, DICE owned an apartment building located at 33-35 South Ninth Street in the City of Lebanon (hereafter PREMISES). As of July 2008, PAPPAS and MONTILLA both leased apartments in the PREMISES from DICE.
When PAPPAS leased an apartment from DICE, he possessed a criminal record. (Exhibit 12). The record included Burglary, Possession of a Firearm and drug offenses. All of the above charges predated 2004. PAPPAS did not have a criminal record for Arson.
At some point prior to July 14, 2008, Kevin Boyd Robinson visited PAPPAS’ apartment. The two men consumed heroin. Unfortunately, Robinson suffered a fatal overdose on or about July 10, 2008. (Exhibit 13). PAPPAS did not call authorities or remove Robinson’s body from the apartment.
As Robinson’s corpse began to decay, it emitted a foul odor. According to PLAINTIFFS, reports of this foul odor were communicated to DICE and DICE did nothing to investigate them.
As Robinson’s body continued to decay, PAPPAS placed it behind a mattress against the wall. He also began to spray Raid to counteract the smell. (Exhibit 5 at pages 189-191). Eventually, the smell became too much for PAPPAS to bear and he decided to burn the body. The fire that he ignited quickly spread and engulfed the entire apartment building.
MONTILLA was asleep in her apartment when the fire commenced. She indicated that she awoke because she smelled smoke. (Exhibit 4 at pages 36-37). MONTILLA grabbed a wet towel and covered her face. She ran to the fire escape door and pushed on it. It would not open. Thereafter, she ran to the window and screamed “I am trapped.” (Exhibit 4 at pages 36-27).
In July 2008, DAUB was employed as a Lebanon City Fire Fighter. In that capacity, he responded to the scene of the 33-35 South 9th Street fire. When learning that MONTILLA could not escape, DAUB attempted to rescue her by climbing on a fire apparatus ladder. During the process of this rescue, both DAUB and MONTILLA fell to the ground. Both PLAINTIFFS suffered fractures and other injuries as a result of this fall. In addition, MONTILLA suffered third-degree burns to twenty percent (20%) of her body and she contracted MRSA during her convalescence.
PLAINTIFFS initiated this lawsuit by filing a Writ of Summons on July 9, 2010. Their complaint was not filed until May of 2013. The complaint articulated numerous legal theories, including negligence, breach of implied warranty of habitability, a violation of the Pennsylvania Fire and Panic Act and a request for punitive damages. Sifting through the legal language contained in the complaint, we gleaned that PLAINTIFFS’ factual theories of liability are grounded upon three factual predicates. They are:
(1) That the fire door at the PREMISES would not operate and essentially trapped MONTILLA inside the structure. This caused DAUB to attempt a rescue via a ladder truck. Both MONTILLA and DAUB were injured in this attempted rescue.
(2) That a noxious odor existed as a result of the decaying body of Robinson. This noxious odor was reported to DICE. DICE did nothing to investigate it. Had DICE investigated the odor, they would have discovered the decaying body and notified police, thus preventing the arson from occurring.
(3) That DICE should have conducted a background check of PAPPAS before renting an apartment to him. Had a background check been performed, DICE would have learned that PAPPAS had a criminal record that involved drugs. This should have prevented DICE from leasing an apartment to PAPPAS.
On September 5, 2017, DICE filed a Motion for Summary Judgment. We conducted oral argument on this Motion. At oral argument, we focused upon whether PLAINTIFFS’ factual theories outlined above are legally viable. In addition, a question arose as to whether DAUB assumed the risk that he could suffer harm by voluntarily participating in firefighting activity. Briefs and supplemental briefs on all of the above issues were filed by all parties. We issue this Opinion to address DICE’s request to dismiss the litigation filed against them.
A. Malfunction of Fire Door
The primary focus of MONTILLA’s claim is that she was trapped inside a burning building because she could not escape. DICE argues that “PLAINTIFFS have failed to adduce any evidence of record to support these allegations [that the failure of the fire escape door to open was in any way attributable to DICE]” (DICE’s brief at page 14). As a secondary argument, DICE asserts that the fire door did not open due to “thermal expansion” for which there can be no liability. 1
In response, PLAINTIFFS argue that the fire escape door was affixed to the structure owned by DICE and that it was their responsibility to ensure that the door would function properly during an emergency. In addition, PLAINTIFFS have presented an expert report from a professional engineer from the University of Pennsylvania by the name of Dr. David P. Pope. (Exhibit 11). Dr. Pope specifically rejects the thermal expansion theory proffered by DICE and their experts. In addition, Dr. Pope wrote in his opinion that “Fire doors are designed to be used in high stress situations such as where a building’s occupants, who are attempting to escape a fire, are panicking.” In this case, Dr. Pope opined that the fire door at the PREMISES was defective because it did not work as intended.
When addressing a Motion for Summary Judgment, we must view the record in the light most favorable to the non-moving party. Summary Judgment can be granted only in the clearest of cases. Anderson v. Moore, 650 A.2d 1090 (Pa. Super. 1994). Our job when assessing Summary Judgment is not to weigh the evidence or “determine the truth of the matter.” American Eagle Outfitters v. Lyle and Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). We can only grant Summary Judgment if the record reveals the complete absence of any genuine issue of material fact. See, P.A.R.C.P. 1035.2; Capek v. Devito, 767 A.2d 1047 (Pa. 2001).
In this case, MONTILLA testified in her deposition: “I ran to the fire escape door and I pushed on it three or four times. I was pushing and pushing and pushing and it wouldn’t open. So I ran back through my bedroom…and ran to the window and I screamed: “I am trapped.” (Exhibit 4 at pages 36-37). This evidence, combined with the expert testimony of Dr. Pope, clearly establishes a material issue of fact relative to the functioning of the fire door. Thus, Summary Judgment would not be appropriate as it relates to the allegations about the allegedly malfunctioning fire door. We will therefore send those issues forward to a trial. 2
B. Investigation of Putrid Smell
It is generally agreed that Mr. Robinson died on July 10. As Robinson’s corpse decayed, it emitted a foul smell. PAPPAS told police that he sprayed Raid in an effort to mask the smell. (Exhibit 5, pages 189-191). MONTILLA testified that she called Harold Dice to complain about the smell and that another tenant also tried to reach DICE in order to complain. (Exhibit 4, pages 19-20; 35). DICE did not investigate these complaints. PLAINTIFFS allege that DICE’s failure constitutes negligence. DICE asserts that they cannot be legally liable for failing to investigate reports of a foul odor.
From a very general perspective, landlords have a duty to maintain their property in a reasonably safe manner. See, e.g. Echeverria v. Holley, 142 A.3d 29 (Pa. Super. 2016) (Landlord has a duty to maintain property in a safe condition and may be held liable for failing to incorporate smoke detection devices.) Encompassed within this general duty is the obligation of a landlord to reasonably respond when notice is given of a dangerous condition. See, Smith v M.P.W. Realty Company, 225 A.2d 227 (Pa. 1967) (Landlord is liable for harm caused by defects to plumbing if he failed to exercise reasonable care to discover the condition and make it safe.) Reed v. Dupuis, 920 A.2d 861 (Pa. Super. 2007) (Landlord can be liable for failing to make repairs necessary to cure known water infiltration problem.) However, no landlord is a guarantor of his/her property; a landlord is not automatically responsible for injuries suffered by a tenant on the leased premises. See, Pierce v. Philadelphia Housing Authority, 486 A.2d 1004 (Pa. Super. 1985). Moreover, there is no general duty on the part of a landlord to protect tenants against criminal conduct by others. Murray v. Albright College, 2014 W.L. 10936796 (Pa. Super. 2014); Feld v. Merriam, 485 A.2d 742 (Pa. 1984).
Not surprisingly, we have found no Pennsylvania Appellate cases that have addressed the issue of whether a landlord has a duty to investigate complaints about odors emanating from another tenant’s abode. Therefore, we expanded our search radius to include decisions from other states and federal courts. Even with these expanded search parameters, we found very little. In Portland General Electric Company v. Hick, 227 P.3d 1213 (Or. 2010), an Oregon Appeals Court imposed a duty upon the landlord to respond to a sewage smell that reached the restaurant business of a tenant. In Thompson v. Harris, 452 P.2d 122 (Ariz. 1969), an Arizona Appeals Court refused to impose a duty upon a landlord to cure an offensive odor emanating from a neighboring tenant’s apartment. In Indianapolis Abattoir v. Temperly, 64 N.E.906 (Ind. 1902), the Indiana Supreme Court held that a landlord did have the responsibility to respond to an odor of gas before it reached the level of causing an explosion. 3
Having been unsuccessful in locating any on-point decisional precedent, we contemplated scenarios under which the duty to investigate a foul smell could be implicated. On the one hand, we would be hard-pressed to conceive of any situation where a landlord would have a duty to respond to the smell of unappetizing or burned food. On the other hand, we certainly hope that the law would impose a duty on a landlord to investigate the odor of propane or natural gas before it builds to the level where an explosion could occur. Having considered these two polarized “bookend” scenarios, we are compelled to conclude that the answer to the question of whether a landlord has a duty to respond to the complaint of a noxious smell is…SOMETIMES.
Having concluded that scenarios do exist that would trigger a landlord’s duty to investigate a noxious odor, we are left with the question of whether that duty to investigate could be triggered in this case. Candidly, our answer is “maybe not”. However, “maybe not” is insufficient to justify an award of Summary Judgment. Ultimately, the question of whether DICE should have responded to the complaint about a foul odor should be rendered by the finder of fact. The fact finder will be in a much better position to evaluate the totality of information about the noxious smell, when it was communicated to DICE, how it was communicated to DICE and the precise language used to voice the complaint. At this point, we will err on the side of caution by denying Summary Judgment on the claim of whether DICE could or should have investigated the smell emanating from PAPPAS’ apartment.
C. Background Check of PAPPAS
As noted above, the general duty in Pennsylvania is that a landlord cannot be held responsible for criminal conduct of third parties which victimize tenants. Feld v. Merriam, Supra. As a general proposition, landlords have no duty to exercise care to protect tenants from crime unless the landlord “knows or has reason to know that the acts of a third person are occurring or are about to occur.” Moran v. Valley Forge Drive-In Theater Inc., 246 A.2d 875 (Pa. 1968). It is therefore axiomatic that a landlord cannot be vicariously liable for criminal conduct committed by a third person, even if that third person is another tenant.
In this case, the most controversial aspect of PLAINTIFFS’ claim is their allegation that DICE should have conducted a criminal background check on PAPPAS before leasing an apartment to him. By definition, PLAINTIFFS’ argument asks us to adopt two troubling predicates:
(1) That DICE had a duty to conduct a criminal background check before leasing an apartment; and
(2) That the background check of PAPPAS would have revealed information that should have prevented DICE from leasing the apartment to PAPPAS.
We have not found any decisional precedent in Pennsylvania, in any Federal Court, or in any Appellate Court of any other state that has imposed liability upon a landlord in the manner sought by PLAINTIFFS herein. However, we did find cases that were inconsistent with PLAINTIFFS’ theory of liability. Foremost among these is the case of N.W. v. Anderson, 478 N.W.2d 542 (Minn. App. 1991). In N.W., a landlord was sued because he leased property to a convicted child molester without warning neighbors about the child molester’s record. When the molester raped a five year old neighbor girl, her parents sued the landlord. The Minnesota Appellate Court drew a distinction between “statistically probable victims” and “specifically targeted victims”. The Court held that only in the latter situation does a landlord have a duty to warn a tenant. Consistent with this approach, two more recent case have specifically declined to impose a duty on a landlord to conduct background checks on prospective tenants. See, Anderson v. 124 Green Street LLC, 28 Mass. L.Rptr. 119 (2011); Western Investments Inc. v. Urena, 162 SW 3d 547 (Tex. 2005).
If we were to create a cause of action for PLAINTIFFS based upon DICE’s failure to conduct a background check of PAPPAS, we would be blazing a new legal trail. Doing so would create a plethora of questions that would have to be addressed, including the following:
• What sort of inquiry should a landlord be expected to undertake? Is an application questionnaire sufficient, or do tenants need to provide fingerprint-verified FBI clearances?
• How far back should a landlord’s scope of inquiry extend? Is there a certain number of years beyond which a person’s criminal record can be discounted?
• What type of crimes should a landlord consider as a disqualifier? Felonies? Misdemeanors? Personal injury crimes?
• When a background check discloses a criminal record, under what circumstances can a landlord be held liable if the person victimizes another tenant? Does the new crime have to be identical to one that was already on the defendant’s record, or does the existence of any crime put a landlord on notice that the person to whom he leases would be likely to victimize others?
There are no established answers to any of the above questions, in part because no recognized legal theory has ever required landlords or Courts to even ask them.
Landlords provide a valuable service in our society – they provide affordable housing to people who, for a variety of reasons, do not wish to embark upon homeownership. Imposing a duty on these landlords to conduct background checks of prospective tenants would impose an expense on landlords that would inevitably be passed down to those who lease in the form of higher rent payments. Moreover, linking civil liability with the necessity for background checks would place landlords in an untenable position if they choose to lease to those who have prior criminal records. In a very real sense, creating a cause of action as sought by PLAINTIFFS would disincentivize the leasing of residential living space to those who have a criminal record. Very few former inmates have the financial resources to purchase their own homes. Most need to lease living space in order to “get back on their feet”. As a society, we should be encouraging redemption for those who have committed crimes. If we tell landlords that they can be held liable if they lease space to someone with a criminal record, redemption will be made infinitely more difficult. 4
In this case, PAPPAS had a criminal record that included drug offenses and felony burglary. However, PAPPAS had a clean record for five years leading up to 2008, and none of his prior record involved arson. PLAINTIFFS suggest that PAPPAS’ record should have triggered a duty on DICE to investigate whether PAPPAS was a drug addict at the time he leased his apartment. Implicit in this argument is the notion that if PAPPAS was “addicted” to drugs, he should have been disqualified from leasing an apartment. In proffering this legal theory, PLAINTIFFS do not provide guidance as to how we should define the term “addicted” to drugs, nor does PLAINTIFF offer suggestions as to what sort of additional investigation DICE should have undertaken or the standards by which DICE should have evaluated information to discern whether PAPPAS would be a danger to anyone other than himself.
From both a visceral and legal perspective, we cannot support a cause of action predicated upon DICE’s failure to conduct a background check of PAPPAS. As a general proposition, a requirement of background checks for tenants would create a whole host of unintended consequences for landlords and society. More specific to this case, there is simply nothing to suggest that a background check of PAPPAS would have gleaned information that could or should have prevented DICE from leasing an apartment to him. For either or both of these reasons, we decline to support a theory of liability such as the one proffered by PLAINTIFFS. Accordingly, we will grant the DEFENDANTS’ Motion for summary Judgment as is relates to all allegations against DICE for failure to perform a background investigation on PAPPAS.
D. Assumption of Risk by Firefighters
At oral argument, we discussed with counsel whether a fireman such as DAUB legally assumes the risk that he could suffer harm during firefighting activities. We asked the parties to file supplemental briefs. All have done so. These briefs led us to the so-called “Fireman’s Rule”.
Broadly stated, the Fireman’s Rule provides that as a matter of public policy, a fireman cannot recover for injuries attributable to the negligence that required his assistance. Flowers v. Rock Creek Terrace Ltd. Partnership, 520 A.2d 361 (Md. 1987). Under the Fireman’s Rule, a firefighter injured during the course of his firefighting duties cannot sue in tort for compensation due to his injuries. The Rule was created based upon the unique relationship between firefighters and the public that calls upon firefighters “to confront certain hazards on behalf of the public” as part of his/her job. Flowers, Supra. at page 447.
While the so-called Fireman’s rule has been adopted in most American jurisdictions, it is not extant in the Commonwealth of Pennsylvania. In Holpp v. Fez, Inc., 656 A.2d 147 (Pa. Super. 1995), our Superior Court stated:
“The Fireman’s Rule, which provides that a police officer or firefighter who enters upon the land of another in connection with official duties cannot recover from the possessor of land for subsequent injuries, has not been adopted in Pennsylvania. A police officer who enters upon another’s land in his or her official capacity and in response to a call for assistance is generally considered a licensee. In such situations, the land owner’s duty is to warn the licensee of dangerous hidden conditions. Even if a police officer enters another’s land as in invitee, moreover, the possessor of the land does not become the insurer of the officer’s safety. The possessor’s duty is only to use reasonable care to protect his or her invitees from unknown or non-obvious dangers.” Id at page 516 (citations omitted).
Although we parsed our inquiry at oral argument as one of assumption of risk, we consider Holpp and its explicit rejection of the Fireman’s Rule to have answered our inquiry. Until or unless Pennsylvania’s Legislature or Supreme Court redefines the law in this arena, fireman such as DAUB can recover against a tortfeasor provided the traditional concepts of premises liability pertaining to licensees can otherwise be established. In this case, as outlined above, there are certainly issues of fact concerning whether DICE can be liable for placing MONTILLA in a position that required rescue. Thus, Summary Judgment against DAUB would not be appropriate.
By virtue of our decision today, we have paved the way for a trial to occur in the above-referenced case. However, we have limited the scope of that trial. Based upon what has been presented by the parties, the primary issue at trial will focus upon the alleged failure of the fire escape door. Secondarily, the jury will also be permitted to assess the sufficiency of DICE’s response to complaints of an odor emanating from PAPPAS’ apartment. Various legal principles will be implicated by each of the two factual theories outlined above and both sides will be at liberty to pursue all available legal theories. However, we will not permit the PLAINTIFFS to articulate their background check theory to the jury, nor will we even permit PLAINTIFFS to introduce evidence about what would have been disclosed had a background check been initiated.
An Order to accomplish all of our decisions today will be entered simultaneous with this Opinion.

1 We are not completely sure we understand this argument. A fire escape door should be designed to let people exit during a fire. By definition, a fire generates heat. Why should an owner be excused from liability when a fire door is inoperable due to heat generated by fire?

2 We reject DICE’s reliance on the case of Sewell v. Moore, 31 A. 370 (Pa. 1895). Sewell was decided in 1895 at a time when no safety codes existed. Moreover, in Sewell, a non-party was responsible for maintaining the allegedly defective fire escape door. If the above were not enough, Sewell was decided in the context of an actual trial, and not via a Motion for Summary Judgment. We agree with PLAINTIFFS that to the extent antiquated cases are relevant, the case of Richey v. Cassone, 296 Pa. 249 (1929) is far more pertinent. In Richey, the plaintiffs decedent fell and died after falling from a fireman’s ladder after unsuccessfully attempting to exit through a fire escape door. Under such circumstances, the Court refused to grant the defendant’s Motion for JNOV following a verdict in favor of plaintiffs.

3 PLAINTIFFS have cited the case of Certain Underwriters at Lloyd’s London v. Creagh, 2013 W.L. 3213345 (E.D. Pa. 2013). Although Creagh does affirm the self-evident, i.e., that the smell of a decomposing corpse is vile and indicative of a potentially hazardous condition, it does not elucidate the scope or extent of a landlord’s duty to respond to a complaint of a foul smell.

4 Moreover, if criminals are not able to find places to live when they are eligible for release from prison, they will not be eligible for parole and they will remain in prison. Preventing parolees from being able to lease an apartment could increase prison overcrowding.


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