J-A21015-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
TATIANA OUDOLSKY AND PETER : IN THE SUPERIOR COURT OF OUDOLSKY, W/H : PENNSYLVANIA : Appellant : : v. : : MOUNT AIRY CASINO #1, LLC AND : MOUNT AIRY CASINO RESORT, L.P. : No. 3109 EDA 2023
Appeal from the Order Entered October 30, 2023 In the Court of Common Pleas of Monroe County Civil Division at No(s): 003804-CV-2022
BEFORE: KUNSELMAN, J., NICHOLS, J., and BECK, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 22, 2024
I. Introduction
In this slip-and-fall case, Plaintiffs, Tatiana and Peter Oudolsky, appeal
from the order granting summary judgment to Defendants, Mount Airy Casino
#1, LLC and Mount Airy Casino Resort, L.P. Because a jury might reasonably
find that the negligent acts of the resort’s employees created the slippery spot
on which Mrs. Oudolsky fell, we partially reverse and remand for trial.
II. Factual and Procedural Background
On July 4, 2020, while COVID-19 raged, the Oudolskys stayed at the
resort as invitees. The resort had installed hand-sanitizer stations in various
locations to counter the disease. It hung one of its hand-sanitizer stations on
the side of a slot machine, above a marble pathway through the casino floor.
See Oudolskys’ Reply to Motion For Summary Judgment at 4, Video-
Surveillance Screenshot #1. That dispenser drew at least three patrons, who J-A21015-24
“would pour some sanitizing liquid onto their hands, and they would [rub]
their hands with the liquid . . . .” Depo. of Tatiana Oudolsky at 18. Two resort
patrons used the dispenser at 12:11 a.m.; another patron used it at 12:31
a.m. See Oudolskys’ Reply to Motion For Summary Judgment at 5, Video-
Surveillance Screenshots #3 & #4.
Ten minutes later, at 12:41 a.m., Mrs. Oudolsky walked on the marble
floor in front of the dispenser. She “slipped on some liquid substance . . . .”
Depo. of Tatiana Oudolsky at 23. Mrs. Oudolsky “believe[d] it was the
sanitizing liquid,” or “[m]aybe somebody spilled something else there.” Id.
at 25. She recalled that “it was a clear liquid, because [she] couldn’t see it.
It just kind of blended in with the floor. Or maybe it was almost clear. It was
transparent.” Id.
Mrs. Oudolsky fell onto the marble floor and suffered an elbow injury.
The Oudolskys commenced this action against the resort. They alleged
negligence based on premises liability and loss of consortium/society by Mr.
Oudolsky. At the close of discovery, the resort moved for summary judgment,
which the trial court granted.
In the trial court’s view, (1) Mrs. Oudolsky’s deposition did not establish
that the resort created the dangerous condition, and (2) the Oudolskys offered
no evidence regarding “how long the liquid came to be on the floor, how long
it had been there, or when it was last cleaned.” Trial Court Opinion, 10/30/23,
at 7. The trial court also relied upon the absence of an expert report explaining
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“what the liquid was, where it came from or how it got on the floor, or that
defective equipment was involved.” Id. This timely appeal followed.
III. Analysis
The Oudolskys raise four appellate issues:
1. Whether the trial court [erred] by granting . . . summary judgment where evidence was presented that [the resort] created the dangerous condition of installing a hand- sanitizing station immediately adjacent to a marble walkway utilized by [Mrs.] Oudolsky?
2. Whether the trial court [erred] by granting . . . summary judgment where evidence was presented that [Mrs.] Oudolsky, testified that she believed she slipped on sanitizing liquid next to the hand sanitizing station and that she felt sanitizing liquid with her hand after her fall?
3. Whether the trial court [erred] by granting . . . summary judgment where evidence was presented by surveillance video still shots that . . . the [resort] failed to inspect, maintain, and/or clean the subject area where [Mrs.] Oudolsky, fell for over one hour before her fall?
4. Whether the trial court [erred] by granting . . . summary judgment where evidence was presented during oral argument that a maintenance employee of [the resort] walked by the precise area where [Mrs.] Oudolsky, slipped/fell approximately one minute before she slipped/fell but failed to clean up the sanitizing liquid situated on the marble walkway?
Oudolskys’ Amended Brief at 4-5. We address issues one and two together,
followed by issues three and four.
A. Resort Created Dangerous Condition & Source of the Liquid
For their first two issues, the Oudolskys contend the trial court erred by
granting summary judgment, because the resort negligently caused the wet
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spot to form on the marble floor. They believe that, by installing the hand-
sanitizer station above a marble floor, the resort created the dangerous
condition. They also argue that Mrs. Oudolsky sufficiently identified the source
of the liquid to create a question of fact for the jury.
Relying on Schwartz v. Warwick-Philadelphia Corp., 226 A.2d 484,
484 (Pa. 1967), the Oudolskys state a “party need not identify concretely
when the cause of the dangerous or hazardous condition was created.”
Oudolsky’s Amended Brief at 25. They assert “constructive notice need not
be proved” in this case, because the resort negligently installed the hand-
sanitizer station above a marble floor. Id. at 30 (quoting Schwartz at 487).
The resort agrees with the Oudolskys that, under Pennsylvania law and
§ 343 of THE RESTATEMENT (SECOND) OF TORTS (1965), if a “business owner
created the harmful condition, he is deemed to have actual or constructive
notice” of it. Resort’s Brief at 20-21 (quoting Marshall v. Brown’s IA, LLC,
213 A.3d 263 (Pa. Super. 2019)) (some punctuation omitted). However, the
resort then essentially ignores this portion of the law in its argument and the
Oudolskys’ claim that installing a liquid dispenser above a marble floor was
foreseeably dangerous. Instead, the resort focuses upon Mrs. Oudolsky’s
inability to identify with complete certainty the liquid that caused her to slip
and fall. See id. at 21-28. The resort contends a jury would be forced to
speculate that she slipped on liquid from the hand-sanitizer dispenser. We
disagree.
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Whether a party is entitled to summary judgment presents a pure
question of law. Thus, our standard of review is de novo. See, e.g., Pyeritz
v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). We view all facts and draw
all reasonable inferences therefrom in a light most favorable to the non-
moving party. See Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 195
(Pa. 2007).
Summary judgment is only appropriate “where the record clearly
demonstrates that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.” Summers v.
Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). If a non-moving party
fails to produce sufficient evidence on an issue essential to the claim and on
which the non-moving party bears the burden of proof, then the moving party
is entitled to judgment as a matter of law. See Krauss v. Trane U.S. Inc.,
104 A.3d 556, 563 (Pa. Super. 2014). “A plaintiff cannot survive summary
judgment when mere speculation would be required for the jury to find in
[her] favor.” Id. at 568.
In order to establish a prima facie case for negligence, a plaintiff must
prove four elements: a duty of care imposed by law, breach of the duty of
care, a causal link between the defendant’s breach and the plaintiff’s injuries,
and actual harm. See, e.g., Reilly v. Tiergarten Inc., 633 A.2d 208, 210
(Pa. Super. 1993). At issue here is whether the Oudolskys, as the resort’s
invitees, offered sufficient evidence to give rise to a duty by the resort to clean
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the wet spot on the marble floor or otherwise warn or protect Mrs. Oudolsky
from impending harm.
The Supreme Court of Pennsylvania has held that Section 343 of T HE
RESTATEMENT (SECOND) OF TORTS accurately reflects the common law of this
Commonwealth on the liability of possessors of land. See McKenzie v. Cost
Bros., 409 A.2d 362, 365 (Pa. 1979). According to that section:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
THE RESTATEMENT (SECOND) OF TORTS § 343 (1965).
To succeed on a claim based on Section 343, an invitee must produce
“evidence which tends to prove that the possessor deviated in some particular
from his duty of reasonable care under the existing circumstances.” Moultrey
v. Great A & P Tea Co., 422 A.2d 593, 596 (Pa. Super. 1980). This requires
proof “either that the [possessor] knew, or in the exercise of reasonable care
ought to have known, of the existence of the harm-causing condition.” Id.
The invitee may show a possessor had knowledge of a dangerous condition in
one of three ways.
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First, the invitee may offer proof that the “condition is traceable to the
possessor or his agent’s acts, (that is, a condition created by the possessor or
those under his authority) . . . .” Id. In that scenario, the invitee “need not
prove any notice in order to hold the possessor accountable for the resulting
harm.” Id.
Second, if “the condition is one which the [possessor] knows has
frequently recurred, the jury may properly find that the owner had actual
notice of the condition, thereby obviating additional proof by the invitee that
the owner had constructive notice of it.” Id.
Third, when the possessor did not create the condition and the condition
does not reoccur regularly on the property, the law allows the invitee to prove
actual or constructive notice by the possessor. This theory requires the invitee
to offer “other evidence which tends to prove that the [possessor] had actual
notice of the condition or that the condition existed for such a length of time
that in the exercise of reasonable care the [possessor] should have known of
it.” Id. Under this third theory of liablity, the invitee must produce “evidence
that the harmful condition existed for such a period of time that the
[possessor] should have known of its existence, and should have taken steps
to remedy it.” Id. at 597.
In their Complaint, the Oudolskys alleged multiple theories of possessor
liablity. As the trial court recognized, in paragraph 31 of the Complaint, they
asserted “the dangerous and/or defective condition . . . ‘existed for such a
time so as to allow [the resort] ample time to remedy the dangerous
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condition.’” Trial Court Opinion, 10/30/32, at 4 (quoting Complaint at 6, ¶
31) (emphasis removed). As such, they relied on the actual-or-constructive-
notice theory of liablity. However, the Oudolskys also alleged that the “wet
condition that caused [Mrs. Oudolsky] to fall was created and/or facilitated by
the unreasonable actions” of the resort. Complaint at 5, ¶ 22. Thus, the
Oudolskys brought their causes of action under the possessor-created-danger
theory of liablity, as well.
Rather than fully considering that possessor-created-danger theory, the
trial court only stated, “Mrs. Oudolsky’s testimony is not sufficient to establish
that [the resort] created the hazardous condition . . . .” Trial Court Opinion,
10/30/23, at 6. While that may be true, the Oudolskys submitted physical
evidence to the trial court in support of their possessor-created-danger theory
of liability. Specifically, they offered screenshots from the resort’s surveillance
video to establish a timeline of three patrons using the hand-sanitizer station
in the 30 minutes prior to Mrs. Oudolskys’ fall.
In those screenshots, one patron used the hand-sanitizer station a mere
ten minutes prior to the fall. By ignoring that evidence when considering
whether the resort created the hazardous condition, the trial court erroneously
limited its scope of review to Mrs. Oudolsky’s deposition. It thereby failed to
draw all reasonable inferences that jurors might make from the totality of the
record. As we explain, that omission was critical.
Mrs. Oudolsky slipped on liquid, which had spilled onto the marble floor,
directly in front of a hand-sanitizer station, within ten minutes of someone
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using the dispenser. See Oudolskys’ Reply to Motion For Summary Judgment
at 4, Video-Surveillance Screenshot #1 & #2. We have long held that
“circumstantial evidence may be adequate to prove a plaintiff’s case. It is not
necessary that every fact or circumstance be established unerringly.” Deaver
v. Miller, 393 A.2d 1209, 1211 (Pa. Super. 1978) (en banc). The close
proximity of the dispenser to the spot where Mrs. Oudolsky slipped on the
liquid is sufficient circumstantial evidence as to the source of the liquid.
Although Mrs. Oudolsky did not know “what exactly” the liquid was, she
“believe[d] it was the sanitizing liquid.” Depo. of Tatiana Oudolsky at 25. Her
belief was a reasonable deduction, given that she fell indoors, near the hand-
sanitizer station. While she admits that her belief does not eliminate the
possibility that someone spilled something else in front of the hand-sanitizer
station, nothing of record reflects that anything else spilled there. And her
uncertainty goes to Mrs. Oudolsky’s credibility and the weight that the jury
may attribute to her testimony, not the legal sufficiency of her testimony to
establish a prima facie case. The Supreme Court has “many times said that,
when the establishment of a question of fact depends upon oral testimony,
the credibility of the witness or witnesses is for the jury alone, and it is their
exclusive province to determine whether from such testimony the fact in
dispute has been established.” Second Nat. Bank of Pittsburg v. Hoffman,
78 A. 1002, 1003 (Pa. 1911).
Thus, we must credit her reasonable belief that the liquid she fell upon
was the liquid from the hand-sanitizer station, for purposes of this appeal,
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because we must accept the facts as true that are most favorable to the
Oudolskys, as the non-moving party. Furthermore, viewing the screenshots
of the three patrons using the hand-sanitizer station prior to Mrs. Oudolsky’s
fall in the light most favorable to the Oudolskys, there is physical evidence of
record establishing that the wet spot on which she slipped was, in fact, hand-
sanitizer liquid.
In the absence of evidence pointing to another source, it would be
eminently reasonable for jurors to infer, based on their own life experience
and understanding of how hand-sanitizer dispensers work, that the source of
the liquid was the hand-sanitizer station. They can reach such a conclusion
based on basic laws of physics – i.e., that (1) matter is neither created nor
destroyed and (2) gravity pulls liquids down. In other words, the liquid did
not magically apparate itself onto the marble floor, nor did it precipitate there
from the heavens. See Bywater v. Conemaugh Memorial Med. Ctr., 1072
WDA 2023, 2024 WL 3649088 (Pa. Super. 2024) (non-precedential) (holding
summary judgment was properly granted to possessor of land, due to lack of
proof of actual or constructive notice, where the allegedly dangerous condition
was an icy patch in parking lot, i.e., an act of God).
Unlike in Bywater, the liquid which caused Mrs. Oudolsky to slip came
from a source located inside the resort, above the marble floor. The only
source in this record fitting that description is the hand-sanitizer station.
Hence, based on the evidence that the Oudolskys produced in response to the
motion for summary judgment, the liquid was likely hand-sanitizer.
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Furthermore, the parties agree the resort installed the hand-sanitizer
station above the marble floor. To say that a slipping hazard was reasonably
foreseeable to the resort employees when they chose to install the hand-
sanitizer station above a marble floor is an understatement. As Justice
Musmanno said, “In this setting, it was inevitable that something untoward
would happen, and it did.” Schwartz, 226 A.2d at 485. If the jury finds the
resort employees’ decision to install the hand-sanitizer dispenser above the
marble floor was negligent, then “their acts, under the principle of respondeat
superior, were the acts of the employer.” Id. at 487. Hence, if the jury makes
such a finding, the resort created the dangerous condition.
In a case similar to the facts of record, a woman was a business invitee
of a department store, when she “tripped on a tied string or tape like those
that bound the towels, sheets, etc.” and fell. Clark v. Glosser Bros. Dep't
Stores, 39 A.2d 733, 734 (Pa. Super. 1944) (en banc). The jury returned a
verdict in favor of the woman. The store moved for judgment notwithstanding
the verdict, and the trial court denied relief. On appeal, this Court affirmed
the judgment, because there was evidence the store’s employees negligently
created the dangerous condition.
The store argued “that there was no proof of constructive notice of the
alleged dangerous condition of the floor.” Id. We deemed such evidence
“unnecessary.” Id. “Plaintiff’s proof, which must be accepted on this appeal,
shows that the injuries sustained by her were due to the direct negligence of
the defendant’s employes in throwing the tapes in the aisles or not taking
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reasonable precaution to prevent their falling to the floor, so that the
question of constructive notice was not of vital importance.” Id. (emphasis
added). By placing the packaging tape in the public section of the store, its
employees created the risk of injury to invitees, giving rise to a corresponding
duty to eliminate that risk.
Here, the resort’s employees installed the hand-sanitizing station over
a marble floor, in the public section of the casino. Therefore, the resort’s
employees created the risk of injuries to its invitees, regardless of whether
other patrons dripped the liquid from their hands onto the floor or the liquid
leaked directly from the dispenser. Either alternative is an equally foreseeable
outcome when someone hangs a hand-sanitizer dispenser, intended for public
use, over a marble floor. As such, the absence of proof from the Oudolskys
regarding how the liquid got from the dispenser to the floor is no impediment
to their recovery. This arises from the fact that an invitee “entering a store,
theatre, office building, or hotel, is entitled to expect that his host will make
far greater preparations to secure the safety of his patrons than a householder
will make for his social or even his business visitors.” T HE RESTATEMENT OF
TORTS (SECOND) § 343, supra, Comment (e).
The resort took no precaution to prevent the liquid hand-sanitizer that
it placed in the casino from falling onto the marble floor. The indisputable
video evidence, as reflected in the Oudolskys’ screenshots, shows that the
resort installed no tray to catch drips from the dispenser or from the hands of
people using the liquid. It placed no high-friction mat or rug over the marble
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floor to absorb the liquid once it fell. The resort deployed no “Caution: Wet
Floor” marker near the hand-sanitizer station. Thus, a reasonable jury might
find that installing the hand-sanitizer station above that marble floor, without
added precautions, was negligence by the resort’s employees.
If the jury makes such a finding, the “employees had actual notice of
their own alleged negligent acts, which were within the apparent scope of their
authority and in the furtherance of the [resort’s] business.” Clark, 39 A.2d
at 734. The resort, in turn, would be “chargeable with their dereliction” under
the doctrine of respondeat superior. Id.; see also Schwartz, supra.
Lastly, we recognize that the resort placed hand-sanitizer stations on its
property to protect employees and patrons from COVID-19, a disease which
could undoubtedly do greater harm than merely falling onto the floor. While
we commend the resort for its efforts, no law relieves it from the duty to
maintain a safe environment based on good intentions. The Oudolskys made
a prima facie case that, in trying to counter the disease, the resort negligently
created another, foreseeable hazard for which it is liable, i.e., a slippery
surface on its casino floor. Under the tort law of this Commonwealth, the
resort had an obligation to protect its patrons from any dangerous conditions
that it created on its property, including those that it created in its attempt to
counter the COVID-19 virus.
Accordingly, the trial court erred by granting summary judgment to the
resort based on the Oudolskys’ theory that it created the dangerous condition.
The Oudolskys’ first and second appellate issues are meritorious.
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B. Resort Did Not Clean/Inspect Floor
For their final two issues, the Oudolskys ask whether they presented
evidence “by surveillance video still shots that . . . the [resort] failed to
inspect, maintain, and/or clean the subject area where [Mrs.] Oudolsky, fell
for over one hour before her fall,” and whether “evidence was presented
during oral argument that a maintenance employee of [the resort] walked by
the precise area where [Mrs.] Oudolsky, slipped/fell approximately one minute
before she slipped/fell but failed to clean up the sanitizing liquid . . . ?”
Oudolskys’ Amended Brief at 5. These issues, as the Oudolskys framed them
in both their 1925(b) statement1 and at the outset of their brief, inquire into
the sufficiency of their evidence of the breach of the resort’s duty to keep the
area clean, not their evidence of actual or constructive notice to the resort
that the area needed to be cleaned.
However, in their argument section of their brief, the Oudolskys then
rephrase third and fourth issues to ones concerning the questions of actual or
constructive notice to the resort, under their alternate theory of possessor
liability. The third argument in their brief is entitled, “C. Reversible Error Was
Committed When the Trial Court Opined That [the Oudolskys] Did Not Submit
Proof as to How Long the Liquid Was Present on the Floor.” Id. at 32. Their
fourth argument is entitled, “D. Reversible Error Was Committed When the
Trial Court Opined That [the Oudolskys] Could Not Overcome Summary
____________________________________________
1 See Pa.R.A.P. 1925(b).
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Judgment, Because an Expert Report Was Required to Determine the Source
of the Liquid Substance Which Caused Mrs. Oudolsky to Fall.” Id. at 34.
Additionally, the Oudolskys cite no law to support either of those arguments.
See id. at 32-35. As such, we must determine whether the Oudolskys have
waived these issues.
“The issue of waiver presents a question of law, and, as such, our
standard of review is de novo, and our scope of review is plenary.” In re
Estate of Anderson, 317 A.3d 997, 1003 (Pa. Super. 2024). “Any issues not
raised in a 1925(b) statement will be deemed waived.” Commonwealth v.
Lord, 719 A.2d 306, 309 (Pa. 1998).
Similarly, appellants must list the issues from their 1925(b) statement
at the front of the brief in the statement of questions involved. “The statement
of the questions involved must state concisely the issues to be resolved,
expressed in the terms and circumstances of the case but without unnecessary
detail . . . No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a).
In addition, “The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each part — in
distinctive type or in type distinctively displayed — the particular point treated
therein, followed by such discussion and citation of authorities as are deemed
pertinent.” Pa.R.A.P. 2119(a). As a result of these Rules, the issues in an
appellant’s 1925(b) statement, statement of questions involved, and headings
in the argument section of their brief should be the same.
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In their argument, the Oudolskys strayed from the issues raised in their
1925(b) statement and statement of questions involved. Whether they
submitted sufficient proof to establish actual or constructive notice by the
resort and whether the trial court erred by stating that “No expert reports
were offered to explain what the liquid was, where it came from or how it got
on the floor, or that defective equipment was involved,” are not listed in the
outset of the Oudolskys brief or fairly suggestable thereby. Nor do they
appear in the Oudolskys’ 1925(b) statement.
Additionally, even if they had, the Oudolskys included no citations to
authority in either argument, in direct contradiction to Pa.R.A.P. 2119(a). As
such, the arguments are underdeveloped. “When an appellant’s argument is
underdeveloped, we may not supply it with a better one.” Commonwealth
v. Deible, 300 A.3d 1025, 1035 (Pa. Super. 2023). “[M]ere issue spotting
without sufficient analysis or legal support precludes appellate review.” Id.
Based on the Oudolskys’ violations of the Rules of Appellate Procedure
for their third and fourth issues, we dismiss both issues as waived.
IV. Conclusion
In sum, the Oudolskys presented evidence from which a jury may
reasonably conclude that the resort created the dangerous condition on its
property by hanging a hand-sanitizer dispenser over a marble floor, without
taking any precautions to prevent the floor from becoming slippery or
providing a sufficient warning to its invitees. Thus, the Oudolskys sufficiently
supported their allegation that the “wet condition that caused [Mrs. Oudolsky]
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to fall was created and/or facilitated by the unreasonable actions” of the
resort. Complaint at 5, ¶ 22. They have the right to a trial by jury on that
allegation, alone. We affirm the grant of summary judgment to the resort on
all other theories of premise liablity.
Order partially affirmed and partially reversed. Case remanded for trial.
Jurisdiction relinquished.
Date: 10/22/2024
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