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:l PIBPOl'/lilN'r
:. Jerry Smith
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13 NO. DeSCRIPTION
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XHPIX TO TISTIMONY
IilX1\MII'/A'l'ION
PAClIil
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ay Mr, Mda/ns
IHPIX TO .~HI.XTS
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PAClIil
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C.P.C.R.S. ~ pacourt@kns.net
(717) 258-3657 or 800-863-3657
J
----.---....-~----<----_.__._._-----.._----.---I-.-------,.._.,..
1 STXPU~^TION
~ It is hereby stipulated by and between the
J r"~peotive parties thet ~i9ning, ~ealin91 certifioation
4 and filing are waived, and that all objections ~xoept au
5 to the form of the question are reserved until the time of
15 trial,
7
6 JIRRY SHXTH, called as a witness, being duly
9 sworn, was examined and tesl: if ied as follows I
10 ay MR, ADPAMSI
,11
0,
Mr, Smith, as I explained to you a little
12 earlier, my name is aill Addams. We're looking into the
13 aocident that Marlin Keiter had with a Wilmer Hockley back
14 on Pecember 1, 1995. And both gentlemen were killed in
15 the accident. And we understand that you saw Mr. Keiter
16 that day.
17 about.
18
19 A,
20 O.
n A.
22 O.
23 A.
:24 O.
:25 A.
So that's generally what I want tc ask you
Would you state your name for. the reoord,
Jerry a. Smith.
And where do you live, Mr, Smith?
317 Aspers North Road, Aspers, PA 17304,
And your telephone number.
677-8340.
And what's your date of birth?
May 16, 1939.
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1 Q. I underQtand that was a Friday?
:I "'. 'lee, it wall B Friday, yes.
3 Q. 'Iou gave a statelllent to an inveQtigator ..
oJ fl. 'ieQ.
15 Q. . . that said you saW Mr. Keiter at the
6 commiBllary about 9100?
7 A. 'ieQ. I went over there to the comlnisQary. I
8 went over on my break to buy some stuff for my wife and
9 I. And he asked me to .. I remember now .. get a box of
10 meat or something. So I bought it and he come over at
11 11100 after he got off work to pick it up.
12
13
Q.
Cam., over where?
II"
To whet~ I work at Building 263. It's right
14 outside the gate next ".0 Leaner I Q Hardware.
16
Q.
So what happel."d after that?
Well, we weren't very busy. So I told the guy
16
A.
17 that I was working witr. that I was going and take the rest
18 of the afternoon off, rest of the day off. I guess it was
19 around quarter after 11 by the time we got there.
20
We went out to the Trindle Inn. We had about
21 two beers or something like that.
22
Q.
Did you go together?
No. I drove my car. He drove his. He had his
23
A.
24 little vehicle, I don't know what it was. He bought it
26 from his son who was in the Marine Corps.
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1 going on there.
:2
3 there?
4
Q.
While that Waa going an, was Marlin still
A.
Yeah. Then he left. I think -- I don't know.
5 They carried the guy out. aut he had left right before
6 me. He was going out to get thn money orders / whatever.
7 Q. Did both you and Marlin leave at the same time?
8 A. No" he left ahead of me.
9 Q. How much time after you?
10 A. Just a couple Ininutes I I guess.
11 Q. SO you both left around 1:2 115?
12 A. Yeah, something like that.
13 Q. Where did you go?
14
A'
I went and stopped and got gall. And I went on
15 out to the West Enu.
16
17 Tdndle?
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19
:20
Q.
How much had Mr. Keiter to drink at the
A.
I'd say about two beers is all I saw him drink.
Two bottlea?
Q.
A.
Yeah. I wasn't paying that much attention, to
21 tell you the truth.
;!2
Q.
As far as you know, had he had alwthin'jJ to
:23 drink before you got there?
24
A.
No. He was working before. And he was cutt ing
25 meat and everything else Braund customers at the
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(717) 258-3657 or 800-863-3657
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1 oommilulBry,
~ Q, When you got to the West End Bar, was Marlin
3 there?
4
A,
Yes. I think he got there be fore me,
15 Q, What time did you get then?
6
A,
Around 12130, something like that, Whatever it
7 took to get out to the interstate there, 81.
II
9
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What did you do there?
Well, I waa setting there. And Marlin, he
A,
)
10 started to play pool with some person. I thought they
11 were playing singles, The investigator told me he was
12 playing doubles, So he was playing pool, And I was
13 sitting there drinking beer,
14
Q,
Did you meet a fellow named Jeff Garman that
15 day?
16
A,
I might have, but I don't know,
Was there a fellow at the Trindle Inn that you
17
Q,
18 also saw later at the West End?
19 A, Not that I know of, I don't think so.
20 Q, Did you know the people he was playing pool
21 with?
22 A. No, not really, I didn't go in there that
23 much. I might know them by sight, by name, But I don't
24 go in there that often,
25
0,
So who left the West End Bar first?
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1
:2 COMMONWEMll'H OF PENNSYLVI\l.'IIA
3 COUNTY OF CUMQSRLI\l.'IP
SS.
4
I; I, JILL tit ROT>>, a Court Reporter-Notary Public
6 Buthorized to administer oaths and take depositions in the
7 trial of causes, and having an office in Csrlisle.
8 Pennsylvania, do hereby certify that the foregoing is the
9 testimony of JERRY SMITH.
10 I further certify that before the taking of
11 said deposition the witness was duly sworn/ that the
12 questions and answers w~re taken down in stenotype by the
13 said Reporter-Notary, approved and agreed to, and
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afterwards reduced to computer printout under the
direction of said Reporter,
I further certify that the prooeedings and
evidence are contained fully and accurately in the notes
taken by me on the within deposition, and that this copy
21
is a correct transcript of the same,
In testimony whereof, I have hereunto
subscribed my hand this 19th day of November, 1997,
22
NOT'"'' seAL ~ ~
JILL ROTH
OARLISLE BORCUUIi, OUM~EnLAHP c ' -
J!T CO'''.'~ "''''' ".,. 13...! ~;.,.: . 1:' .. .--.-
My Commission Expires November 13, 2000.
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C.P,C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
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1 RAYMOND A, IIOCI<l,my RIIII
CINDY LOll 1I0C\<l,IEY,
:I IElIlIoUtol'B of thll matutQ
of Wilmllr R, HDUklllY,
J deollsslId, lit ai"
l'laintiffll,
IN '1'lIm Call 11'1' Of' COMMON JlLIi:AS
CllMUI&IH,AND COllN'I'Y, PIBNNSYLVANJA
4
IS
VB,
CIVU, M'rtoN - !.JAW
NO, 91l-0lUll:l
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JAMIES KIA, INC" alld
6 TIESSIIE MALLIOS,
DlIhnrlantlll ,
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Deposition of I .:I1ll1I'\l' OAR MAN
'l'aken by I DJ1fltndnntlll
Before I Jill L, Roth
CoUrt Rltporter-Notary
Plltltl Ootobltr :14, 1997, 1010:1 a.m,
Jlboltl \l'owler, Addams & Rundlo
:18 south Pitt Street
cnll.sle, Pennsylvania
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:10 APPIiJARANCIES,
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BY I \L AN'I'IIONY ADAMS, ESQU I RIiI
\l'011 . PJ.,AIN'l'IF\l'S
f'OIl/JJIllII, ADDAMS & RllNDLE
BYI WIt,LIAM ADDAMS, ESQUIRlil
Fall - DEFIENDAN'l'S
Or~,\ Cl\t'~!\:,
:lJ
:14
:15
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C,P,C,R,$, @ pacourt@kna,net
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::l Dill PONlllNT
:I Jeff aarmall
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XNPIX TO TI~TXKONY
Ji:XAMINATION
By Mr. Mdam/J
By Mr. Adame
PMIll
3/10
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XNPIX TO IXKXaXTS
PMJil
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C.P.C.R.S. @ pacourt@kns,net
(717) 258-3657 or 800-863-3657
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STtPULl'TXOlf
It iN he~aby atipulated by and between the
~espectiva pa~till8 that fligning, lIeal,ing, oe~tificatl.on
and filing a~e wnl.vedl Bnd that all objectionll e~cept all
to the torll1 of the qualltl.on are );'el!le~vad until the time of
trilll,
J." Ol'RMAN, oa~led as a witnellll, being duly
llWO~n, Wllll eXIIl1\l.ned and tellt i fil,ld all folloWlll
13 'i Mil, /\PoN>\S I
0, Would you atate you~ name, pleasl,l?
/\, Jeff /\lan Garman.
O. Mr, Garman, we a~e taking your deposition hare
today because we're looking into the automobile accident
and oth~r things that Marlin Keiter wae involved in with
'~ill\\llr Hookley on Pecember 1, 1996.
aoth gentlemen were killed in the accident.
/\nd we've been given information -- in fact, we've been
),9 givlln a r,:opy of this statement indicating that you saw Mr.
:20 Keiter earlier that day and spent some time with him.
21
/\.
Right.
22
Q.
That'S why you're here. Where do you live?
2223 pine Road, Newville, pennsylvania.
Your telephone number.
23
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/\.
Q.
'A.
776-4961.
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Q.
:l
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A.
Q.
4
A,
15 Holly,
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Q,
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Q,
._--1_._______
And you~ date of birth.
9/23/63,
A~u you employed?
Yes, McClu~e arother., Incorporated/ Mount
How long have you worked the~e?
Almost two years now.
Were you wo~king back on December 1, '9151 That
9 was the day of this accident.
10 A.
11 Q.
12 Keiter?
13 A.
14 Q,
115 A.
16 Q.
17 A.
18 Q.
19 remember?
20 A.
21 Inn.
22' Q,
23 A.
24 Q.
25 A.
No, I wasn't.
And was that the day you fi~st met Mr. Ma~lin
Yeah. That was the "irst day I ever seen him.
How did you happen to meet him?
I seen him at the Wast End Bar.
Did you see him first at the T~indle Inn?
Urn-hum.
Which one of you two got the~e fi~st, do you
He was in there when I walked into the Trindle
Where was he?
Sitting at the ba~.
Did he appear to be with anybody?
Some guy. In fact, the guy that just left. He
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1 was wlth him,
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15 l:ln?
o.
Vou recQgnl~ed hlm today?
UIII.hum, walldng out the door, yeah.
And both of thos~ gentlemen were ~itting at the
A.
o.
6 A. Um'hum.
7 MR. ADDAMS, Off the reoord,
8 (Dhcu..l.ol) heldoU the l:ellord,)
9 BV MR. ADDAMS,
10 O. What time did YOll get thel.'e?
11 A. I'm really not /lure, It Wall, I guesll,
12 mid-afternoon. I'm really not Ilure exactly what time it
13 wall.
14
o.
Po you rememper what you'd been doing befor~
16 you got there?
16
A.
No, I don't. I think I wall at my parentll, I
17 Wall at my parentll before I went up there.
18
o.
What went on petween you and Mr. Keiter? How
19 did you happen to meet?
20
21
22
o.
A,
A.
I heard him joking around, telling some jokell.
What kind of Ilhape Waa he in?
He Ileemed all right to me. He Ileemed pretty
23 friendly, That'll the f.irllt I'd ever met the guy. He had
24 Ilaid where he lived. I aaid, heck, we're neighpora,
25 because I live right down the road. He aaid Iltop by
C.P.C.R.S. @ pacourt@kna,net
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1 sQmllltimlll,
:l Q.
3 name WIl/iI?
" A,
13 Q.
6 A,
G
Oid he introduGlII himself, tell you whnt his
I thlnk so, I think he did.
How is it that you remember meet ins him now?
Just because he wus joking around. Seemed lik~
7 an all ~ right guy,
Q, Oid he leave before you did?
A, Yeah, he left about five minutes before me,
Q. Dtd he say what he was doing or where he was
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going?
A, He said he was going over to the West rend Bar
and then going home, in which he did, And! thought he
14 was a funny guy, so I left about five minutes after him,
15 went to the West End. He drank two beers in there and
16 left. We shot IS couple games of pool. And I left about
17 five, ten minutes after him,
18
0,
Were you shooting pool with anybody else?
Yeah, but I'm no~ sure who it was, It was
20 quite a while ago, too, But there was a blond-haired
19
A,
21 guy. I'm not sure who it wae,
22
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24
0,
A,
0,
25
A,
Had you been to the West End before?
Sefore that day, yeah, yeah,
Do you know who the bartender was there?
I believe It was a womlln, I'm not sure any
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1 nam~1iI or anything, no. /lut it wall B Woman that Wall
2 tending bar,
3 Q. Approximate age?
4 A. I gueu mid-30s, any how.
5 Q. Hair oolor?
I) A, Brown hair.
7 Q, Any other way you oan describe her?
8
A.
She had brown ourly hair I That' iii pretty much
9 all I know I I don't go in there very often I But once in
10 a while I'll go in there.
11
o.
Pid you know anybody else at the Trindle Inn
)
1;1 when you were there?
13 I\, No. Like I said, I don't go in there very
14 often. And r don't know any of the r~gulars or what have
15 you,
16 Q. I jUllt wonder if you happened to see anybody
17 there that you knew or knew the name of?
18
A.
No, I didn't.
19
;10
Q.
Or at the West End?
No. Well, the Trindle
when you, had asked me
A,
21 about who was tending bar, you meant at the Tr1ndle?
;1;1 O. At both places.
;13 A. Okay. The woman I was talking about was the
;14 barmaid at the West End, And I'm not sure who was tending
:15 bar at the Trindle Inn,
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1
Q,
00 you recall if it Woo a man or a woman?
2
3
A,
No, I don't l."eoall. I I m not /lure.
Q.
Can you tell me approximacely how many people
4 were in the Trindle while you were there?
5
A.
There waB probably 15 or 20 peolPle. In fact, J
6 remembel." that day being there because II man lIupposedly had
7 a heart attaok and he was intoxicated. And he was giving
8 the ambulance crew a hard tillle. 'fhat'B how I remelllbel.".
9 Q. Oid they take him out before you left?
10 A. Yeah.
11 Q, Did you Bee Ml.", Keitel." leave the West mnd?
1:2 A, Yeah. Yeah, because I /laid good bye to him,
13 O. How did he appear when he left?
14 A. He seemed all l."ight. Like I SElid, that wa/l the
15 fil."Bt and only time I ever met the guy. He /leemed all
16 right. Some people can hold their beer better than
17 othel."s. I don't know,
18 0, Did you see any indication from looking at him
19 or talking to him, that he wa/l intoxiGated?
:20 1\, No, not l."eally, no,
21 0, Can you tell me about what time he left,?
:2:2 1\, I believe it was al."ound 3 Ol." 4, right al."ound in
:23 there, Because when I left, I went to the Pine Tl."ee Inn
:24 and got dinner.
25
0,
You didn't pass the automobile accident by any
C,P,C,R,S, @ pacourt@kns,net
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~ chanoa, did yoU?
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No, I didn't, because I heard about it .. I
;) think it was the next day I heard about it, And I had
4 told a oouple of friends of mine, I said, heck, I just met
I) that. guy yesterday, I had went up Pine Road, And I heard
6 that was on Walnut Bottom Road where he had hill accident,
7
0,
What was the total time you think you spent in
8 the Trindle Inn that day?
9
1.0
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Probably half hour to 45 minutes,
And how about at the West End?
Roughly half hour, About the same amount of
12 time, half hour, 45 minutes,
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Pid you see anybody else that you knew out at
14 the West rend?
15
A,
No, I didn't, Like I said, I very rarely
16 frequent that but once in a while,
17
MR, APDAMSI Thank you. That's all I have,
18 BV MR. APAMSI
19
20 Mr, Keiter consume two beers at the Trindle Inn?
0,
Mr, Garman, if I understand correctly, you saw
21
22
A,
Yes.
0,
And then you saW him consume two more beers at
23 the West End?
24
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25
A,
Ves, that's correct,
0,
Was there a great period of time when he wasn't
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1 with you?
2
1\,
No, He walll in Bight of lIIe at all t1me/l, lleillU
3 in both plaoes aren't ve~y big plaoes,
4
0,
If I ask you to auume for argument that hill
5 blood-aloohol level would have taken 17 beerll to got to
6 the level he was found to be when he died, do you know how
7 he oould have oonsumed those other 14 beers without you
8 seeing?
9
1\,
Other than if he was drinking long before I'd
10 met him,
11
MR. ADAMS I That's all I have,
12 BY MR, I\DDAMS I
13
0,
You don't know where he went after he left the
14 West End, do YOU?
15
A.
No. I\s far as I know, I think he told me he
16 was going home.
17 Q.. Or whether he had anything to drink after he
18 left. the West End?
19
A. No. I don't know,
Q. What was he ddnking?
A. Beer.
Q. Bottles, drafts?
A. I believ.J it was bottles.
MR. ADDAMS I Thank you.
MR. ADAMS I I have nothing more.
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(Wb.~.upQn, the d.po.~~ion wa. conclud.d at
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C.P.C.R.S. @ pacourt@kna.net
(717) 258-3657 or 800-863-3657
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1 XHPIX ~O ~IITXMONY
2 PIilPONIlJWr IEXN>lINM'ION MOlE
) Albert L. Malloy By Mr. Addalll. 3
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12 XNPIX ~O IXHX8XTI
() 13 NO. PIllSCRIPTION PAOE
14. (None. )
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C.P.C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
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.~___o--___.____._____.____._.____u_._._____ . ...~..____~.,_.____._~__._~..__
IITIPUr..ATION
It ill hereby atipuloted by aud betW<lllHl the
respeotive partiell that lIi9nin9, lilealing, oel."tifiol1tiou
and filing are waived, and that 811 objeotionll eKoept 0$
to the form of the quelilt;ion on reserved until the time of
tdal.
Ar....RT r... MAr..r..OY, called 811 /,I witness, beil~g
duly IIworn, was examined and testified all followsl
BY Mil. ADDAMS I
Q. Would you IItate your nome, please.
A. My correct nome ill Albert L, Malloy.
Q. Mr. Malloy, we're looking into an accident that
14 Marlin Keiter hod bock on December 1, 1995. And I
15 underlltand that you knew Mr, Keitor. And we need to ask
16 you some qUllstions sunounding his automobile accident and
17 other events that day. So that's why you're here.
18
What's your addreas?
19
172 Virginia Avenue, Carlisle.
And your telephone number?
A,
20
Q.
21
A.
243-90€2.
22
23
24'
And your date of birth.
11/15/40.
Q.
A.
Q.
Where do you work, lIir?
25
A.
Carlillle Barracks at the commissary. That's
C,P.C.R.S. @ pacourt@kns,net
(71'7) 258-3657 or 800-863 - 3657
_-1_.__
1 where he worked too.
2
3
..
15
IS
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10 the leader.
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14
15
Q.
What's your job?
"..
Meat manager.
o.
How long have you been 1St the oomminary?
I started th~re in '84/ so 13 years.
So is thnt how you knew Marlin Keiter?
A,
Q,
"..
Yeah,
Q.
What was his Job?
I got his now. He was the meat manager. I was
A.
o.
Was he your boss?
Yeah.
"..
o.
Over what period of time?
From 1984 until 1995.
"..
o.
Did you sociali~e with Mr. Keiter at 011 or see
16 him after work?
17
A.
Not much. He left a lot earlier than I did
18 during the day, I run beagles and fish and hunt and he
19 didn't / so we didn't do a lot.
20 O. Back in '95, what were his hours?
21 ".. He usually came in at 5 to 1100/ 5 in the
22 morning to 1 in the afternoon.
23
24 early?
25
o.
On Friday / Pecember 1/ '95/ did he get off
A.
Evidently he did. I was off that day, And
C.P.C.R.S, @ pacourt@kns,net
(717) 258-3657 or 800-e63-3657
-_. .'--- .___.1__..__ .
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1 A, No.
:l Q. I!;ver appear into~iaated to you on the job?
) A. Not on the jab.
4 Q. I ~ather trom that that;. there were other tifllllll
5 that you sow him that he was intoxiauted?
6 A. That ha Was intoxicated?
7 Q. Yes.
8 A. Yeah. He liked it,
9 Q. You didn't see him at all?
10 A. The day ot the lIoaident I no.
11 Q. The day he was killed?
12 A. No.
. "') 13 Q. Did you see him the day before?
.,~'
14 A. Yeah..
115 Q. How did he appear then?
16 A. All right. Slime as always.
17 MR. ADDAMS I That'R all I hove.
18 MR. ADAMSr I have no questions.
19 (Whereupon, the depo.ition wa. concluded at
lOI21 a.III.)
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.,........
C.P.C.R.S. @ pacourt@kns.net
(717) 256-3657 or 800-663-3657
1
:l PIllPONIllI'I'l'
;) Kenneth Roth
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INPIX TO TISTIHONY
IllXI\MINA'I'rON
By Mr, Addams
By Mr, Adams
XNDIX TO IXHX.X~8
14 NO, OIllSCIUPTION
15 (None, )
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C,P.C.R.S, @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
__---1l_.....
PAOli:
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8
PAGE
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1-----_0----_
1 BTXPU~ATXON
~ It i~ h~raby Qt~pulated by and between the
J respective partiaM that ~igning, Qaallng, certification
" and fil1na are waived, and that all objeCltionM exca/:lt 1113
6 to the form of the qUal3t~on are ral3erved until the timQ of
6 trial,
7
8 KlBWWITH ROTH, called as a witness, being duly
9 ~worn, Wall QXlImined IInd testified as follows I
10 BY MR. ADDAMS I
11
1~
13
o.
Would you state your name, please.
A.
J<enMth Roth,
o.
Mr. Roth, my nllme 111 Bill Addaml3, We are
14 looking into the circumlltancel3 about an automobile
16 accident that Marlin Keiter had with Wilmer Hockley on
16 December 1, 1995. Both gentlemen were killed in the
17 accident. I underl3tand that you knew Mr, Keiter and
18 perhapl3 saw him the day of the accident. So that's why
19 you're here,
20
21
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23
24
.,)
26
A.
Okay.
0,
Would you give us your address, please.
119 Cambridge Drive, Mechanicsburg.
And your date of birth?
A,
o.
A.
12/24/48.
o.
What's your employment?
C.P.C.R.S. @ pllcourt@kns.net
(717) 258-3657 or 800-863-3657
..
,,)
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--_..!!......._.~
0--'.___>___.
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A,
YIIS,
Q,
Was Mr, Veiter talking to anybody elea while
3 you w~re there, other than youralllf or with anybody else?
4
5
A,
I'm not -- that I know of. He dOli a talk to the
other people that are there,
O. Wlllre you aitting at the bar?
A, Yea.
0, Waa anybody aitting with you?
A. Well, I was sitting with him.
O. I mean anybody else.
A. There was other people at the bAr. At the
time, I can't remember how many.
MR. ADDAMS I Thank you. That I s all I have.
BY MR. ADAMS I
6
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11
1:1.
13
14
15
o.
Did you notice any indication that Mr. Keiter
16 had consumed any alcohol before, or at work?
17
18
A.
Not that I can rel'1emblllr.
MR. ADAMS I That's all I have.
1-9
20
n
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24
MR. ADDAMS I Thank YO'l.
(Whe~eupon, the depo.ition W8, oonoluded
at lOl35 ..DI.)
25
C.P.C.R.S. @ pacourt@kna,net
(717) 258-3657 or 800-863-3657
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----------------~--"-~------------~--~----~._-----.-.._--_._-~-------
. CAPTION Of CMI
(.nllll Clpllon mUll b. IIGl1d In MI)
RAYMOND A. HQCI{LI!:Y and CINPY LOU
HOCKLI!:Y, E~eQutorn of the Estate
of WILMI!:R R. HOCKLI!:Y, deceaaed, et al,
(Oti.ndllll)
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VI.
JAMPB KIA, INC. and TI!:SSIE MALLIOS
VI.
Sll. 015362
CI~U
t9~
I. SIGI' mllllt 10 b, iIfI\l.d (I.." plolnllfrl mollon for n,w lnlll.
d,f.od.ulI'1 d.murrlt 10 ~omplolnl. .Ie.):
, Defendant T,ssi. Mallios' Motion for.summary Judgment
:1. ld.nllty e01lllU1 wllo wUl arlll' ~IlU:
(I) for plelnIU'f:
Addrus r
(b) for d.f.ndlllll:
Address I
H. Anthony Adams
128 East King Street,
William A. Addams
28 South Pitt Street,
Shippensburg, PA 17257
Carlisle, PA 17013
3.
I !NUl GOuty IlI1 parnnln wrillnl Wlthln twO day I U111 tlul ~IIIIIIIII bun
UllId fOl trlum'IIl._
4.
Araum.nt Court Dst.l April 15, 1998
Call of Araument List D.ter
~~t~~
Ry! ...~ ~:A':('_.. ~~~.
I,,'llorney for Def.ndst Tesai. Mallios
Dmd: )/2':1'/ ')~-
)
....
"
H. Anthony Adams, Esquire
For PIa/nUn.
William Addams, Esquire
For Oefendant Tessie MalllOI
Court Admlnlltrator
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RAYMOND A. HOCKL2Y and
CINDY LOU HOCKL2Y, mxecutors
of the ~state of Wilmer R.
Hockley, deceased, et al.,
Plaintiffs
IN THS COURT O~ COMMON PLSAS O~
CUMS2R~O COUNTY, pmNNSYLVANIA
NO. 96-05362 CIVIL TSRM
v.
JAMES KIA, INC. and
TESSIE MALLIOS,
Defendants
MOTION FOR SUMMARY J:UDGMENT
AND NOW, comes the Defendant, Tessie Mallios, by her
attorneys, Addams & Rundle, and in accordance with Pa. R.C.P.
1035.1, et seq. moves your Honorable Court for summary judgment
in her favor and assigns the following reasons I
1. The pleadings in the above matter are closed.
2. The Plaintiffs' decedent was killed in an accident when
a vehicle operated by Marlin Keiter crossed the center line and
collided with the Hockley vehicle.
3. The complaint allQges that the Defendants held liquor
licenlles and that. "Marlin Keiter was served alcohol by the
Defendants' establishment to a degree that rendered him incapable
of safe driVing and at a time while he appeared visibly
intoxicated."
4. The depositions of four witnesses who saw Mr. Keiter in
the De,fendants' establishments shortly before the accident have
been taken. None saw Mr. Keiter intoxicated.
5. The plaintiffs have identified various witnesses, but
they have been unable t~ identify anyone who will testify that
Mr. Keiter wu served while visibly into~ioated.
(5 . There is no genuine issue as to any material faClt.
7 . The reoord foils to show any aCltionable negligence on
the part of the Defendants.
9. The Defendants are entitled to judgment as a matter of
law.
WHE~EFORre, Defendant Tessie Mallios requests your Honorable
Court to enter summary judgment in her favor and against the
Plaintiffs.
ADDAMS & RUNDLI3
BYI
/' -~v.
0'~'1
a .
Supreme Court 1.0. No. 06265
29 South Pitt Stree~
P.O. Box ;/08
Carlisle, PA 17013
(717) ;/49-9300
Attorneys for Defendant
Tessie Ml1llio/\1
"
RAYMOND A, HOCKLEY and
CINDY LOU HOCKLEY, EKecutors
of the Estate of Wilmer R.
Hookley, deceased, etal"
PLAINTIFFS
V,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JAMES KIA, INC, and
TESSIE MALLlOS,
DEFENDANTS
e~.!5362 CIVil TERM
.
FOR SUMMARY J.!JDGMl;tU
BEFORE B~YLEV. J.
PPINION AND ORDER OF COUflt
BAYL.EY, J., JulV 10, 108B:..
On December I, 1996, Wilmer R, Hockley, was killed while driving a vehlole
that was struck by a vehicle driven by Marlin Kelter, The estate of Wilmer R, Hookley
and his wife and ohlldren have Instituted this suit against defe"dants, Tessie Malllos,
and James Kia, Ino. On December 1, 1996, Tessie Malllos held the liquor 1I0ense for
the Trindle Inn in Carlisle. Defendant, James Kia, Inc, held the liquor 1I0ense for the
West End Bar in Carlisle. Plaintiffs have flied a Dram Shop Aot complaint against
both defendants. Tessie Malllos, has moved for summary Judgment pursuant to
Pennsylvania Rules of Civil Procedure 1036,1 throuah 1036.4, Pennsylvania Rule of
Civil Prooedure 1035,2 provides:
After the relevant pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for summary Judgment In
whole or In part as a matter of law
(1) whenever there Is no genUine Issue of material fact as to a
96.15382 OIVIL TEAM
wall visibly Intoxicated.
In Johnlon v. Hlrrl., 419 Pa, Super, 541 (1992), the Superior Court of
Pennsylvania stated:
A violation of this statute [Dram Shop Actjls deemed negllgenoe per I.,
and If the violation Is the proximate cause of the plalntlH's Injuries, then
the defendant Is liable. Thus, In order for an Injured plaintiff to recover,
the folloWing two things must be proven: (1) that the plaintiff was served
alcohollo beverages by a licensee while visibly Intoxicated and (2) that
this violation of the statute proximately caused the Injuries, (Citations
omitted,)
In the case ayQ ~, there Is no dispute that Martin Kelter, the person who
was operating the vehicle that struck the vehicle being driven by Wilmer R, Hookley,
(1) got off work at approximately 11 :00 a.m. on December 1, 1995, (2) went to the
Trtndle Inn, and (3) had not been drfnklng alcohollo beverages before he arrfved at
the Inn, The evidence In the record Is that Kelter drank two beers at the Trlndle Inn.
There Is no evidence, direct or circumstantial, that Kelter was visibly Intoxicated while
he was served alcohol In that establishment. Kelter left the Trtndle Inn at
approximately 12: 15 p,m. and arrIved at the West End Sar at approximately 12:30
p.m. He had additional alcohol to drfnk at the West End Sar, The accident that
resulted In Hockley's death occurred at approximately 3:00 p,m, Plaintiff has
evidence that Keller's blood alcohol content at the time of the accident was ,31
percent. Plaintiff does not have an expert's relation-back evidence as to what Keller's
blood aloohol content was when he was served alcohol at the Trfndle Inn, see
Conner v. Duffy, 438 Pa, Super, 277 (1994), or any other evidence, direct or
,3-