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LAW OFFICES
ANGINO & ROVNER. P.C.
4503 NORTH FRONT STREET
HARRISBURG, PENNA. 17110
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SUSAN F. ALBRIGHT and her
huaband, C. DAVID ALBRIGHT,
Plaintitts
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No.17~ 5i/~~VIL '-PI'
v.
MICHAEL PECK,
Defendant
JURY TRIAL DEMANDED
NOTIC!
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
tiling ill writing with the Court your defenses or objections to the
claims set torth against you. You are warned that it you fail to
do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKS THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
4th Floor, Cumberland county Courthouse
Carlisle, PA 17013
(717) 240-6200
ORIGINAL
SUSAN F. ALBRIGHT and her
hU8band, C. DAVID ALBRIGHT,
Plaintitts
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No.1?, f'lO-- CIVIL 1997
JURY TRIAL DEMANDED
v.
MICHAEL PECK,
Detendant
COMPLAINT
1. Plaintitfs Susan F. Albright and C. David Albright are
adult individuals residing in
Cumberland County,
Enola,
Pennsylvania.
2. Defendant Michael Peck is an adult individual residing in
Marysville, Perry County, Pennsylvania.
3. At all times relevant herein, Defendant Michael Peck
Enola,
Cumberland County,
owned 136 South Enola Drive,
Pennsylvania.
4. At all times herein, Susan Albright rented 136 South
Enola Drive, Enola, Cumberland county, Pennsylvania, trom Detendant
Michael Peck. Mrs. Albright used the premises for her hair styling
salon.
5. At all relevant times, Defendant Peck, through his
agents, apparent agents, servants and employees, was in exclusive
control ot the sidewalk and exterior structure ot 136 South Enola
Drive and was responsible for its maintenance, repair and servica
ot this area.
119437/PJK
6. At all relevant times herein, Mrs. Albriqht was lawtully
on the premises ot 136 South Enola Drive.
7. On or around February 28, 1997, Mrs. Albright was takinq
the qarbage from the hair styling salon located in the bottom tloor
of 136 South Enola Drive to the garbaqe cans located in the back of
the building.
8. After removing the garbage, Mrs. Albright was returning
to the hair salon, walking up the sidewalk to the side entrance.
Prior to reaching the stairs leading to the salon, Mrs. Albright's
left foot suddenly and unexpectedly slipped on a gravel-like
substance that was present on the sidewalk, causing her to fall.
9. Unbeknownst to Mrs. Albright, the concrete block wall
adjacent to the sidewalk had broken down, decaying to a point where
portions of the concrete had piled into a gravel-like substance
that extended across the sidewalk surface.
10. Prior to her accident, Mrs. Albright had no knowledge of
the slippery and danqerous condition of the sidewalk created by the
particles from the decaying concrete block wall.
11. The condition of the sidewalk created a dangerous
situation known to the Defendant, ~r which could have and should
have reasonably been known to the Defendant. This created a
reasonably foreseeable risk of harm which was suffered by Mrs.
Albright.
2
12. This gravel-like substance constituted a very dangerous
and slippery surface to those traveling on the sidewalk.
13. The slippery and hazardous condition of the gravel-like
substance represented a condition that existed for a sufficient
time prior to Plaintiff's accident which could have and ohould have
given the Defendant adequate time to correct and warn lawful users
of the sidewalk of the hazardous situation.
14. Defendant Peck had sufficient time prior to Plaintiff's
accident to protect against the dangerous condition that existed on
the sidewalk from the decaying concrete block wall and prevent the
injuries suffered by Plaintiff herein, but Defendant failed to do
so in any fashion, nor did Defendant provide any warnings as to the
hazardous and slippery conditions.
15. As a result of Mrs. Albright's fall she suffered a
fracture to the patella of her left knee.
16. As a direct and proximate result of the injury Plaintiff
suffered in the aforementioned accident, Plaintiff was required to
undergo medical and rehabilitative treatment and may in the future
require rehabilitative and medical treatment and a claim is made
therefor.
17. As a direct and proximate result of the accident and
aforesaid injury, Plaintiff was forced to incur medical expenses in
an effort to restore herself to health, and because of the nature
3
of her injuries may be forced to incur similar expenses in the
future, and a clalm is made therefor.
18. As a direct and proximate result of the accident and
aforesaid injury, Plaintiff Susan Albright has undergone, and in
the future will continue to undergo, great physical and mental
pain, suffering, great inconvenience in carrying out her daily
activities, and loss of life's pleasures and enjoyment, and a claim
is made therefor.
19. As a direct and proximate result of the accident and
aforesaid injury, Plaintiff Susan Albright has been, and in the
future may be, subject to humiliation, embarrassment, and
disfigurement and a claim is made therefor.
20. As a direct and proximate result of her injuries,
Flaintiff Susan Albright sustained a loss of earnings and was not
able to fulfill her employment and may in the future suffer a loss
of earning or earning capacity.
21. By reason of the aforesaid injuries sustained by his
wife, Plaintiff C. David Albright, has been, and in the future may
be, deprived of the assistance, companionship, consortium, and
society of his wife, all of which has been and may continue to be
to his great damage and loss and a claim is made therefor.
22. All of Plaintiff's damages hereinafter related are the
direct and proximate result of Defendant's negligence in:
4
(a) failing to keep the sidewalk clear ot hazards
created by the decay ot the adjacent concrete block wall;
(b) tailing to post proper and adequate warnings in the
area, especially warning of the hazardous and slippery situation
created by the particles of concrete;
(c) tailing to inspect the sidewalk and adjacent wall
~
for decay;
(d) tailing to inspect the sidewalk for loose particles
ot concrete from the decay of the adjacent wall;
(e) tailing to maintain the premises by not removing the
accumulation ot loose particles gathering as a result of the decay
to the adjacent wall prior to and on February 28, 1997;
(f) failing to take any measures for the elimination of
the loose particles that were known or should have been known to
exist on the sidewalk prior to and on February 28, 1997;
(g) failing to repair the wall adjacent to the sidewalk,
such that its decay into loose particles created a dangerous
condition on the adjacent sidewalk; and
(h) failing to discharge the duty owed to Susan Albright
in maintaining the sidewalk and adjacent wall in such a fashion
such that it would be safe to walk and use.
WHEREFORE, Plaintiffs, Susan F. Albright and C. David
Albright, demand jL\dgment against Defendant, Michael Peck, for
compensatory damages in an amount in excess of Twenty-Five Thousand
5
VERIPICATION
I, c. DAVID ALBRIGHT, do hereby swear and attirm that the
facts set forth in the foregoing COMPLAINT are true and correct to
the best of my knowledge, information and belief. I understand
that this verification is made subject to the penalties ot 18
Pa.C.S. 54904, relating to unsworn falsification to authorities.
WITNESS:
~ ~ ~\:;tl>\:.\~~
\:J
Dated: vt-F /.5 9 7
(l, J/turd ~/cb
C. DAVID ALBRIGHT
81893/PJH
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERlAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-5482 CIVIL 1997
JURY TRIAL DEMANDED
SUSAN F. ALBRIGHT and her
husband, C. DAVID ALBRIGHT,
plaintiffs
v.
MICHAEL PECK,
PLAINTIFF'S PRB-TRIAL MBMORANDUM
Pursuant to Pa.R.C.P. 212.2, the Plaintiff sets forth the
following information:
A. BRIBF NARRATIVB STATEMENT OF THB CASE
On or around February 28, 1997, Mrs. Albright took the garbage
from her hair styling salon, which was located in the bottom floor
of Defendant's rental property at 136 South Enola Drive, to garbage
cans located at the back of the property. After depositing the
garbage, Mrs. Albright was returning to the hair salon when her
left foot unexpectedly slipped on a gravel-like substance that was
present on the sidewalk, causing her to fall. A cinder block wall
adjacent to the sidewalk had decayed to the point where portions of
the block had turned into gravel-like cinders that were spread
across the sidewalk surface. Mrs. Albright suffered an injury to
her left knee as a result of the accident.
ORIGINAL
B. L18T AND TYPI or DAMAOE8 CLAIMED
1. Plaintiff incurred approximately $11,402.15 in medical
expenses in order to treat her injuries. SU, medical bill summary
attached hereto as Exhibit "A".
2. Income Loss - Plaintiff lost approximately $7097.75 in
wages as a result of the incident. See, wage loss calculations
attached hereto as Exhibit "B".
3. Plaintiff also seeks general damages, such as mental and
physical pain and sUffering, embarrassment and humiliation,
disfigurement, and loss of life's pleasures and enjoyment.
4. Consortium claim for C. David Albright.
C. LIST or NAMES AND ADDRESSES OF ALL PERSON WHOM MAY BE CALLED
AS WITNESSES
Susan F. Albright
141 South Enola Drive
Enola, PA 17025
(liability and damaqes)
Michael Peck
1048 Mountain Dale Drive
Marysville, PA 17053
(liability - Defendant as OU ero..)
Richard J. Boal, M.D.
(Plaintiff's treating doctor)
875 Poplar Church Road
Camp Hill, PA 17011
(d...q..)
M. Kathleen Liddick
115 North Humer Street
Enola, PA 17025
(liability)
2
C. David Albright
141 South Enola Drive
Enola, PA 17025
(liability and d..aqe.)
William Fulton
2 East Manor Avenue
Enola, PA 17025
(liability)
Carol wilfong
408 Barley Drive
Duncannon, PA 17020
(liability)
David wilfong
408 Barley Drive
Duncannon, PA 17020
(liability)
Daniel Albright
141 South Enola Drive
Enola, PA 17025
(liability and d"'9..)
Medical Records Custodians
All witnesses identified by the Defendants
Plaintiffs reserve the right to supplement this list in a timely
fashion prior to trial.
D. EXHIBITS
Medical records of Susan Albright
Medical bills of Susan Albright
Medical bill summary
Photographs of Plaintiff's injury
Photographs of accident site
Anatomical models and diagrams
Lease Agreement
Income Tax/Wage loss records
Videotape of Richard Boal, M.D.'s deposition
Deposition transcript of Richard Boal, M.D.'s deposition
Plaintiffs reserve the right to supplement this list in a timely
fashion prior to trial.
B. WRITTEN EXPERT REPORT
None
.. STIPULATION OF THE PARTIES: IF ANY
Plaintiffs request that the parties stipulate to the
authenticity of the medical records and medical bills so as to
obviate the need for the testimony of records custodians.
Plaintiffs also request that Defendant stipulates to the amount of
the medical expenses incurred by plaintiffs to treat the injury in
the event that liability is found.
3
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I worked 8 months in 1997 tull time. Added all income and
expenses and made an income average net and gross.
February 28, 1997 - date ot tall
March, 1997 - could not work
April, 1997 - could not work
May 1-17, 1997 - could not work
Returned to work May 19, 1997. I was only allowed to work halt the
hours as normal by doctor's orders. I returned full time July 7,
1997. 11 weeks otf full time. 7 weeks off part-time.
Gross weekly income - $489.50
Net weekly income - $325.72
11 weeks full time wage lost
7 weeks part-time wage lost
$7,097.75 gross lost
$4,722.44 net wage lost
~
EXDense
Totals
$2,514.00
$2,125.00
$1,531.75
$1,582.00
$1,692.00
$1,633.50
$2,119.80
$2,465.75
$15,663.80
$900.72
$560.58
$558.75
$465.54
$845.12
$656.97
$514.12
$739.10
$5,240.90
January
February
July
August
September
october
November
December
CBRTlrICATB or SBRVICB
AND NOW, this 23rd day of April, I, Lois E. Stauffer, an
employee of Angino & Rovner, P.C., do hereby certify that I have
served a true and correct copy of the PLAINTlrr' S PRB-TRIAL
KBHORAHDUK in the United states mail, postage prepaid at
Harrisburg, Pennsylvania, addressed as follows:
Jefferson J. Shipman, Esquire
GOLDBERG, KATZMAN & SHIPMAN PC
320 Market Street, Strawberry Square
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorneys for Defendant
"
~oulJ t. .~
Lois E. Stauffer
J
'I
Joffecaon J. Shipman, Esquiro
I. D. t I 5118~
GOLDBERG, KATZHN~ , SII1PMN~t P.C.
320 Market Stre.t
P,O. Ilox 1268
Uarrlabulq, PA 11108-1268
Tolephono: 17111 234-4161
Attorneya tor Dofendant
SUSAN F. ALBRIGHT and her
husband, C, DAVID ALBRIGHT,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
NO, 97-5482 CIVIL
MICHAEL PECK,
Defendant
JURY TRIAL DEMANDED
PRE-'tRIAL STATEMENT OF DEFENDANT MICHAEL PECK
I. Brief narrative statement of the case.
This case arises out of a fall down which occurred on February
28, 1997, at approximately 7: 15 a.m. at 136 South Enola Drive,
Enola, Cumberland County, Pennsylvania. That property was owned by
defendant Michael Peck and rented to Mr. and Mrs. Albright to use
for their hair styling salon business since 1991. On the date in
question, Mrs. Albright was taking garbage from her hair styling
salon, located on the bottom floor of the property, to the garbage
cans located a t the back of the building.
Mrs. Albright was
returning to the salon from depositing the garbage and walking on
the sidewalk to the side entrance when she claims her right foot
slipped on a gravel-like substance present on the sidewalk, causing
her to fall onto her left knee, causing her to fracture the left
patella. Mrs. Albright walked this sidewalk approximately one to
two times per week, over the six years she had rented the property,
without incident and without any complaint to Mr. Peck.
II. TYPes and amounts of damaaes.
It is anticipated this information will be provided by the
plaintiff. Briefly, the plaintiff sustained a fracture of her left
patella. She was off of work as a beautician for approximately
eleven (11) weeks and has estimated her net wage 1055 to be
$4,722.44. Her medical bills are approximately $5,000.00. She
claims occasional pain, discomfort, stiffness, swelling and
sometimes buckling of her left knee.
She also claims some
recreational limitations and having difficulty Climbing stairs and
walking on uneven ground.
I II. Wi tnesses .
1. Susan and C. David Albright as on cross-examination.
2. Michael Peck
3. All witnesses identified by Plaintiffs in their Pre-Trial
Memorandum and discovery responses.
4. Defendant Michael Peck respectfully reserves the right to
supplement this witness list upon receipt and review of
Plaintiffs' Pre-Trial Memorandum.
2
IV. Exhibits.
1. p~otographs of the accident scene.
2. statement of the Plaintiff Mrs. Albright.
3. Depositions of all parties and witnesses.
4. All medical records of the Plaintiff.
5. All documents produced in discovery.
6. Defendant respectfully reserves the right to supplement
this exhibit list upon receipt and review of Plaintiffs'
Pre-Trial Memorandum.
V. Expert Reports.
None.
VI. Stipulations.
None.
VII. Additional information as requested bv Local Rule.
1. Principal issues of liability damages.
a. whether the defendant was any way negligent;
b. what duty of care, if any, was owed by the Defendant
to the Plaintiff;
3
c. whether the Plaintiff was comparatively negligent as
a matter of law;
d. what was the cause of Plaintiff's fall.
2. Evidentiary issues.
a. The Defendant does not anticipate any novel or
difficult evidentiary issues at trial. There may
be an issue regarding a written lease between
Plaintiff and Defendant.
3. Current settlement negotiations.
Demand:
Offer:
$37,500
$0
Respectfully submitted:
GOLDBERG, KATZMAN & SHIPMAN, P.C.
on J. Esquire
I. .#: 51785
P.O. Box 1268
Harrisburg, PA 17108
Attorneys for Defendant
Telephone: (717) 234-4161
216..5.1
4
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
served on the following counsel of record, by depositing the same
in the united States Mail, postage prepaid, in Harrisburg,
Pennsylvania, on April 22, 1999:
David S. Wisneski, Esquire
Angina & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110-170B
GOLDBERG, KATZMAN & SHIPMAN, P.C.
Jef er on J. Shipman, Esquire
I.D. #: 51785
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: 717-234-4161
Attorneys for Defendant
21670.1
SUSAN F. ALBRIGHT and her
husband, C. DAVID ALBRIGHT,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 97-5482 CIVIL 1997
MICHAEL PECK,
Defendant
JURY TRIAL DEMANDED
NOTICI!:
TO THE DEFENDANT:
YOU ARE HEREBY NOTIFIED to plead to the attached Counter
Reply/New Matter within twenty (20) days of service hereof.
P.C. ..
Dav d S. snes~, Es
I.D. NO. 58796
4503 North Front Street
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiff(s)
Date: November 11, 1997
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-5482 CIVIL 1997
JURY TRIAL DEMANDED
SUSAN F. ALBRIGHT and her
husband, C. DAVID ALBRIGHT,
Plaintiffs
v.
MICHAEL PECK,
~INTIPP8' REPLY AND COUNTER REPLY TO NEW HATTER OP DEPENDANt
AND NOW, come the Plaintiffs, Susan F. Albright and her
husband, c. David Albright, by and through their attorneys,
Angino & Rovner, P.C., and hereby enter the following reply to the
New Matter of Defendant Michael Peck:
23. Paragraph 23 of Defendant's New Matter states a
conclusion of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in paragraph 23 of Defendant's New Matter are denied.
Plaintiffs' Complaint sets forth valid causes of ac\.loll against
Defendant Peck upon which relief can, and should, be granted.
24. Paragraph 24 of Defendant's New Matter states a
conclusion of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in paragraph 24 of Defendant's New Matter are denied.
Plaintiff Susan Albright was in no manner negligent, comparatively
negligent or contributorily negligent with regard to the incide'lt
that is the subject of this litigation.
Accordingly, Plaintiff's
claims are in no manner barred, or reduced, by operation of
contributory and/or comparative negligence.
Plaintiff Susan
123038/LES
,
Albright at all times aoted in aooordance with the standard ot oare
required ot her, and her tall wae solely a result ot the poor
condition ot the sidewalk and ot Defendant's negligence as set
torth in Plaintitfs' Complaint, which is incorporated herein by
reference.
25. Paragraph 25 ot Defendant's New Matter states a
conolusion of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in paragraph 25 of Defendant's New Matter are denied.
Plaintiff Susan Albright in no manner assumed the risk ot her
injuries or of Defendant's negligence, nor was she aware of the
dangerous condition of the sidewalk prior to the incident that is
the subject of this litigation. Accordingly, Plaintiff's claims
against the Defendant are in no manner barred, or reduced, by
operation of the doctrine of assumption of risk.
26. Denied. The incident that is the subject of this
litigation took place on or about February 28, 1997. Plaintiffs'
Complaint was filed on October 6, 1997, and timely service was
effectuated promptly thereafter. Acr.ordingly, Plaintiffs' claims,
both as asserted in her Complaint and as may be raised at a later
time prior to the expiration of such statute, are not barred by the
applicable statute of limitations.
27. Paragraph 27 of Defendant's New Matter states a
conclusion of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
2
.
.
CQntained in paragraph 27 ot Defendant's New Matter are denied.
Plaintitf's injury and damages were caused solely by the negligence
of Defendant Peck and his servants, agents or employees as set
forth in Plaintiffs' Complaint, which is incorporated herein by
reference.
28. Paragraph 28 ot Defendant's New Matter states a
conclusion ot law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the allegations
contained in paragraph 28 of Defendant's New Matter are denied.
Detendant Peck was a landlord in possession at the time of the
alleged accident, and therefore Defendant Peck can be held legally
liable sustained by the Plaintiffs.
29. Denied. Defendant Peck and Plaintiff Susan Albright had
not, prior to the accident that is the subject of this litigation,
entered into a written lease agreement for the rental of a portion
of the property in question. It is denied that subsequent to the
incident that is described in the Complaint, Plaintiff Susan
Albright and Defendant Peck re-executed an exact and identical copy
of an original lease covering the dates in question. To the
contrary, following the accident, Defendant Peck for the first time
instructed Plaintiff Susan Albright to sign a lease agreement, a
copy of which is attached to Defendant's New Matter as Exhibit "A",
advising Plaintiff that his insurance carrier required that they
execute the document so that Mrs. Albright's claim could be
processed. As the lease agreement was executed following the
3
acoident, and as Defendant Peck and/or his insurance carrier
fraudulently induced Plaintiff to execute same, is denied that any
of the provisions in the lease agraement are applicable to the
incident that is the subject of this litigation, or that said lease
agreement affords any defenses to Plaintiffs' causes of action.
30. Paragraph 30 of Defendant's New Matter states a
conclusion of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in paragraph 30 of Defendant's New Matter are denied.
plaintiffS' injuries and damages as alleged in the complaint were
solely a result of the negligence of the named Defendant as set
forth in plaintiffs' complaint, which is incorporated herein by
reference. Such injuries and damages were in no manner caused by
any action or inaction on the part of Plaintiff Susan Albright.
For the reasons set forth in paragraph 29, above, it is denied that
Plaintiff Susan Albright had any contractual obligation pursuant to
any lease agreement to keep the sidewalks and entry ways of the
premises clean. It is further denied that, in the event that
Plaintiff Susan Albright is found to have entered into a valid
lease agreement, she in any manner breached or violated her
obligations pursuant to same.
31. Paragraph 31 of Defendant's New Matter states a
conclusion of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in paragraph 31 of Defendant's New Matter are denied.
4
The portion of the premises on which Plaintiff Susan Albright fell
was solely under the control of Defendant Peck. It was solely the
responsibility of Defendant Peck to keep the walkway clean and free
of debris and to effectuate any repairs to the premises necessary
to prevent the accumulation of such debris.
WHEREFORE, PlaintiffS, Susan F. Albright and her husband, C.
David Albright, respectfully request that the New Matter of
Defendant Michael Peck be dismissed, and that Judgment be entered
in favor of the Plaintiffs.
COUNTER REPLY
32. Defendant Michael Peck and Plaintiff Susan Albright had
never, prior to the date of the incident that is the subject of
this litigation, entered into a written lease agreement for the
rental of a portion of the property where the accident took place.
33. No written lease agreement between Plaintiff and
Defendant was in effect at the time of the accident that is the
subject of this litigation.
34. Following the accident, Defendant Peck for the first time
instructed Plaintiff Susan Albright to sign a lease agreement, a
true and correct copy of which is attached hereto as Exhibit "A",
advising Plaintiff that his insurance carrier required that they
execute same so that Mrs. Albright's claims could be processed.
35. Defendant Michael Peck and/or his insurance carrier
5
AJ'J'IDAVIT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
.
.
.
.
ss
I, David S. Wisneski, Esquire, being duly sworn according to law,
dspose and say that I am counsel for Plaintiffs, and that I am
authorized to make this affidavit on behalf of said Plaintiffs, and
that the facts set forth in the foregoing document are true and
correct to the best of my knowledge, informa'don and belief or, are
true and correct based on the information obtained from Plaintiffs.
D'V[)~qm/
Sworn to and subscribed before
me this /I~day ~997.
~.l;~L9Jr: ~
' Notary PubY c
IIllIAlllo\lSEAI.
tIllIlUll. =:o.1IllT"'~
1lP~ (XlIJll'(
45419/I.AS
01011)0),11 ~ I 'l/.,
RESIDENTIAL LEASE
THIS LEASE AGREEMENT made this lsc day of
19~, by and bet'Jean H.1ch.ael Pecl<.
here 1 nat ter called "Landlord," and Susan Albrhhc
, hereinatter called "Tenant."
June
IiITNESSETH.
In consideration of the rents and covenants hereina~ter set torth
and contained on the part of the Tenant to be paid, performed and
observed, the Landlord does hereby lease unto the Tenant the pre~ises
hereinafter described under the conditions set forth herein.
1-
19:'~6- ,
19 -1.L
TERM. The term of the Lease shall be for a ce~;od of
, beginning on the 1st day of Jun~-
and terminating on the JUt day of .....y
on8
2. PREMISES. .The Landlord does hereby lease unto the Tenant the
residential d.",elli:1q located a: 11~ c:...."P~ Fnl"ll2 0,..10'" $",..,..1:1 ...
Cucberland County. Pennsylvania.
3. USE, Tenan: agrees that the premises shall :e use~ only for
Men and Wo~en Hairstyling.
This lease confers no rights on Tenant to use for any purpose any
cf t~e pro~erty of Landlord other than the interior of the apartment
leased. e~cept the walks and roadvays giving access thereto and such
other areas, if any, as Landlord may from time to ti~e designate for
use of res:den:s. N~en the use bv Tenant of anv Other :ortion of
ehe propere? is pe:~itte~. it shail be subject ;0 the r~les and regu-
lations estaclishe~ hy Landlord.
4. RENTS. Tenant shall pay to Landlord as rent for the above-
eese:' i1:Jed pre:nises, the sum of 'I"_.It" ,.l,n,'Q;tnrf Fnur F.und:-ed dollars
~ 2400.00 \ , payable in equal monthly installments
of Twn Hundred dollars ( S 200.00 ) per
Clonth in advance beginning on the 1sc day of June
19~, and on or before the FIRST day of each and every month there-
after subsequent to the signing of this lease.
S. LATE CHARGE. Tenant shall pay to Landlord a late charge of
52.00 per day for rent not received by Landlord as of the sixth day
of the month. This late charge shall be retroactive to the first day
of the month; for examDle. if the rent is received on the tenth day
cf tr.e month. there viil be a late char;e of $18.00 ($2.00/day x 9 days).
6. SECURITY DEPOSIT. Tenant shall be required to provide Landlord
ae the beginning of the term of this lease the sum Of, ::'8 (..ad':! 2_'18-')
as seC~:l='l to~arcs t..e
~erfor~ance ot the ter~s of this lease. Upon expi:a~ion of the ter~
:: t~is lease. the tandlord shall inspec~ said pre~ises to deter~ine
:a~a~e, i~ any, follo4in~ the re~oval c~ Tenant !:cc the rroperty.
~~'l ~a~a~as ~= t~e laase~ a=ea c: anv :e~ai=s ~ecess~=~~a~ as a result
::- :~s 7;~~~~'! ~~: :: ~~= :~~se~ !=~a S~!:: =~ ::~: =; :~s :a~::::=
at the expen~e o~ the Tenant and deduc~ed from the secu~ity deposit.
The Landlord shall account to the Tenant for the unused portion of the
secu~ity depo~it within thirty (30) days following the expiration'of
the term of the lease.
7. ALTERATIONS. Tenant agrees not to make any alterations. addi-
tions. improve~ents or any other change5 to any part of the premises
or its facilities without the express vritten consent of the Landlord.
Tenant shall not change locks or install additional locks. chains
or other fasteners ~ithout the ~ritten consent of the Landlord,
e. INDEMNIFICATION. Tenant shall indemnify and save Landlord harm-
less from any liability imposed upon Landlord. adjudicated or other.ise,
by virtue of any personal injury or property damage arising from any
use of the premises by the Tenant. th~ir agents and invitees. or by
any acts done thereon by the Tenant, their agents and invitees, includ-
ing court costs and counsel fees.
9. INSURANCE. Landlord agrees to be responsible for fire insurance
coverage for the exterior of the premises including the structure of
the building. Tenant agrees to ce responsible for fire insurance cover-
age on its contents ~ithin the leased area. Tenant also agrees to be
responsible to carry liability and contents insurance coverage vith
li~its of r.o less than $100.000.
10. REPAIRS. Landlord agrees and covenants to ce responsible for
any and all repairs to the exterior of the premises and also agrees
to te r~s~onsible for all reoairs to the interior of the cremises includ-
ing the heating facilities. plucbing facilities. electrical facilities
a~d maintenance and repairs of any Landlord-ovned appliance(s) ~hich
include (s) Nn p",dnr-ent furnished
:;c~;e"'er. in the even: that such repairs are necessary due to the
negligent acts of the Tenant or their agents and invitees. then such
repairs shall be perfor~ed at the expense of the Tenant.
11. ASSIGNMENr. Tenant covenants and agrees not to assign, sublet
0: transfer their interest in the premises to any other party.
12. TAXES. The Landlord agrees to pay all taxes and assessments
levied against the pre~ises during the term of this lease including
trash removal and severage.
13. UTILITIES. Tenant vill be responsible f.or the payment of util-
:ty bills including Elec~ric. cable,telephone ,
and other related assessments. Landlord will be resconsible for the
;:aYOIIent of utility bills incluJing Heat.vater, trash, ;everage.
l4. ACCESS BY LANDLORD. Tenant agrees to per;uit the Landlord to
e~:e= upon the said premises at all reasonable times to examine the
ccr.dition th&reof, make repairs or alterations as needed. to enforce
eh:s lease. and to show the leased premises to prospective residents.
15. SURRENDER OF THE PRE~!S!S. A. Tenant covenants ~ith the Landlord
e~a: the Tenant has received the premises in good orce: and condition
a~= at the expiration of this lease. Tenan: ~ill yield said premises
i~ as ~coc orcer a~d condi~~on as .hen t~e same vere rante~ :y the
:enant. uith the exception o~ any damage caused by riots. ~ir., fleoc.
incendiarism. acts of C,?c or the publiC7 enemy. th'! alement3. ordina:y
uear and tear and other causes beyond the Tenant's control. However.
!enant shall be liable !or any repairs resul:ing from neqli;ent ac~s
o! the Tenant. their agents. servants. er employees or any other gerson
upon the said promises at the invitation o! the Tenant.
B. All ~eys must :e re~urned to the Landlord at the termination
of occupancy. For_arcing add~ess must be le!t with the Landlord.
C. At the termination ot occupancy. ~enant must remove all per-
sonal 9roperty not belonging to Landlord t:om the leased ?remises.
A~v :rooertv not removed shall be considered abandoned. and Landlord
may dispose'ot it without :eing accountable to Tenant ~or doing so.
16. W~STE. Tenant aqrees to ~ermit no vaste of the premises or ,
use the premises ~or any unlay~ul ~ur?ose. Tenant shall ~eep the leased
area o! the premises !ree and clear of any type of re!use. jun~ or other
cecris. ~ll trash and ref~se shall be stored outside the leased pre-
~isas in apprepriate ~rash containers permitted by local government
regulations, and shall be t!~en by Tenant to the designa:e~ pic~-up
area !or re::loval on trash cay. vr.ich is TIlP.d.,/
l'i. cor:ouc'!' o. '!'!:-I.~,N'!' ),:ro H!S/H!? GC'!STS. Ten!:!t and ~.i.S/;"ler
g~est(s) shall not at any ~iille ma~e any noise. cr co anything or ccnduct
:~e~selves i~ any ~ay .hic~ c!stu:bs any oche: tena~t 0: ~ei~~=or c:
inter!eres with the ri;hts. comtor: or conveniences o! any ether tenant
c:: neighbor.
16. ?~TS. Tenant acrees that there shall be no cets or other
a~i~als, ei:~e: eomestic or other~ise. includin~ ~ar~~ts or bires, ~e~t
~~en the leased cremises. cr else~here on ta~clorc's cro~ert'l. unless
:a~clo:c a~:ee5 oe~er.i5e, in writing. . . .
19. SALE. T~a Lanclo~: he:ei~ shall ~ave t~e ~i;~t t: sall the
pro;erty at any ti~e to any third party without givi~; nc:ice to the
'renant.
20. EXPIRAT!ON. 30th parties hereby agree that either party hereto
..ay te:~inate this lease at the end ot the said ter~ by ;iving the other
;ar:y written notice the:eot at least thirty (30) cays prior there~o,
but in default o! such notice. this lease shall conti~ue ~~on the same
ter~s and conditions as herein contained ~or a tur:he: period ot
one year ~_ and so on unless or until terminated by either party
~er=to given by the other thirty (30) days' vritten notice for removal
~revious to the ex?i:a~ion o~ the current te:~. Hovever. i~ Landlo:d
shall have given such vri:ten notice prior to the expiration o! any
:er= hereby created of his intention to c~ange the te:~s. covenants
~r c=nditions of this lease. and Tenant shall hold over a!ter the expi-
ra~i=n of the tiMe Mentioned in such notice, Tenan: s~all :e considerec
as :enant uncer t~e terms. covenants and conditions =e~tiened in such
~=ti=e fer a further term as above described. Ie is the i~tention he:ec!
~~a~ if the original term shall be reneved or exte..de~ ~ncer the terms
~e::ei~aceve provided cr othe~~ise. such renGval or ex:ension shall be
~~cn ~he same ter~s ane coneitions c~ this lease as are e~!ec:ive izme-
~~!~9:? ;=~c: :0 ~~2 !X;:=!~lC~ o~ t~e sai~ c:~;~~a~ ~~aS3.
,
21. DEf~ULT. A. U~on the occurrence o~ any de!a~lt such as failure
to pay install~ent.ot rent vhen due. tailure to ~er!orm any ter~s or
conditjons at this lease. abandon~ent by Tenapt of t~e lsased '~emLses.
cr insolvency at the Tenant. the lease shall be deemed to have been
=reached and thereupon by that ~act itself and vithout entry or other
action by the Landlord.
S. At the option ot the Landlord. the rent tor the re~ainder of
the term ot this lease shall immediately become due and payable.
C. At the option at the Landlord, this lease and the ter~ created
hereby as vell as all the right, title and interest at Tenant hereunder
shall cease and determine and become absolutely void ~ithout any right
cn the part at the Tenant to save the torfeiture by payment of any sum
or by performance at any term. covenant or condition broken or defaulted.
a~d the Landlord shall be entitled to recover damages toe such even~
of detault in an amount equal to the amount at the rent and other charges
reserved tor the balance of the term hereot. less the tair rental valua
0: the leased premises tor the balance thereot.
D. At the oction of the Landlord. Landlord mav lease the de~ised
;remises or any part or parts thereof to such person or persons as may.
i~ Landlord's discretion. seem best .ithou. atfecti~g Tenant liability
:or a~y 1055 of rent tor the balance of the term.
E. Tenant shall pay to Landlord. as additional rent cn demand.
all of Landlord's costs. charges and expenses inCluding ~i~hout limita-
tion the reasonable tees of counsel. agents or others retained by Land-
lord :or the enforcement of Tenant's covenants under this lease.
22. W^!VE~ Of NOTICE. Tenant hereby ~aives all ri;hts to le~al
notice ~herever provided by statute or common lav.
!: Tenant shall tail to pay rent. or additional rent. to Landlord
"hen due: shall default in any other provisions of this lease: or shall
remove or attempt to remov~ any ot his/her ;ossessic~s from the ;remises
=efore paying to Landlord all rent due to the end 0: the lease ter~.
:andlord. in addition to all other remedies orovided bv lav. mav ter~inate
this lease and Tenant specifically waives the right to'the three (3)
mon~hs' notice and to fitteen (15) or thirty (30) days' notice required
=y the Act of Assembly of April 6. 1951. ?~. 69. and agrees that five
(3) days' notice of termination for breac~ of lease shall be su!:icient.
23. E~TIRE AGREZMENT. This lease const~tutes e~e sole understanding
of the parties hereto and any amendment(s) or addition(s) shall be e!tec-
tive only vhen reduced to writing and signed by t~e parties herato.
Additional terms and conditions are listed on subsequent
a:tachments.
(continued on next page)
S
IN IHTNESS l"linEOr, the parties here~o have e:uicuted t~J.s lease
contract the ~ay, month and year first above lIri tten, inten~ic.q to.. be
legally bound thereby.
~.
~
~iIT~::SS :
(Landlord) 1>> .f{ (Date) I 3;/1&:1 qc.; (SE.:\L)
.
(Lanc!lord) (Date) (SE:),L)
(Tenant) J4M~ t?lo/(I ( 0 ate) ':::::;;;/',01 I - <it: (SE),L)
- . ..
(!enant) (Date) (SEM. )
"av. 9109
L),NDLORD!ADDRZSS!HOMESWORK PHONES:
:-!ic~ael a. :>eck
10~8 Mountain Dale Drive
Mar7sville. PA liOS3
95i-3262 (home)
e9i-035~ (Mike-work)
,
i
I
I
I
I
I
I
I
I
I
I
!
i
I
I
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i
ATTACHM!N~ 1
Paqe 1 of 2
Location of Leased Premises:
136 South Eaola drive, Eaola. Peaaa.
."
The folloving items are furnished. None
No vater beds. kerosene heaters. or hanging plants from ceiling or
drapery/curtain rods furnished by Landlord alloved. No more than t_o
(2) SMALL nail holes per room allowed; Tenant will be charged $10.00
per hole after that amount.
Walks, entryways. halls. stair_ays. lobbies. landin~s and elevators
shall be used only for access to and from the leased premises. They
shall not be used for children'S play areas. and shall be ke~t clean
of bicycles. toys. waste recepticles and other areicles at all times.
Tenant shall not store any areicles in ~arage or basement without express
written co~sent of Landlord.
It the premises are damaged or not clean at ter~ination of occupancy,
including walls. woodwork. stove/oven. re~ri~erator (if provided). bath-
room. exhaust fan. closets and cabinets. it will be repaired and cleaned
at Tenant's eZiense. This also includes no stic~ers or scratches on
_alls. All bur~ed-out light bulbs to be replaced. No indentations or
scratches in wood or resilient flooring. formica or appliances.
~~ere water is being provided as a utility for which the Landlord is
responsibl~ for payment. the use of a washing machine or dishwasher
_ill NOT be permitted upon the leased premises without prior written
consent of the Landlord.
At no time vill any day care/paid babysitting service be allowed to
operate on the leased premises.
Where there is off-street parking. one space vill be allowed per
Tenant on vhich only a Tenant-owned vehicle vill be per~itted to park.
Any other parking vill be at the discretion of the Landlord. The
vehicle must be in vorking order and inspected. Landlord does not
operate a parking lot for junk vehicles.
?lease fill out the in!or~ation on the next page. IN FULL.
ATTACHMENT 1
Page 2 of 2
Person(s) to contact in case of emergency:
/(.3,;;-- 7/.3.;?
DC/ye I/;j/l/fl/-
Tenant's Social Se,=urity Number:, !...!:)(),9 -3!- "'S::?3',f'
Tenant's Vehicle Make/Model/Year/Llcense No,:
teo&nc agrees thac, during cerm of che lease, che leased premises (barber .hop) will
be run 10 accordanance with rules, regulac1oos. and cood1c1oos of the Pa, Scace Board
of Barber Examioers,
Landlord
~jj f)
Landlord
Tenant~~~"
Tenant
aAiI vi'
W/~
! ~ 7"/
'Date ,J".t''''' (SEAL)
,
Date (SEAL)
Da~e -:twJ4/ - 9? (SEAL)
Date (SEAL)
,-,~_.
CER'I1ElCATE OF SEIU'lCE
I hereby certify that I am this day serving a copy of the foregoing document upon the
person and in the manner indicaled below, which service satisfies the requirements of the
Pennsylvania Code, by depositing a copy of the same in Ihe United States mail, at Harrisburg,
Pennsylvania, with first.class postage, prepaid, as follows:
Dawn L. Jennings, Esquire
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, P A 17110
HARTMAN & MILLER, P.C,
By:
Ilo.o~ ~~
Jack M. Hartm , Esquire
Supreme Court I.D, No, 21902
Drew p, Gannon, Esquire
Supreme Court I.D, No. 74680
One Keystone Plaza
Suite 107
Front and Market Streels
Harrisburg, P A 171 0 1
(717) 232.3046
Attorneys for Defendant, Michael Peck
Daled: 1(-$"-9 T
CERTIFICATE OF SERVICE
AND NOW, this 11th day of November, 1997, I, r.ois E. Stauffer,
an employee of Angina & Rovner, P.C., do hereby certify that I have
served a true and corr.ect copy of the PLAINTIPPS' REPLY AND COUNTER
REPLY TO NEW MATTER OF DEPENDANT in the united states mail, postage
prepaid at Harrisburg, Pennsylvania, addressed as follows:
Jack M. Hartman, Esquire
Drew P. Gannon, Esquire
HARTMAN & MILLER, P.C.
One Keystone Plaza, suite 107
Front and Market streets
Harrisburg, PA 17101
Attorneys for Defendant
Y1~ f.~~
Lois E. stauffer
I
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.....
SUSAN F, ALBRIGIIT and her
husband, C. DAVID ALBRIGHT,
Plainliffs
: IN HIE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
v,
: NO, 'J7.5482 CIVIL
MICHAEL PECK,
Defendant
: JURY TRIAL DEMA NDED
DEFENDANT'S RESPONSE TO PLAINTIFFS'
COUNTER REPLY TO DEFENDANT'S NEW MATTER
AND NOW, comes Ihe Defendant, Michael Peck (hereinaner "Peck"), by and through
his attorneys, Hartman & Miller, P.C" who hereby responds to Ihe Plainliffs' Counlcr Rcply as
follows:
32, Thc ayerrnenls contained in paragraph 32 of Plaintiffs' Counter Rcply arc
conclusions of law or fact 10 which no response is neecssary. To Ihc cxtcnt thai a response is
deemed nccessary, the avernlcnls arc denied pursuanllo Rulc I029(c) oflhe Pennsylvania Rules
of Civil Proccdure. By way of further answcr, it is spccifieally denied that Pcck and PlainliIT
Susan Albright nevcr enlered into a written Icase agreemcnt prior 10 thc datc ofthc incidcnt that
is thc subject oflhis Iiligation, and prooflhereofis demanded,
33. The ayel1nenls containcd in paragraph 33 of Plaintiffs' Counlcr Rcply arc
conclusions of law or facllo which no rcsponsc is necessary. To thc exlcnt that a response is
deemcd ncccssary, Ihe avcmlcnls arc dcnicd pursuanllo Rulc I029(e) oflhe Pennsylvania Rulcs
or Civil Proeedurc. By way of further unswcr, il is specifically dcnicd that Ihcre was no writtcn
Icasc agrcemcnt in efrecl belwecn Peck and Plaintiff Susan Albrighl at the time oflhc incidcnt
Ihat is Ihe subjecl oflhis litigation,
--'-~ .~'r--
VERIFICATION
I. MICHAEL PECK, hereby verify and state that the facls sel forth in the foregoing
document are true and correct to the best of my information, knowledge and belief. I understand
that false statements herein are made subject to the penalties of 18 Pa, C,S.A, Section 4904
relating to unsworn verification to aUlhorilies.
!1l1ffl
Michael Peck
Dated: fIN, ~ If'f?
c\
it
CERTIFICATE OF SERVICE
a
~
I hcrcby ccrti fy that I al1lthis day scrving a copy of thc foregoing docul1lcntupon thc
pcrson and in thc manner indicalcd helow, which servicc satislics the rcquircmcnts ofthc
Pennsylvania Code, by dcposiling a copy orlhc same in Ihe Unilcd Statcs mail, at Harrisburg,
Pennsylvania, with lirsl.c1ass postage, prcpaid, as follows:
r
David S, Wisncski, Esquirc
Angino & Rovner, P.C,
4503 North Front Strcct
Harrisburg, P A 17110
HARTMAN & MILLER, P.C.
By:
I~ / ~~. -,...
Jack M. Hartman, Esquirc
SuprcmcCourt 1.0. No, 21902
Drcw P. Gannon, Esquirc
Suprcmc Court 1.0. No. 74680
One Keystone Plaza, Suitc 107
Fronl and Markel Strccts
Harrisburg, P A 1710 1
(717) 232.3046
AlIomcys for Defcndant, Michacl Peck
Datcd: J J-"J.'~ 'I?
SUSAN F. ALBRIGHT and her
husband, C. DAVID ALBRIGHT,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 97-5482 CIVIL 1997
MICHAEL PECK,
Defendant
JURY TRIAL DEMANDED
ENTRY OF ~PPEAR~NCE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please enter my appearance as counsel for Plaintiffs in the
above-captioned matter.
Respectfully submitted,
ANGINO & ROVNER, P.C.
~
Dav d
1.0. No. 8796
4503 North Front Street
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiff(s)
DATED: November 11, 1997
123037/LES
CERTIPICATE OP SERVICE
AND NOW, this 11th day of November, 1997, I, Lois E. Stauffer,
an employee of Angino & Rovner, P.C., do hereby certify that I have
served a true and correct copy of the ENTRY or APPEARANCE in the
United states mail, postage prepaid at Harrisburg, Pennsylvania,
addressed as follows:
Jack M. Hartman, Esquire
Drew P. Gannon, Esquire
HARTMAN' MILLER, P.C.
One Keystone Plaza, suite 107
Front and Market Streets
Harrisburg, PA 17101
Attorneys for Defendant
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La s E. Stauffer
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Albright
IN THE COURT OF COMMON PLEAS OF
THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA
PERRY COUNTY BRANCH
Susan F. & C. David
VIRUS
Michael Peck
No. 97.5482
SHERIFF'S RETURN
And now October 8 ,1997: Served the within name Michael Peck
the defendant(s) named herin, personally at his place of residence in Rye Twp.
Perry County, PA, on October 8, 1997 at 5:46 o'clock PM
by handing to Michael Peck , an adult member of family 1 true and attested
copy{ies) of the within Complaint
and made known to him the contents thereof
Sworn and subscribed to before me this 9'4
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So answers,
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),.p"~ Sheriff of Perry County
day of
0<1. ~,R
, /19 '1
In The Court of Common Pleas ofCumbcr1and County,
Susan'F. Albright & C. David Albright
,
VS,
Michael Peck
No, Q7-'i487 Civi 1 Term 19_
~ow, Oc t. 7.
Perry
1997 19_,1 SHERIFF OF CUMBERLA:'<1> COl"~TY, PA do bmb)' deputize tbe Sheriff or
Couoty 10 execule Ihls Wrll,lhls depulallon being m~d. ~t the requesl ~od risk orlhe PI~lnllff.
r'"~ -t:~
Sberlff ofCumberl~nd Counry. P~,
Affidayit of Sen'ice
l'"OWt
within
upon
19
. or
o'clock
M, served rbe
~t
by b~ndiog to
~ttelted copy. of lhe orlglo~1
Ihe eonlenls Ibereof,
a lrue aod
and m~de koown 10
So Answers,
Sheriff or
Counl), P3,
COSTS
S"orn ~nd ,uhlcrlhed berore
me rhis day or
19_
SERVICE
MILEAGE
AHID... VIT
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s
.
SUSAN F. ALBRIGHT and her
husband, C, DAVID ALBRIGHT,
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
PENNSYLVANIA
v,
CIVIL ACTION. LAW
MICHAEL PECK,
NO, 97-5482 CIVIL
Defendant
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
TO: LAWRENCE E. WELKER
Please enter the appearance of HARTMAN & MILLER, P,C, by Jack M. Hartman,
Esquire on behalf of Defendant, Michael Peck, in the above-captioned maller,
Respectfully submilled,
HARTMAN & MILLER, P,C,
Dated: /0/ /? I ~ "}
. ,
By:
M, Hartman, Esquire
preme Ct. 1.0, #21902
One Keystone Plaza, Suite 107
Front and Market Streets
Harrisburg, PA 17101
(717) 232-3046
Attorneys for Defendant
,
CERTIFICATE OF SERVICE
I, Jack M, Hartman, Esquire, hereby ccrtify that I am this day serving a copy of the
foregoing document upon the yerson(s) and in the manncr indicated below, which scrvice
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in the United States mail, first-class postage prcpaid. as follows:
Dawn L. Jennings, Esquirc
Angino & Rovner
4503 North Front Street
Hll/Tisburg, P A 17110
Dated: IV /17/ q '?
, .
HARTMAN & MILLER, P.C.
By: ~i~~e
Supreme Ct. J.D. #21902
One Keystone Plaza, Suite 107
Front and Market Strcets
Hll/Tisburg, PA 17101
(717) 232-3046
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SUSAN F, ALBRIGHT and her
husband, C, DAVID ALBRIGHT,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION. LAW
v,
: NO. 97-5482 CIVIL
MICHAEL PECK,
Defendant
: JURY TRIAL DEMANDED
NOTICE TO PLEAD
You are hereby notified to file a wrillen response to the enclosed Answer with New
Maller within twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submilled,
HARTMAN & MILLER, P.C,
By:
tlu. ~ 4' ~#lP'-
Jack M, Hartman, Esquire
Supreme Court 1.0, No. 21902
Drew p, Gl41non, Esquire
Supreme Court 1.0, No, 74680
One Keystone Plaza
Suite 107
Front and Market Streets
Harrisburg, P A 171 0 1
(717) 232-3046
Allomeys for Defendant, Michael Peck
Dated: {I- S"-7 '}
SUSAN F. ALBRIGHT and her
husband, C. DAVID ALBRIGHT,
Plaintiffs
: [N THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: C[V1L ACT[ON - LAW
v,
: NO, 97-5482 CIVIL
M[CHAEL PECK,
: JURY TR[AL DEMANDED
Defendant
DEFENDANT'S ANSWER WITH NEW MATTER
TO PLAINTIFFS' COMPLAINT
AND NOW, comes the Defendant, Michael Peck (hereinafter "Peck"), by and through
his allomeys, Hartman & Miller, P,C" who hereby responds to the Plaintiffs' Complaint as
follows:
1-4. Admitted,
5. Denied. It is specifically denied that Peck exclusively controlled the sidewalk or
exterior structure of [36 South Enola Drive and proof thereof is demanded, It is further denied
that Peck was responsible for the maintenance, repair and service of the area described, and proof
thereof is demanded. By way of further answer, Peck hereby incorporates by reference as though
fully set forth herein paragraphs 23 through 31 of New Matter hereinafter,
6.22, The avennents contained in paragraphs 6 through 22 of Plaintiffs' Complaint are
conclusions oflaw or fact to which no response is necessary, To the extent that a response is
deemed necessary, the averments are denied pursuant to Rule I029(e) of the Pennsylvania Rules
of Civil Procedure. By way of further answer, Peck hereby incorporates by reference as though
fully set forth herein paragraphs 23 through 31 of New Maller hereinafter.
WHEREFORE, Defendant, Michael Peck, demands judgment in his favor and against
Plaintiffs and that Plaintiffs' Complaint be dismissed with prejudice and costs of this action,
NEW MATTER
23, The averments set forth in Plaintiffs' Complaint fail to state a claim or cause of
action against Peck upon which relief may be granted,
24. Any claim or cause of action as set forth in Plaintiffs' Complaint is barred by the
operation of the contributory/comparative negligence of Plaintiffs as may be developed during
discovery. It is specifically averred that PlaintifTSusan Albright had a duty to assure her own
safety by reasonable conduct and that she either did not fall as a result of any condition of the
sidewalk or fell as a result of her own breach of duty,
25, Any claim or cause of action as set forth in Plaintiffs' Complaint is barret\ by
operation of Plaintiffs' assumption ofa known risk as may be developed during discovery. It is
specifically averred that Plaintiff Susan Albright used the sidewalk in question numerous times,
including the day of her alleged injury, and was therefore aware of any alleged conditions on the
sidewalk.
26, Any claim or cause of action raised in Plaintiffs' Complaint is barred by the
applicable statute of limitations, including specifically, but not limited to, any claim or cause of
action which, by reason of lack of specificity of pleading, is not directly or specifically set forth
in the language of Plaintiffs' Complaint, but which Plaintiffs seek to raise at a later time by
further lII1lendment, claiming to have preserved such claim or cause of action within Plaintiffs'
Complaint.
2
27. If Plaintiffs sustained injury and damages as alleged in the Complaint, such injury
and damages were caused by individuals or entities other than Peck, his agents, servants or
employees and over whom Peck neither exercised nor had the right or duty to exercise control,
and for whose action or inactions Peck is not responsible or otherwise legally liable.
28, Peck was an out.of.possession landlord at the time of the alleged accident, and
thcrefore cannot be held legally liable for any injuries allegedly sustained by the Plaintiffs.
29, Peck and Plaintiff Susan Albright entered into a written lease agreement for the
rental ofa portion of the property in question, At the present time the original lease cannot be
located. Subsequent to the incident described in the Complaint, Plaintiff Susan Albright and
Peck re-executed an exact and identical copy of the original lease covering the dates in question.
A true and accurate copy of the re.executed lease agreement is attached hereto as Exhibit "A".
Pursuant to paragraph 8 of the lease, Plaintiff, Susan Albright, as tenant, agreed to indemnify and
hold Peck hann1ess from any liability by virtue of any personal injury or property damage arising
from any use of the premises by the tenant. Therefore, even if Peck were found liable, Plaintiff
Susan Albright would ultimately be responsible for indemnification of Peck pursuant to her
contractual obligation,
ZOo If Plaintiffs sustained injury and damages as alleged in the Complaint, such injury
and damages were caused by the action or inaction of Plaintiff Susan Albright, in breach of her
contractual obligation pursuant to Attachment 1 of the re.executed lease agreement to keep the
walks and entryways of the premises clean,
3
EXHIBIT A
OI{)llJo)tl.)I'll
RESIDENTIAL LEASE
THIS LEASE AGR.EEMENT made this 1st: day o~
19...9.6..-' by and bet'.{een Michael Peck
herelnafter called "tandlord," and SUBan Albrlllht:
, hereinafter caLled "Tenant."
June
IHTNESS ETH:
In consideration of the rents and covenants hereina~ter set forth
and cont~ined on the part of the Tenant to be paid, per~ormed and
observed, the Landlord does hereby lease unto the Tenant the premises
hereinafter described under the conditions set forth herein.
1.
19:'~6~ .
19 97
TERM. The term of the Lease shall be for
. beginning on the lst day of
and terminating on the Jut: day of
a ceriod of
June
~..iiy
one
2. PREMISES. ,The Landlord does hereby lease unto the Tenant the
residential d'"elling located at 11~ ~''''~" Fnnl. nrivp FM1. .
Cumberland County, PennSYlvania.
3. ~ Tenant: agrees that the premises shall ce used only for
Men and Women RairBt:yling.
This lease confers no rights on Tenant to use for any purpose any
of the pro;erty of Landlord other than the interior of the apartment
leased, e~cept the uaLks and roadways giving access thereto and such
other areas, if any, as Landlord may from time to ti:ne designate for
use of resident:s. N~en the use by Tenant of any other ?ortion of
the property is per:nitted, it shall be subject to the r~les and regu-
lations established by Landlord,
4. RENTS. Tenant shall pay to Landlord as rent for the above-
descr i!:led ?remises. the sum of 'f'.~... ~hn"."nd Fnur Hundred dollars
( 2400,00 . , payable in aqual monthly installments
of Two Hundred dollar. ( S 200.00 ) per
month in advance beginning on the 1.t: day of June
19~, and on or before the FIRST day of each and every month there-
after subsequent to the signing of this lease.
5. LATE CHARGE. Tenant shall pay to Landlord a late charge of
52.00 per day for rent not received by Landlord as of the sixth day
of the month. This late charge shall be retroactive to the first day
of the month; for examole, if the rent is received on the tenth day
cf the month, there wiil be a late charge of $18.00 ($2.00/day x 9 days).
6. SECURITY DEPOSIT. Tenant shall be required to provide Landlord
at: the beginning of the term of this lease the sum of. ~118 I:ae..dly Eaput-)
as sec'Jrlt? towarc:s t..e
~erformance of the terms of this lease. Opon expiration of the term
:f this lease, the ~andlord shall inspec~ said premises to determine
:ama~e, i~ any, !ollo~ing ~he removal o~ Tenant !:o~ the proper:j_
~~: da~ag~s ~o the 19ase~ a~;a c: an? =~pai~s ~ecgs3::a:ed as a resu~t
-- :~~ 7~~1~~t! ~~e :: :~~ :e~3e~ ~:~a ~~a__ ~~ ~:~~ ~'f :~s :3~::==:
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at the expen~e o~ the Tenant and deducted f~om the security deposit.
The Landlord shall account to the Tenant for the unused portion of the
security depo~it within thirty (30) days following the expiration of
the term of the lease.
7. ALTERATIONS. Tenant agrees not to make any alterations, addi-
tions, improvements or any other changes to any part of the premises
or its facilities without the express written consent of the Landlord.
Tenant shall not change locks or install additional locks, chains
or other fasteners without the written consent of the Landlord.
a. INDEMNIFICAT!ON. Tenant shall indemnify and save Landlord harm-
less from any liability imposed upon Landlord, adjudicated or otherJise,
by virtue of any personal injury or property damage arising f~om any
use of the premises by the Tenant, their agents and invitees, or by
any acts done thereon by the Tenant, their agents and invitees. includ-
ing court costs and counsel fees.
9. I~SURANCE. Landlord agrees to be responsible for fire insurance
coverage for the exterior of the premises including the st~u€ture of
the building. Tenant agrees to be responsible for. fire insurance cover-
age on its contents within the leased area. Tenant also ag~ees to be
responsible to carry liability and contents insurance coverage with
li~its of no less than $100,000.
10. REPAI~S. Landlord agrees and covenants to be responsi~le for
any and all repairs to the exterior of the premises and also agrees
to be responsible for all repairs to the interior of the premises includ-
ing the heatir.g facili~ies, plumbing facilities, electrical facilities
and maintenance and reoairs of anv Landlord-owned accliance(s) which
include( s) 'In pqtdnt"en; furnbhed . ..
:!ol{eVer, in the even:: that such repairs are necessary due to the
negligent acts of the Tenant or their agents and invitees, then such
~epai=s shall be perfor~ed at the expense of the Tenant.
11. ASS!GNMENT. Tenant covenants and agrees not to assign, sublet
or transfer their interest in the premises to any other party.
12. TAXES. The Landlord agrees to pay all taxes and assessments
levied against the premises during the ter~ of this lease including
trash removal and sewerage.
13. UTILITI!S. Tenant will be responsible for the payment of util-
ity bills including Electric, cable,telephone
and other related assessments. Landlord will be responsible for the
payment of utility bills incluJing Heae.vaeer. trash, severage.
14. ACCESS BY LANDLORD. Tenant agrees to permit the Landlord to
enter upon the said premises at all reasonable times to examine the
c=r.dition thereof, make repairs or alterations as needed, to enforce
this lease, and to show the leased premises to prospective residents.
15. SURRENnER OF THE PRE~!SES. A. Tenant covenants with the Landlord
that the Tenant has received the premises in good orce: a~d condition
a~: at the expi:ation o! this lease, ~enan~ .il1 :ielc said preMises
i~ as geod order a~d condi~~on as ~hen t~e same wera re~te~ by t~e
~enant. ~ith the exception o~ any damage caused by riots. ~ire. flood.
incendiarism. ac~s of G~d or the public enemy. ~h~ clementS. ordinary
~ear and tear and other causes beyond the Tenant's control. However.
Tenant shall be liable ~or any repairs rasul~ing from negligent ac~s
of the Tenant. their agents. servants. or employees or any other person
upon the said premises at ~~e invita~ion of the Tenant.
B. All keys must be returned to the Landlord at the termination
of occupancy. tor~arding address mUs~ be le!t with the landlord.
c. At the termination of occupancy. ~enant must remove all per-
sonal property not belonging to landlord from the leased ?remises.
Any trocertv not removed shall be considered abandoned. and landlord
may dispose"of it without being accountable to Tenant tor doing so.
16. W~ST!. Tenan~ agrees to permit no waste of the premises or
use the premises for any unlawful purpose. Tenant shall ~aep the leased
area of the premises ~ree and clear of any type of re~use. junk or other
debris. ~ll trash and refuse shall be storqd outside the leased ore-
~ises in appropriate trash containers permit~ed by local ;overnman~
regulations. and shall be taken by Tenant to the de$ignatad pick-UP
area ~or rer.loval on trash day. Irhich is ""pqd~'1
li. CONDUCT Ot T!~ANT ANn HIS/H!~ G~ESTS. Tenant and his/her
guest(s) shall not at any time make any noise. cr do anyt~ing or conduct
themselves i~ any way whic~ disturbs any other tenant or neighbor or
interferes with the rights. comfort or conveniences of any other tenant
cr neighbor.
18. PETS. Tenant agrees that there shall be no pets or other
animalS. either domestic or other_ise. including parrots or birds. ke~t
upon the leased premises. or elsewhere on Landlord's property. unless
~andlord agrees otherwise. in writing.
19. SALE. T~e Landlord herein shall have the right to sell the
gro;erty at any time to any third party ~;ithout giving notice to the
Tenant.
20. EXPIRAT!ON. 30th parties hereby agree that either garty hereto
~ay terminate this lease at the end of the said term by giving the other
~arty written notice thereof at least thirty (30) days prior thereto.
~ut in de!ault o! such notice. this lease shall continue upon the same
"erms and conditions as herein contained =or a further period of
one year and so on unless or until terminated by either party
~ereco given by the other thirty (30) days' written notice for removal
grevious to the expiration of the current term. HOlrever. i= Landlord
shall have given such written notice prior to the expi=a~ion of any
term hereby created 0= his intention to change the terms. covenants
cr conditions of this lease. and ~enant shall hold over a~ter the expi-
ration of the time mentioned in such notice. Tenant shall be considered
as ~enant under the terms. covenants and conditions mentioned in such
~otice for a further term as above described. It is the intention hereo=
:ha~ if the original term shall be rene~ed or extended under the terms
~e=einabove crovided or othervise. such renewal or extension shall be
~;C~ t~e sam~ te~~s and conditions 0: t~is lease as a:a e:~ec~~ve izme-
~:~~e~: ;=:~= :~ t~e a~;:=a~lo~ 0: t~e sai= c=:;:~al ~a~sa.
2L. OEF\UtT. A. U~on the occurrence at any ce~ault such as tailure
:0 pay insCallQent of rent when due. failure to ?er~orm any ter~s or
conditions of this lease. abandonment by Tenant o~ the leased p.emises.
or insolvency of the Tenant. the lease shall be deemed to have been
breached and thereupon by that fact itself and without entry or other
action by the Landlord.
9. At the option of the Landlord. the rent for the remainder of
the term of this lease shall immediately become due and payable.
C. At the option of the Landlord, this lease and the term created
hereby as well as all the right. title and interest of Tenant hereunder
shall cease and determine and become absolutely void without any right
on the part of the Tenant to save the for~eiture by ;ayment of any sum
or bv oerformance of anv term. covenant or condition broken or defaulted.
and the Landlord shall be entitled to recover damages for such event
of default in an amount equal to the amount of the rent and other charges
reserved for the balance of the term hereof. less the fair rental valua
of the leased premises for the balance thereof.
D. At the ootion of the Landlord. Landlord mav lease the de~ised
?remises or any part or Jar:s thereof to such person or persons as may.
in Landlord's discretion, seem best .ithout a!fec:i~g Tenant liability
for any loss of rent for the balance of the term.
E. Tenant shall pay to Landlord, as additional rent on demand.
all of Landlord's costs. charges and expenses including without limita-
tion the reasonable fees of counsel. agents or others retained by Land-
lord for the enforcement of Tenant's covenants under this lease.
22. W~IVE~ OF NOTICE. Tenant hereby waives all rights to le~al
notice wherever provided by statute or common lav.
If Tenant shall fail to pay rent. or additional rent. to Landlord
when due; shall default in any other provisions of this lease; or shall
remove or attempt to remove any of his/her ?ossessions froQ the ;reQises
before ;aying to Landlord all rent due to the end of the lease term.
~andlord. in addition to all other remedies orovided bv lav. mav ter~inate
this lease and Tenant specifically vaives the riqht to'the three (3)
months' notice and to fifteen (15) or thirty (30) days' notice required
by the Act of Assembly of April 6, 1951. ?L. 69. and agrees that five
(5) days' notice of termination for breach of lease shall be sufficient.
23. ENTIRE AGREEMENT. This lease constitutes the sole understanding
of the parties hereto and any amendment(s) or addition(s) shall be effec-
tive only when reduced to vriting and signed by the ;arties hereto.
Additional terms and conditions are liSted on subsequent
attachments.
(continued on next ;aqe)
5
IN IH1'llESS IiHE::l.!N'. the parties here:o have executed this lease
contract the cay. month and year first above ~ritten. intending to be
legally bound thereby.
NITllESSI
(I:.andlord)
liJJ .1{
(Date) I 3;14.,.;,1 \7(.; (SUI:.)
.
(Date) (SEAL)
(Date)~d 1- 9(" (SEAL)
.
(Date) (SEAL)
(I:.andlord)
(Tenant)-k~ otij/(I
(Tenant)
aev. 9109
I:.4\NDLORD/4\DDP.:SS/HOME&WORK ~HONES:
Michael R. ~eck
1048 Mountain Dale Drive
Marysville. p~ li053
95i-3262 (home)
697-0354 (Mike-work)
ATTACHMENT 1
,
Paqe 1 of 2
Location of Leased Premises:
136 South Eaola drive, Eaola, Penna.
The following items are furnished: None
No water beds, kerosene heaters, or hanging plants from ceiling or
drapery/curtain rods furnished by Landlord allowed. No more than t~o
(2) SMALL nail holes per room allowed; Tenant will be charged ~lO.OO
per hole after that amount.
Walks, entryways, halls. stairways, lobbies, landings and elevators
shall be used only for access to and from the leased premises. They
shall not be used for children's play areas, and shall be ke~t clean
of bicycles, toys, waste recepticles and other articles at all times.
Tenant shall not store any articles in garage or basament without express
written consent of Landlord.
If the premises are damaged or not clean at ter~ination of occupancy,
including walls, woodwork, stove/oven, re::igerator (if provided), bath-
room, exhaust fan, closets and cabinets. it will be repaired and cleaned
at Tanant's eJ:=ense. This also includes no stic~ers or scratches on
walls. All burned-out light bulbs to be replaced. No indentations or
scratches in wood or resilient flooring, formica or appliances.
Where water is being provided as a utility for which the Landlord is
responsible for payment, the use of a washing machine or dishwasher
will NOT be per~itted upon the leased premises without prior written
consent of the Landlord.
At no time will any day care/paid babysitting service be allowed to
operate on the leased premises.
Where there is off-street parking, one space vill be allowed per
Tenant on which only a Tenant-owned vehicle will be per~itted to par~.
Any other parking vill be at the discretion of the Landlord. The
vehicle must be in vorking order and inspected. Landlord does not
operate a parking lot for junk vehicles.
?lease fill out the information on the next page. IN FULL.
ATTACHMENT 1 -- Page 2 of 2
person(s) to contact in case of emergency:
1'p.3,(;)~ 7/3.2
DdYtf? II 115;1/41/-
/
Tenant's Social Security Number:- \.,.-O(),? - 3,f - ,Sq 3 f'
Tenant's Vehicle Make!Model!Year!License No.:
Tenant agrees that. during term of the lease, the leased premises (barber shop) will
be run in accoruanance vith rules. regulations. and conditions of the Pa. State Board
of Barber Examiners.
Landlord
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.Date I ...J".t.:~ 9't' (SEAL)
Date (SE:AL)
Dat:e -:Jtt:W / - 9~ (SE:AL)
Date (SEAL)
Landlord
Tenant~~n
Tenant
a#7'"
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CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document upon the
person and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Code, by depositing a copy of the same in the United States mail, at Harrisburg,
Pennsylvania, with first-class postage, prepaid, as follows:
Dawn L. Jennings, Esquire
Angino & Rovner, P,C.
4503 North Front Street
Harrisburg, PA 17110
HARTMAN & MILLER, P.C.
By:JJ~~~
Jack M, Hartm ,Esquire
Supreme Court 1.0, No. 21902
Drew p, Gannon, Esquire
Supreme Court 1.0. No, 74680
One Keystone Plaza
Suite 107
Front and Market Streets
Harrisburg, P A 171 0 1
(717) 232.3046
Attorneys for Defendant, Michael Peck
Dated: 1/-$"-1?
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...
SUSAN F. ALBRIGHT and
C, DAVID ALBRIGHT,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION.LAW
V.
MICHAEL PECK,
DEFENDANT
97-5482 CIVIL TERM
QUESTION 1:
Do you find that defendant was negligent?
YES I
NO-1.L
If you answer Quesllon 1 "No," plaintiffs cannot recover and you should not
answer any further questions and should return to the courtroom.
QUESTION 2:
Was defendant's negligence a substanllal factor In bringing about plalnllffs'
harm?
YES
NO
If you answer Quesllon 2 "No," plaintiffs canno1 recover and you should not
answer any further questions and should return to the courtroom.
QUESTION 3:
Was plaintiff Susan F. Albright contributorily negligent?
YES
NO
If you answer Quesllon 3 "No," proceed to Quesllons 6 and 7.
If you answer Ques110n 3 "Yes," proceed to Ques110n 4,
...
QUESTION 4:
Was Susan F. Albright's contributory negligence a substantial factor In bringing
about plaln11ffs' harm?
YES NO
If you answer Question 4 "No," proceed to Questions 6 and 7,
If you answer Question 4 "Yes," proceed to Question 5,
QUESTION 5:
If you have answered "Yes" to questions 1, 2, 3, and 4, then answer the
following:
Taking the combined l1egllgence that was a subs1antlal factor In bringing about
the plaintiff's harm as 100 percent, what percentage of that causal negligence was
attributable to the defendant and what percen1age was attrlbu1able 10 Susan F.
Albright?
PERCENTAGE OF CAUSAL NEGLIGENCE ATTRIBUTABLE TO
DEFENDANT %
PERCENTAGE OF CAUSAL NEGLIGENCE ATTRIBUTABLE TO
SUSAN F, ALBRIGHT %
TOTAL 100%
If you have found Susan F, Albright's percen1age of negligence to be greater
than 50 percent, plaintiffs cannot recover and you should return to the courtroom. If
you have found Susan F, Albrigh1's percentage of negligence to be 50 percent or
less, plaintiffs can recover and you should proceed to Quesllons 6 and 7.
....
QUESTION g;,
Slate the to1al amount of damages, if any, you find Susan F. Albright has
sustained without reduction for the percentage of causal negligence, If any, that you
have attributed to her.
TOTAL $
QUESTION 7:
State the total amount of consortium, If any, that you find C. David Albright
sustained wi1hout reduction for the percentage of causal negligence, if any, that you
have attributed to Susan F. Albright.
TOTAL $
IfL/199
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