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Home My WebLink About98-02630 .. JANET BARKLEY, Pl~intiff 116 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. FRATERNAL ORDER OF EAGLES, INC., t/d/b/a EAGLES HOME; and EAGLES PICNIC GROUNDS, Defendants vs. MERVIN L, KUHN, Additional Defendant CIVIL ACTION . LAW 98-2630 CIVIL TERM IN REI PRETRIAL CONFERENC~ A pretrial conference was held on Wednesday, October 17, 2001, before the Honorable George E. Hoffer, President Judge. This is a dram shop action arising from a motor vehicle accident which plaintiff Barkley was injured by the Defendant Kuhn. Kuhn had been at the Eagles picnic on the day in question and rear ended Ms. Barkley's vehicle on Route 11 in the county a short while after the picnic broke up at 5: 00 p.m. He was tested by the police for alcohol consumption and found to have a .22 at 7:45 p.m., the time of the accident was 6:08 p,m. Counsel estimate the trial will take 3 days and each has examined the witness list of the other party and brings no objection to the attention of the Court. The medical testimony will be presented by videotape already completed. Four challenges apiece, By agreement of both counsel, the firm of Wix, Wenger & Weidner does not have to attend the trial with their client, Additional Defendant Mervin Kuhn, provided that the law firm does have Mr, Kuhn in attendance for all sessions. Any settlements made by the plaintiff with other parties may not be brought into the evidentiary case in any way whatsoever I all parties agree. .,. ,... y.; l"'" I.r. 1:' .1' ,. t:;~ , . :::i,(( 0, 9 (;)~;j c; .,r t)~~e it ..-.-, '.1 ., ..t,~. r~) ::::, C) , :."i(; , :t. CJ i .L../ c: I N :-;.-! ~". _...J ! , t- U:j(b ~~ , (..1 ,;r Cl., I "" Cl ;j, I I. ::) c.) Cl (,) , it; \(j ~,-j "'I (; i.:~ .. .,<- I,LI('! ,ry ;:':; 0", .. --, PC"~ I , ~( hI..... ,r r~'" .Il I tT: , ;;!: , C',"I i' :;.c: , l.L. , I... r.o :::J u 0' U ~~~ ~~ ~ "'~. - '\r, N 'l"") ~ r\() -' QUIGH vr ~ t:; ~ ~ N \;;;) '- ( ~ ~\~~ ,~. . . J III Q)~ Q) S riOCl tn:Ii ::l ill 0 ~ ~ III ~ . Q)~ Ul s Q) 'Hri .S ) ~ o tn u ill I ill'.j '"" . .. ....., I ri ~~CI I I i~i~~ lr ..j Q) u I I > >. - 'tl ro..j I IJ. ..j Q) ~,~ c:: I u ri 0.0 0 .><: 'Ill '.j 0 ~ ri'tlQ) -I-J I ~ 'f~ I I"') ill ill'ri rI.l 0 I \0 III e -I-J g> ><I: I iig I N I I -I-J Q) . ~ ri co Q) -I-J . ..j I I Cl'I c:: roU'tl > I ~ ill ~ t:: t:: ..j I ,.., ~Hill U I I I . .... -'I!I:r~r.1'!o". f:N4-:-'-, ' "'. ;r;:~r!~".'_ Itrt& . fj '~.i AH ~98 ',.'/ .' f'EioI\I'.. ,.' ,:. -"".f. 'fANIA J ~ I ~I ~I 'M ul 01 ~I r2 . , , III Q) III lIiS'tl rlOO b1:Ii ;:l ro 0 ~ !Ill-< Q)L!l 'Hrl o 01 0 ro..... I-< ~ '" Q) 0 '0 ro'M I-<,p,. 0.0 'Ill rl'OQ) ro'rl 0.j.J 01 I-< ro Q) ,~ .j.J. <00'0 I-< 0 0 ~Hro .:>. Q) rl ~ I-< ro ~ ""' Q) o ro .., .. .S g J I I ) I ro' ...:II I I I 01 01 'M I .j.J, o. 0<1;1 I ~I 'M I U, . ul m . .. 'I""l m~~ ~. ~ llIB2: 8 ~. E ~i~ - Ii ~; , I I I I i I 'I I I Iff :g :< I I I I I I 1 I I , I I 13, At all tilllElfl malorial herein, the U:agles was the sole owner and holder of a PemlflylvarJJa retaU. l,iquor l1eenso purnuant to the Penrwylvania Liquor Code, 4'1 Pa, C,S.A, ~4-401, entitHng said corporation to sell and dispense intoxicating beverages for consumptIon by patrons on the premises known as Eagles Picnic Grounds, 14, During the afternoon of May 19, 1996, Mr, Kuhn entered the premises owned and operated by the Eagles and remained on the premises until a short time before the subj ect motor vehicle accident. 15. At all times material herein, Mr. Kuhn was a customer and/or patron of the Eagles, when agents, servants and/or employees of the Eagles sold, furnished, provided or permitted to be sold, furnished, or provided intoxicating beverages to Mr. Kuhn. 16, Service of the aforementioned intOXicating beverages to Mr. Kuhn by the Eagles acting through its agents. servants and/or employees, took place while Mr, Kuhn was visibly intoxicated. 1'1. The Eagles' sale and service of the aforementioned acholic beverages to Mr. Kuhn, while he was visibly intoxicated was negligent and constituted a violation of the Pennsylvania Liquor Code, 47 Pa, C.S,A, ~4-493, 18, Within minutes after Mr. Kuhn left Eagles Picnic Grounds and while Mr, Kuhn was still in an intoxicated state, he drove his vehicle into the rear of Ms. Barkley's stationary vehicle, cause Ms. 3arkley to sustain serious injuries, 3 Cl,^TM I J i1tlE! t Li" t: k L.QY yo..... llt:fltet'll~LLQj;'drn- ot: li:cISlJe~l, Inc. _ t/d/b/.,g EaqlNI t\.QIJill...1u.ill Jo:aq I 8101 PicnIc U.t:.Qunds 21. ParagrapflEl 1 through 20 o[ this Complaint are incorporated hereIn by 10[erence, 22. Plaintiff Janet Barkley sustained painful and severe injuries which include, but are not l.imited to, chronic cervical muscle strain, head traumil, right sternoclavicular muscle strain, radicular pain in her right upper extremity, lower back strain, and aggravation of her pre-existing degenerative condition of her cervical spine, causing progressive neurological deficits. 23. By reason of the aforesaid injuries sustained by Ms. Barkley, she was forced to incur liability for medical treatment, medications, hospital treatment, chiropractic treatment and similar miscellaneous expenses in an effort to restore herself to health, and claim is made therefor, 24. Because of the nature of her inj uries, Ms, Barkley has been advised and, therefore, avers that she may be forced to incur similar expenses in the future, and claim is made therefor. 25, As a result of the aforementioned injuries, Ms. Barkley has undergone and in the future will undergo physical and mental suffering, inconvenience in carrying out her daily activities, loss of life's pleasures and enjoyment, and claim is made therefor. 26. As a result of the aforesaid injuries, Ms. Barkley has been and in the future will be subject to humiliation and embarrassment and claim made therefor. 5 ..... ul ~ t,., <r I.';: .. ...,- ..'"') ('-..I i~i~ It;~t ..... ()~ C., 1 J.,.... .' . 'l \.. )]', u.. rl,.~ r ~r'''; '( ~~;l ,.... ~'~~ f" \ _.:J i(' n:: cr:\\I__\ ..-J uJ " i. :.:) ff).\.. \.., ..., ,.~ ,'I, 0" ~ 's,,) 0 t1\ f' ~ CI\ .~ 0 I.., .. ..-) (-, N j"')~ LJ~ :;':~ ()~ c., x:: p.: f.r~ 0- ('~li ~f- C;'Cl ,.... /-" 6;11 I 4'~l'" fl. II) rt ~;:~ ....J II U :::::l Ilan.. t.. .., .cl (C' 0" a .' '" ~ L' COMMONWEAL TH OF PENNSYL VANIA COUNTY OF CUMBERLAND JAlolE1' BARIO,EY, PltlintHf I N THE COURT OF COMMON PI,EAS v. NO. 98-2630 FRA'fERNAL ORDER OF EAGLES, INC. 1'/D/B/A EAGLES flam;, AND F;AGLES PICNIC GROUNDS, Defendant JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009,~2 TO: Custodian of Records, Camille Ballghman, LMT & Asso., 26 Slate Avenue North, Carlisle, PA 17013 (Nam. of Pers6n or Enl"y) Wilhln Iwenly (20) day. after service of lhi. subpoena, you are ordered by Ihe court 10 produce Ihe following documenls or Ihlngs: Comolete cooies of any and ~II records, reoorts and di~osllc studies regardlnQ Janet M, Barkley, SSN: 172-32-1016, Date of Birth: 2/15/41 at: Thomas..Jhomas & Hafer, LLP, 305 N, FrQnt St" p,<5BOX 999, HarrisbUfQ, PA 17108: 0999 (Addre..) You may deliver or mall legible copies of the documenl. or produce Ihlng. requo,'ed by Ihls ,ubpoene, logelher wllh lhe certlficale of compliance, 10 the pa~y making Ihl. reque'l at Ihe addra.. IIsled above. You have Ihe right 10 seek In advance, Ihe reasonable cost of preparing Ihe caples 6r producing the Ihlllgs sought 'f you fall to produce the documenls or Ihlngs requirad by this subpoena, wlll1ln Iwenty (20) days after Its service, the party serving Ihls subpoena may seek a court order compelling you 10 comply with It THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID#: 43530 ATTORNEY FOR: Delendant BY THE COURT: DATE: /; '2:tI)9 Seal of the Court (4/97) COMMONWEAL TH OF PENNSYLVANIA COUNTY OF CUMBERLAND ,JANET ElARKl.E:'t, Plaintiff lN TfIr~ COURT OF' COMMON P!,!l;AS v, NO, 98-2630 FRATERNAL ORDEH OF' F:AGJ.ES, INC, '['ID/El/A EJ\G!,ES f10Mf., AND EAGLES PICNIC GHOUN[1S, D~) fendant JURY THIAl, DEMANDED SUBPOENA TO PRQDUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Harrisburg Hospital, South Front Street, Harrisburg, PA 17101 (Name 0' Person or Entity) Within twenly (20) days afler service 0' Ihis subpoena, you are ordered by Ihe court 10 produce Ihe 'ollowing docl/ments or Ihlngo: Comlllete copies of anv and all records, reports and.1!@.gnoslic studies reQarding Janet M, Barklev. ~SN: 172-32-1016, Date of Birth: 2/15/41 at: Thomas, Thomas & Hafer, LLP. 305 N, Front 8t.. P,O. Box 999. Harrisbura, PA 17108-- 0999 (Address ) You may deliver or mall legible copies 0' the documenls or produce things requested by Ihls subpoena, logether with Ihe certificale of compllanr.e, to the party making this request at the addre.. lisled above. You have the righl to seek In advance, Ihe re~sonabie cost 0' preparing the copies or prOdl/cing the Ihlngs soughl If you 'all to produce the documenls or things required by Ihls subposna, wilhin Iwenly (20) day. ahar ils service, Ihe party serving this subpoena may .eek a courl ordar compelling you to comply wilh it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E, Geduldlg, Esquire ADDRESS: P,O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT 10#: 43530 A TTORNEY FOR: Defendant DATE: j,.p)-r;9 ~e Court K (4191) ~.- -. ..~. r:r; ("~- (-- "~l ':)00 .,,.; .. :.$..C iJl (:; 0.:1 f J~;;; ~,~ I , '..J :~(~ 1'''' [,I.. ;) ::J ( I,;: ~'__' . ";0- Z)i \ D " o ('f) "~I \" l.~ f 1. r " ~,~ 1"'" rr:: "I~l Lj ~-':J 1.. i -', u-- IJ_ (1"\ ..1 0 'r> 0 Stephen E, Oeduldlg, Ssqulre Allorney 1.0, No. 43530 THOMAS, THOMAS & HAFER, UP 305 North Front Slreel PoslOlflce eox 999 Hlrrlsburg, Pennsylvlo1la 1710S (717) 237-7100 S.Mall: Sea(1lltthlaw.com AlternlVs 'or Delandlnl: FAA TERNAL ORDIR OF IAOL.I, tNo, -.~-"""""--... JANET BARKLEY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO, 98-2630 : CIVIL ACTION -- LAW FRATERNAL ORDER OF EAGLES, INC. tJd/b/a EAGLES HOME, and EAGLES PICNIC GROUNDS, Defendant : JURY TRIAL DEMANDED NOTICE TO P!.MQ TO: Plaintiff and her counsel YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. Thomas, Thomas & Hafer, LLP .Date: ~\~( 1 '1 ()f'/ rJ j/(~~! Stephen E, Geduldlg, Esquire Attorney I,D. #43530 305 North Front Street Harrisburg, PA 17108 (717) 237-7119 --- Attorney for Defendant 7. After reasonable Investigation, Defendant Ie without knowledgo or Information sufficient to form a belief as to the truth of the averments contained In Paragraph 7, and proof thereof Is demanded. 8, After reasonable Investigation, Defendant Ie without knowledge or Information sufficient to forma belief as to the truth of the avermente conlalned In Paragraph 8, and proof thereof Is demanded. 9, It Is admitted that, prior to the accident, Mr, Kuhn consumed alcoholic beverages at the Eagles Picnic Grounds, However, It ie specifically denied that Mr, Kuhn was visibly Intoxicated at the time he may have bden seIVed llny al~ohollc bevoragllll. COUNT I 10. No response Is required as this Is a paragraph of Incorporation, 11. Admitted. 12. Admitted. 13. Admitted. 14, Denied pursuant to Pa,RC.P, 1029(8). 15. Admitted. 16. Denied pursuant to Pa,RC.P, 1029(8). 17. Denied as a legal conclusion and pursuant to Pa.R.C,P. 1029(e). 18. Denied as a legal conclusion and pursuant to Pa,RC,P, 1029(e), 19. a. - f. Denied as legal conclusions and pursuant to Pa.RC,P, 1029(e). 20. Denied as a legal conclusion and purRuant to f'a.R.C.P, 1029(e). WHEREFORE, Defendant Fraternal Order of Eagles, Inc, Vd/b/a Eagles Home, and Eagles Picnic Grounds respectfully requests your Honorable Court to dlsml.. Plaintiff's Complaint without cost or Judgment to It. CLAIM I 21. No response Is required as this Is a paragraph of Incorporation. 22. Denied pursuant to Pa.R.C.P, 1029(e), 23. Denied as a legal conclusion and pursuant to Pa,RC,p. 1029(e). 24. Denied as a legal conclusion and pursuant to Pa.RC,p, 1029(e), 25. Denied as a legal conclusion and pursuant to Pa.RC.P. 1029(e). 26. Denied as a legal conclusion and pursuant to Pa,RC.p, 1029(e). 27, Denied as a legal conclusion and pursuant to Pa.RC.P. 1029(e). 28. Denied pursuant to Pa,R.C.P. 1029(e), 29, Denied as a legal conclusion and pursuant to Pa,RC.p, 1029(e), WHEREFORE, Defendant Fraternal Order of Eagles, Inc. IId/b/a Eagles Home, and Eagles Picnic Grounds respectfully requests your Honorable COIJrt to dismiss Plaintiff's Complaint without cost or judgment to It. NEW MATTER 30. Defendant Incorporates herein by reference, as if fully set forth at length, Paragraphs 1 - 29 of the Answer to Plaintiff's Complaint. 31. Plaintiff's Injuries and damages, If any, may not have been caused by any acts, omissions, or breaches of duty of Defendant, but may be the result of pre-existing conditions, or previous or subsequent events. 32. Defendant's conduct may not have been a substantial factor In causing Plaintiff's Injuries or damages, If any. 33, Plaintiff's claims may be barred by the provisions of the Motor Vehicle Financial Responsibility Act, which are pleaded by reference and Incorporated herein as If fully set forth. 34. Plaintiff may have failed to mitigate her damages. WHEREFORE, Defendant Fraternal Order of Eagles, Inc, IIdlbla Eagles Home, and Eagles Picnic Grounds respectfully requests your Honorable Court to dismiss Plaintiff's Complaint without cost or judgmont to It. >. N "0' cr; b ..q ,._.1 .. :.hr c' ..::r ~I.. j~,,< 1:<;' ,,~- l. .' c~... C)t~ (5'" .. ( ;-':!~ i~~ /If C") lll' ":~J :,: ".'-' let; !/? ilJi'jj i -~, ~,j.'!t'L ""r 1.1, .0'\ ''.) 0 ,F. U '. Slepn.n e. GeduldlO, elql/lre ""olney 1.0, No, 43&30 THOMAS, THOMAS & HAFER, LLP 305 North Front Strell POlt 0IfIce Box 999 Hlrrllburg, Plnn.ylvlnll 17108 (717) 237-7100 E.MIII: Sf,lg@tthlaw.com AttorneYI tor De'endlnl: FRATERNAL ORDER OF EAGLES, INC. JANET BARKLEY, Plaintiff IN THE COURT OF COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 98-2630 CIVIL ACTION -- LAW FRATERNAL ORDER OF EAGLES, INC, tld/b/a EAGLES HOME, and EAGLES PICNIC GROUNDS, Defendant : JURY TRIAL DEMANDED v, MERVIN L. KUHN, Additional Defendant COMPI.AINT JOININGADDIT'ON~L DeFENDA~T AND NOW, Defendant Fraternal Order of Eagles, Inc. IIdlbla Eagles Home and Eagles Picnic Grounds, by Its attorneys, Thomas, Thomas & Hafer, LLP, files this Complaint Joining Mervin L, Kuhn as Additional Defendant as follows: 1. Fraternal Order of Eagles., Inc. Is a Pennsylvania corporation trading and doing business as Eagles Home and Eagles Picnic Grounds, with a principal place of business at Carlisle Aerie 1299, 26 East High Street, Carlisle, Pennsylvania. 2. Additional Defendant Mervin L. Kuhn is an adult Individual residing at 169 Old Gap Road, Carlisle, Pennsylvania. 3. Plaintiff Instituted this action against Defendant In the Court of Common Pleas of Cumberland County. A copy of Plaintiff's Complaint Is attached hereto and marked Exhibit A 4. On or about May 19, 1996 at the time and place alleged In Plaintiff's Complaint, Additional Defendant Mervin L Kuhn was the operator of an automobile In the southbound direction of Route 11, Carlisle, Cumberland County, 5. On the aforesaid date and time, Additional Defendant negilgently and carelessly failed to observe and brake for Plaintiff's stopped vehicle, and colilded with the rear of Plaintiff's vehicle, causing the alleged injuries to the Plaintiff, 6. Plaintiff's alleged Injuries and damages are the direct and proximate result of the negilgence of Additional Defendant Mervin L Kuhn In that he: a. failed to keep his vehicle under proper and adequate control; b, f"i1ed to travel at a safe speed; c. failed to keep alert and maintain a proper watch for the presence of other motor vehicles on the roadway; d. failed to yield the right of way to other vehicles on the roadway; e. failed to keep a proper watch for traffic on the roadway; f. failed to drive his vehicle with due regard for the roadway and traffic conditions which were existing and of which he was of should have been aware; g. failed to keep his vehicle under such control as to be able to stop within the assured clear distance ahead; h. drove his vehicle aftar having consumed alcohoilc beverages, thus Impairing his driving abilities and judgment; and I, drove his vehicle upon the roadway in a manner endangering persons and property and in a reckless manner with careless disregard to the rights and safety of others and In violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania, 7. Any liability on the part of Defendant Fraternal Order of Eagles, Inc" denied presently, was wholly secondary and passive, and the liability of Additional Defendant Mervin L Kuhn was primary and active. '-. ex 1 f' C ~ , , . " , f . . " { I ,. .. , - " (.-" I , , " k. " , ) FRO-RATA JQlNT TORT FEASOR RELEASE KNOW ALL PERSONS BY THESE PRESENTS, t.hat Janet Barkley, intending to be legally bound hereby, for and in consideration of the sum of $49,295.85 from State Farm Insurance Company, receipt whereof io hereby acknowledged, have remised, released and forever discharged, and by these presents do for t.hemselves, their heirs, executors, administ.rators, personal representatives, successors and assigns, agents, insurers and subrogees, hereby remise, release and forever discharge Mervin Kuhn and St.ate Fa~'m Automobile Insurance Company, and each of t.heir agents, representatives, employees, attorneys, their predeGessors and successors, present, former and subsequent subsidiaries, and their present, former and subsequent assigns, officers, directors, insurers, attorneys, agents, representatives and employees of any of these entit.ies and all and each of their heirs, executors and administrat.ors (any and all of whom are hereinafter collectively referred to as "Payors"), from any and all actions, causes of action, suits, claims, damages and demands of every kind, name or nature whatsoever, known or unknown, foreseen or unforeseen, whether at law or in equity, which the undersigned or anyone claiming through them in any way may have or will claim or could claim against the above-named Payors for any and all damages, losses or injuries of any type whatsoever based upon or in any way arising out of, related to or resulting from or to result from a certain accident which occurred on May 19, 1996, 12S774/MTG "Exhibit A" on Route 11 and Cavalry Road, Carlisle, Cumberland County, Pennsylvania. The undersigned intends that this Release shall be complete and shall not be subject to any claim or mistake of fact or of law, and that it expresses a full and complete settlement of liability claimed and denied by the above-named payors, and, regardless of the adequacy or inadequacy of the amount paid, this Release is intended to avoid this and future litigation against the payors and to be final and complete. The payment referred to herein is in compromise of a doubtful and disputed claim and such paynlent is not to be construed as an admission of liability on behalf of the Payors or anyone on their behalf I to the contrary, payors expressly deny any liability; and the undersigned realizes that the payment made to her is upon her express warranty that she has not received heretofore any consideration whatever for nor has she recei.ved any consideration whatever from nor has she made any settlement with or previously given any release to any person, firm, association, corporation or entity for any liability claim arising out of the aforesaid accident. The undersigned expressly reserves the right to make any and all claims against any and every other person, firm or entity other than the payors, includi.ng, but not limited to, any dram shops, and reserves the right to claim that such other persons, firms or entities, and not the payors, are solely or otherwise liable to me for my injuries, losses and damages. 2 Further, the undersigned agrees that any claim, judgment or ultimate recovery she may obtain agai.nst any and every other person, firm or entity shall be reduced to the extent of the pro- rata or percentage share of causal negligence, or pro-rata or percentage share of comparative causation or fault of payors so that there can be no right of contribution or i.ndemnification by such other non-settling persons, firms or entities against payors under any conceivable theory. By executing this Release it is the intention of the undersigned to enter into a final settlement with payors and to insure Payors have no further obligation of payment to her or any non-settling party, It is the intention of the undersigned that this Pro-Rata Joint Tortfeasor Release be construed, interpreted and in compliance with the 1987 Pennsylvania Supreme Court case of Charles v. Giant Eaq~arkets v~ Stanley Maqic Door. Inc., 513 Pa. 474, 522 A.2d 1 (.1987). No matter how this Release is titled or worded, the intention of both parties is that it shall be construed as to have exactly the same legal effect as the release mentioned on page five of the Giant 'Eaqle decision and given the same legal effect on all parties, including preclusion of the non-settling parties to rights against payors for contribution and/or indemnity under a verdict or judgment or otherwise. Further, should it appear or be adjudicated in any lawsuit or any other action or proceeding of any kind or nature, whether or not now pending, arisi.ng out of the aforesaid incident or series of incidents, that said Payors and others not being released by the 3 terms of this Release (non-settling parties) wer~ guilty of joint and concurrent negligence or jointly or severally liable under any theory, or that said payors are liable over for indemnity or contribution to non-settling parties who caused the damages or losses herein concerned and more particularly the injuries and damages incurred by the undersigned, then in order to save the payors harmless and to indemnify them, the undersigned, binding her heirs, executors, administrators, successors or assigns, and as further consideration for said payment, will satisfy on payors' behalf any verdict, decree, judgment or award in which there is such f:l.nding or adjudication involving said payors, and to the extent of the liability of the payors for contribution and/or indemnity and for such judgment against payors for contribution and/or indemnity under the law; further, the undersigned, her heirs, executors, administrators, successors and assigns, will indemnify and save forever harmless the said payors for any judgments arising out of any and all further claims, suits, demands or actions, including, but not limited to those for subrogation, indemnity, and/or contribution made by non-settling parties on account of or related to, resulting from, or arising out of the incident, series of incidents or litigation referred to above. The undersigned further certifies, states, declares and acknowledges that no representation of fact or opinion has been made by said payors or anyone acting on their behalf to induce this compromise or payment or release; the undersigned have relied wholly upon their own ~udgment, belief and knowledge of their 4 injuries and realize that their injuries are or may be permanent and/or as yet unknown or unmanifested and that recovery therefrom is uncertain and indefinite but there have been no statements or representations by payors concerning these matters. In making this settlement, the undersigned certify, state, declare and acknowledge that they have not relied on any statements or representation of either of the extent of financial responsibility or extent of legal responsibility of the payors and that it is their intention that this Release be complete and shall cover all losses, damages and injuries known or unknown insofar as they relate to payors I the undersigned further certify, state, declare and acknowledge that they are over eighteen (18) years of age, have read the foregoing Release; the undersigned is of sound mind, and under no constraint, undue influence, mental reservation, lack of mental capacity or impairment of health or mental faculties or capabilities and that they fully know, understand and comprehend the nature of and the effect of the Release and settlement which they have signed, and that they have signed the same as their own free act and deed, intending to be legally bound thereby. This special Release contains the entire agreement and understanding between the parties hereto and the~e are no written or oral understandings or agreements directly or indirectly connected with this Release and settlement that are not incorporated herein and the terms of this Release are contractual and binding and this Release is given under and pursuant to the law of Pennsylvania, including the Comparative Negligence Act of 1976, 5 . ' . .,.... ~ C") (. .., ~ ,... .. "~);5 (~) ('? ~I~ ,~:J_ /-) It' :~C'I ~r: ();'c ff: r'; n._ '::)~J (")('1 ~ " r:-~) .'."(/:) lo'I'-:' "1"" 1.1,1. ,. .1',.. k I:'} ;r_~ (fit.) , L,-. f;r~) .l... ,. -, 1(. ~:) ~!.j C) Q C,) . . ,.,~ Ie.'..... (~; \~?,.~; (i~ ~~~ -.. b; ~;?, \."e to (,r.j " ~.- ..... ,.,.... .'i' \i.tl ; (\.. "-:) () .... "'-i/ ...... ,.. , .,.. !:: " ~:-) , (;<; , ) ~-:t; ,) < , :} ,._~j ['\1 '1-/1 I I,;:; ( , ,;,:~ I, 'dJ ! (J. lb : 1 L) C.;~j Ci,i 10. Neither you, your attorney, nor anyone acting on your behalf, has been able to locate andlor identify through discovery any person who saw or observed Additional Defendant, Mervin L. Kuhn, at the May 19, 1996 Eagles' family picnic between 4:30 p.m. and 6:08 p.m. Admit Deny ___ INTERROGATORIES If your response to any of the preceding Requests for Admissions are anything other than an unqualified admission, then pleasH answer the following Interrogatories, separately for each response: 1. What facts do you contend support your response to the request for admission? 2. What is the name, business and residence address and telephone numbers, and position or occupation of each person known or believed by you to have knowledge of the facts set forth in your response to the preceding interrogatory? 3, Please state the date, type of document, alJthor(s), reclplent(s), and present custodian of every document known or believed by you to refer or relate In any way to the facts you contend support your response to the request for admission. 4, Please state the business and residence addresses and telephone numbers, and position or occupation of each person Identified In your response to the preceding interrogatory. i . :II LAWRENCE J. GUZZARDI, M.D, JUly 30, 2000 David Lulz, Esq, Anglno & Rovner 4503 N. Fronl Street Harrisburg, PA 17110- 1708 RE: Janel Barkley v, Eagles (FOE) Dear Attorney Lulz, Thank you for asking me to fonnulate an opinion regarding the level of Intoxication and the physical manlfestallons of that Intoxication of Mr. MelVin Kuhn on May 19, 1996. In this regard, I have reviewed the following materials: North Middleton Township Pollee Report Documents relating to Mr. Kuhn's Arrest and Breathalyzer Test Complaint filed In Barkly v. Eagles Deposition of Mr. MelVin Kuhn dated January 5, 2000. On May 19, 1996, Mr. MelVin Kuhn was Involved In a motor vehicle acoldent with the vehicle of Janet Bar!<ley. According to the Polico Report, Mr. Kuhn failed to control his car and struck the stallonilry vehicle of Ms. Barkley causing her physical Injuries. The acoident or.curred at aboul 6:08 p.m. al which time Mr. Kuhn was obselVed by Palrolman Peter Castle to have 'a strong odor of Intoxicating beverage, bloodshot, glassy eyes and slurred speach (sic)', Officer Castle also noted that Mr. Kuhn 'swayed and staggered' and that Mr. KUhn failed olher portions of the screening tests utilized to detennlne sobriety. Mr. Kuhn stated to Patrolman Castle that he had a 'few drlnks before noon, about three'. At 7:46 p.m., Mr. Kuhn had a breath test for alcohol with a result equivalent to .227 % wlv of alcohol In whole blood. At the time olhls deposition, Mr. Kuhn gave a different version of his alcohol consumption than he did to Patrolman Castle. Mr. Kuhn admits to drinking Coors Light In plastic cups from the time of his amvalat the picnic grounds until about 4:30 p.m. or 5 p.m. at which point he began driving. Mr. Kuhn also admits to eating several times In the afternoon. Mr. Kuhn also admits to the customary use of alcohol on a regular basis. In his deposition, Mr. Kuhn stated that he went to either the West End or the Valley Tavern after work about two times a week and that he would consume on average about four or five bottles of Coors Light beer In the hour or two that he was there. He had never been flagged at those establishments. Mr. Kuhn also admits to drinking at the FOE on Thursdays and Saturdays. Accordlnll to his deposition, Mr. KUhn did not stay long at the FOE on Thursdays but did stay for most of the evening on Saturdays. In addition, Mr. Kuhn consumed a six. pack of beer a week during the nights he was not the West End or Valley and the FOE. He had been flagged one time at the FOE, You have asked my opinion regarding whether Mr. Kuhn would have demonstrated Signs of Intoxication at the time he was selVed alcohol at the FOE picnic. To render an opinion, I have to rely on the known facts of this case and then reason 10 my conclusions based upon the assumptions that I will state. We do know that Mr. Kuhn had a blood alcohol of about .227 % wlv of alcohol In whole blood at 7:46 p.m. and we know this the breath testis reasonably reliable with a margin of error of about 10 %. I must assume that the history of alcohol consumption at the picnic was In the manner stated In the deposition of January 5, 2000 rather than In his statements to the pollee. Therefore, I will assume that the alco~H~lln~~!l,Il.q,M1w ~1/m9,v.n[i>MtlBy.JR. 1996 was In a regular and 341 Croston Road' York. Pennsylvania 17403 . Phone (717) 854- 7785 . Fax (717) 843.2925 248 Soulh 13th Street. Philadelphia, Pennsylvania 19107' Phone: (215) 735-84(l4. FilS: (215) 545.3043 .111 E l' V\,). b /1- TT ~ ~l i? - f:!:i ~i '1 (') i:.5~ II f : ~, c'i' ' x: ")~ ~J.. ~-:' D.. ~:1~ \,(. (r'( r- >"1' ,,1.,9 \"', I l~ n.... , (," .11 .'1 ~ ;7t 'Iw f;? d I,,) 1..,::1 I occupancy of the Property with Ferguson & Flynn Enterprises, Inco's knowledge, consent, and/or approval during the period June 1989 through and Including June 1996. 3. Any and all written communications from Ferguson & Flynn Enterprises Inc. to Plaintiffs, Glen Moore Transport, Inc.. and/or Central PA Truck Service, Inc. relating In any way to the use and/or occupancy of the Property by Ferguson & Flynn Enterprlsos, Inc., Glen Moore Transport, Inc., Central PA Truck Service, Inc., and/or any other person(s) and/or entlty(les) during the period June 1989 through and Including June 1996. 4. Any and all written communications from Plaintiffs, Glen Moore Transport, Inc., and/or Central PA Truck Service, Inc. to Ferguson & Flynn Enterprises Inc. rel~tlng in any way to the use and/or occupancy of the Property by Ferguson & Flynn Enterprises, Inc., Glen Moore Transport, Inc., Central PA Truck Service, Inc., and/or any other person(s) and/or entlty(les) during the period Juno 1989 through and including June 1996. 5. Any and all written communications from Ferguson & Flynn Enterprises, Inc. to any other person(s) and/or entlty(les), or from any other person(s) and/or entlty(ies) to Ferguson & Flynn Enterprises, Inc., relating In any way to the use and/or occupancy of the Property by Ferguson & Flynn Enterprises, Inc., Glen Moore Transport, Inc.. Central PA Truck Service, Inc.. and/or any other person(s) and/or entlty(les) during the period June 1989 through and Including June 1996. 2 6., Any and all other documents not specifically requested herein that relate in any , way to the Property and/or the use and/or occupancy of the Property by Ferguson & Flynn Enterprises, Inc., Glen Moore Transport, Inc., Central PA Truck Service, Inc., and/or any other person(s) and/or entlty(ies) during the period June 1989 through and Including June 1996. As used herein, the term Property means and Includes that certain real property with Improvements (a trucking terminal) located on South Allen Road, South Middleton Township, Cumberland County, PonnsYlvanla, owned by John Charles Cline, Linda M. Cline, Nell Ray Cline, and Linda S. Cline, for which Ferguson & Flynn Enterprises, Inc. entered Into an Assignment of Lease Agreement dated June 1989 with CherQkee Lines, Inc. and John Charles Cline, Linda M. Cline, Nell Ray Cline, and Linda S. Cline. As used herein, the term documents means and Includes, without limitation: letters, correspondence, bulletins, computation sheets, estimates, warranties, specifications, Instructions advertisements, literature, work assignments, reports, memoranda, memoranda of conversations, telephone messages, notes, notebooks, drafts, data sheets, work sheets, contracts, agreements, memoranda of agreements, assignments, licenses, minut&s, minute books, resolutions, unanimous consents, books of accounts, orders, invoices, packing slips, statements, bills, checks, check stubs, vouchers, photographs, drawings, charts, catalogs, brochures, Job books, job descriptions, bank books, financial statements, financial or accounting records, and all other written or printed material of whatsoever kind known to or In possession or control of you, incllJdln(l Doples or r~pr~dlJctions 01 all 0: t~: '~r~~~~g ~~~~~J~~; ;;~~~ notations wrltln(ls. figureR annntatlon!! or the like ha e e w A on the original. You may deliver or mall legible copies of the documents or produce things requested by this subpoena, together with the oertlflcate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fall to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a Court order compelling you to comply with It. 3 i"ii'ii..''f __"__~''''C'_'' .,........ "' ,...-, w t., ~, " ~... ., ., ". ~ " ... ." ,.,"', .', . , 11 ,. ~, ~ C:J " ., C.-; " ,. " ,. U. c::;. d. ~ <::-' ., .;; CL u: ~~\' I,.i., "ji, .' '" ~ ~A~ ~ ~~ 'f :i ;. ~>,.,' ;:: ~ ;"\~: - -: ~ ~ :: Q) ::: .. .'l:: ... ~ ::I -: '5 en N -= CT ..~ -:lIl~Oi ::~C:M -=:E!2.... ::: .21< R :~8 .... : . ~ < ::J:,Si:a. ...: ~ 8 ai :: ~m~ -::...O)cu .1:(!)....u ,e ~-!~~ ~.c(/)....o ~~.csE ::E J2 f a:l a:ca~~~ I i8~ - ~ . ~ 8 nl .c a.u ~ ~ o lJ.l ~ III 6 "' 0 LLi ~ ~ ~ ~ ~... n ~ <€I < 0 III ~ od~~~ ~ ~ ~ ~ ~ U.I~~~~ ~ <I) " x ~ ~ ~ ~ ~ ~ U.I 0 :z ~ ~ 9 d ~ 5 ~ 30" ~ <€Iqn '" u "' ~ ~ ~ "' u '" lJ.l z '" ii: ~ lJ IX ~ in z 0 IX .. lJ.l H ~ ~ ~ <I) 0; " ~ ~ ~ ~ ~ < :z: 4 (~. C2uJw:t ~ VS DOCKET NO.: ~- J.(O~-O -- I' 'il Juror" Name 55 Denio. Thom.. M -2JU049310 6 RudU..y K.tI,....III~ M "IYYI;;t.:Jl!a8 f. tI 25 KOIlher, William -1839417!187 al -.!jteM<<'" ~t... y -tT9019S914 .n'A 79 Noble, Dnld" -1721277961 85 Eckert, Robin L .1356655363 'f-- Ab.J' SlIlud.-. L -.-. ~_~11C'8~7~2 ~~ ~ 49 Miller, Timothy J -1326169324 82 Dardo""I, Abbey M -1007672724 ~~ U. ....1\ll'.F, JaM'! M - -.--- 9911-IIIIQO 48 near, Mandy M -954542529 I-..... RI...... ''''rlmtlnt ^ -924979509 ,. ~~ 8 Troutman, Tracy L -8!l6080911 18 Ferree, Karen L -801441401 88 Heiple, Rhell -680568973 ,,~ IIRIII., FI~L.kh ~' 'I77m.~ \J: - ~ (:!1"At. RtI....hf \I -'lltO'lI642 ~ y -'~ 54 Chlado, Usa A -265043323 -u-. Faallft n.llCh.el J --- .IIIT48Ci31- ~\ 3 Brennan, Troy J 8069682 I Hainley, Patricia E 190714517 56 McCulloURh, Karla F 320659515 D'r '16 V,Jm..",.., ~d.,.,.. J .t .'1.150+41, ~ ~ dl.IIB., L..!.Mt.-_ -- ~_.- __.--'32409li~ '{ -- 16 MCPherson, Stephanie A 15411091002 27 Kunkel, Janet A 1624770563 152 Brmler, Allison K 1665038041 60 Swartz, Terrance J 1967680608 9 Bosler, Wendy S 2092329310 ..~~"~M!~'.. . "i"-'"' - ;-, -cr":}!~_-~::}~~:'t ,"-I;':.~~,?'~-,""\i, ~ ,'",.~,::,~;gi'J~,~lg~cN1i~11~~~~t~{~~}?1~'llt_