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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
00-6052 CIVIL
PAUL E. KENDIG,
Defendant
IN RE: PRETRIAL CONFERENCE
Present at a pretrial conference held October 17, 2001, were William A. Addams,
Esquire, attorney for the plaintiffs, and Jesse R. Ruhl, Esquire, attorney for the defendant.
This case arises out of an incident during which the defendant, plaintiff Kevin Kendig's
father, was using an acetylene torch in a garage building which belonged to the plaintiffs. The
sparks and heat associated with the torch set the building on fire.
Mr. Addams is not available for the trial of this case on November 5th but is available
during the rest of the week. It is estimated that this trial will be no longer than one day's
duration.
William A. Addams, Esquire
For the Plaintiffs
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October 17,2001
Jesse R. Ruhl, Esquire
For the Defendant
Court Administrator
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MEMORANDUM TO: Judge Hoffer from Judge Oler
11/7/0 I
RE: Jury Selection - Kendig v. Kendig, 00-6052 Civil Tenn
Negligence action for property damage to garage owned by plaintiffs which
caught fire when defendant was using an acetylene torch in the building. Defendant is
the father of Plaintiff Kevin P. Kendig.
I would give each side 4 peremptory challenges, for a total of 8.
Attorneys: For Plaintiffs - ChtisLflM KH:~B:t or William Addams
For Defendant - Jesse ROOI
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
10 THE PROTHONYrARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one)
x
for JURY trial at the next tenn of civil court.
for trial without a jUIy.
-----------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
KEVIN P. KENDIG AND
NANCY E. KENDIG,
(check one)
(X) Civil Action - Law
Appeal from ArtJitration
(other)
( Plaintiff)
vs.
PAUL E. KENDIG,
The trial list will be called on
~ 10/9/01
Trials corrmence on
11/5/01
(Defendant)
Pretrials will be held on 10/17 / 01
(Briefs are due 5 days before pretrials. )
vs.
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No. 6052
Civil
~ 2000
Indicate the attorney who will tJ:}T case for the party who files this praecipe:
William A. Addams for the Plaintiffs
Indicate trial counsel for other parties if known:
Jesse R. Ruhl for the
Defendant
This case is ready for trial.
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Signed: /' ;>"
Print ~: Wi l~am A. Addams
Date:
9/6/01
Attorney for:
Plaintiffs
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
",/'"
Defendant
: JURY TRIAL DEMANDED
PLAINTIFFS' TRIAL MEMORANDUM
RES IPSA LOOUITUR
The Plaintiffs have a farm in Southampton Township. On October 21,1999 Kevin's
father, Paul Kendig, was working on his son's baler which had been damaged in an accident.
The elder Mr. Kendig was using an acetylene cutting torch to cut a part for the baler in a building
used as a garage or workshop for the farm. A lot of sparks and heat are associated with the use
of the torch. After Mr. Kendig cut the part, he took it to the baler, which was across the road.
When he returned only a few minutes later, the garage building was on fire. The loss to the
building and contents was in excess of$58,000.
The Plaintiffs contend that the exclusive control doctrine, which has now emerged into
the doctrine of Res Ipsa Loquitur, applies. The Supreme Court in Gilbert v. Korvette's, Inc., 457
Fa. 602, 327 A.2d 94 (1974), consolidated and revised these concepts and adopted the
Restatement of Torts, 2d, section 328 D, which provides:
(1) It may be inferred that harm suffered by the plaintiff is caused by
negligence ofthe defendant when
(a) the event is of a kind which ordinarily does not occur in
the absence of negligence;
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(b) other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated by the evidence;
and
(c) the indicated negligence is within the scope of the
defendant's duty to the plaintiff.
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(2) It is the function of the court to determine whether the inference
may reasonably be drawn by the jury, or whether it must necessarily
be drawn.
(3) It is the function ofthe jury to determine whether the inference is'
to be drawn in any case where different conclusions may reasonably
be reached.
When a plaintiff establishes the three elements set forth in Section 328D(I), an inference
of negligence can be drawn. Micciche v. Eastern Elevator Co., 435 Pa. Super. 219, 645 A.2d
278,281 (1994); Leone v. Thomas, 428 Pa. Super. 217, 630 A.2d 900 (1993).
The Plaintiff must prove that the accident or event was the type that ordinarily does not
occur without negligence. Leone, supra. If the subject matter is beyond the knowledge of
ordinary persons, expert testimony is admissible. Bearfield v. Hauch, 407 Pa. Super. 624, 627-
29,595 A.2d 1320, 1331 (1991). Where it is a matter of common knowledge that the accident
would not have happened in the absence of negligence, however, expert testimony is not
required. Carnev v. Otis Elevator, Co., 370 Pa. Super. 394, 536 A.2d 804 (1988). In Leone,
supra, the court noted that the jury is permitted to draw from the occurrence of an unusual event
the conclusion that it was the defendant's fault. 428 Pa. Super. at 221,630 A.2d at 902.
The Plaintiffs evidence must eliminate other potential causes which are not attributable
to the Defendant's conduct. Lonsdale v. Joseph Home Co., 403 Pa. Super. 12,587 A.2d 810,
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815 (1991), allocatur denied, 528 Pa. 637, 598 A.2d 994 (1991), but the Plaintiff may prevail by
convincing the jury that the defendant, more probably than not, was the cause of the occurrence.
Id.
As stated in Section 328D(2), "It is the function ofthe court to determine whether the
//
inference may reasonably be drawn by the jury, Dr whether it must necessarily be drawn," In a
case where different conclusions may reasonably be reached, it is the function of the jUlY to
determine whether the inference is to be drawn. Smick v. Citv ofPhiladelohia, 161 Pa. Cmwlth.
622,629,638 A.2d 287,290 (1994). Feldman, Pennsylvania Trial Guide, Evidence, 3rd Ed.
(1996) at p. 587 states:
Where the plaintiff has established a case based on res ipsa loquitur, it js not
sufficient for the court merely to give the jury general instructions on
circumstantial evidence. The court must make the jury aware that if it finds that
the plaintiffs injury does not commonly occur in the absence ofnegligence, that
no other responsible causes exist, and that it was the defendant's duty to protect
against the occurrence of the injury, without more, the jury could infer negligence
and causation. (citing Sedlitskv v. Pareso, 400 Pa. Super. 1,9-10,582 A.2d 1314,
1318 (1990), allocatur denied, 527 Pa. 673, 594 A.2d 659 (1991)).
PLAINTIFFS' PROPOSED CHARGE
The Plaintiffs' proposed charge on Res Ipsa Loquitur is found in Pennsylvania Standard
Jury Instructions - Civil, as follows:
5.08 (Civ)
CIRCUMSTANTIAL PROOF OF NEGLIGENCE-
RESTATEMENT OF TORTS (SECOND) g328D
[RES IPSA LOQUITUR]
The plaintiff must establish the defendant's negligence by the greater weight of
the evidence. He may do this by circumstantial evidence, that is, by proving facts
and circumstances from which negligence may be reasonably inferred.
You may infer that the harm suffered by the plaintiff was caused by negligence
ofthe defendant if you find the following three factors to have been present:
-3-
~
.
I. That the accident here involved is of a kjnd which ordinarily does not
occur in the absence of negligence. In this connection, you may consider the
general knowledge of the community, the evidence of the parties, or expert
testimony.
[I charge you that the type of accident.here involved is of a find which
ordinarily does not occur in the absence of negligence.)
2. That other responsible causes, including the conduct of the plaintiff
and third persons, have been sufficiently eliminated by the evidence. But it
is not necessary that the plaintiff exclude all other possible causes for his
injuries; evidence that it is more likely than not that plaintiffs injuries were
caused by defendant's negligence is sufficient to permit the inference. In
this connection, if you find that the defendant had exclusive control, (or,
shared control), of the instrumentality here involved at the time when the
negligence claimed would have occurred you may determine that such other
causes have been sufficiently eliminated.
[I charge you that other causes have been sufficiently eliminated since
it is established that the defendant had exclusive control (or, shared control)
of the instrumentality here involved (or, owned a non-delegable duty to the
plaintiff) at the time when the negligence claimed would have occurred.]
3. That the negligence claimed js within the scope of the defendant's
duty to the plaintiff.
Although the defendant is not required to offer an explanation for the
occurrence of the accident, ifhe does so, it is for you to weigh that explanation
in relation to all the evidence to determine whether negligence by the defendant
may be reasonably inferred. Ifthe defendant chooses to remain silent, it is
for you to determine whether or not you will infer that the defendant was
negligent from the happening of the accident under the circumstances
developed by the evidence.
Respectfully submitted,
LAW OFFICE OF MICHAEL J. HANFT
By:
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William . Addams
Attorney J.D. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
(717) 249-5373
Attorneys for Plaintiffs
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
PLAINTIFFS' PRETRIAL MEMORANDUM
1. FACTS: On the evening of October 21,1999 Paul E. Kendig, Kevin's father, was
using an acetylene torch in a garage building. He was gratuitously working on his son's fann
equipment and carelessly set the building on fire.
2. DAMAGES: Plaintiffs' list of property damage is attached. The Defendant has
agreed to stipulate to these damages.
3. ISSUES:
A. Negligence.
B. Exclusive Control Doctrine.
4. EVIDENCE: No problems are anticipated.
5. WITNESSES: Kevin and Nancy Kendig; Paul E. Kendig, as on cross-
examination; and Robert 1. Myers, contractor.
6. EXHIBITS: Photographs of the loss, bills and estimates.
7. SETTLEMENT NEGOTIATIONS: None.
Respectfully submitted,
LAW OFFICE OF MICHAEL 1. HANFT
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Willi A. Addams
Attorney LD. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
(717) 249-5373
DATE: October 17, 2001
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KEVIN P. KENDIG and NANCY E. KENDIG
LIST OF DAMAGES
1. R. L. Myers Contracting - repair garage
$ 9,299.00
2. McCune Lumber Co. - Materials for garage
5,807.41
3. Bard's Machine Shop - repair 400 Chevy
engine -
3,072.94
4. Household personal property -
1,015.00
5. 1200 Harley Davidson 2000 model -
11,500.00
6. 1200 Harley Davidson 1997 model -
8,000.00
7. Motorcycle accessories -
1,300.00
8. Gehl blower -
1,500.00
9. Gehl skid loader -
6,750.00
10. Mohave 1988 model 4 wheeler -
1,500.00
11. Automotive parts and tires -
200.00
12. Front drive shaft for pickup truck -
60.00
13. Farm personal property -
8.220.38
TOTAL -
$ 58,224.73
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OCT IS 2001 11:~AMiii. JESSE R. RUHL, ESQU I~' " 7178544339 p.2
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OCT 1 6 2001 sc- '
KEVIN P. KENDIG and
NANCY E. KENDIG,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
PIa inti ffs,
v.
NO. 00-6052 CNIL TERM
PAUL E. KENDIG,
Defendant.
JURY TRIAL DEMANDED
DEFENDANT'S PRETRIAL MEMORANDUM
1. FACTS: Defendant does not dispute the Plaintiffs' version of the facts.
2. DAMAGES: Defendant does not dispute the Plaintiffs' itemization of damages.
3. ISSUES: Plaintiffs have correctly identified the issues. Defendant denies that he was
negligent.
4. EVIDENCE: No issues are anticipated.
5. WITNESSES: Paul E. Kendig.
6. EXHIBITS: None anticipated.
7. SETTLEMENT NEGOTlA TroNS: None.
Respectfully submitted,
DATED: October 15,2001
LAW"ES OF JESSE R. RUHL
By:/ L L/
1 . Rubl, Esquire
fp A Attorney I.D. # 55798
"
350 W. Market Street
York, PA 17401
(717) 854-0066
(717) 854-4339 (fax)
Attorney for Defendant
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OCT 16 2001 11 :.22A~ JESSE R. RUHL, ESQU I ~E'
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7178544339
p.3
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KEVIN P. KENDIG and
NANCY E. KENDIG,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant.
JURY TRIAL DEMANDED
DEFENDANT'S PRETRIAL MEMORANDUM
1. FACTS: Defendant does not dispute the Plaintiffs' version ofthe facts.
2. DAMAGES: Defendant does not dispute the Plaintiffs' itemization of damages.
3. ISSUES: Plaintiffs have correctly identified the issues. Defendant denies that he was
negligent.
4. EVIDENCE: No issues are anticipated.
5. WITNESSES: Paul E. Kendig.
6. EXHIBITS: None anticipated,
7. SETTLEMENT NEGOTIATIONS: None.
Respectfully submitted,
DATED: October IS, 200l
CES OF JESSE R. RUHL
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By:'.--......
J es R. I, Esquire
P 'Attorney LD. # 55798
2 6 S. Hanover Street, No. 302
Carlisle, PA l7013
(717) 241-4813
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Attorney for Defendant
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OCT 16 2001 11 ~2A~ JESSE R. RUHL, ESQUIilE" "'
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Certificate of Service
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717854433S
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I hereby certify that on October 15,2001, a true and correct copy of the foregoing was
served by first class mail, postage prepaid, upon the following:
William A. Addams, Esquire
Law Office of Michael 1. Hanft
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
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Jesse R. \R v
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LAw OFFICE OF MICHAEL J. HANFT
ATTORNEYS & COUNSELLORS AT LAW
MICHAEL J. HANFT
GREGORY H. KNIGHT
RICHARD L. WEBBER, JR.
August 28, 2001
OF COUNSE~
WILLIAM A. ADDAMS
MICHAEL R. RUNDLE
Honorable George E. Hoffer, PJ.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
RE: Kendig v. Kendig
No. 00-6052
Dear Judge Hoffer:
I am enclosing the original and one copy of the Plaintiffs' trial memorandum pursuant to the
Court's pretrial conference Order.
Thank you for your attention to this matter.
Very truly yours,
LAW OFFICE OF MICHAEL J. HANFT
~
William A. Addams
W AA/mmp
Enclosure
cc: Jesse Raymond ROOl, Esquire
F:\User Folder\Finn Docs\Waa\2121.I\HotIer.ltr.wpd
19 BROOKWOOD AVENUE SUITE 106 CARLISLE. PA 17013-9142
717.249.5373 FAX 717.249.0457 \^fWW.HANFTLAWFlRM.COM
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F:\Uaer Folder\Finn Docs\Waa\2121.1\Trial.Brief.wpd
KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
PLAINTIFFS' TRIAL MEMORANDUM
RES IPSA LOOUITUR
The Plaintiffs have a fann in Southampton Township. On October 21, 1999 Kevin's
father, Paul Kendig, was working on his son's baler which had been damaged in an accident.
The elder Mr. Kendig was using an acetylene cutting torch to cut a part for the baler in a building
used as a garage or workshop for the fann. A lot of sparks and heat are associated with the use
of the torch. After Mr. Kendig cut the part, he took it to the baler, which was across the road.
When he returned only a few minutes later, the garage building was on fire. The loss to the
building and contents was in excess of $58,000.
The Plaintiffs contend that the exclusive control doctrine, which has now emerged into
the doctrine of Res Ipsa Loquitur, applies. The Supreme Court in Gilbert v. Korvette's. Inc., 457
Pa. 602, 327 A.2d 94 (1974), consolidated and revised these concepts and adopted the
Restatement of Torts, 2d, section 328 D, which provides:
(1) It may be inferred that hann suffered by the plaintiff is caused by
negligence of the defendant when
(a) the event is ofa kind which ordinarily does not occur in
the absence of negligence;
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(b) other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated by the evidence;
and
(c) the indicated negligence is within the scope of the
defendant's duty to the plaintiff.
(2) It is the function of the court to determine whether the inference
may reasonably be drawn by the jury, Dr whether it must necessarily
be drawn.
(3) It is the function of the jury to determine whether the inference is
to be drawn in any case where different conclusions may reasonably
be reached.
When a plaintiff establishes the three elements set forth in Section 328D(I), an inference
of negligence can be drawn. Micciche v. Eastern Elevator Co., 435 Pa. Super. 219, 645 A.2d
278,281 (1994); Leone v. Thomas, 428 Pa. Super. 217, 630 A.2d 900 (1993).
The Plaintiff must prove that the accident Dr event was the type that ordinarily does not
occur without negligence. Leone, supra. If the subject matter is beyond the knowledge of
ordinary persons, expert testimony is admissible. Bearfield v. Hauch, 407 Pa. Super. 624, 627-
29,595 A.2d 1320, 1331 (1991). Where it is a matter of common knowledge that the accident
would not have happened in the absence of negligence, however, expert testimony is not
required. Carnev v. Otis Elevator. CD., 370 Pa. Super. 394, 536 A.2d 804 (1988). In Leone,
supra, the court noted that the jury is permitted to draw from the occurrence of an unusual event
the conclusion that it was the defendant's fault. 428 Pa. Super. at 221,630 A.2d at 902.
The Plaintiff s evidence must eliminate other potential causes which are not attributable
to the Defendant's conduct. Lonsdale v. Joseoh Home CD., 403 Pa. Super. 12,587 A.2d 810,
-2-
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815 (1991), allocatur denied, 528 Pa. 637, 598 A.2d 994 (1991), but the Plaintiff may prevail by
convincing the jury that the defendant, more probably than not, was the cause of the occurrence.
Id.
As stated in Section 328D(2), "It is the function of the court to determine whether the
inference may reasonably be drawn by the jury, or whether it must necessarily be drawn." In a
case where different conclusions may reasonably be reached, it is the function of the jury to
determine whether the inference is to be drawn. Smick v. City of Philadelphia, 161 Pa. Cmwlth.
622,629,638 A.2d 287,290 (1994). Feldman, Pennsylvania Trial Guide, Evidence, 3rd Ed.
(1996) at p. 587 states:
Where the plaintiff has established a case based on res ipsa loquitur, it is not
sufficient for the court merely to give the jury general instructions on
circumstantial evidence. The court must make the jury aware that if it finds that
the plaintiff's injury does not commonly occur in the absence ofnegligence, that
no other responsible causes exist, and that it was the defendant's duty to protect
against the occurrence of the injury, without more, the jury could infer negligence
and causation. (citing Sed1itskv v. Pareso. 400 Pa. Super. 1,9-10,582 A.2d 1314,
1318 (1990), allocatur denied, 527 Pa. 673,594 A.2d 659 (1991)).
PLAINTIFFS' PROPOSED CHARGE
The Plaintiffs' proposed charge on Res Ipsa Loquitur is found in Pennsylvania Standard
Jury Instructions - Civil, as follows:
5.08 (Civ)
CIRCUMSTANTIAL PROOF OF NEGLIGENCE-
RESTATEMENT OF TORTS (SECOND) 9328D
[RES IPSA LOQUITUR]
The plaintiff must establish the defendant's negligence by the greater weight of
the evidence. He may do this by circumstantial evidence, that is, by proving facts
and circumstances from which negligence may be reasonably inferred.
You may infer that the hann suffered by the plaintiff was caused by negligence
of the defendant if you find the following three factors to have been present:
-3-
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","
1. That the accident here involved is of a kind which ordinarily does not
occur in the absence ofnegligence. In this connection, you may consider the
general knowledge of the community, the evidence of the parties, Dr expert
testimony.
[I charge you that the type of accident here involved is of a find which
ordinarily does not occur in the absence of negligence.]
2. That other responsible causes, including the conduct of the plaintiff
and third persons, have been sufficiently eliminated by the evidence. But it
is not necessary that the plaintiff exclude all other possible causes for his
injuries; evidence that it is more likely than not that plaintiffs injuries were
caused by defendant's negligence is sufficient to p=it the inference. In
this connection, if you find that the defendant had exclusive control, (Dr,
shared control), of the instrumentality here involved at the time when the
negligence claimed would have occurred you may determine that such other
causes have been sufficiently eliminated.
[I charge you that other causes have been sufficiently eliminated since
it is established that the defendant had exclusive control (Dr, shared control)
of the instrumentality here involved (Dr, owned a non-delegable duty to the
plaintiff) at the time when the negligence claimed would have occurred.]
3. That the negligence claimed is within the scope of the defendant's
duty to the plaintiff.
Although the defendant is not required to offer an explanation for the
occurrence of the accident, ifhe does so, it is for you to weigh that explanation
in relation to all the evidence to determine whether negligence by the defendant
may be reasonably inferred. If the defendant chooses to remain silent, it is
for you to determine whether or not you will infer that the defendant was
negligent from the happening of the accident under the circumstances
developed by the evidence.
Respectfully submitted,
LAW OFFICE OF MICHAEL 1. HANFT
BY~~
William . Addams
Attorney J.D. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
(717) 249-5373
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
AND NOW, this 28th day of August, 2001, I, Mary M. Price, an employee of the Law
Office of Michael 1. Hanft, hereby certify that I have served a copy of the Plaintiffs' Trial
Memorandum by mailing the same by United States mail, postage prepaid, addressed as follows:
Jesse Raymond ROOI, Esquire
36 South Hanover Street
P.O. Box 1319
Carlisle, P A 17013
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
PLAINTIFFS' PRETRIAL MEMORANDUM
1. FACTS: On the evening of October 21,1999 Paul E. Kendig, Kevin's father, was
using an acetylene torch in a garage building. He was gratuitously working on his son's fann
equipment and carelessly set the building on fire.
2. DAMAGES: Plaintiffs' list of property damage is attached.
3.
ISSUES:
A.
B.
C.
Negligence.
Exclusive Control Doctrine.
Defendant's agency argument.
4. EVIDENCE: No problems are anticipated.
5. WITNESSES: Kevin and Nancy Kendig; Paul E. Kendig, as on cross-
examination; and Robert L. Myers, contractor.
6. EXHffiITS: Photographs of the loss, bills and estimates.
7. SETTLEMENT NEGOTIATIONS: None.
Respectfully submitted,
LAW OFFICE OF MICHAEL J. HANFT
~
By: .
Willi ' . Addams
Attorney LD. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
DATE: August 22, 2001
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KEVIN P. KENDIG and NANCY E. KENDIG
LIST OF DAMAGES
1. R. L. Myers Contracting - repair garage
TOTAL -
$ 9,299.00
5,807.41
3,072.94
1,015.00
11,500.00
8,000.00
1,300.00
1,500.00
6,750.00
1,500.00
200.00
60.00
8.220.38
$ 58,224.73
2. McCune Lumber Co. - Materials for garage
3. Bard's Machine Shop - repair 400 Chevy
engine -
4. Household personal property -
5. 1200 Barley Davidson 2000 model -
6. 1200 Barley Davidson 1997 model -
7. Motorcycle accessories -
8. Gehl blower -
9. Gehl skid loader -
10. Mohave 1988 model 4 wheeler -
11. Automotive parts and tires -
12. Front drive shaft for pickup truck -
13. Farm personal property -
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KEVIN P. KENDIG and
NANCY E. KENDIG,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
NO. 00-6052 CNIL TERM
PAUL E. KENDIG,
Defendant.
JURY TRIAL DEMANDED
.......... ..'.. ...................................
DEFENDANT'S PRETRIAL MEMORANDUM
1. FACTS: Defendant does not dispute the Plaintiffs' version ofthe facts.
2. DAMAGES: Defendant does not dispute the Plaintiffs' itemization of damages.
3. ISSUES: Plaintiffs have correctly identified the issues. Ifthe testimony at trial warrants,
Defendant will also argue that the Plaintiffs' assumed the risk of injury by allowing the
welding to occur in their bam.
4. EVIDENCE: No issues are anticipated.
5. WITNESSES: Paul E. Kendig.
6. EXHIBITS: None anticipated.
7. SETTLEMENT NEGOTIATIONS: None.
Respectfully submitted,
DATED: August 17,2001
By:
se R. Ruhl, Esquire
Attorney LD. # 55798
S. Hanover Street, No. 302
Carlisle, P A 17013
(717) 241-4813
y.,
Attorney for Defendant
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Certificate of Service
I hereby certifY that on August 17, 2001, a true and correct copy of the foregoing was
served by first class mail, postage prepaid, upon the following:
William A. Addams, Esquire
Law Office of Michael J. Hanft
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 00- t.OS:J- CIVIL TERM
PAUL E. KENDIG,
Defendant
NOTICE
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 filing in writing with the court your defenses or
objections to the claims set forth against you. You are warned
that if 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 TAKE THIS PAPER TO A LAWYER AT ONCE.
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
THE OFFICE SET FORTH BELOW TO FIND OUR WHERE YOU
LEGAL HELP.
IF YOU DO
TELEPHONE
CAN GET
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone:
(717) 249-3166
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 00- L;.os'.;a.. CIVIL TERM
PAUL E. KENDIG,
Defendant
COMPLAINT
AND NOW, come the Plaintiffs, Kevin P. Kendig and Nancy E.
Kendig, by their attorneys, Addams & Rundle, and make the
following complaint;
1. The Plaintiffs, Kevin P. Kendig and Nancy E. Kendig, are
adult individuals, husband and wife, residing at 74 Kline Road,
Shippensburg, Cumberland County, Pennsylvania 17257.
2. The Defendant is Paul E. Kendig, an adult individual
residing at 4357 Roxbury Road, Shippensburg, Franklin County,
Pennsylvania 17257.
3. On the evening of October 21, 1999, the Defendant,
Paul E. Kendig, was using an acetylene cutting torch in a garage
building on the Plaintiffs' premises, and negligently and
carelessly set the building on fire.
4. The Defendant was negligent and careless in:
A. Letting the torch ignite combustible material
in the vicinity of his work area.
B. Failing to discover the fire and extinguish it
before leaving the building.
5. In the alternative, it may be inferred that the fire was
caused by the negligence of the Defendant because:
~~'-~"","",
A. The event is of a kind which ordinarily does not
occur in the absence of negligence;
B. Other reasonable causes have been eliminated, and
C. The indicated negligence is within the scope of
the Defendant's duty to the Plaintiffs.
6. As a result of the negligence and carelessness of the
Defendant, Plaintiffs sustained damage to their property in the
amount of $58,224.73 as set forth on the list attached as
Exhibit "A".
WHEREFORE, the plaintiffs demand judgment against the
Defendant in the amount of $58,224.73 plus interest and costs of
suit.
ADDAMS & RUNDLE
By:
--~
William A. Addams
Supreme Court I.D. No. 06265
28 South Pitt Street
P.O. Box 208
Carlisle, PA 17013
(717) 249-8300
Attorneys for Plaintiffs
,........il<L.
VERIFICATION
~~
Kevin P. Kendig and Nancy E. Kendig hereby verify that the
facts set forth in the foregoing Complaint are true and correct
to the best of their knowledge, information and belief, and
understand that false statements herein are made subject to the
penalties of 18 Pa. C.S. ~4904 relating to unsworn
falsifications.
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KEVIN P. KENDIG and NANCY E. KENDIG
LIST OF DAMAGES
1. R. L. Myers Contracting - repair garage
$ 9,299.00
2. McCune Lumber Co. - Materials for garage
5,807.41
3. Bard's Machine Shop - repair 400 Chevy
engine -
3,072.94
4. Household personal property -
5. 1200 Harley Davidson 2000 model -
6. 1200 Harley Davidson 1997 model -
1,015.00
11,500.00
8,000.00
7. Motorcycle accessories -
1,300.00
8. Gehl blower -
1,500.00
9. Gehl skid loader -
6,750.00
10. Mohave 1988 model 4 wheeler -
1,500.00
11. Automotive parts and tires -
200.00
12. Front drive shaft for pickup truck -
60.00
13. Farm personal property -
8,220.38
TOTAL -
$ 58,224.73
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Jesse R RuhI, Esquire
Attorney J.D. No. 55798
236 S. Hanover Street, No. 302
Carlisle, PA 17013
(717) 241.4813
(717) 241-4829
KEVIN P. KENDIG and
NANCY E. KENDIG,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
NO. 00-6052 CNIL TERM
PAUL E. KENDIG,
Defendant.
JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER AND COUNTERCLAIM
TO PLAINTIFFS' COMPLAINT
NOW COMES Defendant Paul E. Kendig, by his attorney, Jesse Raymond ROOI, and files
the within Answer with New Matter to Plaintiffs' Complaint as follows:
1. Admitted.
2. Admitted.
3. Denied. It is specifically denied that Defendant negligently and carelessly set the
building on fire.
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4. Denied. It is specifically denied that Defendant was negligent and/or careless in
letting the torch ignite combustible material in the vicinity of his work area and/or by failing to
discover the fire and extinguish it before leaving the building.
5. Denied. It is specifically denied that negligence can be inferred. By way of
further denial, it is specifically denied that:
a. This event is of a kind which ordinarily does not occur in the absence of
negligence;
b. other reasonable causes have been eliminated; and
c. the indicated negligence is within the scope of the Defendant's duty to the
Plaintiffs.
All these "inferences" are denied.
6. Denied. After reasonable investigation, Defendant is without knowledge Dr
information sufficient to form a belief as to the truth of the averments contained in paragraph 6 of
Plaintiffs' Complaint, and the same are deemed denied. Strict proof thereof, ifrelevant, is
demanded at trial. Defendant also denies that Defendant was negligent in any way.
WHEREFORE Defendant demands judgment in his favor and against Plaintiffs, together
with costs of suit.
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NEW MATTER
7. Defendant was engaged in services on behalf of the Plaintiffs.
8. Defendant was serving as the agent ofthe Plaintiffs, his principals.
9. Plaintiffs may not recover against an agent for the damage to their property caused
by an agent's negligence.
10. Plaintiffs assumed the risk of harm by allowing welding to occur inside their barn.
II. Defendant is entitled to a set-off against Plaintiffs for any amounts required to be
paid by Defendant to Plaintiffs insofar as Plaintiffs are required to reimburse their agent for the
agent's losses and costs incurred by Defendant while employed on the Plaintiffs' behalf.
12. In the alternative, Plaintiffs may not recover against Defendant because Defendant
was performing his services gratuitously.
WHEREFORE Defendant demands judgment in his favor and against Plaintiffs, together
with costs of suit.
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COUNTERCLAIM
13. The foregoing averments are incorporated herein by reference.
14. As llI1 agent of the Plaintiffs, Defendant is entitled to a judgment over and against
Plaintiffs for any amounts Plaintiffs are awarded against Defendant.
WHEREFORE Defendant demands judgment in his favor and against Plaintiffs, together
with costs of suit.
zS-
DATED: September /, 2000
By:
e Ra ond Ruhl, Esquire
P Attorney LD. # 55798
236 S. Hanover Street, No. 302
Carlisle,PA 17013
(717) 241-4813
(717) 241-4829 (fax)
Attorney for Defendant
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VERIFICATION
Paul E. Kendig deposes and says, subject to the penalties of 42 Pa.C.S.A. Sec. 4101,
relating to unsworn falsification to authorities, that the facts set forth in the foregoing Answers
with New Matter are true and correct to the best of his knowledge, information and belief.
,pcuJJ ~'
Paul E. Kendig
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Certificate of Service
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I hereby certify that on SePtemb~OOO, a true and correct copy of the foregoing
Answer with New Matter was served by first class mail, postage prepaid, upon the following:
William A. Addams, Esquire
28 South Pitt Street
P.O. Box 208
Carlisle, P A 17013
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' REPLY TO
DEFENDANT'S ANSWER WITH NEW MATTER
AND COUNTERCLAIM
AND NOW, come the Plaintiffs, Kevin P. Kendig and Nancy E.
Kendig, by their attorneys, Addams & Rundle, and make the
following reply to the Defendant's answer with new matter and
counterclaim:
REPLY TO NEW MATTER
7. Denied as stated. It is admitted that the Defendant was
working on the Plaintiffs' property.
8 . The conclusion of law is denied.
9. The conclusion of law is denied.
10. The conclusion of law is denied.
11. The conclusion of law is denied.
12. The conclusion of law is denied.
WHEREFORE, the Plaintiffs request the new matter be
dismissed.
ANSWER TO COUNTERCLAIM
13. The answers to Paragraphs 7-12 are incorporated herein
by reference.
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14. The conclusion of law is denied.
WHEREFORE, the Plaintiffs request the counterclaim be
dismissed.
ADDAMS & RUNDLE
By:
~~,.
William A. Addams
Supreme Court I.D. No. 06265
28 South pitt Street
Carlisle, PA 17013
(717) 249-8300
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
AND NOW, this 2nd day of October, 2000, I, Mary M. Price, an
employee of Addams & Rundle, attorneys for plaintiffs, hereby
certify that I have served a copy of the Plaintiffs' Reply to
Defendant's Answer with New Matter and Counterclaim by mailing a
copy of the same by United States mail, postage prepaid,
addressed as follows:
Jesse Raymond Ruhl, Esquire
236 South Hanover Street, No. 302
Carlisle, PA 17013
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
PRAECIPE
Sir:
Please withdraw the appearance of Addams & Rundle and enter the appearance of the
Law Office of Michael 1. Hanft for the Plaintiffs.
LAW OFFICE OF MICHAEL J. HANFT
By:
~~
William A. Addams
Attorney J.D. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
(717) 249-5373
TO: Curtis R. Long, Prothonotary
DATE: April 9, 2001
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CERTIFICATE OF SERVICE
I hereby certifY that I have this 9th day of April, 2001, served a copy of the Praecipe to
withdraw and enter appearance by mailing a copy of the same by United States mail, postage
prepared, addressed as follows:
Jesse Raymond Ruhl, Esquire
236 South Hanover Street
P.O. Box 1319
Carlisle, PA 17013
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and sutrnitted in duplicate)
TO THE ProTHONJTARY OF' CUMBERLAND COUNrY
Please list the following case:
(Check one)
x
for JURY trial at the next term of civil court.
for trial without a jury.
-----------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
(check one)
KEVIN P. KENDIG and NANCY E. KENDIG
xl Civil Action - Law
Appeal from Arbitration
(other)
( Plaintiff)
vs.
PAUL E. KENDIG
The trial lis t will be called on
00 8/14/01
Trials commence on
(Defendant)
Pretrials will be held on
(Briefs are due 5 days before pretrials. )
vs.
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No. 6052
Civil
J)g{ 2000
Indicate the attorney who will try case for the party who files this praecipe:
William A. Addams for the Plaintiff
Indicate trial counsel for other parties if known:
Jesse Raymond Ruhl for the Defendant
This case is ready for trial.
Signed:
~~~~
Print NaIre:
William A. Addams
Date:
6/5/01
Attorney for:
Plaintiffs
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TIlE LAW OFFICES OF
JESSE RAYMOND RUHL
36 S. Hanover Street
P.O.B.ox 1319
Carlisle, PA 17013
(717) 241-4813
Fax: (717) 241-4829
August 29, 2001
Licensed in PA and MD
Hon. George E. Hoffer, P.I.
Cumberland County Courthouse
One Courthouse Square
Carlisle, P A 17013
RE: Kendig v. Kendig
No. 00-6052
Dear Judge Hoffer:
At the pretrial conference in this case last week, you requested that the Defendant Kendig
provide the Court with a memorandum and point for charge for two of the defenses raised in
Defendant Kendig's New Matter. These two defenses were: (1) Plaintiffs were barred from
recovery by application of the doctrine of assumption of risk; and (2) Plaintiffs could not recover
because the Defendant Kendig was the agent of the Plaintiff.
Defendant will not raise these particular defenses at trial inasmuch as Defendant believes
that these two defenses are implicitly incorporated in the defense of contributory negligence.
Defendant will request that the Court charge the jury on contributory negligence as set forth in
PA. Suggested Standard Civil Jury Instructions 3.03 and 3.03A. I have set forth these two
charges in my Proposed Points For Charge, the original and one copy of which are enclosed
herein.
If His Honor requires additional information from me prior to trial, please advise me.
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Enclosure
cc: William A. Addams (w/encls.)
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KEVIN P. KENDIG and
NANCY E. KENDIG,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant.
JURY TRIAL DEMANDED
...,........................., ...................
DEFENDANT'S PROPOSED POINTS FOR CHARGE
I. (5SJI3.03) CONTRIBUTORY NEGLIGENCE
The Defendant claims that the Plaintiffs were contributorily negligent. Contributory
negligence is negligence on the part of a Plaintiff that is a substantial factor in bringing about the
Plaintiff's injury. The burden is not on the Plaintiffs to prove their freedom from contributory
negligence. The Defendant has the burden of proving contributory negligence by a fair
preponderance of the credible evidence. You must determine whether the Defendant has proven
that the Plaintiffs, under all the circumstances present, failed to exercise reasonable care for their
own protection.
The Defendant contends that the Plaintiffs were contributorily negligent in this case
because the Plaintiffs did not exercise reasonable and ordinary care when they instructed the
Defendant to perform his welding services in their barn. I
I In accord with the instructions pertaining to this charge, Defendant reserves the right to
insert the specific grounds of contributory negligence that are supported by the evidence after all
the witnesses have testified.
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Even if you find that the Plaintiffs were negligent, you must also determine whether the
Defendant has proven that the Plaintiffs' conduct was a substantial factor in bringing about the
Plaintiffs' injury. If the Defendant has not sustained that burden of proof, then the defense of
contributory negligence has not been made out.
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2. (SSJI3.03A) COMPARATIVE NEGLIGENCE
The Court has already instructed you about what you may consider in determining
whether the Defendant was negligent, whether the Plaintiffs were contributorily negligent, and
whether such negligence, if any, was a substantial factor in bringing about the Plaintjffs' harm. If
you find, in accordance with these instructions, that the Defendant was negligent and such
negligence was a substantial factor in bringing about the Plaintiffs' harm, you must then consider
whether the Plaintiffs were contributorily negligent. If you find that the Plaintiffs were
contributorily negligent and such contributory neglige.nce was a substantial factor in bringing
about their harm, then you must apply the Comparative Negligence Act, which provides in
Section I:
The fact that a plaintiff may have been guilty of contributory negligence shall not bar a
recovery by the plaintiff where such negligence was not greater than that causal
negligence of the defendant against whom recovery is sought, but any damages sustained
by the plaintiff shall be diminished in proportion to the amount of negligence attributed to
the plaintiff.
Under this act, if you find that the Defendant was causally negligent and you find that the
Plaintiffs were also causally negligent, it is your duty to apportion the relative degree of causal
negligence between the Defendant and the Plaintiffs. In apportioning the causal negligence you
should use your common sense and experience to arrive at a result that is fair and reasonable
3
. ~,
under the facts of this accident as you have determined them from the evidence.
If you find that the Plaintiffs' causal negligence was greater than the causal negligence of
the Defendant, then the Plaintiffs are barred from recovery and you need not consider what
damages should be awarded.
If you find that the Plaintiffs' causal negligence was equal to or less than the causal
negligence of the Defendant, then you must set forth the percentages of causal negligence
attributable to the Plaintiffs and the percentage of causal negligence attributable to the Defendant.
The total of these percentages must be 100 percent. You will then determine the total amount of
damages to which the Plaintiffs would be entitled if they had not been contributorily negligent; in
other words, in fmding the amount of damages, you s~ould not consider the degree, if any, ofthe
Plaintiffs' fault. After you return your verdict, the Court will reduce the amount of damages you
have found in proportion to the amount of causal negligence you have attributed to the Plaintiffs.
To further clarifY these instructions, the Court will now distribute to each of you a verdict
form containing specific questions. At the conclusion of your deliberations, one copy ofthis
form should be signed by your foreperson and handed to the court clerk; this will constitute your
verdict. The verdict form reads as follows:
4
,---~- -
Question 1:
Do you find the Defendant was negligent?
Yes No
If you answer Question 1 "No", the Plaintiffs cannot recover and you should not answer
any further questions and should return to the courtroom.
Question 2:
Was the Defendant's negligence a substantial factor in bringing about the Plaintiffs' harm?
Yes No
If you answer Question 2 "No", the Plaintiffs cannot recover and you should not answer
any further questions and should return to the courtroom.
Question 3
Were the Plaintiffs contributorily negligent?
Yes No
If you answer Question 3 "No", proceed to Question s.
5
., ~
Question 4:
If you answered Question 3 "Yes," was the Plaintiffs' contributory negligence a substantial
factor in bringing about their harm?
Yes No
Question 5:
Taking the combined negligence that was a substantial factor in bringing about the
Plaintiffs' harm as lOO percent, what percentage ofthat causal negligence was attributable
to the Defendant and what percentage was attributable to the Plaintiffs?
Percentage of causal negligence attributable to the Defendant (Answer only if you
have answered "Yes" to Questions 1 and 2)
%
Percentage of causal negligence attributable to the Plaintiffs (Answer only if you
have answered "Yes" to Questions 3 and 4)
0/0
Total 100%
6
-
- -0..-
If you have found the Plaintiffs' causal negligence to be greater than 50%, then the
"
Plaintiffs cannot recover and you should not answer Question 6 and should return to the
Courtroom.
Question 6:
State the amount of damages, if any, sustained by the Plaintiffs as a result of the accident,
without regard to and without reduction by the percentage of causal negligence, if any, that
you have attributed tq the Plaintiffs.
$
"
7
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After you return your answers to these questions on the verdict form, signed by your
foreperson, the Court will determine the amount to be awarded to the Plaintiffs, if any, by
reducing the amount of damages found by you in proportion to the percentage of the Plaintiffs'
causal contributory negligence, if any. I again caution you that you are not to make this reduction
yourselves in reaching the amount of the Plaintiffs' damages, as set forth by you in answer to
..
Question 6.
. Respectfully submitted,
LAW OFFICES OF JESSE R. RUHL
DATED: August17,200I
By:
. Ruhl, Esquire
P Attorney I.D. # 55798
36 S. Hanover Street
Carlisle, P A 17013
(717) 241-4813
Attorney for Defendant
8
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Certificate of Service
I hereby certifY that on August 29,2001, a true and correct copy of the foregoing was
served by first class mail, postage prepaid, upon the following:
William A. Addams, Esquire
Law Office of Michael J. Hanft
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
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KEVIN P. KENDIG and
NANCY E. KENDIG.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
PlaintitTs,
v.
NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant.
JURY TRIAL DEMANDED
DEFENDANT'S PROPOSED POINTS FOR CHARGE
1. (SSJI3.03) C:ONTRIBUTORY NEGLIGENCE
The Defendant claims that the Plaintiffs were contributorily negligent. Contributory
negligence is negligence on the part of a Plaintiff that is a substantial factor in bringing about the
Plaintiffs injury. The burden is not on the Plaintiffs to prove their freedom from contributory
negligence. The Defendant has the burden of proving contributory negligence by a fair
preponderance of the credible evidence. You must determine whether the Defendant has proven
that the Plaintiffs, under all the circumstances present, failed to exercise reasonable care for their
own protection.
The Defendant contends that the Plaintiff!, were contributorily negligent in this case
because the Plaintiffs did not exercise reasonable and ordinary care when they instructed the
Defendant to perform his welding services in their barn. I
I In accord with the instructions pertaining to this charge, Defendant reserves the right to
insert the specific grounds of contributory negligence that are supported by the evidence after all
the witnesses have testified.
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Even if you find that the Plaintiffs were negligent, you must also determine whether the
Defendant has proven that the Plaintiffs' conduct was a substantial factor in bringing about the
Plaintiffs'injury. If the Defendant has not sustained that burden of proof, then the defense of
contributory negligence has not been made out.
2
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2. (SSJI3.03A) rOMP ARA T1VE NEGLIGENCE
The Court has already instructed you about what you may consider in determining
whether the Defendant was negligent, whether the Plaintiffs were contributorily negligent, and
whether such negligence, if any, was a substantial factor in bringing about the Plaintiffs' harm. If
you find, in accordance with these instructions, that the Defendant was negligent and such
negligence was a substantial factor in bringing about the Plaintiffs' harm, you must then consider
whether the Plaintiffs were contributorily negligent. If you find that the Plaintiffs were
contributorily negligent and such contributory neglige,nce was a substantial factor in bringing
about their harm, then you must apply the Comparative Negligence Act, which provides in
Section 1:
The fact that a plaintiff may have been guilty of contributory negligence shall not bar a
recovery by the plaintiff where such negligence was not greater than that causal
negligence of the defendant against whom recovery is sought, but any damages sustained
by the plaintiff shall be diminished in proportion to the amount of negligence attributed to
the plaintiff.
Under this act, if you find that the Defendant was causally negligent and you find that the
Plaintiffs were also causally negligent, it is your duty to apportion the relative degree of causal
negligence between the Defendant and the Plaintiffs. In apportioning the causal negligence you
should use your common sense and experience to arrive at a result that is fair and reasonable
3
- ~ ~.
,,~~ -" -,,~ ,-' -:
under the facts of this accident as you have determined them from the evidence.
If you find that the Plaintiffs' causal negligence was greater than the causal negligence of
the Defendant, then the Plaintiffs are barred from recovery and you need not consider what
damages should be awarded.
If you find that the Plaintiffs' causal negligence was equal to or less than the causal
negligence of the Defendant, then you must set forth the percentages of causal negligence
attributable to the Plaintiffs and the percentage of causal negligence attributable to the Defendant.
The total of these percentages must be 100 percent. You will then determine the total amount of
damages to which the Plaintiffs would be entitled if they had not been contributorily negligent; in
other words, in finding the amount of damages, you should not consider the degree, if any, of the
Plaintiffs' fault. After you return your verdict, the Court will reduce the amount of damages you
have found in proportion to the amount of causal negligence you have attributed to the Plaintiffs.
To further clarify these instructions, the Court will now distribute to each of you a verdict
form containing specific questions. At the conclusion of your deliberations, one copy of this
form should be signed by your foreperson and handed to the court clerk; this will constitute your
verdict. The verdict form reads as follows:
4
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. .
.;-
-
Question 1:
Do you find the Defendant was negligent?
Yes No
If you answer Question 1 "No", the Plaintiffs cannot recover and you should not answer
any further questions and should return to the courtroom.
Question 2:
Was the Defendant's negligence a substantial factor in bringing about the Plaintiffs' harm?
Yes No
[fyou answer Question 2 "No", the Plaintiffs cannot recover and you should not answer
any further questions and should return to t~e courtroom.
Question 3
Were the Plaintiffs contributorily negligent?
Yes No
If you answer Question 3 "No", proceed to Question 5.
5
^~*
Question 4:
If you answered Question 3 "Yes," was the Plaintiffs' contributory negligence a substantial
factor in bringing about their harm?
Yes No
Question 5:
Taking the combined negligence that was a substantial factor in bringing about the
Plaintiffs' harm as 100 percent, what percentage of that causal negligence was attributable
to the Defendant and what percentage was attributable to the Plaintiffs?
Percentage of causal negligence attributable to the Defendant (Answer only if you
have answered "Yes" to Questions 1 and 2)
%
Percentage of causal negligence attributable to the Plaintiffs (Answer only if you
have answered "Yes" to Questions 3 and 4)
%
Total 100%
6
~~
-
~''-
If you have found the Plaintiffs' causal negligence to be greater than 50%, then the
Plaintiffs cannot recover and you should not answer Question 6 and should return to the
Courtroom.
Question 6:
State the amount of damages, if any, sustained by the Plaintiffs as a result of the accident,
without regard to and without reduction by the percentage of causal negligence, if any, that
you have attributed tQ the Plaintiffs.
$
7
"'-=&
After you return your answers to these questions on the verdict form, signed by your
foreperson, the Court will determine the amount to be awarded to the Plaintiffs, if any, by
reducing the amount of damages found by you in proportion to the percentage of the Plaintiffs'
causal contributory negligence, if any. I again caution you that you are not to make this reduction
yourselves in reaching the amount of the Plaintiffs' damages, as set forth by you in answer to
Question 6.
Respectfully submitted,
LAW OFFICES OF JESSE R. RUHL
DATED: August17,2001
By:
Jess R. Ruhl, E quire
PA Attorney J.D. # 55798
36 S. Hanover Street
Carlisle, PA 17013
(717) 241-4813
Attorney for Defendant
8
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Certificate of Service
I hereby certifY that on August 29, 2001, a true and correct copy of the foregoing was
served by first class mail, postage prepaid, upon the following:
William A. Addams, Esquire
Law Office of Michael J. Hanft
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
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Richard J. Pie(ce
Cour1 Administrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square' Carlisle. PA 17013
Phone
(717) 240-6200
(717) 697-0371
(717) 532,7286
(717) 2,10.6462 FA);
"r,lryr, !!. Ui:wn
)\s~i:;.IClnt Court J\d.1linistralor
CERTIFICATE OF ATTEKDANCE FOR.JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certify that Heberlig, Dwaine R
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 5"' - November 111 & November 9'11 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage.
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Richard J. Pierce
Court Administrator
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Richard J. Pi('(cc
Court Administrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square' Carlisle. PA 17013
Phone
(717) 240-6200
(717) 697,0371
(717) 532-7286
(717) 2<\0-6462 FAX
TlrYI-1 ! 1, Di:-:on
As~islC\nl Court Administrator
CERTIFICATE OF A TTEi'iT)ANCE FOR JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certifY that Asten, Timothy D
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 5th - November 1/' & November 9th 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage.
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Richard J. Pierce
Court Administrator
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Richard J. Pie{cQ
Cour'\ Administmtor
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Counhouse Square. Carlisle, PA 17013
Phone
(7171240,6200
(717) 697,0371
(717) 532,7286
(717) 240.646? FAX
"1",lryr-I!!. Ui:':on
p,ssislC1nl Court J\d,ninistmtor
CERTTFTCA TE OF ATTENDANCE FOR .JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certify that Slike, Lesli M
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 5th - November 1h & November 9th 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage.
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Court Administrator
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Richard J. Pjerce
Court Admi/)istrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square' Carlisle. PA 17013
Phone
(717) 240.6200
(717) 697-0371
(717) 532,7286
(717) 240-6462 FAX
"1":1r)'IJ !!, Ui:wn
Assi3tant Court J\dministralor
CERTIFICATE OF ATTEl\'DANCE FOR.JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certifY that Nye, Phyllis M
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 5'" - November 1" & November 9'" 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage.
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Richard J. Pierce
Court Administrator
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Richn~rl J. Pic::(:"3
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square' Carlisle, PA 17013
Phone
(717) 240-G200
(717) 697,0371
(717) 532-7286
(717) 2<:10-6462 r-AX
Taryn N. Dixon
Assistant COLIrt Administrator
Court Administrator
CERTIFICATE OF ATTENDANCE FOR JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certify that Lock, Rebecca L
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 6th - November 1h & November 9"' 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage,
~;// c9rZ:c-
Richard J. Pierce
Court Administrator
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Richard J. Pic;,ce
Court Administrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square. Carlisle. PA 17013
Phone
(717) 240-6200
(717) 697,0371
(717) 532-7286
(717) 240.6462 FAX
Tflf)'I-, 1-1. Ui:wn
Assistant Court ;\d.1linistrator
CERTIFICATE OF ATTEl\:DANCE FOR JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certify that Ramsey, Jessica M
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 5th - November th & November 9th 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage.
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Richard J. Pierce
Court Administrator
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Richard J. Pierce
CouI1 Administrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square. Carlisle, PA 17013
Phone
(717) 240,6200
(717) 697,0371
(717) 532,7286
(717) 240,6462 FAX
T,u)'r, ! 1. Ui:-:on
Assi;;lant Court I\dministrator
CERTIFICATE OF ATTEl\'DANCE FOR JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certify that Dunbar, Dcrwood B Jr
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 5'11 - November 111 & November tjll 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage.
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Court Administrator
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Richard J. Pit'; ce
Court Administrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square' Carlisle. PA 17013
Phone
(717) 240.6200
(717) 697,0371
(717) 532.7286
(717) 240-6462 FAX
Ttiryrl ! -!. Uixon
Assistant Court .l\dministrator
CERTIFICATE OF ATTEKDANCE FOR JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certifY that Starner, Barbara J
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 5th - November 1h & November 9'h 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage.
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Richard J. Pierce
Court Administrator
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Richard J. Pici'CC
Court Administrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square' Carlisle, PA 17013
Phone T,lryr, 11. Ui:\On
(717) 240-6200 Assistant Court Administrator
(717) 69"1-0371
(717) 532-7286
(717) 240.6462 FAX
CERTIFICATE OF ATTEi'lDANCE FOR JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certifY that Baughman, Richard F
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 5th - November 1h & November 9'h 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage .
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Richard J. Pierce
Court Administrator
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Richard J. Picccc
Couc1 Administrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square' Carlisle, PA 17013
Phone
(717) 240-6200
(717) 697,0371
(717) 532,7286
(717) 240.6462 FAX
T:1I'yr, r L Uixon
Assistant Court Administrator
CERTIFICATE OF ATTEl'\DANCE FOR JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certify that Amicucci, Frances J
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November s'h - November 1h & November (jh 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage.
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Court Administrator
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Richard J. Pierce
Court AdministrCllor
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square. Carlisle, PA 17013
Phone
(717) 240-6200
(717) 697,0371
(717) 532,7286
(717) 240.6462 FAX
T?lryn 1-1. Dixon
Assistant Court P\d.1linistralor
CERTIFICATE OF ATTEi'\DANCE FOR .JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certifY that Jacobson, Andrew H
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November 5th - November 1h & November tfh 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage.
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Richard J. Pierce
Court Administrator
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Richard J. Pic(cc
Court Administrator
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square' Carlisle. PA 17013
Phone T:srYI-1 !!. Di:wn
(717) 240-6200 Assistant Court }\drninistrator
(717) 697,0371
(717) 532,7286
(717) 240.6462 FAX
CERTIFICATE OF ATTE[\'l)ANCE FOR JURORS
November 5, 2001
TO WHOM IT MAY CONCERN:
This is to certify that Witmer, Sarah E
served as a Traverse Juror for the Court of Common Pleas, Civil Division on the
following dates: November J'h - November lh & November g'h 2001.
Said Juror will be paid the sum of $27.00 exclusive of mileage,
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Richard J. Pierce
Court Administrator
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KEVIN P. KENDIG and
NANCY E. KENDIG,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
NO. 00-6052 CNIL TERM
PAUL E. KENDIG,
Defendant.
JURY TRIAL DEMANDED
DEFENDANT'S POST-TRIAL MOTIONS
NOW COMES Defendant Paul E. Kendig, by his counsel, Jesse R. Ruhl, Esquire, and
files the within Motion for Post-Trial Reliefpursuant to Pa.R.Civ.P. 227.1 as follows:
I. MOTtoN FOR NEW TRIAL
1. On Friday, November 9,2001, a trial by jury was held before His Honorable Judge
Guido.
2. After the close ofthe evidence and after charge, the jury returned a verdict in favor of
Plaintiff and against Defendant in the amount of$58,224.73.
3. Over objection by defense counsel, His Honor's instruction to the jury according to the
doctrine of res ipsa loquitur.
4. It was in error for His Honor to instruct the jury concerning res ipsa loquitur insofar as
the three-fold test for the application of the res ipsa loquitur doctrine had not been made
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out by Plaintiffs in this case.
5. Specifically, Plaintiffs failed to demonstrate that the accident involved in this case
ordinarily does not occur in the absence of negligence; Plaintiffs failed to demonstrate
that other reasonable causes of the accident were sufficiently eliminated by the evidence;
and Plaintiffs failed to demonstrate that the negligence claimed was within the scope of
the Defendant's duty to Plaintiffs.
6. As a result of this erroneous charge, a new trial is warranted.
WHEREFORE Defendant Paul E. Kendig respectfully requests that the Court enter an
Order granting Defendant's Motion for Post-Trial Relief and ordering a new trial in this case.
II.MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
7. At the close of Plaintiffs , evidence, Defendant's counsel made an oral motion pursuant to
Pa.R.Civ.P. 230.1 for a compulsory nonsuit.
8. The basis of Defendant's motion for compulsory nonsuit was that Plaintiffs failed to
demonstrate causation and that Plaintiffs failed to demonstrate any breach of duty.
9. His Honor erroneously failed to sustain Defendant's motion for compulsory nonsuit even
2
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though Plaintiffs introduced no evidence to demonstrate conclusively how the fire was
caused in this case and Plaintiffs failed to introduce any evidence that Defendant
breached any duty owed to the Plaintiffs.
10. Defendant owed the duty of ordinary care to the Plaintiffs, and the evidence
overwhelmingly demonstrated that Defendant met his duty to Plaintiffs in this case.
WHEREFORE Defendant Paul E. Kendig respectfully requests that the Court enter
judgment in this case notwithstanding the verdict in favor of Defendant Paul E. Kendig and
against Plaintiffs.
Respectfully submitted,
LAW OFFICES OF JESSE R. RUHL
DATED: November 14, 2001
By:
Jesse . Rubl, Esquire
P A Attorney I.D. # 55798
350 W. Market Street
York, PA 17401
(717) 854-0066
Attorney for Defendant
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Certificate of Service
I hereby certifY that on November 14, 2001, a true and correct copy of the foregoing was
served by first class mail, postage prepaid, upon the following:
William A. Addams, Esquire
Law Office of Michael J. Hanft
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013-9142
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Jesse If Ruhl
THE LAW OFFICES OF
JESSE RAYMOND RUHL
November 14,2001
Hon. Edward E.Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, P A 17013
RE: Kendig v. Kendig
No. 00-6052
Dear Judge Guido:
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350 West Market Street
York, PA 17401
(717) 854-0066
Fax: (717) 854-4339
Licensed in PA and MD
Enclosed please find a copy of my client's Motions for post-trial relief.
Jesse aymond Rubl
JRRlsmm
Enclosure
cc: William A. Addams (w/encls.)
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
NOTICE
You are hereby notified to file a written answer to the attached Motion for Delay
Damages within twenty (20) days from the filing of the Motion or delay damages sought
in the Motion may be added to the verdict or decision against you.
. ~.
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KEVIN P, KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
MOTION FOR RULE 238 DELAY DAMAGES
AND NOW, come the Plaintiffs, Kevin P. and Nancy E. Kendig, by their attorney,
William A. Addams of the Law Office of Michael 1. Hanft, and move your Honorable Court to
award Rule 238 delay damages and in support thereof assert the following:
1. This action was commenced by the filing of the Complaint on September 1, 2000
and served that date on the Defendant's attorney, who accepted service.
2. On November 9, 2001 the jury returned a verdict in favor of the Plaintiffs in the
amount of$58,224.73.
3. Pa. R.C.P. 238(a)(2)(ii) provides that damages for delay shall be awarded for the
period one year after the date of original process was served up to the date of the verdict, a period
of sixty-nine (69) days.
4. Pa, R.C.P. 238(a)(3) provides that damages for delay shall be calculated at the rate
equal to the prime rate (9Y.%) plus one percent. See Rule 238, Addendum to Explanatory
Comment.
5. The Defendant made no offer prior to the verdict and none of the delay was
caused by the Plaintiffs.
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6. The delay damages are calculated as follows: $58,224.73 x lOll, % x 69 days +
365 days = $1,155.72.
WHEREFORE, the Plaintiffs request your Honorable Court to delay damages in the
amount of$I,155.72.
LAW OFFICE OF MICHAEL 1. HANFT
By:
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William A. Addams
Attorney I.D. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Attorney for Plaintiff
Date: November 16, 2001
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CERTIFICATE OF SERVICE
I hereby certifY that I have this 16th day of November, 2001, served a Motion for Delay
Damages by mailing a copy of the same by United States mail, postage prepared, addressed
as follows:
Jesse Raymond Ruhl, Esquire
350 West Market Street
York, PA 17401
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argunent Court.
------~--------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
KEVIN P. KENDIG AND
NANCY E. KENDIG,
( Plaintiff)
vs.
PAUL E. KENDIG,
(Defendant)
t>.b. 6052
Civil
JrH 2000
L State matter to be argued (i.e., plaintiff's rrotion for new trial. defendant's
d6T1LlITer to canplaint. etc.):
Defendant's I?6st Trial Motions
2. Identify =unsel who will argue case:
(a) for plaintiff: William A. Addams
Address: 19 Brookwood Avenue, Suite 106, Carlisle, PA 170
(b)
for defendant:
Address:
Jesse Raymond ROOl, Esquire
350 West Market Street, YOrk, PA
17401
3. I will notify all parties in writing within ~ days that this case has
been listed for argunent.
4.
Argunent Court Date:
December 12, 2001
D3ted:
NOVember 16, 2001
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Attorney for ~laintiff
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
PLAINTIFFS' REOUESTED POINTS FOR CHARGE
AND NOW, come the Plaintiffs, Kevin P. Kendig and Nancy E. Kendig, by their
attorney, William A. Addams, of the Law Office of Michael J. Hanft, and request your
Honorable Court to charge the jury as follows:
1. Under the law and the evidence, your verdict must be in favor ofthe Plaintiffs.
2. CIRCUMSTANTIAL PROOF OF NEGLIGENCE -
RESTATEMENT OF TORTS (SECOND) g328D
[RES IPSA LOQUITUR] 5.08 (Civ)
The plaintiff must establish the defendant's negligence by the greater weight of
the evidence. He may do this by circumstantial evidence, that is, by proving facts
and circumstances from which negligence may be reasonably inferred.
You may infer that the harm suffered by the plaintiff was caused by negligence
of the defendant if you find the following three factors to have been present:
1. That the accident here involved is of a kind which ordinarily does not
occur in the absence of negligence. In this connection, you may consider the
general knowledge of the community, the evidence of the parties, or expert
testimony.
[I charge you that the type of accident here involved is of a find which
ordinarily does not occur in the absence of negligence.]
2. That other responsible causes, including the conduct of the plaintiff
and third persons, have been sufficiently eliminated by the evidence. But it
is not necessary that the plaintiff exclude all other possible causes for his
injuries; evidence that it is more likely than not that plaintiff s injuries were
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caused by defendant's negligence is sufficient to permit the inference. In
this connection, if you find that the defendant had exclusive control, (or,
shared control), of the instrumentality here involved at the time when the
negligence claimed would have occurred you may determine that such other
causes have been sufficiently eliminated.
[I charge you that other causes have been sufficiently eliminated since
it is established that the defendant had exclusive control (or, shared control)
of the instrumentality here involved (or, owned a non-delegable duty to the
plaintiff) at the time when the negligence claimed would have occurred.]
3. That the negligence claimed is within the scope of the defendant's
duty to the plaintiff.
Although the defendant is not required to offer an explanation for the
occurrence of the accident, if he does so, it is for you to weigh that explanation
in relation to all the evidence to determine whether negligence by the defendant
may be reasonably inferred. If the defendant chooses to remain silent, it is
for you to determine whether or not you will infer that the defendant was
negligent from the happening of the accident under the circumstances
developed by the evidence.
3. Under the law and the evidence, you must award monetary damages to the
Plaintiffs.
4. Regardless of how large the amount of money your award is, you are not to be
concerned with how it will be paid. The amount of damages you will award to the Plaintiffs shall
be full and reasonable compensation, and you should not consider in determining the amount of
damages the physical or financial condition of either the Plaintiffs nor the Defendant, or should
you consider the Defendant's ability to pay such damages. Kuchinic v. McCrorv. 422 Pa. 620,
222 A.2d 897 (1986).
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5. If you find that the Defendant is liable to the Plaintiffs, you must then find an
amount of money damages which you believe will fairly and adequately compensate the
Plaintiffs for all the financial injury they have sustained as a result of the accident. Pa. SSJI (Civ)
Section 6.00.
Respectfully submitted,
LAW OFFICE OF MICHAEL J. HANFT
By:
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Attorney I.D. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Attorneys for Plaintiffs
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F:\User Folder\Firrn Docs\Waa\2121.I\Trial.Brief.wpd
KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
PLAINTIFFS' TRIAL MEMORANDUM
RES IPSA LOOUlTUR
The Plaintiffs have a farm in Southampton Township, On October 21, 1999 Kevin's
father, Paul Kendig, was working on his son's baler which had been damaged in an accident.
The elder Mr. Kendig was using an acetylene cutting torch to cut a part for the baler in a building
used as a garage or workshop for the farm. A lot of sparks and heat are associated with the use
ofthe torch. After Mr. Kendig cut the part, he took it to the baler, which was across the road,
When he returned only a few minutes later, the garage building was on fire. The loss to the
building and contents was in excess of$58,000.
The Plaintiffs contend that the exclusive control doctrine, which has now emerged into
the doctrine of Res Ipsa Loquitur, applies. The Supreme Court in Gilbert v. Korvette's. Inc., 457
Pa. 602, 327 A.2d 94 (1974), consolidated and revised these concepts and adopted the
Restatement of Torts, 2d, section 328 D, which provides:
(1) It may be inferred that harm suffered by the plaintiff is caused by
negligence of the defendant when
(a) the event is ofa kind which ordinarily does not occur in
the absence of negligence;
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(b) other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated by the evidence;
and
(c) the indicated negligence is within the scope ofthe
defendant's duty to the plaintiff.
(2) It is the function of the court to determine whether the inference
may reasonably be drawn by the jury, or whether it must necessarily
be drawn.
(3) It is the function of the jury to determine whether the inference is'
to be drawn in any case where different conclusions may reasonably
be reached.
When a plaintiff establishes the three elements set forth in Section 328D(1), an inference
of negligence can be drawn. Micciche v. Eastern Elevator Co., 435 Pa. Super. 219, 645 A.2d
278,281 (1994); Leone v. Thomas, 428 Pa. Super. 217, 630 A.2d 900 (1993).
The Plaintiff must prove that the accident or event was the type that ordinarily does not
occur without negligence, Leone, supra. If the subject matter is beyond the knowledge of
ordinary persons, expert testimony is admissible. Bearfield v, Hauch, 407 Pa. Super. 624, 627-
29,595 A.2d 1320, 1331 (1991), Where it is a matter of common knowledge that the accident
would not have happened in the absence of negligence, however, expert testimony is not
required, Carnev v. Otis Elevator, Co" 370 Pa, Super. 394, 536 A.2d 804 (1988). In Leone,
SUpf;!, the court noted that the jury is permitted to draw from the occurrence of an unusual event
the conclusion that it was the defendant's fault. 428 Pa, Super. at 221,630 A.2d at 902.
The Plaintiffs evidence must eliminate other potential causes which are not attributable
to the Defendant's conduct. Lonsdale v. Joseoh Horne Co" 403 Pa. Super. 12,587 A.2d 810,
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815 (1991), allocatur denied, 528 Pa. 637, 598 A.2d 994 (1991), but the Plaintiff may prevail by
convincing the jury that the defendant, more probably than not, was the cause of the occurrence.
Id.
As stated in Section 328D(2), "It is the function of the court to determine whether the
inference may reasonably be drawn by the jury, or whether it must necessarily be drawn." In a
case where different conclusions may reasonably be reached, it is the function of the jury to
determine whether the inference is to be drawn, Smick v. Citv ofPhiladelohia, 161 Pa. Cmwlth,
622,629,638 A.2d 287,290 (1994). Feldman, Pennsylvania Trial Guide, Evidence, 3rd Ed.
(1996) at p. 587 states:
Where the plaintiff has established a case based on res ipsa loquitur, it is not
sufficient for the court merely to give the jury general instructions on
circumstantial evidence. The court must make the jury aware that if it finds that
the plaintiffs injury does not commonly occur in the absence of negligence, that
no other responsible causes exist, and that it was the defendant's duty to protect
against the occurrence of the injury, without more, the jury could infer negligence
and causation. (citing Sedlitskv v. Pareso, 400 Pa. Super. 1, 9-10, 582 A.2d 1314,
1318 (1990), allocatur denied, 527 Pa. 673,594 A.2d 659 (1991)).
PLAINTIFFS' PROPOSED CHARGE
The Plaintiffs' proposed charge on Res Ipsa Loquitur is found in Pennsylvania Standard
Jury Instructions - Civil, as follows:
5.08 (Civ)
CIRCUMSTANTIAL PROOF OF NEGLIGENCE -
RESTATEMENT OF TORTS (SECOND) S328D
[RES IPSA LOQUITUR]
The plaintiff must establish the defendant's negligence by the greater weight of
the evidence. He may do this by circumstantial evidence, that is, by proving facts
and circumstances from which negligence may be reasonably inferred,
You may infer that the harm suffered by the plaintiff was caused by negligence
of the defendant if you find the following three factors to have been present:
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1. That the accident here involved is of a kind which ordinarily does not
occur in the absence of negligence. In this connection, you may consider the
general knowledge of the community, the evidence of the parties, or expert
testimony.
[I charge you that the type of accident.here involved is of a find which
ordinarily does not occur in the absence of negligence.]
2, That other responsible causes, including the conduct ofthe plaintiff
and third persons, have been sufficiently eliminated by the evidence. But it
is not necessary that the plaintiff exclude all other possible causes for his
injuries; evidence that it is more likely than not that plaintiffs injuries were
caused by defendant's negligence is sufficient to permit the inference. In
this connection, if you find that the defendant had exclusive control, (or,
shared control), ofthe instrumentality here involved at the time when the
negligence claimed would have occurred you may determine that such other
causes have been sufficiently eliminated.
[I charge you that other causes have been sufficiently eliminated since
it is established that the defendant had exclusive control (or, shared control)
of the instrumentality here involved (or, owned a non-delegable duty to the
plaintift) at the time when the negligence claimed would have occurred.]
3. That the negligence claimed is within the scope of the defendant's
duty to the plaintiff.
Although the defendant is not required to offer an explanation for the
occurrence of the accident, if he does so, it is for you to weigh that explanation
in relation to all the evidence to determine whether negligence by the defendant
may be reasonably inferred. If the defendant chooses to remain silent, it is
for you to determine whether or not you will infer that the defendant was
negligent from the happening of the accident under the circumstances
developed by the evidence.
Respectfully submitted,
LAW OFFICE OF MICHAEL J. HANFT
By:
William A. Addams
Attorney LD. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
AND NOW, this 28th day of August, 2001, I, Mary M. Price, an employee of the Law
Office of Michael J. Hanft, hereby certify that I have served a copy ofthe Plaintiffs' Trial
Memorandum by mailing the same by United States mail, postage prepaid, addressed as follows:
Jesse Raymond Ruh1, Esquire
36 South Hanover Street
P.O. Box 1319
Carlisle, P A 17013
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KEVIN P. KENDIG and
NANCY E. KENDIG,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant.
JURY TRIAL DEMANDED
.......... .......... .............................
DEFENDANT'S POST-TRIAL MOTIONS
NOW COMES Defendant Paul E. Kendig, by his counsel, Jesse R. Ruhl, Esquire, and
files the within Motion for Post-Trial Relief pursuant to Pa.R.Civ.P. 227.1 as follows:
I. MOTION FOR NEW TRIAL
I. On Friday, November 9, 2001, a trial by jury was held before His Honorable Judge
Guido.
2. After the close of the evidence and after charge, the jury returned a verdict in favor of
Plaintiff and against Defendantin the amount of $58,224.73.
3. Over objection by defense counsel, His Honor's instruction to the jury according to the
doctrine of res ipsa loquitur.
4. It was in error for His Honor to instruct the jury concerning res ipsa loquitur insofar as
the three-fold test for the application ofthe res ipsa loquitur doctrine had not been made
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out by Plaintiffs in this case,
5. Specifically, Plaintiffs failed to demonstrate that the accident involved in this case
ordinarily does not occur in the absence of negligence; Plaintiffs failed to demonstrate
that other reasonable causes of the accident were sufficiently eliminated by the evidence;
and Plaintiffs failed to demonstrate that the negligence claimed was within the scope of
the Defendant's duty to Plaintiffs.
6. As a result of this erroneous charge, a new trial is warranted.
WHEREFORE Defendant Paul E. Kendig respectfully requests that the Court enter an
Order granting Defendant's Motion for Post-Trial Relief and ordering a new trial in this case.
II.MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
7. At the close of Plaintiffs' evidence, Defendant's counsel made an oral motion pursuant to
Pa.R.Civ.P. 230.1 for a compulsory nonsuit.
8. The basis of Defendant's motion for compulsory nonsuit was that Plaintiffs failed to
demonstrate causation and that Plaintiffs failed to demonstrate any breach of duty.
9. His Honor erroneously failed to sustain Defendant's motion for compulsory nonsuit even
2
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though Plaintiffs introduced no evidence to demonstrate conclusively how the fire was
caused in this case and Plaintiffs failed to introduce any evidence that Defendant
breached any duty owed to the Plaintiffs.
10, Defendant owed the duty of ordinary care to the Plaintiffs, and the evidence
overwhelmingly demonstrated that Defendant met his duty to Plaintiffs in this case.
WHEREFORE Defendant Paul E. Kendig respectfully requests that the Court enter
judgment in this case notwithstanding the verdict in favor of Defendant Paul E. Kendig and
against Plaintiffs.
Respectfully submitted,
LAW OFFICES OF JESSE R. RUHL
DATED: November 16,2001
By:
Je e . Ruhl, Esquire
P X Attorney I.D. # 55798
350 W. Market Street
York, PA 17401
(717) 854-0066
Attorney for Defendant
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Certificate of Service
I hereby certify that on November 16,2001, a true and correct copy of the foregoing was
served by first class mail, postage prepaid, upon the following:
William A. Addams, Esquire
Law Office of Michael 1. Hanft
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
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KEVIN P. KENDIG and
NANCY E. KENDIG,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
NO. 00-6052 CIVIL TERM 8
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DEFENDANT'S POST-TRIAL MOTIONS
NOW COMES Defendant Paul E. Kendig, by his counsel, Jesse R. Rubl, Esquire, and
files the within Motion for Post-Trial Relief pursuant to Pa.R.Civ.P. 227.1 as follows:
I. MOTION FOR NEW TRIAL
1. On Friday, November 9, 2001, a trial by jury was held before His Honorable Judge
Guido,
2. After the close of the evidence and after charge, the jury returned a verdict in favor of
Plaintiff and against Defendant in the amount of $58,224.73.
3. Over objection by defense counsel, His Honor's instruction to the jury according to the
doctrine of res ipsa loquitur.
4. It was in error for His Honor to instruct the jury concerning res ipsa loquitur insofar as
the three-fold test for the application of the res ipsa loquitur doctrine had not been made
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out by Plaintiffs in this case.
5. Specifically, Plaintiffs failed to demonstrate that the accident involved in this case
ordinarily does not occur in the absence of negligence; Plaintiffs failed to demonstrate
that other reasonable causes of the accident were sufficiently eliminated by the evidence;
and Plaintiffs failed to demonstrate that the negligence claimed was within the scope of
the Defendant's duty to Plaintiffs.
6, As a result of this erroneous charge, a new trial is warranted.
WHEREFORE Defendant Paul E. Kendig respectfully requests that the Court enter an
Order granting Defendant's Motion for Post-Trial Relief and ordering a new trial in this case.
II.MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
7. At the close of Plaintiffs' evidence, Defendant's counsel made an oral motion pursuant to
Pa.R.Civ.P. 230.1 for a compulsory nonsuit.
8, The basis of Defendant's motion for compulsory nonsuit was that Plaintiffs failed to
demonstrate causation and that Plaintiffs failed to demonstrate any breach of duty.
9. His Honor erroneously failed to sustain Defendant's motion for compulsory nonsuit even
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though Plaintiffs introduced no evidence to demonstrate conclusively how the fire was
caused in this case and Plaintiffs failed to introduce any evidence that Defendant
breached any duty owed to the Plaintiffs.
10. Defendant owed the duty of ordinary care to the Plaintiffs, and the evidence
overwhelmingly demonstrated that Defendant met his duty to Plaintiffs in this case.
WHEREFORE Defendant Paul E. Kendig respectfully requests that the Court enter
judgment in this case notwithstanding the verdict in favor of Defendant Paul E. Kendig and
against Plaintiffs.
Respectfully submitted,
LAW OFFICES OF JESSE R. RUHL
DATED: November 16,2001
By:
Je e . Ruhl, Esquire
PA Attorney LD. # 55798
350 W. Market Street
York,PA17401
(717) 854-0066
Attorney for Defendant
3
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Certificate of Service
I hereby certifY that on November 16,2001, a true and correct copy of the foregoing was
served by first class mail, postage prepaid, upon the following:
William A. Addams, Esquire
Law Office of Michael J. Hanft
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
00-6052 CIVIL
PAUL E. KENDIG,
Defendant
IN RE: DEFENDANT'S POST-TRIAL MOTIONS
ORDER
AND NOW, this I to ~
day of November, 2001, Defendant is directed to file a
brief in support of his Post-Trial Motions by December 14, 2001. Plaintiff shall file a reply brief
by December 26, 2001. Argument to be held in Chambers on January 3, 2002, at 9:00 a.m.
Edward E. Guido, J. ~
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William A. Addams, Esquire
For the Plaintiffs
Jesse R. Ruhl, Esquire
For the Defendant
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NOV 2 0 2001
LAw OFFICE OF MICHAEL J. HANFT
ATTORNEYS & COUNSELLORS AT LAW
MICHAEL J. HANFT
GREGORY H. KNIGHT
RICHARD L. WEBBER. JR.
November 16,2001
_QF COUNSE!:
WILLIAM A_ ADDAMS
MICHAEL R. RUNDLE
Honorable Edward E. Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, P A 17013
RE: Kendig v. Kendig
No. 00-6052
Dear Judge Guido:
I am enclosing a copy ofthe Plaintiffs' Motion for Rule 238 delay damages. If the Defendant
files an answer, I hope to have this matter heard with the Defendant's post trial Motion.
Thank you for your consideration.
Very truly yours,
LAW OFFICE OF MICHAEL J. HANFT
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William A. Addams
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Enclosure
cc: Jesse Raymond Rubl, Esquire
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19 BROOKWOOD AVENUE SUITE 106 CARLISLE, PA 17013-9142
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
NOTICE
You are hereby notified to file a written answer to the attached Motion for Delay
Damages within twenty (20) days from the filing ofthe Motion or delay damages sought
in the Motion may be added to the verdict or decision against you.
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
MOTION FOR RULE 238 DELAY DAMAGES
AND NOW, come the Plaintiffs, Kevin P. and Nancy E. Kendig, by their attorney,
William A. Addams of the Law Office of Michael J. Hanft, and move your Honorable Court to
award Rule 238 delay damages and in support thereof assert the following:
I. This action was commenced by the filing of the Complaint on September I, 2000
and served that date on the Defendant's attorney, who accepted service.
2. On November 9, 2001 the jury returned a verdict in favor of the Plaintiffs in the
amount of$58,224.73.
3. Pa. RC.P. 238(a)(2)(ii) provides that damages for delay shall be awarded for the
period one year after the date of original process was served up to the date of the verdict, a period
of sixty-nine (69) days.
4. Pa, RC.P. 238(a)(3) provides that damages for delay shall be calculated at the rate
equal to the prime rate (9Yz%) plus one percent. See Rule 238, Addendum to Explanatory
Comment.
5. The Defendant made no offer prior to the verdict and none of the delay was
caused by the Plaintiffs.
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6.
The delay damages are calculated as follows: $58,224.73 x 1 OYZ % x 69 days -i-
365 days = $1,155.72.
WHEREFORE, the Plaintiffs request your Honorable Court to delay damages in the
amount of$I,155.72.
LAW OFFICE OF MICHAEL J. HANFT
By:
William A. Addams
Attorney 1.0. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Attorney for Plaintiff
Date: November 16,2001
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CERTIFICATE OF SERVICE
I hereby certifY that I have this I 6th day of November, 200 I, served a Motion for Delay
Damages by mailing a copy ofthe same by United States mail, postage prepared, addressed
as follows:
Jesse Raymond Ruhl, Esquire
350 West Market Street
York,PA 17401
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LAw OFFICE OF MICHAEL J. HANFT
ATTORNEYS & COUNSELLORS AT LAW
WILLIAM A. ADDAMS
MICHAEL J. HANFT
GREGORY H. KNIGHT
RICHARD L WEBBER, JR.
liNDSAY D. GINGRICH
lJEClu-mor
December 18, 2001
Honorable Edward E: Guido
Cumberland County Courthouse
One COUlihouse Square
Carlisle, P A 17013
RE: Kendig v. Kendig
No. 00-6052
Dear Judge Guido:
I am enclosing the original and one copy of the Plaintiffs' Brief in response to the
Defendant's post trial motions which will be heard in chambers on January 3, 2002 at 9:00 a.m.
Thank you for your consideration of this matter.
Very truly yours,
LAW OFFICE OF MICHAEL 1. HANFT
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William A, Addams
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Enclosure
cc: Jesse Raymond Ruhl, Esquire
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717.249,5373 FAX 717,249.0457 WWW.HANFTLAWFIRJvLCOM
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
DEe Z1200t
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
PLAINTIFFS' BRIEF IN RESPONSE TO
DEFENDANT'S POST-TRIAL MOTIONS
FACTS
On November 9, 2001 the jury returned a verdict in favor of the Plaintiffs. The
Defendant contends in his post-trial motion that the court should not have charged the jury on res
ipsa loquitur. The court used the charge found in Pennsylvania Standard Instructions - Civil, as
follows:
5.08 (Civ)
CIRCUMSTANTIAL PROOF OF NEGLIGENCE -
RESTATEMENT OF TORTS (SECOND) g328D
[RES IPSA LOQUITUR]
The plaintiff must establish the defendant's negligence by the greater weight of
the evidence. He may do this by circumstantial evidence, that is, by proving facts
and circumstances from which negligence may be reasonably inferred.
You may infer that the harm suffered by the plaintiff was caused by negligence
of the defendant if you find the following three factors to have been present:
1, That the accident here involved is of a kind which ordinarily does not
occur in the absence of negligence. In this connection, you may consider the
general knowledge of the community, the evidence of the parties, or expert
testimony.
2. That other responsible causes, including the conduct of the plaintiff
and third persons, have been sufficiently eliminated by the evidence. But it
is not necessary that the plaintiff exclude all other possible causes for his
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injuries; evidence that it is more likely than not that plaintiff's injuries were
caused by defendant's negligence is sufficient to permit the inference. In
this connection, if you find that the defendant had exclusive control, (or,
shared control), of the instrumentality here involved at the time when the
negligence claimed would have occurred you may determine that such other
causes have been sufficiently eliminated.
3, That the negligence claimed is within the scope of the defendant's
duty to the plaintiff.
Although the defendant is not required to offer an explanation for the
occurrence of the accident, if he does so, it is for you to weigh that explanation
in relation to all the evidence to determine whether negligence by the defendant
may be reasonably inferred. If the defendant chooses to remain silent, it is
for you to determine whether or not you will infer that the defendant was
negligent from the happening of the accident under the circumstances
developed by the evidence.
ARGUMENT
When used, the instructions regarding res ipsa loquitur are part of the general instructions
regarding circumstantial evidence. The testimony of Defendant Paul Kendig established that he
was using an acetylene torch in a building which was fully engulfed in flames within 10 minutes.
To conclude that the fire was caused by the negligence of the Defendant, the jury was asked to
infer:
I. That a fire of this kind ordinarily does not occur in the absence of negligence.
The Defendant testified that he had been doing welding and using torches as part of his
employtilent for many years. He was quite familiar with the equipment. He said it produces
sparks and spalls, which are balls of molten metal. He was working in a confined area. After he
finished using the torch, he took some time to satisfY himself that he had not started a fire,
apparently because he knew what he was doing was dangerous. Kevin Kendig testified that as
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a safety precaution he moved the welding equipment outside before using it. The jury could infer
that the use of a torch in a confined area of a building was a lack of due care. The Plaintiffs did
not have the burden to establish that the fire could not have occurred in the absence of
negligence, but "need only prove that negligence is more probable than not." Leone v. Thomas,
428 Pa. Super. 217, 221, 630 A.2d 900, 902 (1993), citing Restatement (2d) ofTorts Section
328D, comment e. "The jury is permitted to draw from the occurrence of an unusual event the
conclusion that it was the Defendant's fault." Id.
2. That other causes have been sufficiently eliminated. No other potential causes
such as lightning, smoking, or an electrical fault, however, were advanced or even suggested in
this case. The Defendant had exclusive control of the welding equipment. He testified that he
had no doubt that the torch somehow started the fue. "In such a case, the jury is permitted to
reasonably infer both negligence and causation from the occurrence of an unusual event and the
defendant's relation to it." Leone, supra.
3. That the negligence is within the scope of the Defendant's duty. The Defendant
was in the exclusive control of the welding equipment and the Plaintiffs' property, and had the
duty to exercise reasonable care, Carney v. Otis Elevator Co., 370 Pa. Super. 394, 400, 536 A.2d
804, 806 (1988).
When a Plaintiff establishes the three elements set forth above, an inference of negligence
can be drawn. Micciche v. Eastern Elevator Co., 435 Pa. Super. 219, 645 A.2d 278, 281 (1994);
Leone, supra. "It is the function of the court to determine whether the inference may reasonably
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be drawn by the jury, or whether it must necessarily be drawn." Restatement (2d) Torts, Section
328D(2).
The Defendant also contends that he is entitled to judgment notwithstanding the verdict.
In Carnev v. Otis Elevator Co., 370 Pa. Super. 394, 536 A.2d 804, 805 (1988), the court was
guided by the following principles:
In reviewing an order denying judgment n.o.v., we must view the
evidence, together with all reasonable inferences therefrom, in the
light most favorable to appellee as the verdict winner. . . . Judgment
n.o.v, should be entered when the facts are such that no two reasonable
persons could disagree that the verdict was improper. . . , [W]hen
evidence is insufficient to sustain a verdict against a losing party . . .
the court should enter a judgment n,o,v. (citations omitted).
In this case, the evidence clearly supported the verdict in favor of the Plaintiffs. Your Honorable
Court should deny the Defendant's motions for a new trial and judgment n.o.v.
Respectfully submitted,
LAW OFFICE OF MICHAEL 1. HANFT
BY:..?~~
William A. Addams
Attorney I.D. No. 06265
Lindsay D. Gingrich
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Attorneys for Plaintiffs
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant
: JURY TRIAL DEMANDED
PLAINTIFFS' BRIEF IN RESPONSE TO
DEFENDANT'S POST-TRIAL MOTIONS
FACTS
On November 9, 200 I the jury returned a verdict in favor of the Plaintiffs. The
Defendant contends in his post-trial motion that the court should not have charged the jury on res
ipsa loquitur. The court used the charge found in Pennsylvania Standard Instructions - Civil, as
follows:
5.08 (Civ)
CIRCUMSTANTIAL PROOF OF NEGLIGENCE -
RESTATEMENT OF TORTS (SECOND) ~328D
[RES IPSA LOQUITUR]
The plaintiff must establish the defendant's negligence by the greater weight of
the evidence. He may do this by circumstantial evidence, that is, by proving facts
and circumstances from which negligence may be reasonably inferred.
You may infer that the harm suffered by the plaintiff was caused by negligence
of the defendant if you find the following three factors to have been present:
I. That the accident here involved is of a kind which ordinarily does not
occur in the absence of negligence. In this connection, you may consider the
general knowledge of the community, the evidence of the parties, or expert
testimony.
2. That other responsible causes, including the conduct of the plaintiff
and third persons, have been sufficiently eliminated by the evidence. But it
is not necessary that the plaintiff exclude all other possible causes for his
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injuries; evidence that it is more likely than not that plaintiff s injuries were
caused by defendant's negligence is sufficient to permit the inference. In
this connection, if you find that the defendant had exclusive control, (or,
shared control), of the instrumentality here involved at the time when the
negligence claimed would have occurred you may determine that such other
causes have been sufficiently eliminated.
3. That the negligence claimed is within the scope of the defendant's
duty to the plaintiff.
Although the defendant is not required to offer an explanation for the
occurrence of the accident, ifhe does so, it is for you to weigh that explanation
in relation to all the evidence to determine whether negligence by the defendant
may be reasonably inferred. If the defendant chooses to remain silent, it is
for you to determine whether or not you will infer that the defendant was
negligent from the happening of the accident under the circumstances
developed by the evidence.
ARGUMENT
When used, the instructions regarding res ipsa loquitur are part of the general instructions
regarding circumstantial evidence. The testimony of Defendant Paul Kendig established that he
was using an acetylene torch in a building which was fully engulfed in flames within 10 minutes.
To conclude that the fire was caused by the negligence of the Defendant, the jury was asked to
infer:
1. That a fire of this kind ordinarily does not occur in the absence of negligence.
The Defendant testified that he had been doing welding and using torches as part of his
employment for many years. He was quite familiar with the equipment. He said it produces
sparks and spalls, which are balls of molten metal. He was working in a confined area. After he
finished using the torch, he took some time to satisfy himself that he had not started a fire,
apparently because he knew what he was doing was dangerous. Kevin Kendig testified that as
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a safety precaution he moved the welding equipment outside before using it. The jury could infer
that the use of a torch in a confined area of a building was a lack of due care. The Plaintiffs did
not have the burden to establish that the fire could not have occurred in the absence of
negligence, but "need only prove that negligence is more probable than not." Leone v. Thomas,
428 Pa. Super. 217, 221, 630 A.2d 900, 902 (1993), citing Restatement (2d) of Torts Section
328D, comment e. "The jury is permitted to draw from the occurrence of an unusual event the
conclusion that it was the Defendant's fault." Id.
2. That other causes have been sufficiently eliminated. No other potential causes
such as lightning, smoking, or an electrical fault, however, were advanced or even suggested in
this case. The Defendant had exclusive control of the welding equipment. He testified that he
had no doubt that the torch somehow started the fire. "In such a case, the jury is permitted to
reasonably infer both negligence and causation from the occurrence of an unusual event and the
defendant's relation to it." Leone, supra.
3. That the negligence is within the scope of the Defendant's duty. The Defendant
was in the exclusive control of the welding equipment and the Plaintiffs' property, and had the
duty to exercise reasonable care. Carnev v. Otis Elevator Co., 370 Pa. Super. 394, 400, 536 A.2d
804, 806 (1988).
When a Plaintiff establishes the three elements set forth above, an inference of negligence
can be drawn. Micciche v. Eastern Elevator Co., 435 Pa. Super. 219, 645 A.2d 278, 281 (1994);
Leone, supra. "It is the function of the court to determine whether the inference may reasonably
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be drawn by the jury, or whether it must necessarily be drawn." Restatement (2d) Torts, Section
328D(2).
The Defendant also contends that he is entitled to judgment notwithstanding the verdict.
In Canlev v. Otis Elevator Co., 370 Pa. Super. 394, 536 A,2d 804, 805 (1988), the court was
guided by the following principles:
In reviewing an order denying judgment n.o.v., we must view the
evidence, together with all reasonable inferences therefrom, in the
light most favorable to appellee as the verdict winner. . .. Judgment
n.o.v. should be entered when the facts are such that no two reasonable
persons could disagree that the verdict was improper. . . . [W]hen
evidence is insufficient to sustain a verdict against a losing party . . .
the court should enter a judgment n.o.v. (citations omitted).
In this case, the evidence clearly supported the verdict in favor of the Plaintiffs. Your Honorable
Court should deny the Defendant's motions for a new trial and judgment n.o.v.
Respectfully submitted,
LAW OFFICE OF MICHAEL J. HANFT
By:
William A, Addams
Attorney LD. No. 06265
Lindsay D. Gingrich
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Attorneys for Plaintiffs
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Jesse R. Ruhl, Esquire
PA Attorney I.D. # 55798
350 W. Market Street
York,PA 17401
(717) 854~0066
KEVIN P. KENDIG and
NANCY E. KENDIG,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
NO. 00-6052 CIVIL TERM
PAUL E. KENDIG,
Defendant.
JURY TRIAL DEMANDED
........................ .!.... ........ ..........:
DEFENDANT'S BRIEF IN SUPPORT OF POST TRIAL MOTIONS
1. PROCEDURAL HISTORY AND STATEMENT OF THE CASE.
On Friday, November 9, 2001, a trial by jury was held before His Honorable Judge
Guido. After the close of the evidence and after charge, the jury returned a verdict in favor of
Plaintiff and against Defendant in the amount of $58,224.73. Over objection by defense counsel,
His Honor's instructed the jury according to the doctrine of res ipsa loquitur.
Defendant filed post-trial motions contending that it was error for His Honor to instruct
the jury concerning res ipsa loquitur insofar as the Plaintiffs had not made out the three-fold test
for the application of the doctrine. In addition, Defendant contended that His Honor erred when
he denied Defendant's motion for compulsory nonsuit that Defendant made at the close of
Plaintiffs evidence.
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II. STATEMENT OF QUESTION PRESENTED.
WHETHER THE DOCTRINE OF RES IPSA LOQUITUR
APPLIES WHERE PLAINTIFF HAS FAILED TO INTRODUCE
EVIDENCE OF CAUSATION.
III. ARGUMENT
Plaintiffs in this case relied primarily upon the doctrine of res ipsa loquitur to establish
the liability of the Defendant. However, the Plaintiffs introduced no evidence of causation. The
Plaintiffs introduced no expert testimony to demonstrate how the fire in this case occurred, and
neither the Plaintiff or Defendant provided any testimony concerning the origin of the fire in this
case.
In Pennsylvania, the doctrine of res ipsa loquitur is set forth in the Restatement (Second)
of Torts, Section 328D which provides:
It may be inferred that harm suffered by the Plaintiff is caused by the negligence of the
defendant when:
CA) The event is of a kind which ordinarily does not occur in the absence of
negligence;
(B) Other responsible causes, including the conduct of the plaintiff and third
persons, are sufficiently eliminated by the evidence; and
(C) The indicated negligence is within the scope of the Defendant's duty to the
Plaintiff.
Here, the Plaintiffs failed to demonstrate that the fire which caused the damage to their bam and
contents was an event which ordinarily does not occur in the absence of negligence. To the
contrary, "a fire of unknown origin is one of many accidents that as a matter of common
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knowledge frequently occur without anyone's fault, [and] the rule of res ipsa loquitur is generally
given limited application in such cases." Lanza v. Poretti, 537 F.Supp. 777, 786 (1982)(footnote
omitted).
In Lanza, the plaintiffs requested post trial relief arguing that it was in error for the court
to refuse to charge the jury on the doctrine of res ipsa loquitur. The court disagreed with the
plaintiffs and held that where the plaintiff failed to prove the origins of the fire, that the doctrine
of res ipsa loquitur does not apply. The court stated: "While the Pennsylvania Supreme Court
has not specifically addressed this issue, I believe the correct view is that the application of res
ipsa in fire cases should be predicated upon the particular facts and circumstances appearing in
the individual case; not upon the mere occurrence of a fire. ld. at 788. The court continued:
"Accordingly, only if facts are presented from which it is reasonable to conclude that a particular
fire is an event that would not normally occur in the absence of negligence, is the initial
requirement for application of res ipsa loquitur satisfied. ld. at 787 - 788.
Plaintiffs presented no evidence of the cause of the fire in this case. The jury was not
provided with any explanation as to the cause ofthe fire. The Defendant testified that he had no
idea how the frre occurred, and the Plaintiff offered no explanation for the cause of the fire.
Fires are general occurrences which often arise in the absence of negligence. Although it
was not incumbent upon the Plaintiffs to prove negligence in this case in order for them to have
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prevailed, it was the Plaintiffs' burden of proof to set forth sufficient circumstantial evidence
before the jury could reasonably conclude that the fire which occurred was not of a common
origin. Because Plaintiffs failed to offer any testimony to demonstrate that the fire resulted from
the conduct of the defendant (as opposed to a defect in the torches or an electrical fire), this Court
wrongfully submitted the matter to the jury on the basis of the doctrine of res ipsa loquitur. For
these reasons, His Honor erred when he refused to grant Defendant's oral motion for compulsory
non-suit, and His Honor erred when he charged the jury, over counsel's objection, on res ipsa
loquitur.
IV. CONCLUSION
For the reasons set forth above, Defendant respectfully requests that the Court enter an
Order granting Defendants' Motions for Post Trial Relief.
Respectfully submitted,
LAW OFFICES OF JESSE R. RUHL
DATED: August 17, 2001
By:
J se . Ruhl, Esquire
Attorney 1.D. # 55798
50 W. Market Street
York, PA 17401
(717) 854-0066
Attorney for Defendant
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Certificate of Service
I hereby certifY that on December 17, 2001, a true and correct copy of the foregoing was
served by first class mail, postage prepaid, upon the following:
William A. Addams, Esquire
Law Office of Michael J. Hanft
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
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KEVIN P. KENDIG and
NANCY E. KENDIG
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL V ANlA
V.
PAUL E. KENDIG
: NO. 2000-6052 CIVIL TERM
ORDER OF COURT
AND NOW, this 3RD day of JANUARY, 2002, after argument, Defendant's Post-
Trial Motions are DENIED.
Edward E. Guido, 1.
~am A. Addams, Esquire. . " \
19 Brookwood Avenue (l~1(:0-J>>.d
Suite 106 L s
Carlisle, Pa. 17013 J -lj- 0 2 1'l\:
~se R. Ruhl, Esquire
350 West Market Street
York,Pa.17401
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( KEVIN P, KENDIG and NANCY E, KENDIG
LIST OF DAMAGES
1. R. L, Myers Contracting - repair garage
TOTAL -
$ 9,299.00
5,807.41
3,072.94
1,015.00
11,500,00
8,000.00
1,300,00
1,500,00
6,750.00
1,500,00
200.00
60.00
8,220.38
$ 58,224.73
2. McCune Lumber Co. - Materials for garage
3, Bard's Machine Shop - repair 400 Chevy
engine -
4, Household personal property -
5. 1200 Harley Davidson 2000 model -
6, 1200 Harley Davidson 1997 model -
7. Motorcycle accessories -
8, Gehl blower -
9. Gehl skid loader -
10, Mohave 1988 model 4 wheeler -
11, Automotive parts and tires -
12, Front drive shaft for pickup truck -
13. Farm personal property -
PLAINTIFPS
EXHIBIT
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
v.
PAUL E. KENDIG,
Defendant
Sir:
Please mark the verdict satisfied,
TO: Curtis R. Long, Prothonotary
DATE: March 15,2002
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: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00-6052 CIVIL TERM
: JURY TRIAL DEMANDED
PRAECIPE
HANFT & KNIGHT, P.C.
By:
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William A, Addams
Attorney LD. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiff:3
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
PAUL E. KENDIG,
Defendant
No, 00-6052 CIVIL TERM
ORDER OF COURT
AND NOW, this 9th day of November, 2001, the
jury having found that the Defendant's negligence was a
substantial factor in the cause of the fire in question,
the verdict is entered in favor of Plaintiffs and against
Defendant in the amount of $58,224,74.
By
Edward E. Guido, J.
William A. Addams, Esquire
For the Plaintiffs
Jesse R. Ruhl, Esquire
For the Defendant
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KEVIN P. KENDIG and
NANCY E. KENDIG,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00-6052 CIVIL TERM
v.
PAUL E. KENDIG,
Defendant
VERDICT FORM
Ouestion 1:
Do you find that the Defendant, Paul E. Kendig, was negligent?
YES r 2... t.// NO
If you answer Question 1 "NO", you should not answer any further questions, and you
should return to the courtroom.
Ouestion 2:
Was the Defendant's negligence a substantial factor in causing the fire in question?
I
YES IV /
NO
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135 Weitoish,Jfamie M
88 Urban, Vietoria E
127 uJ)CJW"r,~, Rol>ertK
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140 _Ililllo,Annette M
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98 Slike, Lesli M
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124 Baullhman, Richard F
102 Nye, Phyllis M
113 Ramsey, Jessica M
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116 Griffin, Robert S
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88 Urban, Victoria E
127 Bowers, Robert K
86 Sinller(Eberlin), Lori
129 Lebo, Sally A
100 Sisti, Doul(las R
131 Wolfe, Brenda S
133 Roeder, Ann H
139 Harnish, Mal'l(nerite Grove
140 Dunn, Annette M
91 Riccio, Linda
138 Cochran, Joseph B
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116 Griffjll,Robert S
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88 Urbau, Victoria E
127 Bowers, Robert K
86 Siu2er(Eberlin), Lori
129 Lebo,Sa.liy A
100 Sisti, Doll2laS R
131 WoJJ;l',BrendaS
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