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HomeMy WebLinkAbout99-03699k . 4 s f k ?y Y 6 a ?K Y J; ta~.c John A. Steller, Esquire Attomey 1. D. No. 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Strcct P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 2344161 DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants Attorney for Defendant James J. Collins IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW r, NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED PRAECIPE .- TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please file of record the enclosed original transcripts of the depositions of the following individuals in the above-captioned action: James J. Collins taken on January 12, 2001 Donna K. Hurley taken on January 12, 2001 Craig Berdanier taken on February 6, 2001 By GOLDBERG, KATZMAN & SHIPMAN, P.C. John A. Statler, Esquire Attorney I.D. No. 43812 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Defendant James J. Collins DATE: 3 / 2 g ? d 6101x.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at qxl\ Harrisburg, Pennsylvania, with first-class postage prepaid on the z8 day of Mn ?- CIA 2001, addressed to the following: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 Mr. Craig Berdanier RR 4, Box 4012 Duncannon, PA 17020-9406 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: John A. atler, Esgm Attorney I. D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant James J. Collins ,:1? l': lii ? ?. ,' ,.. ..,'.J ?a ?, C ?- ! 4 i ?_ ? ,81OVOO YON 18:14 FAX J THIS LZA89, SETWS&N owner, AND RESIDL'NTIAL LNAeX BCR88NSNT Q004 E PLAINTIFF'S' EXHI IT COP .V1014,1 Ayr day of 14044' 192L ..% .p,. //,.,,.. s the one or more, jointly and severally: NITNESSV=z That owner hereinafter caii, beginning on the ending on the the rent of LZ-Z 3, Ras en gr sat forth above on the /S day of each month, in advance, at the Rental Office of Owner or Agent or such other place as owner or Agent may from tine to time request and further agrees to pay the first and last months rent at the time of occupancy. Resident also agrees to pay a late payment charge to ten (,q) percent per month on the amount of rent in default an the day of each month which shall be included with that months renal payment. If late the plus lat payment charge), Owner Sy Agent will sof each erve the right tb proceed with the necessary legal authorities to collect same. If any check for rent is returned to owner or Agent or insufficient funds or other reason, late charges will continue until rent is actually paid by Resident. 3. Owner or Agent may terminate this lease without cause by giving thirty (30) days prior'written notice to Resident, but a4 termination by owner or Agent without cause may take affect durinio the one-year term of the lease. to a leases to Resident and the letter term of ! YC7 G. , AY.Li-, anu v o? Ah fYL ifiG7l?' , 19_,,, at on the day of each month in advance. This letting is upon the following terms and conditions: gg. Residaht agrees to pay Owner a security deposit of u?1y? Dollars (S ??' 1 upon signing of th a agreement with receipt herein acknowledged paid by id t a ass to y to Owner or Agent the monthly rate 4. Resident agrees to use the apartment only as the personal residence of Resident andmthe'SE116fiildren, and not to assign this lease or sublet the apartment. Resident agrees not to alter or make additions to the apartment, its painting, its fixtures', Apd, change locks without owner's or Agent's written consent. Resident agrees not to do or to permit any act or practice injurious to the building, which may affect the insurance on the building, or which is contrary to any law. HARRISBURG APR 10 vi W 06/05/00 WON 10:15 FAX 5. Resident understands that the equipment for serve the premises is inrpUp Frpia.and Resident the Cost of the utilities '•shalL4*e paid as follows: utilities to Agrees that seating for premises to be paid by seating of water for premises to be paid by Electricity for promises to be paid by Gas for premises to be paid by sewer charge to be paid by Water consumption to be paid by Trash removal to be paid by cable Television to be paid by Telephone to be paid by Resident agrees that owner or Agent shall have the right temporarily to stop the service of electricity, or water, in the event of accident affecting the same or to facilitate repairs or alterations made in the premises or elsewhere in owner's or Agent's property* owner or Agent shall have no liability for failure to supply heat, air conditioning, hot water or other. services or utilities when such failure shall be beyond Owner's or Agent's control or to :enable owner or Agent to service or repair installations., .61 Resident agr s in the use of the apartment, ttie'.appliances therein, and all other parts or owner's or ant in property, to give notice to owner or Agent of the need for repair thereof, and 9 pay for all repairs to the apartment, its contents and to ell other, marts. Of Owner's or Agent's rronerty e rtes dent. members of Resident's family. or his visitors. Owner or Agent will make necessary repairs to the apartment and the appliances therein within a reasonable time after Resident notifies Owner or Agent of the'need for repairs. RANGE: serial number REPRIGERATORs serial number OTHER APPL'f.71NCES: 7. Resident agrees that owner or Agent shall not be liable for property damage or personal injury occurring in'the apartment or elsewhere on owner's or Agbnt'a.property unless the damage or injury results directly from owner's or Agent's negligence. 8., All residents are required to carry "renters insurance" for the premises with an amount equal or greater to the value of all personal belongings of the resident. Insurer amount 1. s. 3. e. HARRISBURG 5. U005 APR 10 IWO 66405100 MON 15:15 FAX 6. 7. e.. s. r!, due to aircumrit nced"bwyond the owner's or Aaentla control, the premises shall not be ready for occupancy at the beginning of the term, this lease shall nevertheless remain in effect and the rent shall be abated proportionately until the promisee are so ready, and Owner or Agent shall not be liable for delays provided, that if the premises shall not be -for occupancy sixty (60) days after said beginning, Resident shall have the right to cancel this lease by written notice delivered to Owner or Agent at any. time after the expiration of said sixty (60) days, but not after the promises are ready for occupancy. Resident's remedy shall be limited to such right of cancellation, neither party shall have any further right against the other, save the Owner or Agent shall repay any deposits made by Resident. If Resident shall occupy the premises prior to the beginning of the term, such occupancy shall be subject to the terns of this lease, and Resident shall pay prior to occupying the premises rent for the same period from the date of.,such occupancy to the beginning of said term. IVO 10. If the-apartment is damaged by lire or other casualty, owner or Agent shall repair it within a reasonable time and rent shall continue unless the casualty renders the apartment untenantable,' in which case this lease shall terminate and Residont, upon payment of all t to the date the apartment is surrendered, shall not be aSXi'orany further rent. If only a portion of the apartment is rendered untenantabla, the Resident may, with mutual agreement of owner or Agent, alternatively choose to continue in possession and shall thereupon be entitled to a pro- rata reduction in the amount of rent, provided that election to proceed under this alternative shall not be a waiver of the Resident's right to terminate the lease if repairs are not made within a reasonable time. 11. Owner or Agent, or any person authorized by his, with the prior specific consent of Resident, which consent shall not be unreasonable withheld, shall have the right to enter the apartment at reasonable times to inspect, make repairs or alterations as needed, to enforce this lease, and, after notice of termination is given, to show the apartment *to prospective residents; provided, however, that Resident's consent shall not be necessary in case of emerganey. ' 12. Resident agrees to pay the. security deposit set forth above prior to occupancy of, the apartment. The security deposit shall be held by Owner or Agent as security for the payment of all rent and other amounts due from Resident to owner or Agent, for the Resident's performance q;?-,aas$Q....and against any damages caused to the apartment or any other part of Owner's or Agent's property by Resident, his family and guests. Resident understands 10006 HARRISBURG APR 10 20M 06/,06100 YON 16:16 FAX 4uuui within thirty (30) days following ???••?••??-° __ and/or physically vacating of apartment, owner or Agent shall return the security deposit, less any deductions from it on account of amounts owed by Resident to owner s leAgent, to Reside of bfy ch ck mailed payable to all pe ~eQbe f?ghed by Resi Upon v?+i?h mu apartment within terms and e atAant aha» ret?+r.+ „11 keVg terminating of lease and vacating of conditionnot forth in the lease s da et such vaoatin_?. If keys are not returned within this time period, owner or Agant will have the right to change the locks on the premises specifiad in the lease and charge such look change to Resident. for any 17. This lease confers Hof rights on Agenttother than the purposeany of the property o interior of the apartment hereby leased, except the walks and roadways giving access from times to and such other areas, if time designate for the ause of Owner or Agent may y Is owner's or whe?i the use bResident ermitted itnshallebe subject to ownerer's or Agei)tla ati cn?stabHAhed-W owner or Agent. the rules and d rig r@kjid 14e if Resident shall fail to pay tent, or any other sum, to owner or Agent when duet shall default in any other provisions of this lease; or shall remove or attempt to remove his possessions from the premises before pay inV to owner or Agent all rent due to wed;a¢ by lawlease ern, owner or Agent, in addition to all other (a) discontinue utility service provided by owner; (b) terminate this lease; possession of the (c) bring an action or recover pretises t (d) bring an'action to recover the whole balance of the rent and other charges due herein under, of whatever kind and nature, together with any and all consequential damages caused by Resident's default, including reasonable attorneys fees and court costs. 15. Resident agrees to waive his right to any interest on security dspasits held by the owner. 16. Resident agrees a o pets 'shall be alloyed on premises including visiting pets without prior written consent of the owner.. 17. Resident agrees that all security deposits as well as the right to take possession of the premises will be forfeited if Resident does not take possession of the lease apartment/house within seven (7) days of the beginning of the lease term. Prior arrangements may be made with the owner in writing prior to the HARRIS8URG kK 10 2000 06/46/00 YON 15:17 FAX first day of the lease. 18. Resident agrees to waive his right to a thirty (10) day notice of eviction and agrees that owner may begin proceedings to remove Resident from premises immediately upon notification to Resident in writing. 19. RESIDENT AGREES THAT HE WILL COMPLY AND PROCURE COMPLIANCE or mnsRS or HIS rmaLY, AND HIS GUESTS WITH THE OCCUPANCY REGULATIONS WHICH M& ERZH'?1,'ED HEREON AND WHICH AM ATTACHED. 10. This lease is subject and subordinate to the lien of all mortgages now or at any time hereinafter placed upon any part of Ownerle' or Agents property which includes the apartment, to extensions or renewals thereof, and to all advances now or uon equest$ to made r furtherthereof such secur execute the instrumentsdaevidencing such subordination as owner or Agent may request, and it Resident !ails to do so, Owner or Agent .is empowered to do so in the name of Resident. THT6 AGREEMENT 18 A LEGALLY BINDING WNDB TAWD =Xd laRRENENTUPLLASN ONHULT am ATTORN$i-7?4-1AW11 al. The term "Resident" used herein shall refer collectively to all persons named above, and signing this lease as Resident, and the liability or each such person shall. be joint and several. Also resident who this lease by signing aherea! hereafter shall t be liable, jointly and severally, for the entire lease herein. Notice given by owner or Agent to any person named as Resident or by any such person to Owner or Agent, shall.14Ad..:C}Je-Flxq? signing this lease as R named as esident. b The rs term eecu"Resident- shall also. tors, administrators, refer 5or rsthe respective parties hereto as if they were in every case named and expressed. VZTMS t (SEAL) Res nt (SEAL) (SEAL) W U06 ?,*a**,wa*aa:rttt,eataarr+aa*:ariaaata*aaaataataaa*aairaa*aaaaaa*asa• (SEAL) Resident (H HARRISBUIS APR 10 "duu 06/.06/00 YON 16:1.7 FAX i rtttfiriiaaaraatafiaf?,ttiif if tiaitfffifffif a*araaatffiaraaaiaiaat Resident (81AL) (SE11L) (SEAM Intending to be legally bound, and in consideration of the lease -with the above Resident, the undersigned, jointly and severally, hereby become surety to owner or Agent for the performance or the leaao b MOMIdeg% -ad ranters payment of all sums becoming owing to Owner or Agent by Resident. This agreement shall remain in effect throughout the term of the lease or any renewal thereof. The liability of the undersigned is absolute, continuing and unconditional and owner or Agent shall not be required to proceed against Resident or invoke any other remedy before proceedin* '-against the undersigned. Owner or Agent expressly agrees•'•to notify the guarantor in the event of breach or default. . , REGULATIONS fie Aped cat, other pat or animal of any kind will be brought, or kept in the apartment or elsewhere on the owner's . 2.• Resident(s) members at his (their) family, his (their) visitors and servants shall not at any time make any noise, do anything or conduct themselves in any way which disturbs any other resident or interferes with the rights, comfort, or conveniences of any other resident. Musical or sound reproducing instruments or singing within the apartment shall be inaudible outsidsathesapartaient-between 11 o'clock each night and 9 o'clock the following morning. 3. No resident shall place or permit to be placed or maintained any sign or advertising matter or device or any roof aerial or other structure'in any window of the apartment or elsewhere in or upon the owner's property. 'No resident shall place or permit prior consent or the owner or Agent. Damage to storm doors and windows due to negligence will be the responsibility of resident. 4. Resident shall use plumbing and electrical installations only for their intended purposes and ahall be fully responsible for the maintenance of same and for cleaning any stoppages in wants water lines. U009 3. Maximum occupancy: No more than person(s) will be HARRISBURG APR 10 WO -08/05/00 YON 15:18 FAX W010 pamitted to cootipy the apartment, sueh person(s) dazignated as 6. Resident(s) agrea(e) that owner or Agent may change these regulations from time to time as may be required to protect the apartment or Owner's other property or add to resident's enjoyment of it. 7. Resident(s) are allowed only parking space(s) in apartment parking lot. Multiple unit buildings where there are a limited number of parking spaces shall be on a first serve basis. e. No washer/dryer or dishwasher will be permitted to be kept or used at premises. 9. Trash removal on the exterior of the building shall be the responsibility, of ALL *resident(a). At any time which the owner deemsrtappropriate, an inspection say be made of the exterior oV the building. If two (2) or more of any of the following .Stems are t?tu.q)Lts_exterior, BACK resident will be assessed a charge of S5.00 which must be included in the following months rental payment. REBIDRHT(S) RAS (BAYS) RBAD TIM ABOVS 1tSGULATIONS. Omer will keep all utilities in owners name and resident Will pay aster fax, utilities as per lease agreement by the due date of the utility oanpnrW- 0AMIsbuRG Wr, 101" IMITIALS ( D ( ) ( ) ( ) ( ) ( ) t ) ( ) ( ) DONNA K. HURLEY, Plaintiff: V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED DEPOSITION OF: CRAIG BERDANIER TAKEN BY: Plaintiff Defendant BEFORE: DATE: PLACE: f APPEARANCES: Cheryl Farner Donovan, RPR-Notary Tuesday, February 6, 2001, scheduled for 3:00 p.m. Law Offices of Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 LAW OFFICES OF JOSEPH D. BUCKLEY, ESQUIRE BY: JOSEPH D. BUCKLEY, ESQUIRE 1237 Holly Pike Carlisle, PA 17013 FOR - PLAINTIFF GOLDBERG, KATZMAN & SHIPMAN, P.C. BY: JOHN A. STATLER, ESQUIRE 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 FOR - DEFENDANT JAMES J. COLLINS COPY `J CHERYL FARNER DONOVAN Registered Professional Court Reporter 305 Bullshead Road Newville, PA 17241 Phone (717) 776.3515 "'° Courtroom 8 Free-lance Reporting • Experience Since 1975 n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I N D E X WITNESS DIRECT EXAMINATION CROSS RD RC Craig Berdanier 3 E X H I B I T S PLAINTIFF'S No. 1 - Residential lease agreement dated April 14, 1999 22 48 50 MARKED & RECEIVED 6 ...? 1 2 N...J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATIONS (It is stipulated by and between counsel for the respective parties that the reading, signing and sealing of the deposition is waived; and that all objections, except as to the form of the question, are reserved until the time of trial.) (Convened at 3:33 p.m.) Whereupon, CRAIG BERDANIER having been first duly sworn, according to law, testified as follows: DIRECT EXAMINATION BY MR. BUCKLEY: Q Would you give your full name and address for the record? Q My name is Craig Alan Berdanier, R.R.4, Box 4012, Duncannon, PA 17020. Q Mr. Berdanier, my name is Joe Buckley and I represent Donna Hurley in a lawsuit against yourself and Mr. Collins, Mr. James Collins. I'm going to be asking you a series of questions here. This is a deposition. Do you understand what a 3 n 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deposition is? A Yes, I do. Q During the course of my asking you questions, if at any time you don't hear me, don't answer the question, stop and ask me to repeat the question. Do you understand -that? A Yes, I do. Q Also if you don't understand a question I pose to you, please don't answer it. Ask me to explain or to repeat. Do you understand that? A Yes. Q At any time if you feel that you have any objections to any question I have, please raise your objection, and tell us why you're objecting to it. Do you understand that? A Yes. Q And I also note that you're not represented by counsel. Is that correct? A That's correct. Q And your decision not to be represented by counsel, has that been an informed decision on your part? A Informed in the sense of have I talked with any counsel? Q No. Informed in the fact that did you receive 4 11-l 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 notice of the lawsuit involved in this matter? A Yes. I received notice of the lawsuit in this matter. Q And did the notice tell you you had the right to consult an attorney and it gave you an address to contact, if you could not afford an attorney or you wanted to speak with an attorney. Did you receive that? A I'm sure that's in there, but I didn't read that part. I thought that was just for criminal cases that you can get one if you can't afford one. Q But, you know you had a right to review any matters pertaining to this case with an attorney? A Yes, I know I have the right to do that. Yes. Q And you're appearing here on your own volition? A Yes. Q And you don't choose to have an attorney present while we ask you questions? A Today, no, I do not. I did not choose to have one. Q Now, Mr. Berdanier, you at one time resided on North Hanover Street in Carlisle. Is that correct? A Yes. Q And when was that? A I'd have to review the lease, but I believe about a year and a half ago in the spring. .. 1 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 To give the exact dates, I'd have to look at it. I believe March through June. May I look at it to verify if it's correct? Q I'm going to show you a document that's going to be marked as Plaintiff's Exhibit 1 for identification purposes. Could you tell us what this is? A This is a short term lease between myself and Mr. Collins. Q And it's entitled? A Residential lease agreement. Q What is the date on that? A Fourteenth of April 1999, which would put it right about my recollection for the time. (Whereupon, Plaintiff's Exhibit No. 1 was marked for identification and received in evidence.) BY MR. BUCKLEY: Q Now, prior to April 1999, where did you reside? A At 752 Petersburg Road in Carlisle. Q And that's in South Middleton Township? A South Middleton Township. Q And could you describe to us, in as much detail as you want, what the property was, the type of property? A This one or at 752 Petersburg Road? Q 752 Petersburg Road. 1..) 1 6 n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answer the questions, if you have more. Q And at some time you decided that you were going to move from that property? A Yes. Q And what motivated you to move? A That's what I was about to start into. I realized that the agreement wasn't going to happen, that the lease to purchase was not going through the way we had discussed. So, I was looking for another property that I could fix up and work on, and found one at this address where I'm at now R.R.4, Box 4012. But, had a lag of time in between the end of a lease agreement or having to get out of that home and getting in another, so I needed temporary housing. Q Now, were you dealing with any realtor at that time looking for properties? A I believe I was dealing more, being a contractor, more independently, but had inquired with a realtor, yes. I don't know if I was directly dealing with realtors to go search out things. I had a multi-list book that actually Jim Collins had given me. So, therefore, I also knew him because he was the realtor-- Not really the realtor. He wasn't actually the realtor of the house before this at 11, 1 8 pM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A 752 Petersburg Road was an individual building, which was a residential house that I was working on and trying to work out a lease to own agreement. Q You described it as a single family residence? A Yes. Q The property on Petersburg Road? A Yes. Q How many acres did the property have? A Approximately six and a half acres, non-wooded. Three quarters of it was a hay field that was leased out to actually an uncle of the owner that I was working the arrangement out with. He would purchase the hay. I would mow the rest. It was just a mowed field with hay and grass. Q And did you have any animals at this property? A The whole time I was there? Q Yes. A I had a cat that ended up getting hit on the road. I had a Golden Retriever and I had Hose the Akita. Q And Hoss is the dog that's involved? A Hoss is the dog in question here. Q How long had you resided at that property? A I was there about two years before I realized that the purchase agreement was not going to happen. I'll .,,) 1 7 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 752. He was the--I forget what they call them--the person in charge of the whole company, the broker for the company. So I kind of felt a little obligated because he didn't get the money in that deal to go to him to find another property. Q Which deal was that? A The 752 Petersburg Road. When it didn't go through he did not receive any funds, so I felt kind of just morally obligated to help him out on the next one, let him do it instead of going to somebody else. Q So, prior to leasing the property from Mr. Collins, you had known him? A Briefly, but through just in a business agreement I've known him. We weren't just somebody that knew each other for years or anything. But, yes, I knew him for a short period of time due to that one property at 752 Petersburg Road. Q Now, during the two years that you were at 752 Petersburg Road, had Mr. Collins ever come to the property? A I don't believe he did. When I knew him, no. The agent that worked for him came there a couple times. Q Now, how old was your dog, Hoss, I believe you said? ..) 1 9 e') 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Hoss was his name, yes. Q Now, how old was he in April of 1999? A Bear with me a second. I mean I have it. I can look it up. I have vet records and stuff. But, if you give me a moment I can think of it. I believe I got him in 1994, like a ten week old puppy. So, that would have made him--if I do the math-- five, five and a half years old or so. Q Now, prior to being at the Petersburg Road property, where were you? A I was engaged and lived over on Zion Road. Decided not to get married. Shouldn't have been there in the first place. It was against how I was kind of brought up. So, I went and got this property. That was 60 Zion Road, I believe. Q And how long did you reside there? A Oh a year and a half maybe. Q And was your dog, Hoss, with you? A Yes. Q Could you describe that property for me? A That was about a 100 acre horse farm. It was one of the Hempt Farms right out by what is now Land-0- Lakes Farm and the PPG Plant and stuff like that, right down along there. A lot of room, piece and quiet, three or four different barns. This had more than one building _1/ 1 10 J 3 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on it versus the 752. Plenty of open land though. Q From the time that you got Hoss, when you said he was 10 weeks old. A Roughly 10 weeks old. Yes. Q Until April of 1999, when you moved to North Hanover Street, what type of properties had he been exposed to and living in? A I consider them either gentlemen farms or actual farms, open country type settings with a lot of room. Q Now, when you had Hose at any of these properties, prior to moving to North Hanover Street in 1999, how did you house him on the property? A How did I house him? During the day I had a dog house and a stake in the ground. The dog house was for shelter. And the stake would be out in the middle of a field. He was tied up on a rope. The rope was about 100 feet long, so we had about 200 foot diameter. It was always in a big open field, where he had his privacy and room to run around. He could get to the dog house for food and water beside it, and shelter if he needed it. At nighttime he would either come in, depending on which property. At the farm at 60 Zion Road, he went into the barn at night. I put him up in the hay mow where 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he had room to round around. It was warmer for wintertime or whatever. He was just more protected. At 752 Petersburg Road there was an enclosed porch on that house. He went in there at night. He was actually able to go down into the basement as well. But, he was either on the rope or in one of those two places, depending on which property it was. Q And did you have another dog at the same time? A I had a Golden Retriever that was two years older. I got her in 192. Q And how was she housed? A The same way. When you say housed, she went to job sites with me. She'd go in my truck a lot. Now that she's a little older and Hoss is no longer alive, I had him put down because of this, she's using the dog house in kind of the same way. She's a little older, so instead of having her run around in the truck all the time, I let her use the dog house and she has a line where she stays. Q Did you, at any time, used to take Hoss with you to job sites? A No. Q Now, when you were looking for properties to rent, what were you looking for in particular? A Can I clarify that question a little? 1-r 1 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Yes. A I wasn't looking for properties to rent. I was looking for a property to buy, and in the course of it found the property at Amity Hall, the R.R.4, Box 4012, property in Duncannon. I found that, but could not settle on it for a few months after the fact that I had to be out of the 752. Mr. Collins said, I have a property that needs some work. I can work something out with you for a few months. And knowing that you're purchasing this property and can't settle on it for a few months, I'll let you do it on a short term arrangement. Q Did you look at the property? A Did I look at it? Q Yes. A Yes, I did. Q Did you have any concerns with the property? A The lack of land. Q And why was that a concern? A Because I had animals that were used to a lot of land. Q Did you raise that with Mr. Collins? A In a casual way, yes. I don't believe. Casually, yes, I did. Q Could you explain what you mean by casually you 1-? 1 13 e?1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did? A The concern was more to myself. I did mention to him it would be a problem. But, since I didn't have many options-- You can't really rent a place that you can have animals for three months. My other option was maybe to get a hotel room for three months, which is awful expensive. I know the Marriott in Harrisburg allows you on the first floor to have animals. There's different places that do, but I didn't have that kind of money. Did that answer? Q Okay. Now, prior to moving into the property did Mr. Collins see your animals? A I'm trying to remember. I know the first part of this isn't directly answering your question, so forgive me. I know if he didn't see them before he saw them immediately within a day or two of being there. Honestly, in my memory I cannot tell you if he saw them a day or two prior or a day or two after moving in. He was aware of them, aware of the type and stuff, but I cannot tell you honestly in my memory if he saw them a day or two prior or a day or two after. I know it was right at that point though. Q You say he was aware of the type? 14 C` 1? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 V 11 V 1 2 2 2 2 2 2 A Yes. I had one that was a more powerful animal and one that was more loving. Golden Retrievers are the kind like your puppy that's friendly and lick you and all that kind of stuff. The other was more standoffish and nervous, and more the type, if you look up the breed, is not that type. Q You said he was aware of that. How did you make him aware of that? A I wanted to disclose to him exactly what would be on his property in our conversations, so I verbally told him. Q Did you tell him anything else about Hoss, about Hoss' tendencies? A I don't quite understand what you mean tendencies. Q There was testimony by Ms. Hurley. She stated I when she spoke with you that you told her that Hoss didn't like children or men. Do you recall ever saying that to Ms. Hurley? L A I recall a conversation with her, but my 2 recollection is different about that. It's close to being 3 the same. I mean there was a conversation. 4 Q What was your recollection? 5 A My recollection is Hoss didn't really like 15 i A F 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anybody except for there was a couple women that he liked, and then he liked my children and myself. Pretty much anybody else he was really standoffish to, and I didn't want people, especially that weren't introduced to him by me-- Once, if he was introduced, he was okay, but just to go up is not a good thing. I saw him a couple times. I saw some women just walk up to him and he was fine. To finish the thought of the tendencies that you asked. Just made me nervous because he'd kind of growl if he didn't know you. Q Now, earlier you stated that you had made Mr. Collins aware of the type of dogs that you had. Is that correct? A Yes. Q Did you make him aware of what you just told us about your dog not liking, you said, people? A To the best of my recollection. Yes. I can't remember to quote the words of a year and a half, two years ago. But, yes, I do remember talking to him about the type of dogs. Q Now, when you moved to North Hanover Street in April of 1999, how did you house the animals at that location? 16 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I have a picture. May I show you or is that not allowed? Q Sure. (Off the record discussion.) BY MR. BUCKLEY: Q Mr. Berdanier, you've shown us a photograph of what I take to be-- Is that Hose, the dog? A Yes. Q Do you have the photograph? A Yes, I do. Q On the righthand side of the photograph there appears to be a chain link fence? A It's actually on the left. That's it. Q And then there's also a rope? A In the front. Q In the front? A Yes. Q Whose fence and whose rope is that in that photograph? A The fence, I believe, belonged to the owners of the brick house to the left on the property line. The rope in the front with the stakes I put there for the purpose that nobody could just stroll into that area. So I guess the rope is mine and the fence is the neighbor's. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And how was Hoss secured? A On the same rope that I had talked about earlier. It was a nylon stretchable rope. The rope to the dog house was shortened greatly from the length I said earlier. It was only about 15 feet or so long at this point. Q So how deep or how wide was the yard, from where the dog house was to the end of the yard itself? A Maybe 30 feet. Q And what was the other dimension of the yard? A It was almost triangular, so where the rope is in the picture, maybe 20, 25 feet. I think more closer to 20, if I remember correctly. The back was pie-shaped to just maybe a three foot opening where I had placed, as you can see in the picture, a wheelbarrow so nobody was strolling that way either. Q That's at the rear? A At the rear. Yes. You can see there's a wheelbarrow there. Q Now, to your knowledge did Mr. Collins visit the property while you were there? A At least a few times. Yes. Q You said you were doing some work for him at the property? 18 i f c 1C 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 1 A During the first month I bartered for the first t month's rent with building a deck onto the second floor, ! removing an old staircase and putting a deck on. Yes. 4 Q And did he come by to inspect that? A A couple times. That's why I said I know at least a few times, because I know he definitely came at least for that reason. Yes. Q Did you show him how you were housing the dog? A Yes. May I clarify on the housing? Q Yes. A Same as I stated on the other properties, at nighttime he went inside. There was a bathroom. There was a bathroom in this property in the center that I put a child gate up on, and he would use that. That way in case he had an accident he was on vinyl. He stayed there at night and was out here in the day. Q Now, was the dog house shown there? A Yes. Three quarters of the dog house is shown in this picture. Q Was there a sign on that dog house? A Yes, on the front. Q And what did the sign read? A Beware of dog. Q And tell us why you put that up. A First of all, the sign was never on the dog 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 house until I came to this property. I put it on here because of the confined area and knowing that he had shown signs of growling at people and stuff. I mean, he's never attacked anybody or anything before this. I still was concerned with a confined area, knowing animals like I do, that I was taking an animal that was used to being way out in the open and confining them and didn't want strangers just strolling in and being around him. So I put that up just to warn people off. Q Now, I believe we established that the incident in question occurred on May 17th, 1999, which was a Monday, and involved Ms. Hurley and Hoss. Now, prior to that date did you meet with Ms. Hurley? A Roughly, yes, to answer the question. Q Could you explain your meeting? A Okay. Roughly a week or so prior to that, I'd say it was about a week prior to that, I remember hearing some people out at the side of the house. At this property my bedroom was right in the corner by the dog. I heard some talking, some voices, became concerned. I came around, saw who I now know as Donna Hurley and who I believe was her granddaughter. I believe she told me she was a granddaughter. They had 20 3 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 come over to pet the dogs. The Golden Retriever was out there as well. When I say dogs, I mean the Golden Retriever and Hoss. The Golden Retriever however was on the outside of this rope here. She was usually on the job sites with me, so if she was there it was only at night. So I could let her out so she had a place to go to the bathroom and stuff like that. Do you need to know more? Q Ms. Hurley came over. Did you have a conversation with her, if you recall? A I know initially I tried to not act like the bull in a china closet, scare them off and yell at them or anything, but I was very concerned that she was petting Hoss. I didn't want her to do so, and remember telling her that it wasn't a good idea just to stroll in and pet the dog. I know part of the conversation was, if you want to pet a dog, pet the Golden Retriever. The worst thing that will happen with her is she'll make you smell bad, because she was always rolling and stuff. The other part of the conversation was the issue of me saying to her earlier, when you asked about the comment of where I said Hoss wasn't sure if he liked just M) 1 21 V 1] 12 13 14 15 16 17 is 19 20 21 22 23 24 25 1 everybody, unless he knew you. And I didn't introduce 2 them and I didn't want just them strolling in. 3 Q Now, to your knowledge had Hoss ever gotten 4 loose there before? 5 A No. 5 Q Do you know who Randy Thomas is? Did you ever meet Randy Thomas, one of your neighbors? A Randy Thomas, I believe was a young lady who was married to a contractor. They had a home the other side of a parking area close, two or three doors up. Mr. Collins had a garage, as well as this property that I had my tools in, and they were the neighbors to that garage, if I remember correctly. Q And you never had any conversations with her about your dog being loose once before this incident? A If I did I'm not sure if it was at this property though. He's gotten loose on the other properties once or twice. I may have. I don't remember that. MR. BUCKLEY: I don't have anything further. CROSS EXAMINATION BY MR. STATLER: Q Mr. Berdanier, how did you find out about this incident? A I believe the police called me on my pager. I was on a job site. 22 F \1 3 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Do you remember where you were? A At least half an hour away. I'd have to think. Give me a second and I'll answer your question as best I can. Where was I? Yes, I do. I was out in the Etters area, actually fairly close to Three Mile Island. But, you have to go down to the Red Land area and go left and all the way out to the river. I was working on a garage I was building. Q Do you remember what you were told when you were paged? A That my dog had attacked somebody and if I didn't get there they'd shoot him. Q And this was a call from a policeman? A If I remember correctly, yes, or representative. Wait a minute. I got paged, I believe by Mr. Collins' office. And, I don't know if the secretary told me that the police were going to do that or they actually got me in contact with the police at this point. I do remember being upset and couldn't remember exactly who called. I know it was specifically about the police. And I know that I was being paged by both the police and Mr. Collins' office. I forget who got ahold of me first. Q What did you do? A Told my customers I had to leave. I didn't get tea/ 1 23 V E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 into it very much. Told them there was a problem at home. Told them not to shoot the dog, because I didn't know what happened. All of a sudden I get a call and I rushed back to Carlisle as quickly as I could. Q When you got there what did you find? A I found Hoss. First of all I found a police car with I guess two policemen there. I found Hoss tied up in the wrong spot, completely soaked with mace or pepper spray or whatever. At this point he was calm. The Golden Retriever, I can't even remember if she was with me that day or not. But, I do know that he was in her spot, and not his spot, and covered with mace. Q And her spot was what? A Outside the rope. I just put a board up for shelter, leaned it there. And her spot was only like that because I'd only put her out to go to the bathroom, because most of the time she was outside all day with me anyhow. Q When you got back to your home, who did you talk to? A The police officer that was there. Q Was Ms. Hurley still there at the time? A No. She had been taken to the hospital. Q Was Mr. Collins there when you arrived? A No. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 i6 17 18 19 20 21 22 23 24 25 Q Were any of the other neighbors around outside? A At this point in time? Q correct. When you first got home. A It was such a tight area, I can't tell you whether or not it was the normal people everywhere compared to how it was used to being or there's people still there as witnesses to this. Q What did you learn had happened when you talked to the policeman? A First of all, the thing that sticks out in my mind is the fact that he told me that he bit a woman in the neck and almost killed her. So I couldn't think much past that, other than concern about who this woman was. At this point I didn't know it was Donna right across the tracks, basically a neighbor. I tried to maintain my composure a little because it was very upsetting to hear that. And then I found out that he was loose and she had tried to bring him back in the yard and whatever and somehow he attacked her. Q Where did you get that information from, form the policeman? A The policeman. Q Did you ever follow-up and talk to anybody to ?? 1 25 U try to find out what was exactly happening when the dog bit her? A I did talk with Randy later, because I heard she was there, tried to follow-up. Q What did Randy tell you? A What did Randy tell me? I cannot remember what she said, how her and Donna got together on this. But, that her and Donna found Hoss running around back by the garage, which is a field, open, more of a grassy area back there. I can't remember her words. But, I know it was basically the state of mind that they were concerned that he was loose and they wanted him back on the rope. I told Donna that he wasn't real friendly, so their concern was that. Q Had you ever had a similar conversation with Randy before this incident about Hoss? A Yes. Can I back up on the question some more? Q Yes. A That does bring to mind Hoss did get loose before. Randy had him in the backyard one time. I remember that now that you had said that. Yes, I do. Q When was that in relation to the date that this incident happened? i A Maybe a month. I was only there three months. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 lE 15 2( 2: 2: 2: 2 2 `J 1 26 ,. E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Maybe a couple weeks. I don't remember exactly. A lot for this is coming to me as you ask me the questions. Q So there was another time when Hoss got loose and Randy brought him back? A No. He was just laying in their backyard. Actually she wasn't even out there with him. Mr. Collins rented to me as well a garage, two car garage which was immediately beside Randy and her husband's--and they had a child as well--yard. They also had a brown Lab or something. I drove up to the garage and my dog Hoss is in their backyard. Now that you've struck the memory going. Q okay. A I just knocked on their door and said, "I see my dog is here. What happened?" "Well, he was running over here and we just called him in and he came in." If I remember that correctly. That's how I remember it. Q I'm trying to get a sense of whether the dog was tied then in their yard or--? A No. They had a fence. They just had him loose in their yard. Q So, somehow they called him into their yard? A I can't tell you if he was tied or not. They had a small enclosed backyard with a chain link fence. Q Was there any problem with the dog that day, the 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 day that the dog was in their yard? A Other than the fact he was loose and was not supposed to be loose. Other than that, no. Q I mean, did he bite anybody that day? A No. Q Did you have a discussion with Randy, this neighbor Randy, about Hoss, whether Hoss liked people or didn't like people? A I honestly can't remember. I'm friendly enough that I'm sure I talked to her enough and may have voiced the same concern that just not anybody should be getting him. Q so after this bite, Randy told you that she and Donna found Hoss running around by the garage, and they were concerned that he was loose and wanted to tie him back up? A Put him back on his line. Yes. Q Did you have any discussion with Randy as to how they went about doing that? A Yes. Q What did she tell you? A I'm not quite sure what line they used, but I know it wasn't his line. Actually I think she said it was her dog's chain, a little cheap swivel chain they have for dogs. 4r) 1 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And they walked him over there. At that point he seemed to be fine. chained him to one of these stakes, if I remember correctly. I don't remember much more unless something would come to me. Q During the course of your discussions with Randy, did Randy ever tell you that Donna was trying to drag the dog when she got bit? A Yes, I heard that. Yes. Q Who did you hear that from? A I believe I heard that from Randy at that point in time. I know I heard that from the police officer. The police officer told me about Randy, that two people were there. I do know I got less information from Randy than I did the police, because Randy was still so emotionally upset over witnessing this. I can't really tell you if I got a lot of detail on that specific issue, but I know she told me and I know the police officer told me that he was staked to one of these stakes, but Donna had wanted to get him into this area, if I remember correctly. Q You're showing the photograph? A Yes. I'm sorry. Q Donna wanted to get him--? A Back to where I had kept him inside the area %O 1 29 'M 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 where the dog house was and the short rope. Q You're sure that sometime during your conversation with Randy and also with the police officer that the subject of Donna dragging the dog came up? A Yes. I know specifically they said that he had got stubborn, at this point, and I don't know why. All I remember is the kind of conversation that she bent over close to him or something. How I had him was in a full, actually horse halter. He was so big I couldn't get a normal type thing. He had a horse halter somehow to hook underneath him. Down on his chest area is where the ring was. And the last I remember what they told me was when she bent over that's when he jumped up and got her. That was part of that. Q Did you ever figure out how he got off the rope? A No. The clasp was still on. Other than the fact that, again, I have had horses. I've worked with horses throughout my life and this is relevant to this. A lot of the stuff I had with him was for horses. It was the clasp that you put on a horse halter. Now that I look back on it, it moved too easily. He may have bumped it. He may have been scratching, whatever. I was at work. Like I said, I was out there in 30 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Etters, Three Mile Island area, at the time this happened. Q Well, the day that he got off the rope and went over to the neighbor's house and into their yard, did you try to figure out that day how he got off the rope? A Yes. But, at the end of the day, after everybody was gone. I still definitely had it on my mind. The police had gone. Q No. I'm talking about the earlier time when he may have gone over to Randy's yard over by the garage? A That day? Q Yes. That day. Between that day and the date that Ms. Hurley was bitten, did you try to figure out how he had gotten off the rope that first time? A Well, I'm sure I didn't know myself. I can't give you a specific direct answer to that thought, because I know myself enough to know that I wondered how he got off of it. But, there was nothing wrong with the clasp. So I just thought it was a freak incident, he was scratching himself and somehow luckily got it off. Q Did you do anything to the clasp or make any changes to the way that the dog was secured to the rope, after he got off the first time? A I don't remember anything to that effect. That doesn't strike me. I don't know if I did or didn't. 1 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 i8 19 20 21 22 23 24 25 Q Now, did you have a conversation with Donna Hurley after the incident, after she was bitten? A Maybe. Yes. At least it wasn't immediately because she was in the hospital still and things. Q Alright. Approximately how long after the incident did you talk to her? A I would say about a week, maybe five, six days, somewhere about a week. Q And was that on the phone? A Yes. Q Did you call her? A The first contact I called her, yes, to see how she was. Q Tell me, as best as you can recall, that discussion. What did you say, what did she say? A What I can remember is that at that time is when I found out she was actually the immediate neighbor. She reminded me that, yes, I met you a week or so prior to this. I remember she was upset, her son was upset. I remember that she was more forgiving than her son in the conversation. Rightfully so. I'm not trying to say that anybody was being mean. I was just trying to remember the conversation. I expressed my concern for, you know, what went 32 V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on. Gave her, I think, a direct way to contact me if she needed my number to give to whoever she needed to, and stuff like that. It wasn't real long. It was kind of awkward. Q Did you talk to her about what she was doing when she got bit? A Not at that time. No. Q Did you ever talk to her at any later date? A I don't think I specifically talked to her about what she was doing. No. Q In other words, whether she was trying to drag the dog or what exactly? A No. I don't think I specifically did, because I have my feelings on what happened. But at the same time it happened to her, and I didn't want to come at her like you deserved it or anything. so, I didn't want to take that avenue, I don't think at any point, with her. No. Q During that conversation, about a week after the incident, did either you or Ms. Hurley bring up the conversation that you had had with her before, about a week before the incident, in which you discussed--? A Did I remind her that I told her? Q or did she remind you of that? A She reminded me. That's when I knew she was the 33 f P 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 immediate neighbor, because during that phone conversation she reminded me that, yes, I talked to you just a week prior. I said, Where do you live or something like that. I know you're a neighbor. She was like, Right across the tracks. I just met you. That's when I realized that. I was only there a couple months. I didn't know the neighbors, so that's when I knew. Q Right. You gave a statement to Erie Insurance Company over the phone? A Okay. They called me. Yes. Q This would have been in July of 199, a couple of months after the incident. And during that statement you were asked some questions about this conversation. You said that you were calling and trying to show your concern and find out how she was. And then you say, "And her exact words were, I know you're concerned. Remember a week ago you told me not to be with the dog. That was her words."? A It very well could be. I'm trying to remember a year or so later than that. On that issue, she's the one that reminded me that I told her that a week prior. Q As you sit here today, do you remember that conversation now that took place on the phone with Ms. 34 ?vd 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Hurley about a week after the incident, in which she brought up the fact that a week earlier you had told her not to be with the dogs? A I do remember that conversation. I can't give you a quote on a year and a half later. But, yes, I definitely remember the conversation. And I remember that subject was brought up. I can't tell you word for word. Q Alright. Let me just show you the statement. I'm going to show you on Page 6 of the statement. I'll just ask you to read that to yourself. It's the paragraph that begins, "And her exact words were, I know you're concerned." And it ends with, "I don't want them thinking who is this guy moving into town and taking over." I just want you to read that paragraph to yourself and just tell me if that sounds like what you told the adjustor at Erie? A I remember the part you just said. Yes, it struck a memory too. Starting with A, answer? Q Yes. If you'd read that paragraph to yourself. A To myself. Okay. Q Let me know when you're finished. A (Witness complied with request.) Yes. Q Did you have a chance to read it? 35 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 A Yes. I read it carefully. Q Does that sound like what you told the Erie adjustor in July of %99? A Yes. I do remember I didn't want people thinking I was just some cocky, big, ornery guy coming in that neighborhood, but I didn't want anybody messing with the dog. Q Okay. Now, you were also asked in this same statement a question about, "Had you had any problems with either of the dogs being aggressive or biting anyone in the past before you moved?" And your answer was, "No, no. And I have neighbors out, you know, where I was at the place for two years that visited them, tossed them biscuits on a daily basis and stuff, and never saw any problems while I was at work or anything. The dog never attempted to get off the line or any of those kinds of things." Is that what you told the Erie adjustor in July of `99? A It sounds like something I'd say and it also is on that there, so I believe that's true. Q Let me ask you about that. Had this dog, the Akita, ever bitten anyone before Ms. Hurley? A Not to my knowledge. Q Tell me about the dog biscuit thing that you 36 11 1] 1. 13 14 15 16 17 18 19 20 21 22 23 24 25 1 were mentioning in the statement. 2 A There was an older man and an older lady. 3 Actually, right at this moment the names slip my memory. 4 When you face the house at 752 they lived in the house to 5 the left. They were immediate neighbors to that property. 5 Their dog they had to put down because it was old. He i missed the dog. t He would come over daily and give Hoss biscuits. He just said he didn't know the dog and was intelligent enough to not just come up to the dog. So he told me he'd toss them. His words. He said, "I just toss your dog biscuits daily. Do you mind?" He did that on a fairly regular basis. There was times when I was there that I would unhook Hoss. Hoss would run that six and a half acres and sometimes go over and visit him in their yard, which was the neighboring yard. Q Now, you say you have vet records for the dog? A Yes. Q What vet was the dog taken to? A Originally? Q Yes. A I had moved, so I moved him to a different vet. May I look to be exact? Q Yes. Its) 1 37 y 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A (Witness perused documents.) It was out in Northern York County, the original vet. Timber view, with a Dillsburg mailing address. I went there because back at my marital home I had another Akita who had passed way of old age, and that was his vet. So I just used that vet. Q For the record, it's Timber View Vet Hospital, Dr. J.F. Hauser, 2054 Old York Road in Dillsburg, 17019. Phone number 432-2513. And was that the last vet that saw Hoss before this incident? A I believe the answer is yes. I've had a couple for the Golden Retriever since, so that's why I'm hesitating to just make sure I answer you honestly. But, I believe definitely Hoss only went to that one, until he went to Northside and I had him put down after this incident. Q Now, I want to ask you some questions about your dealings with Mr. Collins before this incident. You testified that Mr. Collins was aware that you had different types of dogs. I think that was your testimony. What do you mean by different types of dogs? A Bear with me. In my mind, if I say types, having been around animals I could tell you the different 38 ?Wd 1 17 14 1! 16 17 18 19 20 21 22 23 24 25 39 1 types of cows, different types of cats, different types of 2 horses, different types of dogs. 3 All animals are not the same. A dog is not 4 always a dog, and a cat is not always a cat, and a horse 5 is not always a horse. I mean you've got Thoroughbreds 6 and you've got Quarter Horses. In dogs you've got 7 different breeds there, different types. 3 They have different moods. They have different 3 many things. Just like people they have personalities. Q Well, I'm just trying to get a sense of what you believe and I realize you're-- A I'm just trying to clarify what I would say. I'm trying to think back to answer your question and tell you what I would mean by type, if you asked me that. I'm the type that if you asked me about beer, I'd tell you about different types of beer. And I'm not trying to get off it. I mean, that's my mindset. When I say something like that I'm trying to clarify the difference between what somebody else may think is the same thing. If I just say dogs, I want it to be clear there's two different types. The Golden Retriever was loving, would kiss you, jump all over you. The worst thing she'll do is scratch you if I don't trim the toenails. An Akita, which being my second one, I know the Japanese had as imperial guard 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dogs and stuff like that. Just the breed itself is a different type of breed. Q Now, when you're saying different types of dogs, are you just saying different breeds or different personalities or both? A Personalities are fairly close, because Harley, which is the Golden Retriever, raised Hoss. She was a couple years older. She acted like his mom. Q Okay. A A different breed more, knowing that the breed had tendencies, knowing the breed was more of a high- strung breed. That would have been more of what I'm saying. The personality was-- I guess thinking back, yes, there could have been a personality difference included in that comment, because he did have a little different personality. Q Now, what makes you say that Mr. Collins was aware of the different breeds? A Because I know I told him. Q Other than seeing two dogs that maybe don't look physically alike? A Was he aware? Q Yes. It's not what you were aware of. What he was aware of. That's what I'm trying to get to the bottom 40 I f c lc 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L I of. A Okay. Q I thought in your earlier testimony you said that Collins, before this incident that Jim Collins was aware that you had two different types of dogs. And that's what I'm trying to understand, what you mean by that? A Okay. Q Do you mean just two different breeds? Two dogs that didn't look the same, or do you mean something more than that? A Well, being that he's never bit anybody and that he was different. The only thing I can put to knowing what I would have been telling him is that I was making it clear that one was the breed that had, just in the breed itself, more high-strung tendencies. And that I'm going to be bringing him out of an open area into a confined area, knowing animals, knowing he might have a tendency to get more high-strung. Q Now, when did this conversation take place? A In his office, front office. It may have been the first office as you go down the hallway on the left, because we talked a couple times in that office. Exact date? Q This was before you moved in? 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Prior to moving in. Very close to the period of time. It all happened real quick, so there wasn't like long periods of time between the two. Q And, as best as you can recall, how did the subject come up, the subject of the dogs? A I volunteered it. I wanted somebody who was being nice to me and allowing me to stay on his property to know what was moving in. Q And what did you tell him? Again, we're talking about Mr. Collins. What exactly did you tell him about the dogs? A I'm feeling a little-- I'm feeling like you're trying to get an exact answer. And I know you are, and I know it's your job. But, I can't give an exact answer on a conversation that happened a year and a half to a year and three quarters ago. I mean, I can give you my best. Q As best as you can recall. I mean, I don't need the exact words. A I can't quote it is what I'm trying to get at. Q I understand. A Exact words would be I just wanted him to be aware of the fact that I had a dog that was a hundred plus pounds. He was of a breed that might have a tendency. I also had a Golden Retriever. The same thing I know I 42 %d 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 probably would have told him, because it's one of the things I tell everybody, is the worst thing she'll do is make you smell bad, because she likes to roll in this nasty stuff, especially on the horse farm. And I know I also explained to him how I planned to house them. I know I planned to bring the dog house, put it in the yard. I know I planned to put him in the bathroom area. I already looked over it prior to this and told him how I planned to do it. Q Did you tell Mr. Collins that either of the dogs were vicious? A Vicious? Q Yes. A No, I didn't know either of the dogs were vicious. Q That was going to be my next question. Did you have any reason to believe, before you moved into the Collins' property, that either of the dogs was vicious? A No. I just knew the dog was of a breed that might have a tendency to be high-strung. Vicious is not at any point until this incident anything I would have considered for either of my dogs. Q Okay. And when you say high-strung, what would you mean by that? A What do I mean by that? Edgy, not nearly as 43 kft*O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 friendly, gets nervous around people he doesn't know. Pretty much that. Q Now, you say that Mr. Collins visited the property a few times while you were there. Was that before Ms. Hurley was bitten that he visited the property a few times? A I would say, yes. I think he might have come out once after the incident, but mainly before I think. Q Was there any other conversations about the dogs while Mr. Collins was visiting the property? A No. After telling him initially and showing him. I did show him. When he did come out the one time I showed him. This is what I said I'd do. This is where he's at. This is where they're at at night. Other than that, I think just the initial in his office conversation where I told him what I just said to you. I believe that was it. It wasn't something that was brought up over and over again. Q When Ms. Hurley came over to your yard about a week before the incident happened and she was petting the dogs, you told her it was not a good idea to do that. Is that true? A Yes. Q And why did you do that? A Why did I do that? 44 li 1. 1. 14 15 16 17 18 19 20 21 22 23 24 25 1 Q Yes. Did she ask why? 2 A I feel it's redundant. Forgive me. I'm not 3 trying to be smart. But, it seems redundant, so I had to 4 hesitate there. 5 I told her basically for the same reason that I 5 was concerned about that type of animal being high-strung 7 in a new area around people he didn't know. He definitely 3 didn't know her. I didn't know her. Q And, from what you could tell, did she i understand that instruction when you told her that? Did she appear to understand that? A I believe so. Yes. Q Did she ask anymore questions about it? A About the dogs? No. I think we had to try to have a casual brief conversation of being neighborly, but I don't think there was a lengthy conversation about the dogs at that point in time. No. Q Did you ever have any conversation with Ms. Hurley about Akitas in general, about the breed of dog? A I can't remember if I did or not on that. No. 45 Q Now, as I understand it there was some type of District Justice hearing? A Yes. Q What was that about? ?Vwo 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A First of all, let me explain that I'm not a lawyer. So I'm going to give you my point of view legally about that. Q Right. A That was to find out whether or not I was liable for not taking care of my dog properly, and it was a hearing on whether or not he was considered a vicious animal. That's my understanding. Q Where did that take place? A The District Justice office right behind the new Court House in Carlisle, off the square. Q And did you testify? A Yes. Q Who else do you remember testified? A I believe Donna did. I know I did. And to tell you the truth--and forgive me, because other than my concern for Donna because of her condition--I didn't pay a whole lot of attention to anybody else in the room. Q Was there a dog enforcement officer involved? A Yes, there was. Q Did anyone testify at that hearing who claimed that the dog had ever bitten someone prior to this incident? A No. Q Was there a court reporter there taking down 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what people were testifying to? A With the testimony I just gave you, I can't remember exactly who was in the room. I know I was upset over the fact. This is when I first saw Donna and her scars and stuff like that. I don't remember. I can't remember a lot of that. Q What was the outcome of that hearing? A Well, I guess I was kind of cleared on the did I do anything wrong issue. He was considered, for the first time, I guess vicious, but not that he was in the past. And they weren't going to force me to put him down, but I did voluntarily. That's what I remember of it. Q So he was adjudicated to be a dangerous dog at that point? A Up to that point. I believe it was considered up to that point. But, because of the severity of things, I think from that point forward, she was saying that he'd be on record of this. Q And you'd have to have a mussel on him when you took him out? A Right. There was regulations that i had to follow. And I voluntarily chose to put him down, because I don't have animals that do that. Q Since this incident, and I understand there was some publicity in the newspaper about it, has anyone 47 f i 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L contacted you at any time who claimed that your dog had ever bitten them, that this Akita had ever bitten them? i A Somebody contacted me? Q Yes. A No. Q Since this incident was publicized did anybody ever say that Akita did it to me before also? A No, nobody has called me and come forward or said. No. MR. STATLER: Alright. That's all the questions that I have. MR. BUCKLEY: Mr. Berdanier, one quick question. REDIRECT EXAMINATION BY MR. BUCKLEY: Q Were there any other dogs in the litter that Hoss was a part of that had problems? A I don't know. I do not know the answer to that question. I purchased him from a breeder that I never met prior to this, so I don't know where the other ones went or anything like that, and did not do any research on that issue. Q Do you recall having a conversation at the District Justice's office with a gentleman by the first name of Dale, who had also been bitten, who worked at the 48 ?Nd 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 War College? A I believe I did. The gentleman who I considered a hero for jumping in the middle of it. MR. STATLER: For the record, we're talking about bitten during the same incident as Ms. Hurley? MR. BERDANIER: Yes. BY MR. BUCKLEY: A The gentleman who came along and helped her. Yes, I do remember. Yes. Q Do you remember having a conversation with him concerning an Akita that had bitten other people previous to that? A I remember a conversation I had was about my other Akita, and it was specifically that he never bit anybody. He only bit other dogs. I had this other Akita until he died of a heart attack from old age. He was the most loving-- People that didn't know him could walk up to him, do all kinds of stuff. My mother met him in the night. He was black. She tripped over him literally, so basically kicked him, which would get a lot of dogs riled up. Loved him. But, the tendencies I saw in the breed was they did have an aggressive tendency, but it was toward other dogs. 49 ,M -1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If I had talked about Akitas and the aggression, it was that issue with the first Akita I had. Because he was so great, that's why I got a second Akita. The second one just didn't turn out to be the same. MR. BUCKLEY: That's all I have. RECROSS EXAMINATION BY MR. STATLER: Q Did Hoss ever bite any other dogs? A No. Actually Hoss never showed those tendencies to attack other dogs. So there was the difference between the two. MR. STATLER: Okay. Thank you. MR. BUCKLEY: No questions. (Concluded at 4:45 p.m.) 50 1 2 3 4 5 6 7 8 9 10 11 12 3 .4 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATION I, CHERYL FARMER DONOVAN, a Registered Professional Reporter and Notary Public, certify that the foregoing is a true and accurate transcript of the deposition of Craig Berdanier, who was first duly sworn by me at the place and on the date hereinbefore set forth. I further certify that I am neither attorney nor counsel for, nor related to or employed by, any of the parties to the action in which this deposition is taken, and further that I am not a relative or employee of any attorney or counsel employed in this case, nor am I financially interested in the action. GLP uI? Z l K e c? 6Ito do r.J Registe ed Professional Reporter Notary Public Notary Public, Cumberland County My Commission Expires July 23, 2003 (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) 51 DONNA K. HURLEY, Plaintiff: V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED DEPOSITION OF: JAMBS J. COLLINS TAKEN BY: BEFORE: DATE: PLACE: 0 Ir . 4 P1 n aintzff Cheryl Farner Donovan, RPR-Notary c- . L? .n .u Friday, January 12, 2001, 3:00 p.m. Law Offices of Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 APPEARANCES: LAW OFFICES OF JOSEPH D. BUCKLEY, ESQUIRE BY: JOSEPH D. BUCKLEY, ESQUIRE 1237 Holly Pike Carlisle, PA 17013 FOR - PLAINTIFF GOLDBERG, KATZMAN & SHIPMAN, P.C. BY: JOHN A. STATLER, ESQUIRE 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 FOR - DEFENDANT JAMES J. COLLINS COPY CHERYL FARNER DONOVAN w.w v Registered Professional Court Reporter 305 Bullshead Road Newvineville, PA 17241 Phone (717) 776.3515 Courtroom & Free-lance Reporting • Experience Since 1975 I N D E X s E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WITNESS DIRECT EXAMINATION CROSS James J. Collins 3 33 E X H I B I T S MARKED & RECEIVED 23 V PLAINTIFF'S No. 1 - Residential lease agreement RD 34 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATIONS (It is stipulated by and between counsel for the respective parties that the reading, signing and sealing of the deposition is waived; and that all objections, except as to the form of the question, are reserved until the time of trial.) (Convened at 3:20 p.m.) Whereupon, JAMES J. COLLINS having been first duly sworn, according to law, testified as follows: DIRECT EXAMINATION BY MR. BUCKLEY: Q Jim, could you give your full name for the record? A James J. Collins. Q And your current address? A 12 Hamilton Road, Boiling Springs. Q My name is Joe Buckley. I'm an attorney and I represent Donna Hurley in a matter which involved a dog bite against yourself and Mr. Berdanier. I'm going to be asking you a series of questions. A couple of things I would like: If you don't 3 1 2 3 4 5 6 7 8 9 10 11 12 13 ?j 14 15 16 17 18 19 20 21 22 23 24 25 understand one of my questions, don't answer it. Just stop me and say, Joe, I don't understand. Could you please explain it? Okay? A Okay. Q If you don't hear something that I ask, don't answer the question. Say, Joe, I didn't hear you properly. Could you please repeat it? Is that agreed upon? A Sure. Q Also, if I'm asking you a question, please try not to answer until I'm finished asking the question. And, again, I'll attempt to wait until you're finished answering the question before I ask you another one. Okay? A Alright. Q How are you currently employed? A I'm a self-employed real estate broker. Q Do you act as a landlord? A Yes. Q And how many properties do you own which you lease? A Four, five. Q Five separate properties? A Yes. Q Now, of these five separate properties, are they 4 e' ) ,w^ ?.l 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 multiple units or single units? A A mix. Q Are they commercial or residential? A Mixed. Q Of that mix, how many are commercial and how many are residential? A Two commercial, three residential. Q Now, of the three residential, how many units are within those three properties? A Nine. Q Now, of those nine properties which you own, do you own them individually or do you own them with your spouse? A Individually. Q I'm sorry. Are you married? A No. I have one that's still in both names, but our agreement is it's mine. If you check the court house records it's in two names out of the marriage, but it's totally mine. Q Are you presently divorced or separated? A Divorced. Q When were you divorced? A Two years ago in May. Q The property located at 403 North Hanover Street, do you own that property? '?-? 1 5 '''1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q And is that in your name only? A Yes. Q When did you purchase that property? A I'm not sure. January or February of 199. Q And from whom did you purchase that? Do you recall? A Daniel Urban. Q For what use was that property prior to you purchasing it? A office downstairs, residential upstairs. Q Was it Kirby vacuum cleaners downstairs? A Yes. Q Was there a tenant in there when you purchased the property? A Urban was downstairs. There was a tenant upstairs, but by the time I settled on it he'd moved out, so it was vacant. Q How long did Urban stay in the commercial space? A He vacated when settled January or February. I'm not sure. Q So when you took possession then both the commercial and the residential spaces were vacant? ti%. 1 6 101 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Prior to 1999 how many properties did you have at that point? Let me rephrase that. Did you have the three residential and one commercial at that point? A Yes. Q Thus the 403 North Hanover Street property you characterized before as one commercial? A It's kind of a combination, but I mean it's not zoned commercial. It is an office building but it's in the residential district. Q And you currently have your own business in there? A Correct. Q Now, prior to 1999 how long had you been a landlord of any kind? A I'm guessing 15, 17 years. Q Now, during the course of the 15, 17 years prior to 1999, approximately how many tenants had you had in your various properties? A To tell the truth I really don't know, because I have a lot of students that would change sometimes yearly at Shippensburg. So I don't really know. Q Would it be more than 20? A Over the 15 year period? 1.J 1 7 nY° i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Yes. A 20 different tenants? Q Yes. A I don't think so. I don't think it would be. Q During the 15 years that you've been a landlord, you haven't had more than 20 different tenants in all of your properties? A I'd have to go back and do a search, but maybe 15 to 20. To tell you the truth, I don't track them. Q Now, when you have a tenant do you have a tenancy with them verbally or do you have a written tenancy? A Written lease. Q A written lease. Now, do you use a standard printed lease or did you have a lease developed for yourself? A Kind of a combination. Q When you say combination, what do you mean? A I had one developed and then I changed it or deleted some things, added some things. Q Now, did you develop this lease yourself or did you have help developing it, if you recall? A I had help developing it. Q And who helped you develop the lease? u 1 8 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I think it was Michael Hanft. I'm not exactly sure if he was the one. Q Okay. Now, during the 15, 17 years that you've had leases with people, how many of your tenants have had dogs? A Maybe five. Q Now, of the five people that have had dogs, what type of dogs have they had? A I don't know at all. Q You don't know at all? A No. What type of dog? What breed of dog, you're asking? Q Yes. A I don't know. Q When someone is leasing a property from you that had a dog, of these five people that you don't know, you don't ask them what type of dog they have? A They would like tell me weight-wise, but I don't ask what type. No. Q Could you give me the names of the people who had dogs in your apartments? A I'd have to dig it up. I don't really know other than Craig Berdanier obviously is one. Jennifer Wimer would be another. Q Jennifer Wimer. Why did you remember her? 9 n (i vft?l 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 A That was the last tenant. That's how I remember. She just moved out. Q And do you require anything special for people that have dogs? A As far as? Q Security deposit, damage deposit? A No. Q Where did Jennifer Wimer reside? A 119 South Prince Street, Shippensburg. Q What type of property is that? A It's a five unit. Q And you don't know what type of dog she had? A No. Q Do you know what color it was? A A light brown. Between a white and a brown. Q You'd seen the dog before? A Yes. Q Did you see the dog prior to her moving in? A No. Q You don't request to see the animal before someone moves in? A No. Q Did Jennifer Wimer have the animal before she moved into your apartment, or did she obtain the animal 10 I after she had moved in? 2 A She had it prior to. 3 Q Prior to renting to Jennifer Wimer, did she give 4 you references? 5 A Credit references. 6 Q Did she give you references of former landlords? 7 A Yes. 8 Q Did you check those references? 9 A Yes. 10 Q Did you ask them about the dog that she had had 11 previously? 12 A No. q ro? 13 Q You're saying you did not ask? 14 A Not specifically about the dog. 15 Q Who was her prior landlord? 16 A I don't know. 17 Q Would you have that information? 18 A I should. 19 Q Of the other people that you don't remember 20 their names, but would it have been your practice to call 21 former landlords regarding the tenant? 22 A We try to if there are some. 23 Q You ask how they were, if they did any damage to 24 the property, if they pay their rent on time, those 25 things? J 11 '~1 `. I a 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q But, you're saying if you knew someone had a dog and they wanted to bring the dog in, you wouldn't ask any questions of the landlord about the dog? A I asked them what size, if it's large, small. I mean like a Saint Bernard, large, big dog. Q But, would you ask the old landlord, did the dog crap all over the yard, did it--? A No. Q You wouldn't care. You wouldn't care about that? A I asked how the tenant took care of the property, and from that I can assume that if there was a problem with the dog they may have said. But, I don't specifically say did the dog cause a problem. Q Did you require your tenants to carry any insurance? A It's in their lease that they're to carry insurance. Yes. Q And if someone has a dog do you make sure that they carry the insurance? A Just that it's in the lease they should have the insurance. They don't send me a copy. They just said from the lease that I agree to get insurance. 12 A F c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L Q You don't do a follow-up to make sure they have ? gotten the insurance? A Not in the past. Q Do you do it now? A Yes. Q How did you meet Mr. Berdanier? A He came into my office looking to purchase a home. Q And at that time your office was on South Hanover Street? A Yes. Q And where was he residing at that time? A A place on Petersburg Road. Q Tell me about the meeting. What did you say and what did he say? A I don't really recall other than he was looking for a place. I think he was having problems with his current landlord or sales group. I'm not sure of the details of that. He may be buying a house on a sales agreement and the landlord may have been taking it back. I don't know the details of that. Actually was looking for something, I guess, for his aunt, his aunt or grandmother, I'm not sure, to purchase. Q He was looking to purchase a home for a third 13 .-1 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 party, a family member? 2 A I think a third party family member was going to 3 help him buy it. 4 Q And when did it come about that he would become 5 your tenant? How did that come about? 6 A When he had notice he had to vacate his house, 7 so I let him rent this building until we found a place for 8 him to purchase. Q So when you met Mr. Berdanier it was that he was going to purchase a home and that you would help him procure a rental unit until that time? A No. I would just help him procure a home or help a family member procure a home for him or with him. That's it. Q This took place at this first meeting that he was going to rent from you? A No. Q When did that take place? How did that come about that he rented? A We started looking at homes and did not find one that suited. Q What did he want in a home? What was he looking for? A A farm house. Q And why was that? 14 c 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A He had horses and wanted a place to be able to keep the horses. Q Did he also tell you that he needed a place where his dogs could run? A I don't recall that. Q What places did you show him? A Places around Carlisle. I don't know exactly which ones we did look at. Q What size of properties were you looking at? A Generally had a couple acres. Usually try to look for an outbuilding for the horses. Q When did you become aware that he owned two dogs? A I'm not sure. Sometime it came up during our conversation, but I don't really know exactly when he told me that. Q So sometime prior to him renting from you you knew that he had two dogs? A Yes. Q And did you visit where he was residing in on the Petersburg Road? A Not since he moved in there. No. I was in that property prior to him moving in. Q So you knew the physical characteristics of that 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 property? A Yes. Q And how many acres did that property have? A I think five. Q And how long had he resided there, if you know? A I don't know. Q Do you know where he resided prior to that? A No. Q During the course of the time that you were showing him homes, who brought up the fact that he could rent from you, that you had a property for rent for him? A I did. Q Can you tell us about that? What was that conversation? A I don't recall it in detail, but the essence was that he needed to find a place for a short period of time. I had a place that was vacant and this may work out for you for a couple months. I need to be in there by a certain date. Q And did you talk about terms on what rent would be? A Yes. Q And what were the terms? A I don't recall. I mean, he did some work for 16 e?) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me. That took care of some of the rent. I let him do some work around to offset some of the rent. Q Was it your agreement with him that you would write down that it would be so much monthly rent money, but he would in fact do work for you instead, in lieu of paying you the rent? A No. He had a regular lease and he would just get credit for some work that he did. Q Prior to him having moved into there, was it your agreement with him that he would be doing work for you? A No. No, I don't think so. No. Q Now, I have a copy of your lease and I believe it's dated the 1st of April 199. A Okay. Q Did he have to pay a security deposit for that? A No. I don't think I collected a security deposit from him. As he was starting to get more serious, I guess, about moving in, things came up and I think he was short on funds and things like that. And I think that's when we decided there's some work that could be done there and maybe he could take care of that instead. Q And that's at 403 there was work to be done? %?/ 1 17 I c E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Now, was that in the commercial spot or in the residential? A Residential, the deck upstairs. Q So he was to build a deck for you? A Yes. Q And what side of the property is that on, the deck on? A Well, it would be on the Kerr's Avenue side. Q Is that the north side, south, east, west? A I guess that would be the south. Q What was the condition of the deck when he moved in? A Well, it was deteriorating. Q What did you do to make sure he was doing his job on working on the deck? A Periodically go out there and look at it. Q How often would you go out there? A Maybe two or three times. Q Now, in April when you leased him the property, you were aware that he had two dogs. Correct? A Yes. Q And what type of dogs were they? A I didn't know. Q Could you describe them to me? It 1 18 ''1 f c 1c 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A One sort of like, I think I only saw it once or ? twice, sort of a shorthaired police dog. The other was ! sort of a longhaired white and brown. G Q Now, did you know what breeds they were? i A No. I don't know dogs. I know some. Q Do you own a dog? A No. Q Now, how was he going to keep these dogs while he was at this apartment? A He built a pen on the side of the building, which would be, I guess, the east side between the building and the fence that was already there. And also inside he showed a vinyl area he was going to keep them inside as well. Q You say a fence. Where was there a fence on the property? A Actually it wasn't my fence, it's a neighbor's fence between the two properties. And my building is sort of a wedge shape. My building takes up one side. The fence is on the other. And he was to put a like a wooden fence, a snow fence or something across to close the triangle up. Q And during the times that you went to inspect the property, did you inspect to ensure that that fence was put up? 19 1 ?"kM+ `„J U 13 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A No. 2 Q Why was he to put this fence up? 3 A To tell you the truth, I don't know. 4 I guess to keep his dogs in there without letting them run i free. Q Was the fence ever put up? A I saw the wooden fence that he talked about putting up. I call it a snow fence, that the State used to use to stop snow drifts or whatever. Wire mesh with wooden slates that came in a roll. Q And where was this? A Across the back between the building and the wide part of the triangle. Q If I may, can I give you a piece of paper and a pen and ask you to draw for me just the shape of your lot and put the railroad track in as well? Hanover Street; the railroad tracks; Kerr's Alley; and where this fence that you saw put up was. A (Witness complied with request.) Q Jim, you've drawn a little sketch of the property lines. And is it your testimony that that backyard was entirely enclosed? A No. Q So it was open, the backyard was open to the railroad? 20 ''1 yam,,, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Other than whenever he had that wooden fence there. And in the front, there's a small opening in the front. In other words, the fence and the building don't come together in the front and didn't go together in the back. But, he had a wooden fence that would go across the back of the building to the chain link fence, connecting from the building touching my building and touching the chain link fence. Q Well, could an animal get out of that area through these openings? MR. STATLER: Object to the form. BY MR. BUCKLEY: A The front, definitely could. The front, maybe it's still that way today, three, four foot wide opening there. Q Could it have been that the fence that you saw was really a rope tied against four different posts rather than a snow barrier fence, which you've described? A I thought it was a snow barrier fence. Q Did you inspect this fence? A No. Q But, you required him to put the fence up but you did not inspect it? A I didn't require him to put the fence up. He .% 1 21 r'1 f c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 just said he was going to put it up. 2 Q So you had no objections to him having a dog 3 outside the property and no fence being there. Is that E your testimony? A The dog was to be chained, roped, and kept inside as well. They weren't to run free outside. Q But you made no requirement that the backyard be fenced? A Nothing in writing. No, just verbal that he was going to fence it. Q But you didn't require it? A No. Q What type of neighborhood is that neighborhood where 403 is located, generally speaking? A Mostly residential. Q Do you know how many children walk up and down the railroad track and the right-of-way there during the day? A No. Q You have your office there now. Correct? A Now I do. Yes. Q Today is that area used for people to walk up and down? A The railr oad track? Q The alley there where the railroad track is? 22 ?1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I have seen people walking up and down the railroad track, but there really isn't an alley back there other than Kerr's Avenue. Q On the north side of the railroad track, what is located on the north side of the railroad track? A I'd say a parking lot. Q And where does that go? How far back does it go? A I don't know how far back. I can just see the cars and stuff parked there. I've never been back through there. Q Does it turn to the left and go and connect to another road up there? A I don't know. Q So you're not aware of the alley that's right there? A No. Q But, you do see people walking that area on the railroad tracks? A On the tracks. Q Prior to your office being there and you purchasing that, you didn't know that people utilized that area? A No. (Whereupon, Plaintiff's Exhibit No. 1 was marked ?/ 1 23 { i I for identification and received i n evidence.) 2 BY MR. BUCKLEY: 3 Q Jim, I'm going to show you what we'v 4 e marked as Exhibit P1. Is this the lease 5 you had with Mr. Berdanier? A Yes. 6 Q And, Paragraph 16 of the lease w l 7 f , ou d that? You read 8 A "Resident agrees that no pets shall b ? 9 e allowed on premises including visiting et 10 p s without Prior written consent of Owner." 11 Q Did you give prior written consent for 12 Mr. Berdanier to have his dogs there? 13 A Yes. 14 Q Is that on another document? is A It's under regulations. 16 Q Okay. 17 A No. 1. 18 Q Alright. 19 A No dog was lined out, and Craig had initialed 20 that. 21 Q I was going to ask what that meant. His 22 initials are there, so that 23 means that he could have a dog? 24 A Yes. 25 Q And I do see in here, in Paragraph 8, ems. 24 1.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that all residents are required to carry renters' insurance? A Yes. Q Now, did he pay the $800 a month for the month of April? A I'd have to go back and check. I'm not sure because he did some work, of which I added here at the bottom of this lease. Q You added to the bottom of the lease? A "Resident agrees to supply all labor to replace the steps & porch to the second story, remove all materials by April 30th, 1999." Q Was it completed? A Yes. Q It was? A Yes. Q Did he pay his rent for the next month? A I believe he did. Q Now, prior to him moving in, did you speak to his former landlord? A No. Q Was there a reason for that? A Basically because it was very temporary, wasn't a long term lease whatsoever. I was just helping the guy out. 25 1"1 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you run a credit check on him? A I'd have to check. Usually I do. Q But, you didn't check with his former landlord at the property on Petersburg Road or any other former landlord? A No. Q And the reason for that was? A Well, I knew he was getting--I don't know if evicted was the word or not--but I knew he had to move out from previously where he was at. And, the fact I was hunting for a house for him, I figured-- I'm not sure, he may have even had a contract going by the time he leased, on a new house. There was just that gap in there where he didn't have a place to go, so I tried to work out something with him. Q Did you speak with anyone about animal behavior of taking a dog from a farm environment, being on an area of over four acres, and placing them in a residential community with hardly any backyard? A No. Q Did you speak with anyone, prior to leasing to Mr. Berdanier, about the propensities of Akita dogs? A No. Q Do you know what Akita dogs are bred for? 1 26 4 F 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q Can you name for me, or have you ever discussed with anyone, the top five dogs known for attacking people? A No. Q Did you see the facility or the dog pen that he had built for his dog? MR. STATLER: I just need to not necessarily object, but which facility and which dog? BY MR. BUCKLEY: Q Any dog at this property. A I saw inside where he showed me the vinyl area where the dogs would be staying while they're inside. Q While they were inside? A Yes. Q Did he keep them penned inside? A They had an area inside. Yes. Q Could you describe that for me? A Basically was a foyer and it had vinyl flooring. Q And they were to be kept there when? A Whenever he wanted to bring them inside. Q To your knowledge, what was his business? What did he do, Mr. Berdanier? A Construction work. Q When he would leave the property, do you know 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what would happen with the dogs? A Not all the time. No. Q Did he discuss with you what he would be doing with the dogs when he left the property? A I remember some conversation where the dogs were going to be. I believe he said they were going to be inside and then outside. I'm not exactly sure which was which, whether he was there or not there, which way it was going to be, inside or outside. But I knew he was going to keep them both. Q So at some point in time you knew that the dogs would be kept housed inside, and then at other times they would be housed outside, but you weren't certain as to where he would be in that given time? A Right. Q You said you saw the area that he was going to keep them inside. Did you see the area that he had had for them outside? A On the sketch there. Q Did he put any signs up out there? A I don't recall any until after I saw something in the paper about a dog box there. Q Is it your testimony that you don't remember seeing it or you don't remember seeing it until after you saw the picture? ?? 1 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't remember seeing it prior to seeing the picture. Q And what type of sign was that that you saw? A Beware of dog. Q And what did that mean? MR. STATLER: Object to the form. BY MR. BUCKLEY: Q Did you ask Mr. Berdanier at any time why he would have a sign such as that? A No. I didn't see it prior to. Q You had testified earlier that there was a fence, snow fence, you believe he put up there. When you saw and inspected that, saw it. A Yes. Q He did not have the dog house built at that time? A I think there was a dog house there. Yes. I don't recall a sign. Q If you had seen a sign, let's just assume this for a second, would you have questioned him on that sign? MR. STATLER: Object to the form. BY MR. BUCKLEY: Q You can still answer. He just objected to the form. 29 `J E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I really don't know that I would. I mean, I see burglar alarm signs on houses and I know they're not alarmed. I know a lot of people put signs up just to keep people out. Q So it's your testimony that you're not certain as to whether that sign was up prior to that? A Yes. MR. STATLER: I think he said he didn't remember seeing it. BY MR. BUCKLEY: Q When you walk down the street in a new neighborhood and you see a sign that says beware of dog on a dog house, what does that mean to you? MR. STATLER: I'll object to the form. BY MR. BUCKLEY: A I'd assume there's a dog around. Q What type of dog would you assume is there? A I don't know, I mean. I have no idea. I've seen them with little chihuahuas, that's little dogs, poodles. I don't know. I'm not a dog person. I don't go near dogs that much. I don't know. I just don't. I'm not a dog lover. I don't hate them, but I don't go around them. Q Well, you're in real estate and you go to a lot of people's farms and show properties. Are there dogs on 30 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 those farms? A Some. Q Some. Do some of them have signs up that say beware? A Yes. Q Of those that you see, what type of dogs are they? A All types, friendly. Some that are barking. Q How long did Mr. Berdanier continue to be a tenant? A I believe until September. Q And what type of tenant was he? A As far as? Q Did he pay on time? A No. Q What months didn't he pay, or did he not pay at all, or what? A He paid eventually except for a dispute the last week or two he was there. Q And did he do any further work for you? Was there more exchange done or was it just the deck? A No, just the deck. Q Did you get calls from any of the neighbors relative to that dog running loose? A No. 1*. 1 31 r1 s i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you talk with any of the neighbors? A No. Q Have you ever talked with any of the neighbors up there? A Yes. Q Have you talked to them subsequent to this incident, since you've moved in? A Yes. Q And have any of them told you that this dog would run loose up there? A No. Q Did any of them tell you anything about this dog? A No. Q Did you ever speak to Randie Thomas? A What is his address? If I knew his address maybe. I don't know names. Q It's a girl. A Oh, sorry. Q That's okay. Randie Thomas. She's at 29 Kerr's Avenue, two doors up. A Yes. I've talked to them because they share my parking lot there and park in front of their house. I know they have a dog. Q You've never discussed this incident with them? U 1 32 101 e F S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L A Not that I recall. Afterwards or before? Q Afterwards. A If I did, it wasn't in too much detail. Might have said something about being concerned about traffic through the property there. Q Now, subsequent to this incident, have you changed any of your policies with your lease, other than the requirement to make sure they have renters' insurance? A Not so much right in the lease. No. My lease really hasn't changed much. Q Do you have any other policies about dogs now? A Nothing in writing. I still have the no dogs allowed, if somebody has a dog. Q So you more or less enforce that, the no dogs? A Right. MR. BUCKLEY: I don't have anything further. MR. STATLER: Just a couple questions for you, Jim. CROSS EXAMINATION BY MR. STATLER: Q Did you have any knowledge of any prior incidents involving this Akita in which it had bitten anybody? 33 '-1 1 A No. 2 Q Did Mr. Berdanier tell you anything about this 3 dog, about its behavior or any tendencies? 4 A No. 5 Q Did you have any knowledge before this incident 6 about the dog biting anybody? 7 A No. 8 Q Did Mr. Berdanier or anybody tell you, prior to 9 this incident, that the dog was aggressive? 10 A No. it Q Did you know anything about this dog, from your 12 own observation, that led you to believe the dog was 13 aggressive or dangerous? 14 A No. 15 MR. STATLER: That's all. 16 MR. BUCKLEY: Just a couple. 17 REDIRECT EXAMINATION 18 BY MR. BUCKLEY: 19 Q You never discussed with Mr. Berdanier the 20 fact that the dog had been aggressive and attacked other 21 dogs? 22 MR. STATLER: Object to the form. 23 BY MR. BUCKLEY: 24 A No. 25 Q Did you ever have a discussion with Mr. 34 V 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Berdanier regarding this dog attacking other dogs? A No. Q Have you ever had a discussion with Mr. Berdanier regarding how his dog would react being outside the farm? A No. Q Did you ever talk to anybody about how that dog would react or dogs react when they're taken away from a farm? A No. MR. BUCKLEY: I have nothing further. (Concluded at 4:10 p.m.) 35 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATION I, CHERYL FARNER DONOVAN, a Registered Professional Reporter and Notary Public, certify that the foregoing is a true and accurate transcript of the deposition of James J. Collins, who was first duly sworn by me at the place and on the date hereinbefore set forth. I further certify that I am neither attorney nor counsel for, nor related to or employed by, any of the parties to the action in which this deposition is taken, and further that I am not a relative or employee of any attorney or counsel employed in this case, nor am I financially interested in the action. Registered Professional Reporter Notary Public Notary Public, Cumberland County My Commission Expires July 23, 2003 (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) 111? 1 36 06/05/00 YON 15:14 FAX j THIS !,EASE, m: BETWEEN Owner, AN-- RESIDENTIAL LRAaR AGREMMM .a his IyrN day of 192L r?S rr .!'i.//?.+x the and severally: That one or more, hereinafter called the ",promisi beginning on the /sr` day of ending on the, fw dap the rent of 0 004 leases to Resident and the letter term of at .. "' Dollars (' ,c ) each on the /S day of each month in advance. This letting is upon the following terms and conditions: .,:. per-, Rosidoht agrasrv to pay Owhar a security deposit of"/ 1' Dollars ($ --^" ) upon signing of th s agreement with receipt herein acknowledged paid by 2. Resident agrees to pay to Owner or Agent the monthly rate set forth above on the day of each month, in advance, at the Rental Office of Owner or Agent or such other place am owner or Agent may from time to time request and further agrees to pay th8 _ first and last months rent at the time of occupancy. Resident also agrees to pay a late paymenl: charge to ten (hq) percent per month on the amount of rent in default, on the 01i day of each,sonth which shall be included with that months renal payment. if late rental payment. is not reeei4ed by the ?.I' , of each month (rent plus late payment charge), owner or Agent will reserve the right to proceed with the necessary legal authorities to collect same. IL any cheek for rent is returned to owner or Agent or insufficient funds or other reason, late charges will continue until rent is actually paid by Rocident. 70 Owner or Agent may terminate this lease without cause by giving thirty (30) days priox'writtan notice to Resident, but JLq termination.by owner or Agent without cause may take effect during the one-year term of the leaso;, 4. Resident agrees to use the apartment only as the personal residence of Resident andmthe'SYAchildren, and not to assign this lease or sublet the apartment. Resident agrees not to alter or make additions to the apartment, its paintings -its•fixturew, AQ change locks without owner's or Agent's written consent. Resident agrees not to.do or to permit.any act or. practice injurious to.the building, which may affect the insurance on the building, or which is contrary to any law. HARRISBURD APR 10 1.UW A YON 15:15 FAX 5. Resident understands that the equipment for utilities to serve the remises is inq,a.JJo .t4Vr9LM and Resident agrees that the•cost of the utilities -shall?ba& paid as follows: Heating for promises to be paid by Heating of water for premises to be paid by Electricity for premises to• be paid by can for promisoa to be paid by Sower charge to be paid by Water consumption to be paid by Trash removal to be paid by Cable Television to be, paid.. .by. Telephone to be paid by Resident agrees that owner— or Agent shall have the right temporarily to stop the service of electricity, or water, in the event of accident affecting the same or to facilitate repairs or alterations made in the premises or elsewhere in owner's or Agent's property. Owner or Agent iahall have no liability for failure to supply heat, air conditioning, hot water or other. services or utilities when sack failure shall be beyond owner's or Agent's control or to :,enable Owner or Agent to service or repair installations., U005 •61 Resident agra are in the use, of the apartment,'thie•.appliances"therein, and all other parts or owner's or Agent's property, to give notice to Owner or Agent of the need for repair thereof, and to nnv for all.renn4rs to the apartment, Resent -met. orc of Resident's gamily. o- his visitors, owner or Agent will make necessary repairs to the apartment and the appliances therein within a reasonable time 'after Resident notifies owner or Agent of thi'need for repairs. RANGE: serial number REFRIGERATOR: serial'number OTHER APPLIANCES: 7, Resident agrees that owner or Agent shall not be liable for property damage -or personal injury occurring, in'-the apartment or elsewhere on Owner's or Agentto .property unless the damage or injury results directly from owner's or Agent's negligence. a. All residents are required to carry "renters insurance" for the promises with an amount equal or,greater to the. value of " all personal belongings of the resident. Insurgr._ amount 1. ' s. 7, 4• HARRISBURG s. APR 10 ku,uo f ,do YON 15:15 PAX 1 . 10006 6. 7. s. x!, due to oircumsti aeVbayond the ownerfs or Agentfs control, the premises shall not be ready for occupancy at the beginning of the term, this lease shall nevertheless remain in effect and the rent` shall be abated proportionately, until the premiass are so ready, and owner or Agent shall not be liable for delays provided, that if the premises shall not he -for occupancy sixty (60) days after said beginning, Resident shall have the right to cancel this lease by written notice delivered to Owner or Agent at any time after the expiration of said sixty (60) days, but not after the premises are. ready for occupancy, Resident's remedy shall be limited to such right of cancellation, neither party shall have any further right against the other, save the owner or Agent shall repay any deposits made by Resident. If Resident shall occupy' the premises prior to the beginning of the tern, such occupancy shall be subject to the terms of thits.leasef and Resident shall pay prior to occupying the premises rent for the iii period !rest the date of.,such occupancy to the beginning of said,-term. 10. If the -apartment is damaged by fire or other casualty, owner or Agent shall repair: it within a reasonable time and rent shall continue unless the casualty renders the apartment untenantable,' in which case this lease shall terminate and Resident, upon payment of all to the date the apartment is , surrendered, shall not'b6MI.i? a nt oeany further rout. if only a portion of the apartment is rendered untanantable, the Resident aay.,, with mutual agreement of owner or Agent, alternatively choose to continue in possession and shall. thereupon be entitled•to-a pro rata reduction in the --amount of rent, - provided that election to . proceed under this oiternative shall not be a waiver of the Resident's right to terminate the lease if repairs are not made within a reasonable time. 11. Owner or Agent, or any person authorized by his, with the prior specific consent of Resident, which consent shall not be unreasonable withheld, shall have the right to enter the apartment at reasonable times to inspect, make repairs or alterations as needed, to enforce this lease, and, after notice of termination is given, to show the apartment 'to prospective residents; provided however, that Resident's consent shall not be necessary in case of saergeney. 12. Resident agrees "to pay the. security deposit set forth above prior to occupancy of the apartment. The security deposit shall be held..by owner or Agent as security for th..paymont of all rent and other amounts due ;from Resident to Owner or Agent, for the Resident's performance _gt;Aiswiasas}.....and against any damages caused to the apartment or any othes part of Owner's or Agent's property by Resident, his family and guests. Resident understands HARRISBURG APR 10 200E ,0 YON 15:16 FAX to UU'/ c, within thirty (30) days following termination at this iease and/or physically vacating of apartment, Owner or Agent shall return the security deposit, loss any deductions from it on account of amounts owed by Resident to Owner or Agent, to Resident rbvsrdinkk vavable to all persons signing this lease mailed to Lift of period, owner or the premises opo< Resident. in tho lease and •' If :keys are not returnso witnin rnas rums t will have the right to change the locks on d in the lease and charge such look change to 13. This lease confers no rights on Resident to use for any purpoas any of the property of owner or Agent other than the interior of the apartment hereby leased, except the walks and roadways giving access thereto and such other areas, if any, as Owner 'or Agent may from time to time designate for the use of residents. wheii the use by Resident of any other portion of Owner's or Ageotts property s permitted, it shall be subject to the rules and rdgulationsemstabk-Uhsd-by owner or Agent. 14. if Resident shall fail to pay rent, or any.other sum, to . owner or Agent when duet shall default in any other provisions of this leaser or shall remove or attempt to remove his' pobsassioris from the premises before paying to 'owner or Agent all runt due to this and of the lease term, owner or Agent, in addition to all other remedies by law, mays (a) discontinue utility service provided by owners (b) terminate tide leaser (e) bring an action or recover possession of the premisest (d) bring an'act:ion to recover the whole balance of the rent and other charges due heroin tinder, of whatever kind and nature, together with any and all consequential damages caused by Resident's default, including reasonable attorney's fees and court costs. 15. Resident agrees to waive his right to any interest on security deposits held by the owner. 16. Resident agrees to o pets shall be allowed on premises including visiting pets without prior written consent of the owner.. 17. Resident agrees that all security deposits as well as the right to taka possession of the promises will be forfeited it Resident does not take possession of the lease apartment/house within seven (7) days of tho beginning of the lease term. Prior arrangements may be made with the owner in writing prior to the HARRISBURG APR 10 2000 A YON 15:17 FAX first day of the lease. IS. Resident agrees to waive his right to a thirty (30) day notice of eviction and agrees that -Owner may begin proceedings to remove Resident from premises immediately upon notification to Resident in writing. 19. RESIDENT AGREES THAT BE WILL COMPLY AND PROCURE COMPLIANCE OF VF•M.HERS OF HIS FAMILY, AND HIS GUESTS WITH THE OCCUPANCY REGULATIONS WJ1ICH - $D HEREON AND WHICH ARE ATTACHED. 20. This lease is subjuoc one aazrdinate to the lien of all mortgages now or at any time ;..rainattes planed upon any part of owner's or Agent'a property i?*ich includes the apartzent, to extensions or..ronewals thereof, and to all advanced new or hereafter made on the security thereof. Resident agrees, upon request, to execute such further instruments evidencing such subordination as owner or !•gant may request, and if Resident fails to do so, Owner or Agent • is empowered to do so in the name of • Resident: MMS AGREEMENT IS A LEGAY,LY BINDING COBTRACTf it YOU Do NOT ONDBBHTAND Mad AGREEMENT, PLEASE CONSULT AN ATTOMMY-AT-LAWI1 21. The tern "Resident" used herein shall refer collectively to all persons named above, and signing this lease as Resident, and the liability or each such person shall. be joint and several. Aldo signing on this lease shall be the parents or legal guardians of resident who by signing hereafter shall be liable, jointly and severally, for the entire lease herein. Notice given by Owner or Agent to any person nazw%d ae Reaidert . or by any such person to owner or Agent, shall hii3d ..f e• 1p (Sn'?s signing. this lease as. Resident. ' The term "P.ecidci ?:' sh;?7l..atso - refer to . any persons named' as beiro, executors,••-•ndn?inisLrators,,. eucoessors, or the respective parties hereto as 1,C they were in every case named and expressed. WITMS s 11008 -1 1. (SEAL) Rea nt (SEAL)., (SEAL) 888888#eat:faf8888,aaaa#*.aa,e3,e3;t+a,r+raaaaaaaaaataaaaaaaaaaaaaaaaaia (SEAL) Resident (g HE APH 10 wW JO YON 16:17 FAX woo 1. 9 arrrrraaaaaaaiaaaraaaaiaaaaaraaaaaaaaaaaaaaarrarraarisaaaiiaiaaaai (SEAL) Residentt (SEAL) . (SEAL) Intending to. be legally. bound, and. in consideration of the lease with the above Resident, the underaignea, jointly, and severally, hereby become surety to Owner or Agent for the performance or the lease by, Midept -n4 guarantees payment of all sums becoming owing to Owner or Agent by Resident. This agreement shall remain in effect throughout the term of the lease or any renewal thereof. The liability of the undersigned is absolute, continuing and unconditional and owner or Agent shall not be required to proceed against Resident or invoke any other remedy before proceedinij -against the undersigned. owner or Agent expressly agrees--to -notify the guarantor in the event of breach or default. • T REGULATIONS rope 1. , cat, other pet or, animal of any kind will be brought, V tted or kept in tLe apartment or elsewhere on the owner's rty. 2.• Resident(s) members of his (their) family, his (their) visitors and servants shall not at any. time, make any noise, do „ anything or conduct theinselves in any way which disturbs any other resident or interferes with the rights, comfort, or conveniences of any other resident. Musical or sound reproducing instruments or singing within the apartment shall be inaudible outsidanthowepartaent--between 11 o'clock each night and 9 o'clock the following morning.' 2. No resident shall place•qr permit to be placed or maintained any sign or advertising ritter or device or any roof aerial or other structure'in any window of the apartment or elsewhere in or upon the owner's property. "No resident shall place or permit prior consent or the owner or Agent. Damage to storm doors and windows due to negligence will be the responsibility of resident. 4. .. Resident shall use plumbing and electrical installations only for their intended puiposes and shall be fully responsible for the maintenance of ssume and for cleaning any stoppages in waste water lines. S. Maximum occupancys Plo more than X__ person(s) will be HARRISBURG APR 10 Low. / 00 YON 15:18 FAX WHO r permitted to ooolipy'the.,apartmant, such person(a) designated as 6. Resident(s) agree(s) that owner or Agent may change these regulations from tino to time as Lay be required to protect the apartment or Ownerts other property or add to resident= enjoyment of it. 7. Resident(s) are allowed only e- parking sphci(s) in apartment parking--lot. Multiple mnit•buildings where there are a limited number of parking spaces shall be on a first serve basis. 8.. No washer/dryer or-dishwasher will be permitted to be kept or used at premises. 9. Trash removal on the exterior of the building shall be the responsibility of ALL'; resident(s). At any time which the Owner deemsr+appropriate, an inspection way be made of the exterior of-the building. If two (2) or more of any of the following Atoms are ? exterior, EACH resident will '.be assassed a charge o $f 5q 00#which joust be included in the following months rental payment. RESIDENT(B) NAB (HAVE) READ T= AS0V2 REOIILATIONB. Owner will keep all utilities in ownerirname and resident will pay awrrez for utilities as per lease agreement by the due date oP the utility ooigany. OAHRISBURG S INITIALS ( ) ( ) ( ) ( ) ( ) ( ) ( ) ( ) ( ) DONNA K. HURLEY, Plaintiff: V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED DEPOSITION OF: DONNA R. HURLEY TAKEN BY: BEFORE: DATE: PLACE: I APPEARANCES: Defendant r - Cheryl Farner Donovan, RPR-Notary Friday, January 12, 2001, 2:00 p.m. Law Offices of Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 LAW OFFICES OF JOSEPH D. BUCKLEY, ESQUIRE BY: JOSEPH D. BUCKLEY, ESQUIRE 1237 Holly Pike Carlisle, PA 17013 FOR - PLAINTIFF GOLDBERG, KATZMAN & SHIPMAN, P.C. BY: JOHN A. STATLER, ESQUIRE 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 FOR - DEFENDANT JAMES J. COLLINS ORIGINAL YW) CHERYL FARNER DONOVAN ' Registered Professional Court Reporter 305 Bullshead Road Newvilte, PA 17241 Phone (717) 776-3515 i Courtroom & Free-lance Reporting • Experience Since 1975 ,-1 4 5 6 7 8 9 10 11 12 13 1 14 15 16 17 18 19 20 21 22 23 24 25 I N D E X WITNESS Donna K. Hurley DIRECT EXAMINATION 3 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATIONS (It is stipulated by and between counsel for the respective parties that the reading, signing and sealing of the deposition is waived; and that all objections, except as to the form of the question, are reserved until the time of trial.) (Convened at 2:04 p.m.) Whereupon, DONNA K. HURLEY having been first duly sworn, according to law, testified as follows: DIRECT EXAMINATION BY MR. STATLER: Q Would you tell us your full name, please? A Donna K. Hurley. Q And, Donna, where do you live? A 415 North Hanover Street in Carlisle. Q I was introduced to you a minute ago. My name is John Statler. I'm an attorney from Harrisburg and I represent James Collins, a defendant in a lawsuit that you have filed as a result of a dog bite incident, that I understand occurred in May of 1999? A Yes. ?VJ 1 3 r-, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And we're here today at your attorney's office to take your deposition, which means asking you questions under oath about circumstances of that incident and some related matters. I want to give you a couple of instructions to keep in mind throughout the deposition. First, if you don't understand a question that I ask you, tell me that you didn't understand the question or ask me to rephrase the question and I'll be glad to do that. Do you understand that? A Fine. Q The reason I'm telling you that is, if you answer a question today, I'm going to assume that you've understood the question. Is that fair? A Uh-huh. Q You also need to speak verbally. A I'm sorry. Yes. Q Say words in response to the questions. A Okay. Q If you don't know the answer to a question, it's alright to say, I don't know, if that's the truthful answer. If you don't remember something, it's alright to say, I don't remember. Basically I don't want you to guess at anything. Do you understand that? 4 ¦'- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q If you need to take a break for any reason to use the ladies room or to consult with your attorney, just let me know and I'll be glad to accommodate you. A Okay. Q Last instruction. Please let me finish my questions before you begin answering them. Similarly, if I cut you off at any time and don't allow you to completely finish your answer, please let me know that you didn't get a chance to finish. Alright? A Okay. Q How long have you lived at 415 North Hanover Street? A Oh, about 33 years. Q And who do you live there with? A Myself. Q Just by yourself? A Yes. Q Are you married? A No. Q Have you ever been married? A Yes. Q How many times? A Once. ?*„ d 1 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 i8 19 20 21 22 23 24 25 Q Did that marriage end in divorce? A Yes. Q Who were you married to and when? A Dennis E. Hurley from 1966 to about `76. Q Do you have any children? A Two. Q And what are their names and ages? A Dennis 33 and Christopher 31. Q where do they live? A Dennis lives on McBride Avenue, right down around the corner from my house, and Christopher lives in Bloserville. Q What is your date of birth? A 10/18/48. Q And your Social Security Number? A 206-36-0437. Q Last four numbers? A 0437. Q Are you currently employed? A Self-employed. Q And what do you do? A I'm a cosmetologist/hairdresser. I teach quilting and I have a full-time craft business. Q Cosmetologist and hairdresser. You teach quilting? u 1 6 A G fi 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q And you have a full-time craft business? A Yes. Q Were you employed in those same pursuits in May of 1999? A Yes. Q What's the name of your cosmetology business? A Donna Hurley Beauty Salon. Q And how long have you operated that? A 32, 33 years. Q Where is that located? A 415 North Hanover. Q And where do you teach quilting? A I teach quilting at Calico Corner in Carlisle. The Quilters' Gathering in Harrisburg; Mifflintown Extension Office; Perry County Extension office; and occasionally at guilds, freelance at guilds. Q Where do you have your craft business? A I travel mostly weekends. I'm out on the average of 38 weekends a year. Plus there's usually anywhere from day to four day shows. Q Do you have a separate name for the craft business? A Covered With Threads. 7 t.?.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Are either of your businesses, the beauty salon or the craft business, corporations? A No. Q They're both just trade names, fictitious names? A Exactly. Q And what kind of crafts? A I do quilted tablerunners basically. Q I think there has been some information supplied about your earnings for the last few years. We have your tax returns for 1997, 198 and 199. Do you have an estimate of your earnings for the Year 2000? A Not right now I don't. No. I'm still starting to put those numbers together. Q Do you know James Collins? A No, I've never met him. Q Have you ever talked to him? A No. Q Do you know of James Collins? A I know of him. I know he's a realtor. Q Prior to this dog bite incident, did you know that Mr. Collins was a realtor? A No. Q Have you ever heard his name before this 1 8 r?- i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 incident? A No. Q Are you aware of any statements that Mr. Collins made to anyone about this dog bite incident? A No. Q Are you aware of any statements that Mr. Collins made to anyone about the dog that was involved in the incident? A No. Q Do you have any information about any knowledge that Mr. Collins had about this dog, prior to the incident? A No. Q And when i say, do you have any information, that could be your own personal knowledge of his information or that somebody told you something about what Mr. Collins knew about this dog. Has anybody told you anything about that? A No. He just bought the property right around the same time that all this happened. Q Mr. Collins did? A Yes. Q Tell me about that. When you say the property, what property? A The property across the railroad tracks beside 9 me. 4 c 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So this was a neighboring property? A With a mutual driveway and the railroad tracks between us. So he was new in the neighborhood, you know, as an owner, property owner. Q And what is the address of the property you're talking about? A I'm not sure. I think it's 403, but I'm not even sure if that's right. Q 403 North Hanover Street? A That sounds right. Q Who was the prior owner of that property before Mr. Collins bought it? A I believe, but I'm not sure, someone with a sweeper business. Some type of-- Kirby Sweepers or one of the high-end sweeper companies, but I'm not even sure. I didn't know them either. Q The dog bite incident, that is alleged in your complaint, is May 4th, 1999. Was that the date of the incident? A I'm not sure what date it was. I thought it was the 16th of May. Q Okay. In your Complaint it alleges that it was May 17th of 1999? A It was a Monday. I know that. Whatever that `,? 1 10 r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Monday was. It was a Monday. I know that. I had a meeting to be to that night so I knew. (Off the record discussion.) BY MR. STATLER: Q While we were off the record we looked at a calendar for 1999 and we determined that May 17th was a Monday? A Right. Q Was that date that the accident happened? A Yes. Q Can you estimate for me how long, prior to May 17th, 1999, Mr. Collins bought the property at 403 North Hanover? A I really don't know how long before he actually had bought it. Q How long before May 17th, 1999, was there a tenant living there? A Maybe three or four weeks. I'm guessing at this point. It seems to me it was about that amount of time. Q And who was that tenant? A Craig Berdanier. Q Did you know Mr. Berdanier before he moved into the property at 403 North Hanover Street? A No. 11 i 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you know anything about him? A No. Q Do you know anybody who knew Mr. Berdanier before that time? A I do now. Q Who do you know that knew Mr. Berdanier before that time? A Oh, boy, I can't think of her name. Her first name is Maxine, who was a former neighbor of his. Q Where he lived before? A Where he lived before. Q And where was that? A Somewhere close to Boiling Springs. Q And how do you know Maxine? A Her sister is a customer of mine and she has been a customer of mine. Q What's the sister's name? A Ruthie. Q That's Maxine and Ruthie? A Yes. Q Do you remember either of their last names? A Ruthie's last name is Delp. Q D-a-1-p? A Yes. And I just can't think of Maxine's name. Q Did Ruthie know Craig Berdanier? 12 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No, she didn't. It was just after this came to light in the newspaper that Maxine had called and said he used to live nextdoor--down the road from where they did. Q Have you talked to Maxine about her knowledge of Mr. Berdanier? A I had after all of this happened. Q And what did Maxine tell you about Mr. Berdanier? A It wasn't good. Apparently her girlfriend had been renting the property to him and that he was not a great tenant, and that the dog had been loose many a time in that neighborhood. Q Maxine's girlfriend was renting? A The property. Q A property to Mr. Berdanier? A Yes. Q Do you know the girlfriend's name? A All I know is her first name is Donna. Q And what else? A And that he wasn't a great tenant there. He wasn't fulfilling his obligations, and that she said that the dog had been out loose many a time in the neighborhood. Q What dog? 1 13 7 d 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The Akita. Q The same Akita that bit you? A Yes. Q What else did Maxine tell you? A Basically that her girlfriend was having trouble with him fulfilling his obligations. Apparently he was to be buying the property and then he wasn't. Then he was jerking her around with a lot of that stuff, and that he just didn't seem to be too reliable of a person. Q And you mentioned that Maxine said that her girlfriend Donna said that Mr. Berdanier was not a great tenant? A Yes. Q Other than having the dog out loose, in what other ways was he not a great tenant? A Well, supposedly he was tanning buffalo hides in the house. He was supposed to have been doing repairs on the house, and whenever she was trying to, I guess get him out of there, he decided to take cupboards out, and just do all kinds of fun things. That's all hearsay. Q Right. That's okay. Was there any romantic relationship between this Donna person and Mr. Berdanier? A No. I think Donna was out of the country, as a matter of fact, at the time with her kids, and he just 14 1( 1] 1"e 13 14 15 16 17 18 19 20 21 22 23 24 25 1 managed to take advantage of her. 2 Q When, in relation to this accident, did you talk 3 to Maxine? 4 A A week or two after it, the accident. 5 Q Did she approach you or did you approach her? S A She called me. I had no idea that she even knew ' him at all. Q And you believe that she called you as a result of seeing information in the newspaper about this? A Definitely. Q Have you talked to Maxine at any other time other than about a week after the accident? A No. Q Did you talk to Maxine at all about Mr. Collins? A No. She didn't even know him, that I know of. Q Now, other than Maxine telling you that the dog had been loose many times in the neighborhood, when Mr. Berdanier lived in Boiling springs, did she tell you anything else about the dog? A She did say one incidence, and I cant remember too much of the details of the dog being loose, and with one of the other neighbors. But, I really cant remember too much of the details of it. I think they had had problems with him and the dog. 15 e 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did Maxine tell you that the dog had ever bitten anyone before? A I can't say that she did. I can't remember that. Q Did she tell you that the dog had ever attacked anybody or snapped at anybody, or anything like that? A I'm not sure. Q Did Maxine say anything to you, in your conversation with her about a week after this accident, that led you to believe that this dog was dangerous, that prior when Mr. Berdanier lived in Boiling Springs that the dog had done something that you would consider dangerous? A I wish I could remember the rest of that other conversation. It seems to me there was something in it with the neighbor and the neighbor's kids, and you know threatening each other about the dog being out. But, I really can't remember the details of that. But, they weren't real happy about the dog being loose. Q Where does Ruthie Delp live? A I don't know now. Q Is she still a customer? A No. She hasn't been. She has been very, very ill. And, very honestly, she may even be in a nursing home right now. I've not had contact with them. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q How old is she approximately? A Late 60s. Q And I wasn't clear, but was Maxine actually one of your customers? A She had been a customer just here or there once in awhile, and she had come in with her sister in the shop. So I knew her from being in the shop. Ruthie had been a customer of mine for 30 years, so you kind of get to know different people. Q How old would you estimate Maxine to be? A Late 60s. Q You don't know where she lives? A Not offhand. I'd have to do some digging. I can't even remember her last name. Q I want to take you to May 17th of 1999, which was a Monday. What time did the incident occur? A It was mid afternoon. Q And in your own words tell me what happened and then I'll ask you some follow up questions. A My daughter-in-law was leaving the house and she had her granddaughter with her. And she said, "Mom, that dog is out nextdoor." Q Who is the daughter-in-law? A My daughter-in-law, Joanne Hurley. Q And where does she live? 17 c E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Right down around the corner, McBride Avenue. Q Okay. A And she said, that dog is out. And the neighbor girl, Randie, had been out. And, we kind of looked at each other across the railroad tracks. And we both kind of just walked toward each other and mutually agreed that this dog needed to be put on a chain or put back on its chain, because it was running all over the grass area there right beside us. Q You said we mutually agreed? A Well, Randie looked at me and we both said, that dog can't be loose. Q Who is Randie? A Randie is the neighbor that lives across the railroad tracks, approximately two doors down from the Collins' property. Q And that's? A On Kerr Avenue. Q And what's Randie's last name? A Thomas, I believe. Q And that's a girl? A Yes. Q R-a-n-d-i? A I'm not sure if it's d-i or-- I don't know. Q She lives on Kerr Avenue? 18 ?M) 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q How long had Randie lived on Kerr Avenue before this? A Awhile. I don't know how long. Q A number of years? A At least a year or so. Q And how old is Randie? A I really don't know. I didn't know her accept to see her and just neighborly wave. But, I had not met her until this actually happened. Q I mean, is she 20, 30? A She's in her mid 20s, I'd say. Q So your daughter-in-law was leaving and she mentioned to you that the dog was out? A Yes. Q And then Randie was out? A Yes. Q Did you go outside? A Well, I walked outside as I would do when my daughter-in-law was leaving. Q Then tell me. Pick it up from there and just tell me what happened. A Well, I walked over toward Randie and she walked toward me, and we both said that the dog should be put back on it's leash because it shouldn't be loose running 19 E c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 around the neighborhood with all the kids in the 2 neighborhood. 3 Q Okay. Do you know how the dog got off its 4 leash? 4 A No. Q Do you know how long, before you first saw the dog loose that day, it had been off its leash? A I can't say that it was real long, but I don't know for sure how long. My family room window looks out straight across to where the dogs were housed and roped, or attached to the building. And so I looked out there periodically, and I knew it had been attached earlier in the day, but I can't say how long it had been loose. Q Alright. So what did you and Randie do? A Well, because she has a dog she went and got her chain. Q What kind of dog did Randie have? A I think she has a Lab. I think. I'm not sure. Q Okay. Then what? A She handed me the chain and she whistled. I can't do that whistle, that loud whistle. So, she whistled and the dog came straight over to me. We weren't real far away from each other, but maybe 15 feet or so, 20 feet from each other. 20 ?*M) c G 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q When you and Randie were discussing about getting this dog back on its leash or rope or whatever, were you afraid of the dog? A No. I knew I had to be cautious of the dog, you know, just usually by the type of dog and by nature. It has got this big black face that is the kind of face that is intimidating, but I wasn't afraid of it. Q Had you ever had any bad experiences with the dog before that day? A No. I had met the dog just a week or so before. Q I guess what I'm asking is, when Randie came out with the chain or the leash, gave it to you and then whistled, were you afraid that the dog was going to come over and bite you? A No. Q Now, had you had any prior experiences with Akitas generally? A No. Q Did you know anything about Akitas before that day? A I knew they could be aggressive. Q How did you know that? A Just from general knowledge of talking with other people. I like dogs very much. 21 ?kw 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you have a dog? A I had a dog. Q What did you have? A I had a Heinz 57 that was wonderful. Q Was it a big Heinz 57 or little Heinz 57? A No, about 18, 20 inches high. Q But, you're saying that prior to the day of this incident you had had some discussions with somebody about Akitas? A Prior to that I had had a conversation with Mr. Berdanier because my son, my youngest son Christopher, at the time was also living in the apartment above my oldest son down around the corner, and he came up one night and his Brittany Spaniel was running and she went straight over to the Akita, and Chris was nowhere close by. She knew her way normally to my house so she was on her way to my house because she knew that's where they were coming. And, of course she went over there. She was in heat, so she ran over there. And I went quick, you know, to try to retrieve her back over. And, you know, that's whenever he had told me that the dog liked women but didn't like kids and men. And that she was okay, that I could pet her, you know. I didn't go petting her right away and being lovey-dovey with her. I just was being a little cautious. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Was this a female dog, the Akita? A I'm not sure. I thought it was but I'm not sure if it was. Q The day that this Brittany Spaniel came to visit. A Yes. Q How long before? A A week. Q Before the bite? A Yes, about a week. Q This was about a week before the incident? A Yes. Q And your son, Chris, was coming over to visit and his dog came ahead? A Yes. Q So to speak. Is that right? A Yes. Q And the dog ran over into Mr. Berdanier's yard? A Well, across the railroad tracks into that grass area. Q And the dog was tied up there? A Yes. Q Was Mr. Berdanier home then? A Yes. err' 1 23 Yom, 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Was he outside? A Yes. Q As best as you can recall, tell me the conversation you had with Mr. Berdanier on that day when the Brittany Spaniel that was in heat ran over to the Akita? A That was my first meeting with him. I asked the dog's name, and I can't even remember what he told me. Q How many dogs did he have? A He had two. Q Akita and what else? A I think it was a Shepherd, a big one. Q Alright. A And, of course, my son was there, had already called his dog and it was already back with him at that time. The dog was nudging toward me, wanting me to pet it. Q This Akita? A The Akita was. And I said, "Can I pet it?" He said, "Yeah, he's fine." I think he said he or she. I'm not sure what the dog was. Q okay. A But, he said it likes women but it doesn't like 24 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 kids and men. Q Was the dog, on that day or the day that the Brittany Spaniel went over there, was the Akita aggressive in any way? A No. Q Did it try to attack the Brittany Spaniel? A No. They were playful but-- Q Did it appear to be aggressive toward you? A Not overly. No. Q Did it growl at you? A I can't remember. Q Did it snap at you? A No. Q Were you afraid? A No, I was just-- Before I petted it I wanted to ask the owner first, because I wasn't sure. Q Is that because of how big it was? A Yeah. It was a big dog. Q Mr. Berdanier told you that the dog, the Akita, liked women but not children or men? A Right. Q What else did he tell you about it? A That's all. That was the extent of the conversation. Because I had company, my son was there, I went right back over to the house. 25 a F 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you pet the dog? A I did. Q Any problem with it? A No. Q And that was the first time you met Mr. Berdanier? A Yes. Q Did you have anymore conversations with him that day about the dog? A No. Q Did you have anymore conversations with Mr. Berdanier in the approximate one week period between the day that the Brittany Spaniel was over there and the day you got bitten? A No. Q Let's go back to the day of the bite then. Randie handed you the chain and whistled. The dog came over. Tell me what happened then. A I put the leash on the dog. Q Did it have a collar on? A It had a collar on, and it had the rope that it had been tied to that was loose behind it. Q Did it appear that the rope had come untied or--? A I couldn't tell. 26 1 Q As opposed to being like broken? 2 A I couldn't tell. 3 Q But, there was some length of rope still 4 attached to its collar and trailing behind it? 5 A Yes. 6 Q Okay. Go ahead. 7 A I put the leash on. I was petting him, telling 8 him he was a good boy. 9 I looked behind me to see where to attach him to 10 the house or how he had been attached before And . as I 11 did that, the next thing I know he was in my face, 12 jumping, lunging at my face, pulling my check and my face 13 down. And for some reason I had enough sense to get my 14 shoulder up because I felt like he was pulling my whole 15 face off. 16 And I got my face up and then he got my arm and 17 we rolled a couple times. And I screamed a lot. And 18 Randie was screaming a lot, because she became unglued by 19 this whole thing. She just got hysterical. 20 And for some lucky reason I played dead. My 21 instincts, I guess, told me to play dead. And the dog 22 just set there beside me. 23 Q And then what happened? 24 A Well, at that point the train was going by. 25 They have their blinkers going and they switch tracks 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there all the time. Usually Monday, Wednesday and Friday in the afternoon they do a lot of that. So they were switching tracks. And, of course, Randie was screaming. The neighbor lady had a man named Brian Doyle helping do some work at her daughter's house. And he had come outside. And at the same time another gentleman from the Post had been coming by. Q The Post? A The Army War College. I'm sorry. Q Okay. A He was off work. He was setting waiting for the train. He happened to look over and see what was going on, and he got out of his car and came over. And he and Brian-- Brian had found a board at the time. And Dale said they seen the rope on the dog and figured the dog was attached, but they didn't realize the dog wasn't attached to anything. So Dale said, "I'll walk the opposite direction. You try to pull her out of the way." Q Her meaning you? A From away from me to get the dog, so they could get to me to help me. Q What's Dale's last name? A Vinroe. 28 `w) r f 5 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L In doing that, the dog walked toward Dale and '. the next thing you know he was lunging at him. Dale managed to grab him by the long facial hair and tried to pull him down, but in doing that the dog kept biting back and forth on his arms. He managed to get his head down on the ground and then the dog pulled himself, kept backing himself away and got loose. And, of course, Brian couldn't move me because I hurt too much. I just couldn't stand to be moved because I just was in too much pain. And, of course, the dog came right back and stood right beside me. Q Did it bite you anymore? A No, thank goodness, because I just kept playing dead. I was afraid that he was going to. Q How did they finally get the dog under control? A Well, a couple more good samaritans came to my rescue. There was another guy passing by, Scott Panko. He and his wife were walking and he came over. And he got somehow between the dog and I, and he told Brian that if the dog comes after either one of us, you know, to hit the dog. He was checking my injuries, more or less, to see how I was. And, in the meanwhile there was another undercover policeman that came in his Volkswagen. I found 29 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 out later that's who it was. And apparently Scott knew him. And he had told him that I had been mauled and to be careful. I'm pretty sure I seen him crawling out of his Volkswagen window and onto the hood of the car, and he maced the dog. And, at that time the police had been there also. Q What time would you estimate that the attack occurred? A I would guess after two. Between two and three in the afternoon. Q What was the weather like that day? A Nice. Q Sunny? A Sunny, cool, but a nice day. Q What had you been doing before you went outside? A I was in the midst of cleaning house, trying to finish a quilt for quilt club. I was in charge of a lot of projects that night for quilt club. I had a customer coming to the beauty shop. All of my normal busy things that I do on Mondays and Tuesdays. I was in the midst of doing a lot of things. Q Did you have any kind of cleaning products or anything on your hands? 1 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q Anything that might have smelled funny to the dog? A No. Q How were you dressed? A I had a pair of slacks and a T-shirt on. Q Any hat? A No. Q You have glasses today. Were you wearing glasses then? A Yes. Q Where was your daughter-in-law when all this was going on? A She said, "Are you going to be okay?" And I said, "Yes." And she had went home. Q So she left the area before? A All of the attack and everything. She had no idea. Q She didn't see any of it? A No. Q Now, you said that you put the leash on the dog and you were petting him and telling him he was a good boy. And then you looked behind to see where you could attach the chain? A Yes. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And that's when he attacked you? A Yes. Q When you were petting him and telling him he was a good boy, was he doing anything that caused you to think that he was going to attack you? A No. Q When he was running loose, before you put the chain on him, was he barking? A I can't remember. Q Was he growling at anybody before you put the chain on? A Not that I know of. He could have been earlier, but not that I know of. Q I mean that you know? A No, not that I know of. Q Alright. Now, did you have any conversations with Mr. Berdanier after you were bitten by his dog? A One. It was the Sunday after the dog bite. I had been in the hospital for two days. So, I came home Wednesday from the hospital. And it was that Sunday, which would be the 23rd, 24th, somewhere in that area. He said that he didn't understand why the dog had done this. Q So this is Mr. Berdanier? ?/ 1 32 . 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q where did the conversation take place? A On the telephone. Q Did he call you? A He called me. Q Go ahead. A He didn't know why the dog had done this. And he told me that he loved animals and that he had horses and, you know, he just couldn't understand why the dog did this. Q And what did you say? A I didn't really say a whole lot at that point. Q Did you have anymore conversations with him that day? A No, never anymore. Q So your two and only conversations with Mr. Berdanier included the one that was about a week before the attack? A Right. Q In which he told you that the dog was okay around women but didn't like children or men, and it was okay for you to pet it? A Right. Q And then the conversation you had on the telephone on May 23rd, Sunday, May 23rd, when he called 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and said he didn't know why the dog had done this, and he couldn't understand why the dog had did it? A Right. Q You had no other conversations at any time with him? A No. Q Are you aware of any other statements that Mr. Berdanier made to anyone about his dog, about the Akita, or about the attack? A No. Q In other words, has anybody told you they've heard Mr. Berdanier talking about this? A No. Q Did you ever have any conversations with Mr. Berdanier about Mr. Collins' knowledge of the dog? A No. Q And you say that Mr. Berdanier had been at the 403 North Hanover Street property for about three to four weeks before the attack? A I believe it was that long. Q And you had not met him until about a week before the accident? A No. Q Is that true? A That's true. 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q During the three to four weeks that Mr. Berdanier was there before the accident, did you ever see Mr. Collins at the property? A No. He could have been on the other side and been there that I wouldn't have known who he was. Q Are you aware of anyone who claims to have seen Mr. Collins at the property, 403 North Hanover Street, during the period that Mr. Berdanier lived there before this attack? A The neighbors could have been aware of it. I wasn't, you know. Q A lot of things could be. But I'm interested in what you know? A No one said that they had talked to him or anything, so I don't know. I'm too busy with all my jobs to be worrying with all that other stuff. Q I understand. In your complaint you say that the dog was housed in the rear of the Collins' property in an exterior dog house that had a sign beware of dog attached to it. Tell me about that? A There were two dogs there. One would be in the dog house, and the other for the first week or so that they were there was just out in the open. And then, I guess it was Mr. Berdanier, had 35 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 built-- Really didn't build, but put a board as a lean-to type thing that the dog could crawl under and be protected from the sun. And there was nothing on that, but just on the dog house there was a beware of dog. There were like three stakes in the ground. Not attached to anything but the stakes was a rope, maybe 8, 10 feet from the front of the dog house, but that was it. The rope wasn't attached to any buildings. There was no such fence. Q When you went over to Mr. Berdanier's place the day that the Brittany Spaniel was there. A Yes. Q Where was the Akita attached? Was he tied to something? A He was actually more closer to the lean-to. He was attached and he was more there. Q Was that generally how you would observe the dogs? A Yes. Q That the Akita was usually tied or closer to the lean-to and the German Shepherd more to the dog house? A Yes. Q Do you have any information to suggest that the beware of dog sign was meant to apply specifically to the 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Akita? A No. Q Had you ever seen that dog, that Akita, loose before the date of this incident? A I can't say that I did. I can't say for sure that I did. Q Are you aware of anybody who claims that the Akita had gotten loose on any other days, other than the day that you were attacked? A I may have heard some hearsay to that effect afterwards, but I can't say for sure that I did. And I can't remember who would have said it. Q Well, that was going to be my next question. A I really don't. Q So, at least in terms of your experience with Mr. Berdanier and his dogs, prior to this incident, it was different than what the lady had told you about what happened at Boiling Springs? A Yes. Q At least there she said that the dog supposedly ran loose quite often? A Yes. Q You didn't experience that? A No. Q where did you receive treatment for your 37 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 injuries? A The Carlisle Hospital. Q And was all your treatment provided through the Carlisle Hospital? A Yes. Q Did you see any other doctors other than the doctors that you saw at Carlisle Hospital? A No. Q What areas of your body were bitten? A My face and my arms, my left arm and my right arm. Q So both arms and the left part of your face? A The left part of my face. Q And what treatment was given to you at the hospital? A I was given a lot of Morphine, because I was in excruciating pain. We waited approximately an hour until the plastic surgeons got there. They called Dr. Giesswein and Dr. Thompson. And Dr. Thompson was on call, but Giesswein was closer at the time, so he came in and set the orders in process to put me into surgery. When I was there, of course, they were all upset. The police had come and taken pictures. My mother was there. My kids were there. The doctors were very 1 38 'tea 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 upset about how bad my injuries were. They prepped me and put me in three hours of surgery. And I was in the hospit al for two days. Q Were you under a general anesthetic? A Yes. Q So you were put to sleep for the surgery? A Yes. Q And you were in the hospital for two days? A Three days. Q And then did you have to have antibiotics too beyond that? A Yes. Q Did you develop any infections? A Thank goodness, no. Q What follow-up care did you have afterwards? A I ended up with about two months of physical therapy. Q Where was that done? A Alexander Rehab. And then I had reconstructive surgery again on my face. Q Who did that? A Dr. Thompson in March. Q March of? A This year. Q 2000. Was there anymore treatment planned? fir/ 1 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A He's not sure by my arm. He's waiting until more of the muscle heals. And with the ongoing off and on pains that I have in it, he's just not being in any too much of a hurry to go in there and try to make the scars look better. Q Which arm? A My left arm. Q Are you lefthanded or righthanded? A I'm basically right, but whenever I cut rotary cut, which is a form of cutting with my craft stuff and with my quilting stuff, I cut lefthanded also. So I was not able to do anything at all with the lefthand. Q For a period of time? A I was not able to work for two and a half months. Q So following this accident for two and a half months you weren't able to work in any of your pursuits? A Any of my businesses, no. Q Now, is there anything cyclical about your businesses that one time of year is busier or more productive than another time of year, or if we just said two and a half months from May 17th it would be the same as if we said two and a half months from December 1st? 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Okay. The hair business is the same. The teaching is pretty much the same all the time. The craft business is basically that I start in March, so I had already been in the process of working, building up an inventory and whatnot. Part of the projection of my business was to get into a lot of shops, so that I wouldn't have to be out on the road so much. So I was building inventory, so it was technically just like I was in the fall, the busy season of the year, I was trying to build an inventory in order to go into three or four shops that I had lined up already to put stuff into. I had already put stuff into one shop. Well, two shops. And it was then the process of building the rest of that and still being able to keep up with the schedule that I had booked. Q Were you able to recapture that? A No. Q The inventory? A No. Q Can you estimate for me, in terms of net earnings, what you believe you lost for that two and a half months? And then I'm going to ask you how you arrived at that. A (Witness perused document.) Well, the beauty 41 f 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 salon alone, I would say I was averaging $275 a week, for six weeks at least. Q Is that gross or net? A I forget which is which. Q The gross is the bigger number. A The very first number, you know, before I get started. Q Okay. And then the $275 a week, that would be money that would come in from customers? A From customers. Q You have some supplies and some overhead expenses? A Exactly. Q From $275 a week, what do you end up with after you pay your business expenses? A Half of that I usually take for personal. Q So that would be $140 or $137.50? A Thereabouts. Q And what else? A Okay. I lost several craft shows. I lost one show completely that I just couldn't do. So, I lost the fee for that show, which was $45 plus the three to five hundred dollars easily that I would have lost, plus the potential leads. I have quite a following of people that I build 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 up in the springtime, because I repeat a lot of areas. They'll buy a little in the spring, and as I go back to that area, they go home and measure because of the nature of what I sell. They follow me from year to year to year and show to show to show. And so it's a progressive build up situation. And then the shows that I did do, I had to pay people to come help me to set up, because there was no way I could lift all of the canopies and all the tubs and whatnot. Q Now, let me go back to the craft show. You lost a fee of $45? A For the one show that I couldn't go to at all. Q And then you said something about three hundred to five hundred dollars? A That's how much I probably would have made at that show. Q At that particular show? A At that particular one. Q Now, again, is that a gross number or net number? A That's a gross number. Q How much would it have cost you to make the crafts that you were selling? A Probably half of that. ?.? 1 43 ?r 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So half of that number would be profit? A Yes. Q And what else? A My teaching. Q Before we get to the teaching. A Okay. The help. I had to pay help. Q The help. Tell me about that. Who did you pay? A I paid quilt friends and family members, paid for meals , whatnot, their gas. Q Did you keep track of all that? A I tried to as much as I could. Q What is your best estimate of that? A Probably four or five hundred dollars. Q That you paid to people for help? A Yes. Q And then the teaching? A The teaching. I wasn't able to teach at all and so I lost classes there. Q What do you estimate that was? A Well, it was $30 times-- Usually I try to get eight students in a class. So I had one that was completely canceled. Q So that would be $240? A Thirty times eight. Yes, thereabouts. 44 1 That one was completely canceled. We tried to 2 reschedule another one, and that one didn't go because 3 of the dates we tried to reschedule. So I lost that one 4 too. 5 Q And from those fees, assuming you have a class 6 of 8 and each pays $30, do you have to pay anything? 7 A No. That's all my money. 8 Q That's all your money? 9 A That's all my money. 10 Q Anything else? 11 A Well, then the hair business I lost. 12 Q We talked about that. .r? 13 A Well, I lost a lot of regular customers though 14 that were every week customers that have not come back 15 since. 16 Q Have you talked to them? 17 A I've talked to some of them and they've went 18 elsewhere and they're happy where they are, and they don't 19 want to move again. 20 Q Is your hair business, the clientele, is it the 21 same number today as it was in May of 199? 22 A No, because I've lost a lot of those regular 23 customers. 24 Q But have you gotten customers that replaced 25 them? 45 .?1 F f 9 is 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L A No. Q How many customers, total customers, do you t estimate you had in say the spring of 199? Like on a weekly basis, how many would you do? Let's do it this way. A Probably 30 or 40. Q Let's do it this way. You said $275 a week would be the gross number of receipts. What's your gross number now? A Somewhere about half of that. Q So now you're only--? A Doing somewhere around $135, $140 a week. Q And why is that? A Some of it has been from customers dying. And a lot of it has been because I've lost that every week customer. I do a lot of every week shampoo and set customers. I do haircut customers, but the base of my clientele is an older clientele that comes on a regular every week basis. And so when you lose that every week $7.50, $8.50; then you lose their haircuts every couple weeks; then you lose your perms; then you lose their color; that adds up after a year's period of time. Q I'm just trying to determine. A I know you're trying to figure out how it goes. 46 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What you're claiming is you had $275 a week gross in the Spring of %99. You're saying it's about $135 or $140 a week now? A Yes. Q How much of the decrease do you attribute to customers that you lost because of the dog bite? A Probably 80 percent. Q Now, of those customers that you say you lost, are these mostly older customers? A Some of them. Q Older people? A Some of them were, but not all of them. Q Have some of the customers that you think you lost since died? A I think one, but I don't even know for sure. Maybe one. I'm not sure. Q Can you estimate for me what the total amount of your medical bills have been as a result of this incident? A Well, I know the surgical part of it was $12,000. Q When you say the surgical part, that's in the hospital? A In the hospital business, the initial. And then I think, but I can't remember exactly, the follow-up 47 ?'uw? 1/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 surgery was $2,000 or $3,000. Q How was that paid? A Through my insurance. Q What insurance? A Oh, boy, now I have to think. Q Health insurance? A My health insurance. Yes. I had the problem of my initial company filing bankruptcy, and had to get another insurance company in the interim there. But my health insurance paid it. Q And have all of your medical bills from this incident been paid by health insurance? A The health insurance paid. Yes. Q Have you been put on notice that they're seeking a lien for any recovery that you get in this case? A No. Q Do you remember the name of your health insurer? (Off the record discussion.) BY MR. STATLER: Q You received some, what's called med-pay money from Erie, which was then turned over to your health insurer? A Right. Q Do you remember who that was, the health 48 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 insurer? It's probably in the records. A Physicians' Care. I think it was Physicians' Care. Q And this is just a private health insurance that you have? A Yes. Q What problems do you have? What injuries do you have currently that haven't completely healed, whether they be cosmetic injuries or functional limitations? A Cosmetically I still have a scar, two scars on my face. Cosmetically I've got a nasty looking chew mark on my arm of a huge amount of muscle gone. Q Again, for the record, we're talking about the upper left arm? A Yes. It aches a lot. (Witness indicating.) Q The left arm? A The left arm. They both ache. I have scars on the right arm that aren't nearly as extensive, but periodically I get a twitch or two in those. But, the left arm basically hurts often. And my concern is it not only goes to my shoulder, but it also goes to my wrist right now with a lot of nerve pain. Q Does it seem to be related to activity or weather? 49 kw? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Sometimes weather. But, basically after Christmas I did next thing to nothing. I took a couple days and did nothing but put a puzzle together and I ached like a toothache. I can be doing nothing or I can do a lot and it still hurts. Q Do you take any type of pain medication? A A lot of Ibuprofen and Tylenol. Q Just over the counter? A Over the counter. Q Have you ever taken any prescription pain medicine since this incident? A I did for the first two or three months afterwards. Q But not since then? A No. I've been avoiding it. Q And you say that Dr., is it Thompson? A Thompson. Q Is trying to decide if more revision surgery should be done on your arm? A Right. Q And if the surgery is done, what would it be done to try to improve? A I think more cosmetic than anything at this point. Q Have you had any discussions with Dr. Thompson 50 '" 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about the pain that you're having in your arm? A Not presently. It just started to get very annoying again and I'm due to have a follow-up checkup as soon as I make an appointment here real soon with him. So that's going to be part of the conversation. Q Really what I'm asking is, have you had any conversations with him, has he given you any indication as to how long the pains are likely to continue, whether that's going to be a permanent situation? A He said it may be a permanent situation when we talked about it earlier. I had a nerve that was exposed underneath my arm that he had to surgically put back in its place and fortunately I don't have the pain from that. But he can't guarantee one way or the other. I'm just very lucky to be able to use it. Q In terms of the face, the scaring on the face, is there anything planned about future revision or cosmetic surgery there? A We've done the second one, but we haven't talked any further. It was a wait and see. Q Dr. Thompson? A Yes. And it has been too soon now. They don't like to do it any too soon. They like to wait the biggest part of a year before they do. Q Do you have any numbness or loss of feeling in 51 `. f i 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I I your face? A Some. Q Tell me where and what. A Basically in my jaw area. Well, at first I was not able to use it. My face looked and acted as if I had a stroke and everything dribbled out of my mouth. And it took quite awhile until I got that sense of feeling back. But, periodically if I get a cold or whatever in my sinuses, whatever, and I get sinus pressure, I can kind of feel like it's a little droopy and not as strong of a muscle as it could be. Q You're able to smile, you're able to frown? A Yes. Q Do you have any problems with your mouth, with your lips or your mouth? A Not right now I don't. I had a bout of Bell's palsy here not long ago that acted up on that side. We're not sure why I had the Bell's palsy, if it was related or not. The doctors didn't seem to think it was, but they weren't sure. Q What is your date of birth? A 10/18/48. Q And who is your family doctor? A Dr. Bower at Masland Associates. Q And what kind of things did Dr. Bower treat you 52 1 `1 %too e 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for before this incident? A If I'm lucky I go to the doctor's never, for a cold. He has treated me for-- I went for a pap test and a gyn. He has treated years ago for thyroid problems and a cold, but that's it. Q Were you taking any regular prescription medication at the time of this incident? A Just thyroid medicine that I take everyday. Q And that's prescribed by Dr. Bower? A No, by Dr. Green. Q Where is Dr. Green? A Dr. Green is pretty much retired and works out of Belvedere Medical Center just seeing a few of his old patients. Q Was Dr. Green your doctor before Dr. Bower? A He was my endocrinologist for my thyroid. Q I need to ask you this question. Don't take anything from it. Have you ever been convicted of a crime? A No. Q Have you ever plead guilty to a crime? A No. Q Have you ever filed any other personal injury lawsuits? A No. 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Have you ever filed any other insurance claims as a result of an injury? A No. Q Have you ever been bitten by a dog before? A No. Q Have you ever been bitten by a dog since this incident? A No. Q Did you ever have any injuries to either your face or your upper left arm that resulted in scaring prior to this injury? A No. MR. STATLER: I think that's all the questions that I have. Thank you. MS. HURLEY: Thank you. (Concluded at 3:10 p.m.) (Off the record discussion.) (Reconvened at 3:12 p.m.) BY MR. STATLER: Q Donna, after we adjourned your deposition you conferred with Mr. Buckley and now you remember that you had another conversation with Mr. Berdanier that wasn't mentioned previously. Is that true? A It was at Paula Correal's Office the day of the hearing. 54 '"1 f E 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I Q This is at a District Justice? '• A District Justice. t Q Tell me about that conversation. A Well, basically in the content he was saying that the dog was an aggressive dog. Q What did he specifically say? A I can't remember. He said something to the effect that the dog, you know, was an aggressive dog and he didn't want to really have to put it down. Q Now, as I remember from your testimony, prior to you being attacked you didn't see any indication that the dog was aggressive. Is that true? A Right. Q Now, when you spoke to Mr. Berdanier in District Justice Correal's Office did Mr. Berdanier say that the dog had ever bitten anybody before? A I can't remember. Q Did he ever say that the dog had snapped at anybody before? A I can't remember. It's just-- I completely forgot that conversation. Q Okay. Was any part of that conversation that you had with Mr. Berdanier at the District Justice Office, was any part of that related to Mr. Collins and his knowledge of the dog? 55 ? I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. MR. STATLER: Alright. That's all the questions i have. (Concluded at 3:14 p.m.) v 1 56 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATION I, CHERYL FARMER DONOVAN, a Registered Professional Reporter and Notary Public, certify that the foregoing is a true and accurate transcript of the deposition of Donna K. Hurley, who was first duly sworn by me at the place and on the date hereinbefore set forth. I further certify that I am neither attorney nor counsel for, nor related to or employed by, any of the parties to the action in which this deposition is taken, and further that I am not a relative or employee of any attorney or counsel employed in this case, nor am I financially interested in the action. Registered Professional Reporter Notary Public Notary Public, Cumberland County My Commission Expires July 23, 2003 (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) 1 57 DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants AND NOW, this IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED ORDER day of 2001, it is hereby ORDERED that summary judgment is granted in favor of Defendant James Collins and against the Plaintiff in this case. BY THE COURT: L I IAl l S John A. Statler, Esquire Attorney I. D. No. 43812 GOLDBERG, KATZMAN & 913pMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone. (717) 234-4161 Attorney for Defendant James J. Collins DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED MOTION OF DEFENDANT JAMES J. COLLINS FOR SUMMARY JUDGMENT AND NOW, comes Defendant James J. Collins, by his attorneys, Goldberg, Katzman and Shipman, P.C., who move t his Honorable Court to enter summary judgment in favor of Defendant Collins and against the Plaintiff based on the following: This case arises out of a dog bite incident that occurred on May 4, 1999. 2. Plaintiff Donna Hurley was bitten by a dog owned by Craig Berdanier. At the time of the incident, Craig Berdanier was a tenant of James Collins and was leasing a house from Mr. Collins at 403 North Hanover Street in Carlisle. 4. Prior to the incident, Craig Berdanier and James Collins entered into a written Residential Lease Agreement. (A true and correct copy of the lease is attached hereto as Exhibit «A„ 5. On May 4, 1999, James Collins was a landlord out of possession with respect to the property located at 403 North Hanover Street in Carlisle. 6. The dog involved in this incident had never bitten or attacked anyone previously. 7. The dog involved in this incident had not exhibited any vicious propensities prior to May 4, 1999. 8. James Collins did not know or have reason to know of any vicious propensities of this dog prior to the incident in question. 9. The written Residential Lease Agreement did not give James Collins the right to retake possession of the premises to remove or control Mr. Berdanier's dog. 10. There are no material facts in dispute and summary judgment should be entered in favor of James Collins. WHEREFORE, Defendant James Collins respectfully requests this Honorable Court to grant his Motion to enter summary judgment in favor of lames Collins and against the Plaintiff in this case. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: John A. St ler, Esquire Attorney I. D. No. 43812 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Defendant James J. Collins DATE: '2-1 2-3 /0 59237.1 Exhibit A 06/05/00 YON 15:14 FAX RLBIDNNTVM X.m1am LORZRNRmT '1'818 LEASH, made this _ ?yryday of BETWSS!!t __ ?'AI+IES "C- P?//,++-s . 192L Owner, AND cll?.r//iC ?.?4?UA.v/E? the %u.r.ana:csr wnatner. one or more, retorted to a •Reeident•), jointly and severally: WITNY4S MI That owner hereby lasses to Resident and the letter lets from the former the ak"ant/housq designated as beginning on the 7' ay of ending on the day the rent of 7s cw?d'Itli at 1@004 the day of each month in advano This letteach on ing is upon the following terms and conditionsc .,t. 1. Residoht agrees to pay Owner a security deposit of UIOWI" Dollars upon signing o! th s agreement with receipt hbrain acknowledged paid by 2. Resident agrees to,ay to Owner or Agent the monthly rate set forth above on the /6"A day of each month, in advance, at the Rental Office of owner or Agent or such other place ¦s owner or Agent may from time to time request and further agrees to pay the first and last months rent at the time of occupancy. Resident also agrees to pay a late payment charge to ten Jho) percent per month on the amount of rent in default on the _l_ day of each month which shall be included with that months ran 1 payment. if late - rental payment is not received by the '? of each month (rant plus late payment charge), Owner or AAgqent w 11 reserve the right to proceed with the necessary legal authorities to collect same. If any check for rant is returned to owner or Agent or insufficient funds or other reason, late charges will continua until rent is actually paid by Resident. 7. Owner or Agent may terminate this lease without cause by giving thirty (10) days prior written notice to Resident, but pg termination by Owner or Agent without cause may take affect during the one-year tars of the lease. 4. Resident agrees to use the apartment only as the personal residence of Resident andmthellm%hildran, and not to assign this lease or sublet the apartment. Resident agrees not to alter or make additions to the apartment, its painting, its fixtures, AW chanclecrR without owner's or Agent's written consent. Resident agrees not to do or to permit any act or practice injurious to the building, which may affect the insurance on the building, or which is contrary to any law. HARRISBURG APR 10 LUW 05/05/00 VON 15:15 FAX nerve the Resident is oall0?t{1/ Pitt, aundp Resident utilities ethat the cost of the utilities'shal a paid as follows. Heating for premises to be aid p Beating of water for premises to be aid by Electricity for premises to be paid by gas for premises to be paid by sewer charge to be paid by Water consumption to be paid id by b Trash removal to paid by Cable Television to e be paid by Telephone to be paid by Resident agrees that Owner or Agent shall have the right temporarily to stop the service of electricity, or water, in the event of accident affecting the same or to facilitate repairs or alterations made in the premises or elsewhere in owner's or Agent's property, owner or Agent shall have no liability for failure to supply heat, air conditioning, hot water or other services or utilities when such failure shall be beyond Owner's or Agent's control or to :enable owner or Agent to service or repair installations.- .6. Resident agr an '-a I'm .cars in the use of the apartment, the -appliances therein, and all other parts or owner'a or Agent's property, to give notice to owner or Agent of the need for repair thereof, And-19-May-for- all renaira en *h. ft....?__. wwnar or Agent will make necessary repairs to the apartment and the appliances therein within a reasonable time after Resident notifies Owner or Agent of the need for repairs. RANGE: serial number REF'RIGERATORs serial number -- OTHER APPLIANCES: 9. Resident agrees that owner or Agent shall not be liable for property damage or personal injury occurring in the apartment or elsewhere on owner's or Agent's property unless the damage or injury results directly from owner's or Agent's negligence. 8. All residents are required to carry "renters insurances for the premises with an amount equal- or greater to the value of all personal belongings of the resident. Name Insurer _ amount 1. 2. 3. 4. 5. HARRISBURG Q 005 APR 10 wUU 03/33/00 YON 13:15 FAX X005 6. 7. 6.. s6 xt, due to Giza sC'ANUMOboyond the owner's or Agent's control, the promises shall not be ready for occupancy at the beginning of the term, this lease shall nevertheless remain in effect and the rent shall be abated proportionately until the premises are so ready, and owner or Agent shall not be liable for delay; provided, that if the premises shall not be -for occupancy to cancel )thissl aafter said se by written n noticee delivered to owner or Agent at any time after the expiration of said sixty (60) days, but not after the premises are ready for occupancy. Resident's remedy shall be limited such further right right against th othera,t save the Owner or Agshall ent shall repay any deposits made by Resident. If Resident shall occupy the premises prior to the beginning of the term, such occupancy shall be subject to the terms of this lease, and Resident shall pay prior to occupying the premises rent for the sap period from the date of.,such occupancy to the beginning of said term. 10. If tha-apartment is damaged by fire or other casualty, Owner or Agent shall repair it within a reasonable time and rent shall continue unless the casualty renders the apartment untenantabie,' in which case this lease shall terminate and Resident, upon payment of allt to the date the apartment is surrendered, shall not be'* iab s for7any further rent. It only a portion of the apartment is randered untenantable, the Resident may, with mutual agreement of owner or Agent, alternatively choose to continue in possession and shall thereupon be entitled to a pro- rata reduction in the amount of rent, provided that election to proceed under this alternative shall not be a waiver of the Rosident's right to terminate the lease if repairs are not made within a reasonable time. 11. Owner or Agent, or any person authorized by his, with the prior specific consent of Resident, which consent shall not be unreasonable withhold, shall have the right to enter the apartment at reasonable times to inspect, make repairs or alterations as needed, to enforce this lease, and, after notice of termination is given, to show the apartment 'to prospective residents; provided, however, that Resident's consent shall not be necessary in case of emergency. 12. Resident agrees to pay the security deposit not forth above prior to occupancy of, the apartment. The security deposit shall be hold by owner or Agent as security for the payment of all rent and other amounts due from Resident to owner or Agent for the Resident's performance otxhi,.,.laaaa,. and against any damages caused to the apartment or any other part of Owner's or Agent's property by Resident, his family and guests. Resident understwnn. HARRISBURG APR 10 2A 06/05/00 YON 15:16 FAX tee Within thirty (30) days following terminwtion of this lease and/or physically vacating of apartment, owner or Agent shall roturn the security deposit, less any deducticn: from it on account of amounts owed by Resident to Owner or Agent, to Resident by check payable to all persons signing this lease mailed to a forwardina ad?ese which must he furniehpd by Resident 1n writing. upon terminating of lease and vacating of apartment within tarns and conditions set forth in the lease Resident shall tetern all keys and all conies of keys to Owner or bgent'a office within one /i1 day of such vacating, . If keys are not returned within this time period, owner or Agent will have the right to change the locks on the premises specified in the lease and charge such look change to Resident. 13. This lease confers no rights on Resident to use for any purpose any of the property of Owner or Agent other than the interior of the apartment hereby leased, except the walks and roadways giving access thereto and such other areas, if any, as Owner or Agent may from time to time designate for the use of residents. When' the use by Resident of any other portion of Ownerls or Age4t1s property s permitted, it shall be subject to the rules and regulationse?stablishsd•by owner or Agent. 14. If Resident shall fail to pay rent, or any other sum, to owner or Agent when duel shall default in any other provisions of this lease; or shall remove or attempt to remove his possessions from the promises before paying to Owner or Agent all rent due to the end of the lease term, Owner or Agent, in addition to all other remedies by law, mayt (a) discontinue utility service provided by owner? (b) terminate this lease; (c) bring an action or recover possession of the premises; (d) bring an'action to recover the whole balance of the rent and other charges due heroin under, of whatever kind and nature, together with any and all consequential damages caused by Resident's default, including reasonable attorney's fees and court costs. 15. Resident agrees to waive his right to any interest on security deposits held by the owner. 16. Resident agrees'tha o pets shall be allowed on premises ineludinq visiting pets without prior written consent of the owner.. 17. Resident agrees that all security deposits as well as the right to take possession of the premises will be forfeited if Resident does not take possession of the lease apartment/house within seven (7) days of the beginning of the lease term. Prior arrangements may be made with the Owner in writing prior to the HARRISBURG 0 007 ANH 10 2000 08/08/00 YON 16:17 FAX first day of the lease. 1i. Resident agrees to waive his right notice of eviction and agrees that Owner may remove Resident from premises immediately Resident in writing. to a thirty (30) day y begin proceedings to upon notification to 19. RESIDENT AGREES THAT NE WILL compLY AND PROCURE COMPLIANCE or MEHHERS OF HIS FAMILY, AND HIS GUESTS WITH THE OCCUPANCY REGULATIONS FHICPRIINTED HEREON AND WHICH ARE ATTACHED. 20. This lease is subject and subordinate to the lien of all mortgages now or at any time hereinafter placed upon any part of Owner's or Agent's property which includes the apartment, to extensions or renewals thereof, and to all advances now or hereafter made on the security thereof. Resident agrees, upon request, to execute such further instruments evidencing such subordination as Owner or Agant may request, and if Resident fails to do no, Owner or Agent is empowered to do so in the name of Resident. ,17. . THIS J WREEIIENT IS A LEGALLY BINDING CONTRACTW IF YOU DO NOT UNDERSTAND TEId AGREEMENT, ?LEASH CONSULT AN ATTOUNT-AT-LA1W11 41. The term "Resident" used herein shall refer collectively to all persons named above, and signing this lease as Resident, and the liability or each such person shall he joint and several. Also signing on this lease shall be the parents or legal guardians of resident who by signing hereafter shall be liable, jointly and severally, for the entire lease herein. Notice given by owner or Agent to any person named as Resident or by any such ,person to Owner or Agent, shall h;q& &Jj,,-pesagns signing this lease as Resident. The term "Resident" shall also refer to any persons named as heirs, executors, administrators, successors, or the respective parties hereto as if they were in every case named and expressed. 11ITMS r -(SEAL) (SEAL) (SEAL) 0008 ****i*ii#i*#i*##i*##i##i###i###i*###i*i##!##*i**#**i**iki***#*ii1# (SEAL) Resident (OR") HARRISBl1R8 APIs 10 iwuo 06/05/00 VON 15:17 FAX 1@009 aaaaaaaaaaaaaaaaaaaa++4++aaa+aaaaaaaaaaaasaaaaaaaaaaasaaaaaaaaaaaa (BEAT.) Resident ( SEAT.) (SEAT.) Intending to be legally bound, and in consideration of the imams with the above Resident, the undersigned, jointly and severally, hereby become surety to owner or Agent for the performance or the lease 1w;use?da0% end -guarantees payment of all sums becoming owing to owner or Agent by Resident. This agreement shall remain in affect throughout the term of the lease or any renewal thereof. The liability of the undersigned is absolute, continuing and unconditional and owner or Agent shall not be required to proceed against Resident or invoke any other remedy before proceedin4 against the undersigned. owner or Agent expressly agrees,to notify the guarantor in the event of breach or default. REOOLnTIONs 1. gq-?"?cat, other pot or animal of any kind will be brought, ed or kept in the apartment or elsewhere on the owner's y. 2. Resident(s) members of his (their) family, his (their) visitors and servants shall not at any time make any noise, do anything or conduct themselves in any way which disturbs any other resident or interferes with the rights, comfort, or conveniences of any other resident. musical or sound reproducing instruments or singing within the apartment shall be inaudible outside??artsant•between li o'clock each night and 9 o'clock the following morning. 1. No resident shall place or permit to be placed or maintained any sign or advertising matter or device or any root aerial or other structure•in any window of the apartment or alsewhore in or upon the owner's property. 'No resident shall place or permit prior consent or the owner or Agent. Damage to storm doors and windows due to negligence will be the responsibility of resident. 4. Resident shall use plumbing and electrical installations only for their intended purposes and shall be fully responsible for the maintenance of same and for cleaning any stoppages in waste water lines. S. maximum occupancys No more than parson(s) will be HARRISBURG APR 10 w'w 0E/05/00 YON 15:16 FAX parmitted'to ooou as py the apartment, such person(s) designated S. Resident(s) agrae(s) that Owner or agent ma change these regulations from time to time as may be required to protect the apartment or Ownerts other property or add to resident's enjoyment of it. 61010 7. Resident(s) are allowed only -9?, parking space (0) in apartment parking lot. Multiple unit buildings where there are a limited number of parking spaces shall be on a first serve basis. 2. No washer/dryer or dishwasher will be permitted to be kept or used at premises. 8. Trash removal on the exterior of the building shall be the responsibility of ALL resident(s). At any time which the owner dessar3appropriate, an inspection may be made of the exterior of'•the building. If two (Z) or more of any of the following Atoms are qp to exterior, EACH resident will be assessed a chargea $2%0 which must be included in the following months rental payment. RLBIDPW(s) mks (HAVE) READ TU ABOVE REGULATIONS. Owner will keep all utilities in owner's name and resident will pay owner for utilities as per lease agreement by the due date of the utility ompany. ,yARR168URG N.n ? 0 'uulU ) INITIALS ( ) ( ) ( ) ( ) ( ) ( > ( ) ( ) ( ) ( ) c ) c ) c ) c ) c ) c ) c ) c ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the 3 day of hrwr v 2001, addressed to the following: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 Mr. Craig Berdanier RR 4, Box 4012 Duncannon, PA 17020-9406 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: John A. tatter, Esqw Attorney I. D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant James J. Collins ,? ,, L_ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONNA K. HURLEY 415 North Hanover Street Carlisle, PA 17013 Plaintiff VS. CRAIG BERDANIER 403 North Hanover Street Carlisle, PA 17013 and JAMES J. COLLINS 12 Hamilton Road Boiling Springs, PA 17007 Defendants NO. 99- 3&,f CIVIL PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY, Please issue a writ of summons upon the above captioned Defendants. Thank you for your prompt attention to this matter. Resp tfully submitted Date: os h D. Buc ley, Esquire Attorney of the laintiff ID # 38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 LL ? tir: C.) G ?? J O 4 ? Q I IV) \^ v n Commonwealth of Pennsylvania County of Cumberland Donna K. Hurley 415 North Hanover Street Carlisle, PA 17013 V& Craig Berdanier 403 North Hanover Street Carlisle, PA 17013 and James J. Collins 12 Hamilton Rd. Boiling Springs, PA 17007 --------------- the Plaintiff ha s commenced an action in ------ vil_ACtiQn_=_ Tiad______ --- - against you which you are required to defend or a default judgment may be entered against you. Court of Conunon Pleas No. -- 99-3699 Civil----------------- 19 III Civil -Action- - Law --------------------------------- To Berdanier and- James J,_Collins You are hereby notified that Donna K. Hurley - - (SEAL) S51Ctia_R._IRO9.-------------------------- Prothonotary Date _---- June 18, - 1999_ B Deputy e M .?i U rn r? 1 rn A w w {J y! { I 1 go N4 U7 y ? N ? q 1 asp ? ro >, a li N N ?r-i C ? ??77 1? y y `7 $ a) 0 ,y O "U" 19 ?a f ma i o e aav 12 x 88?K 4J 4J 0v?a I - C4 H ?7 i01 qi W m Q Nado OAN { ? ? . { 1 ^• 1 Q 8v V {.? f Q UC V ?p NIO ?1 0 4 L1N l? 1 1 L a 1 • CASE NO: 1999-03699 P SHERIFF'S RETURN - NOT FOUND COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HURLEY DONNA K VS. BERDANIER CRAIG ET AL R. Thomas Kline Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: BERDANIER CRAIG but was unable to locate Him in his bailiwick. He therefore returns the WRIT OF SUMMONS NOT FOUND , as to the within named defendant BERDANIER CRAIG RETURN NOT FOUND AS PER ATTY BUCKLEY ON Sheriff's Costs: So answers: Docketing 6.0 Service 3.110 ZfS Not Fo und 5.00 Surcharge 8.00 RTinoa§ i eri $72-.= 0O%06II/-J 1 CKLEY Sworn and subscribed to before me this L w day of 19 gel A. D. SHERIFF'S RETURN - REGULAR `CASE NO: 1999-03699 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HURLEY DONNA K VS. BERDANIER CRAIG ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon COLLINS JAMES J the defendant, at 13:16 HOURS, on the 29th day of June 1999 at POE: REALTY EXECUTIVES 155 SOUTH HANOVER ST CARLISLE, PA 17013 ,CUMBERLAND County, Pennsylvania, by handing to CAREY COLLINS (DAUGHTER) a true and attested copy of the WRIT OF SUMMONS and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Sworn and subscribed to before me this L day of 19 /9°/ A. D. .cam Q. -hkutG? tPaG So answers: 18.00 3.10 ?!'. ?®? S/ .00 8.00 ?!- Rti'ft? erirL $29..Lu JOSEPIJ BUCKLEY 07/06/1999 by epu y eri rocnonotary nrr .. ana ?a.: c__?i or saJ Girt at Ca: ?ha .. c'?y of _t Prothonotary" Commonwealth of Pennsylvania County of Cumberland Donna K. Hurley 415 North Hanover Street Carlisle, PA 17013 V& Craig Berdanier 403 North Hanover Street Carlisle, PA 17013 and James J. Collins 12 Hamilton Rd. Boiling Springs, PA 17007 Court of Common Pleas No. _9973699 --- Civil ----------------- 19 Civil Action - Law To __CYaig Berdanier and_James J,_COllins You are hereby notified that Donna K. Hurley °--------------------------------••-------------------------------------------------------------- the Plaintiff ha s commenced an action in ------ ivil_Arti.Qn __ Law______________ --------------- against you which you are required to defend or a default judgment may be entered against you. (SEAL) ------------------ Prothonotary Date June ----- 18, ---------------- 1999- By ---?aG--- ! ._rY1,---?W - ° -- Deputy --- njLn SiD MIR I J ! ! I I I I 1 I I i ++ 41 r I N C W ,N En U) U Z W m ;C ? i U aka x.1 Oil 1 Z CL b U O JCL CC O V' ?1 M N p I C m! I IO Z N b1 Z EO ry E I r a l .C U1 M ?0 '-I N ?1 1 C I"? 8?c? ?O 10 t? N ' '? 1 v N 4 m or 4 ? V ham I . ha ? z I , I I I John A. Steller, Esquire Attorney I. D. No. 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 2344161 DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants Attorney for Defendant James J. Collins IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter a Rule upon the Plaintiff, Donna Hurley, to file a Complaint within twenty (20) days or suffer a judgment non Los jigg. reg. DATE: Col (p (cc) GOLDBERG, KATZMAN & SHIPMAN, P.C. By: _ John A. Sta er, Esquire Attorney I.D. No. 43812 P. 0. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Defendant James J. Collins 45875.1 RULE TO PLAINTIFF, DONNA K. HURLEY: You are hereby directed to file a Complaint in the above-captioned matter within twenty (20) days or judgment non pros will be entered against you. ' DATEJL.L09 200b ASI L2,-7L, -4 ) P OTHONOTARY CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the day of 2000, addressed to the following: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 Mr. Craig Berdanier 403 North Hanover Street Carlisle, PA 17013 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: \ John A. Statle-r Esquire Attorney I. D. No. 438 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant James J. Collins >_ °: ? ?_ ?": ?+ F.. i?•'-% ` ? ??: .?., ,, i u..'. '' ,',? ?_ "J ?? ??' _ r-? CV -J John A. Statler, Esquire Attorney 1. D. No. 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 2344161 Attorney for Defendant James J. Collins DONNA K. HURLEY, ; IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW CRAIG BERDANIER and : NO. 99 - 3699 CIIVEL JAMES J. COLLINS, Defendants : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the appearance of John A. Statler, Esquire, of Goldberg, Katzman and Shipman, P.C., as counsel on behalf of Defendant James J. Collins in the above-captioned action. GOLDBERG, KATZMAN & SHIPMAN, P.C. By John A. tatter, Esquire Attorney I.D. No. 43812 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 DATE: (Uo Counsel for Defendant James J. Collins G I G 43873.1 CERTIFICATE OF SERVI E I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the day of 'J UN e- 2000, addressed to the following: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 Mr. Craig Berdanier 403 North Hanover Street Carlisle, PA 17013 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: John A. Sta ler, EsgwrB--, Attorney I. D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 2344161 Attorney for Defendant James J. Collins ' - . -+ . ) -' o U John A. Statler, Esquire Attorney I. D. No. 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 2344161 Attorney for Defendant James J. Collins DONNA K. HURLEY, IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW CRAIG BERDANIER and NO. 99 - 3699 CIVIL JAMES J. COLLINS, Defendants JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly file of record the attached Certificate of Service of the Prothonotary's Rule to File a Complaint which was issued on June 7, 2000, and served on the date reflected in the attached Certificate of Service. GOLDBERG, KATZMAN & SHIPMAN, P.C. By: i:?? John A. St er, Esquire Attorney I.D. No. 43812 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 DATE: Counsel for Defendant James J. Collins 45875.1 John A. Steller, Esquire Attorney I. D. No, 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108.1268 Telephone: (717) 234A 161 DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants Attomey for Defendant James J. Collins IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a certified copy of the Rule to File Complaint issued by the Prothonotary of Cumberland County on June 7, 2000, upon counsel for Plaintiff , by depositing same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the 8" day of June, 2000, addressed to the following: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 GOLDBERG, 1KATZMAN & SHIPMAN, P.C. By: John A. S atler, Esqul Attorney I.D. No. 43812 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Counsel for Defendant James J. Collins CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the _1 day of -JCA 2000, addressed to the following: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 Mr. Craig Berdanier 403 North Hanover Street Carlisle, PA 17013 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: John A. Statler, Esq Attorney 1 D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant James J. Collins U IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA K. HURLEY 415 North Hanover Street Carlisle, PA 17013 Plaintiff V. NO. 99-3699 CIVIL TERM CIVIL ACTION - LAW CRAIG BERDANIER and JAMES J. COLLINS JURY TRIAL DEMANDED Defendants 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 days (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 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 YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (171)249-3166 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA K. HURLEY 415 North Hanover Street Carlisle, PA 17013 Plaintiff' V. NO. 99-3699 CIVIL TERM CIVIL ACTION - LAW CRAIG BERDANIER and JAMES J. COLLINS JURY TRIAL DEMANDED Defendants AND NOW this ?/day of August, 2000 comes Plaintiff, by and through her counsel, Joseph D. Buckley, Esquire and complains of Defendants as follows: 1. Plaintiff, Donna K. Hurley, is an adult female currently residing at 415 North Hanover Street, Carlisle, PA 17013. 2. Defendant, Craig Berdanier (hereinafter "Berdanier"), is an adult male who had previously resided at 403 North Hanover Street, Carlisle, PA 17013. Berdanier is believed to be currently residing in Mechanicsburg, PA. 3. Defendant, James J. Collins (hereinafter "Collins") is an adult male currently residing at 12 Hamilton Road, Boiling Springs, PA 17007. 4. At all times material to plaintiffs cause of action, Defendant Collins was the owner of improved real estate commonly referred to as 403 North Hanover Street, Carlisle, PA 17013. 5. At all times material to plaintiffs cause of action, defendant Berdanier was a tenant of Collins and occupied part, if not all of the premises located at 403 North Hanover Street, Carlisle, PA 17013 (hereinafter "Collins' property"). 6. Berdanier was living in Collins' property for no weekly or monthly rent, but was doing work for Collins while Collins helped Berdanier locate a new residence. Collins had near exclusive control over the Collins' property and Berdanier was a tenant at sufferance. 7. At all times material to plaintiffs cause of action, defendant Berdanier was the owner of an Akita dog. 8. At all times material to plaintiffs cause of action, defendant Berdanier's Akita dog was known to be a dangerous animal with specific vicious propensities. 9. At all times material to plaintiffs cause of action, defendant Collins knew that Berdanier would be keeping his dangerous dog with specific vicious propensities and at least one other dog at Collins' property. 10. At all times material to plaintiffs cause of action, defendant Collins knew that Berdanier would at times when Berdanier was not at home be housing his dangerous dog outside of the residence on Collins' property in a small yard to the rear of the property. 11. At all times material to plaintiffs cause of action, the small rear yard of the Collins' property was not fenced. 12. At all times material to plaintiff's cause of action, defendant Collins was aware that a right of way along the side of the rear yard on the Collins' property was used as a walk way for many children and other residents of the neighborhood. 13. At all times material to plaintiffs cause of action, defendant Collins had the right to restrict, control or remove Berdanier's Akita dog or any of his dogs from the Collins property by retaking possession of the premises. 14. At all times material to plaintiff's cause of action, defendant Collins had the right to restrict, control or remove Berdanier's Akita dog or any of his dogs from the Collins property by making such a condition to Berdanier's tenancy. 15. At all times material to plaintiffs cause of action, defendant Collins permitted Berdanier to house his dangerous Akita dog in the rear yard of the Collins' property in an exterior dog house which had a sign "BEWARE OF THE DOG" attached to it and to restrain the dog using only a rope. 16. Prior to May 17, 1999, plaintiff had met Berdanier. 17. Prior to May 17, 1999, Berdanier had specific knowledge of his Akita's dangerous condition and did not inform plaintiff of this fact. 18. On Monday afternoon May 17, 1999, Plaintiff and a neighbor noticed that Berdanier's Akita dog was roaming along the right-of-way between her property, the Collins' property and others. 19. Berdanier's Akita dog was walking with but had a collar. 20. Using a lease given her by her neighbor, Plaintiff approached and called the dog using a calm, soothing voice. Plaintiff leashed the dog and began walking it back to the Collins' property. 21. For no apparent reason and without provocation on the part of the plaintiff, Berdanier's Akita dog turned on plaintiff and violently and viciously attached plaintiff biting her about her head, face and arms. 22. As a result of the attack, Plaintiff was hospitalized for an extended period of time and has had to undergo surgeries to help correct the severe scarring on her face, head and arms. 23. Defendants had a duty to insure that the dog was properly housed in an enclosed area or secured so that it could not freely roam about the neighborhood. 24. Defendant Collins had a right as landlord to control whether dogs were permitted on his property. 25. Defendant Collins had the right to retake possession of his property thus removing the dog from the property. 26. Defendant Collins could have eliminated the presence of Berdanier's Akita dog at any time by either demanding its removal or retaking possession of the property. 27. The negligence and carelessness of Berdanier consisted of the following: a. Failing to inform plaintiff of the known dangerous nature of his Akita and the dangerous propensity of the breed. b. Failing to properly restrain, kennel or attend his Akita dog. 28. The negligence and carelessness of Collins consisted of the following: a. Permitting Berdanier to keep his Akita on the property. b. Permitting Berdanier to keep his Akita unattended on the property. c. Permitting Berdanier to keep his Akita unattended outside on the property without constructing a fence. d. Failing to retake the property from Berdanier or to remove the Akita dog. 29. As a result of the negligence and carelessness of the Defendants, as more fully set forth herein, plaintiff sustained serious, painful and permanent personal injuries, more particularly herein set forth. 30. As a result of the attack on Plaintiff caused by Defendants' negligent act or acts, Plaintiff was unable to work in any capacity and once she returned to work she has not been able to return to the level of her past performance. 31. As a result of the attack caused by Defendants' negligent act or acts, Plaintiff has been disfigured on and about her face, neck and arms. 32. As a result of the attack caused by Defendants' negligent act or acts, and the multiple injuries sustained therefrom, Plaintiff will have to in the future as she has had to in the past since the attack endure intensifying pain in her arm, the humility of her facial disfigurement and the mental stress associated with such pain. 33. Plaintiff has incurred medical bills in excess of twenty-five thousand dollars ($25,000.00). 34. Plaintiff will incur future medical bills in excess of twenty-five thousand dollars ($25,000.00). 35. Plaintiff has suffered lost wages in excess of twenty-five thousand dollars ($25,000.00). 36. Plaintiff will suffer future lost wages in excess of twenty-five thousand dollars ($25,000.00). 37. Plaintiff has suffered pain and mental anguish in excess of twenty-five thousand dollars ($25,000.00). 38. Plaintiff will suffer future pain and mental anguish in excess of twenty-five thousand dollars ($25,000.00). 39. Plaintiff has suffered loss of enjoyment in life in an amount in excess of twenty-five thousand dollars ($25,000.00). 440. Plaintiff will suffer future loss of enjoyment in life in an amount in excess of twenty-five thousand dollars ($25,000.00). WHEREFORE, Plaintiff prays that this Honorable Court enter a judgment in her favor as against Defendants in an amount in excess of twenty-five thousand dollars, together with interest and the costs associated with this action. submitted -roAoh D. ]lucky, Esquire Attorney of the Plaintiff ID #38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 VERIFICATION I, Donna K. Hurley, the Plaintiff in this action, verify that I have read the foregoing Complaint and to the best of my individual knowledge, information and belief the statements made therein are true and correct. I understand that the statement made herein are subject to the provisions and penalties of 18 Pa. C.S. Section 4904 relating to unswom falsifications to authorities. Date: IJ?11 M CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Complaint was duly served via United States Mail First Class, Prepaid on the following person: John A. Statler, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Date: 8.31- o0 Jegeph D. Buck] Attorney for the Q?s F H n r'4 p w m C u H 4 m a axe U 0i A ? = W N }X ? ?o ? a R;Q C rj ? V m ° z i 3 2 0 91.\HAE'I S"I'H 1.I I • S'I'H.\N IIJ II H1' SQ \HD. 11. O. It US 120, 8 • It 1111111 AI Hr, Pr: N N 1rI kNI\ 171118-I'nX fix GOLDBERG, KATZMAN & SHIPMAN, P.C. k.JW AlloWNE11 %I L%1% Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 I 1 {r 1 I I 320 MAIt K 1;1 STN1' 1%1 • R1It1 1\II 1% It NI' SVII\It N P.O. Buc Ial8 11 tAR 11 X1 It 1; P I: N n s 1 ln.\.V I, 171 ax-126n GOLDBERG, KATZMAN & SHIPMAN, P.C. Mr. Craig Berdanier RR 4, Box 4012 Duncannon,PA 17020-9406 is I ; 'x 1 ? t f 320 MARKET' S'I'kj:j lI • NI RI(HR1' .Spr:\II I! 1'. O. Box 1268 . it A k k I1Rr kr, I' F. N N Cr L\'NS% % 171 UR-1268 GOLDBERG, KATZMAN & SHIPMAN, P.C. A'r'roRNFIS AI' Ln\\ John A. Statler, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 5:J i t i. ?'E82d2000 DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants AND NOW, this IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED ORDER day of 2001, it is hereby ORDERED that summary judgment is granted in favor of Defendant James Collins and against the Plaintiff in this case. BY THE COURT: J. rFB'L 8 2uoi?% DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED ORDER AND NOW, this day of 2001, it is hereby ORDERED that summary judgment is granted in favor of Defendant James Collins and against the Plaintiff in this case. BY THE COURT: J. DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants AND NOW, this IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED ORDER day of 2001, it is hereby ORDERED that summary judgment is granted in favor of Defendant James Collins and against the Plaintiff in this case. BY THE COURT: J. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please List the within matter for the next Atgunent Court. CAPTION OF CASE (entire caption must be stated in full) DONNA R. HURLEY, VS. CRAIG BERDANIER and JANES J. COLLINS, (Plaintiff) (Defendant) No. 99-3699 Civil 19 1. State matter to be argued (i.e., plaintiff's motion for new trial., defendant's demurrer to complaint, etc.): Notion of Defendant James J. Collins for Summary Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Joseph D. Buckley, Esquire Address: 1237 Holly Pike Carlisle, PA 17013 (b) for defendant: Craig Berdanier, Pro Se Address: RR 4, Box 4012, Duncannon, PA 17020-9406 for defendant James J. Collins: John A. Statler, Esquire, Goldberg, Katzman b Shipman, P.C. will notify 320 Market Street, P.O. Box 11268, Harrisburg, PA 17108-1268 3. I all parties in within within two days that this case has been listed for argument. 4. Atgurest Court Date: March 28, 2001 Ceted: Attornfor Defendant James J-Collin IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER, and NO. 99-3699 CIVIL TERM CIVIL ACTION - LAW JAMES J. COLLINS, JURY TRIAL DEMANDED Defendants ORDER AND NOW this day of , 2001 it is hereby ORDERED that the Motion for Summary Judgment of Defendant James J. Collins is hereby DENIED. BY THE COURT J. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA K. HURLEY, Plaintiff V. NO. 99-3699 CIVIL TERM CIVIL ACTION - LAW CRAIG BERDANIER, and JAMES J. COLLINS, JURY TRIAL DEMANDED Defendants RESPONSE TO MOTION OF DEFENDANT JAMES E. COLLINS FOR SUMMARY JUDGMENT AND NOW comes Plaintiff Donna K. Hurley, by and through her attorney, Joseph D. Buckley, and responds to Defendant Collins' Motion for Summary Judgment as follows: 1. Admitted in part. This case arises out of a vicious dog attack by a dog on Plaintiff during which time the dog repeatedly bit Mrs. Hurley about her face, neck and arms. 2. Admitted in part. Plaintiff was bitten several times. 3. Admitted. 4. Admitted, but by way of clarification Collins and Berdanier had discussions regarding the type of dogs he would be housing at the property, their respective tendencies, his concerns of moving them into the borough, and the method by which he would house them outside the residence. S. Admitted in part. On May 5, 1999, Collins had already been given specific knowledge of the kind and character together with their specific tendencies, had had discussions with Berdaner about fencing the property and had been shown the type of fencing and the beware of dog sign placed on the dog house. It is further noted that the dog attack in question occurred on May 17, 1999. 6. Admitted in part. It is admitted that there is no proof that the dog had ever bitten anyone; however, it was known by Berdanier and Collins of this Akita dog's dislike of people, that it would growl at strangers, that it was high strung and that the move to the property in question would may it more high strung. 7. Denied. Prior to leasing the property in question from Collins, Berdanier had a detailed discussion with Collins regarding his dogs and Berdanier's concerns and the effect of bringing his already edgy and high strung dog from a rural setting to an inter-city setting and the problems that may arise form the move. 8. Denied for reasons stated above. Further, Collins had the right not to lease the property to Berdanier after being notified of the dog's propensity and potential problems. Also Collins was shown the "Beware of Dog" sign Berdanier had placed on the property and the method Berdanier was utilizing to house the dog outside during the day. 9. Denied. The lease itself restricted dogs. It was only after being informed of the dog's tendencies, nature and kind and its dislike of strangers that Collins permitted the dog in question to be housed outside on the property. There is evidence that the property was to be fenced by Berdanier suggesting a desire to keep the dog confined and to protect others from the dog's known propensities. Collins had the right to further restrict or demand removal of the dog after inspect the property and being shown the Beware of Dog sign and the inadequate fencing. 10. Denied. There are many material facts in dispute, the greatest being that Collins denied any knowledge of the type, nature and tendencies of the dogs owned by Berdanier and Berdanier's testimony that he specifically discussed the matter with Collins. Futher facts in dispute include, but are not limited to: a. That Berdanier was to install a fence and the purpose of such installation, b. That Berdanier had informed Collins as to his housing the dog outside and had placed a Beware of Dog sign on the property and shown the same to Collins, c. That Collins had been told that the dog did not like people and growled at strangers, d. That Collins prior to entering the lease with Berdanier had been told that the dog was high strung and edgy and that the move from a rural to a city/residential setting would probably make the dog even more edgy and high strung. e. That Collins had inspected the property, been shown the dog hose with its Beware of Dog sign and shown the inadequate rope fence and agreed it was adequate. WHEREFORE, Plaintiff Donna K. Hurley humbly requests that this Honorable Court deny Collins' Motion for Summary Judgment. Respectfully submitted, Date March 22, 2001 Qjh *Bucey, sq ui e Attorney for Plaintiff I.D. #38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 I, Joseph D. Buckley of The Law Offices of Joseph D. Buckley, do hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirement of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid as follows: John A. Statler, Esquire 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Mr. Craig Berdanier RR4Box4012 Duncannon, PA 17020-9406 ?-2.3 -0? DATE z ? JOSEPH D. B CKLEY, ES IRE Supreme Ct. #38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 i 3 x a O ? n F3¢ a U John A. Stutter, L•squirc Attorney I. D. No. 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234A 161 DONNA K. HURLEY, Plaintiff V. CRAIG BERDANTER and JAMES J. COLLINS, Defendants Attorney for Defendant James J. Collins IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED NOTICE TO PLEAD TO: DONNA K. HURLEY, Plaintiff c/o JOSEPH D. BUCKLEY, ESQUIRE 1237 Holly Pike Carlisle, PA 17013 Attorney for Plaintiff YOU ARE REQUIRED to plead to the within Answer With New Matter within twenty (20) days of service hereof or a default judgment may be entered against you. GOLDBERG, KATZMAN & SHIPMAN, P.C. \ By John A. tatler, ui Attorney I. D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant James J. Collins DATE: `? ?Z 500 John A. Statler, Esquire Attorney 1. D. No. 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234A 161 Attorney for Defendant James J. Collins DONNA K. HURLEY, Plaintiff V. CRAIG BERDANIER and JAMES J. COLLINS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99 - 3699 CIVIL JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANT JAMES J. COLLINS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant James J. Collins, by his attorneys, Goldberg, Katzman and Shipman, P.C. who file the following Answer and New Matter in response to the Plaintiffs Complaint: Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 2. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 3. Admitted. 4. Admitted. It is admitted that Defendant Berdanier was a tenant of Defendant Collins and further admitted that Defendant Berdanier occupied all of the premises pursuant to a written lease agreement. By way of further answer, a true and correct copy of the lease is attached hereto as "Exhibit A." 6. Denied. Although Defendant Berdanier did some work for Defendant Collins, Defendant Berdanier also paid monthly rent to Collins. It is specifically denied that Defendant Collins had near exclusive control over the property and denied that Berdanier was a tenant at sufferance. It is admitted that Defendant Berdanier owned several dogs. Defendant Collins does not know the breed of the dogs. 8. Denied. Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averment that Defendant Berdanier's Akita dog was known to be a dangerous animal with vicious propensities. Therefore, Defendant Collins specifically denies this averment and demands strict proof at time of trial if deemed material. 9. It is admitted that Defendant Collins was aware that Defendant Berdanier was keeping two dogs on the property. It is specifically denied that Defendant Collins knew that Defendant Berdanier would be keeping a dangerous dog with specific vicious propensities on the property. By way of further answer, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averment that Defendant Berdanier had a dangerous dog with specific vicious propensities and, therefore, Defendant Collins denies this averment and demands strict proof at time of trial if deemed material. 10. It is admitted that Defendant Collins was aware that Defendant Berdanier was keeping the dogs both inside and outside the residence. By way of further answer, it is specifically denied that Defendant Collins was aware that Defendant Berdanier was housing a dangerous dog on the property. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averment that Defendant Berdanier was housing a dangerous dog and, therefore, denies the same and demands strict proof at time of trial if deemed material. 11. Denied. The yard was enclosed by a building on one side, a neighbor's chain link fence on the other side and a wooden fence in the rear. 12. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 13. Denied. It is specifically denied that the written lease permitted Defendant Collins to restrict, control or remove Defendant Berdanier's Akita dog or any of the dogs from the Collins' property by retaking possession of the premises. 14. Denied. It is specifically denied that Defendant Collins had the right to restrict, control or remove Defendant Berdanier's Akita dog or any of his dogs from the Collins' property after entering into the written lease with Defendant Berdanier. 15. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averment that the Akita dog was dangerous and, therefore, denies the same and demands strict proof at time of trial if deemed material. It is admitted that Defendant Berdanier sometimes kept the dog in the partially fenced side yard with a dog box and a leash. It is also admitted that there was a "Beware of Dog" sign on the property. 16. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 17. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 18. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 19. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 20. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 21. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 22. Denied. After reasonable investigation, Defendant Collins is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 23. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins had a duty to insure that the dog was properly housed in an enclosed area or secured so that it could not freely roam about the neighborhood. 24. It is admitted that Defendant Collins had a right to enter into a lease to permit dogs on his property. 25. Denied. It is specifically denied that Defendant Collins had the right to retake possession of his property and remove the dog. 26. Denied. It is specifically denied that Defendant Collins could have eliminated the presence of Defendant Berdanier's Akita dog at any time by either demanding its removal or retaking possession of the property. 27. The averments in this paragraph are directed to a Defendant other than Defendant Collins and, therefore, no response is required. 28. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and denied that he was negligent and careless in: a. Permitting Berdanier to keep his Akita on the property; b. Permitting Berdanier to keep his Akita unattended on the property; C. Permitting Berdanier to keep his Akita unattended outside on the property without constructing a fence; and d. Failing to retake the property from Berdanier or to remove the Akita dog. 29. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 7 30. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 31. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 32. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 33. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 34. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 35. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 36. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 37. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 38. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 39. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. 40. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that Defendant Collins was negligent and careless and, therefore, denied that the Plaintiff suffered any injuries, losses or damages as a result of any negligence or carelessness on the part of Defendant Collins. WHEREFORE, Defendant James J. Collins respectfully requests that the Plaintiffs Complaint be dismissed and that judgment be entered in favor of Defendant Collins and against all other parties. 10 NEW MATTER By way of additional answer and reply, Defendant James J. Collins raises the following New Matters: 41. If the Akita dog was dangerous or had exhibited vicious propensities prior to May 17, 1999, Defendant Collins did not know or have reason to know of such dangerous or vicious propensities. 42. Defendant Collins did not have a right to control or remove Defendant Berdanier's dogs by retaking possession of the premises. WHEREFORE, Defendant James J. Collins respectfully requests that the Plaintiff's Complaint be dismissed and the judgment be entered in favor of Defendant Collins and against all other parties. Respectfully submitted, GOLDBERG, KATZMAN & SHUMAN, P.C. By: 1 i' C John A. Statler, Esquire Attorney I. D. No. 43812 320 Market Street P. 0. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 DATE: 2 s' /00 Attorneys for Defendant James J. Collins 51618.1 VERIFICATION I, JAMES J. COLLINS, hereby acknowledge that I am a Defendant in this action; that I have read the foregoing document; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. - 21= -Z- J MES J. CO S DATE: ExhH* A 06/06/00 YON 15:14 FAX 0004 r ., 1 RESIDENTIAL LEASE AORRElCM THIS LEASE, made this Yw x , 19 day of % BETWEEN i01+1?5 --F Owner, AND aL/?iV" /CY lSE%r/JAA/!4? the snereanazuer wnacner. one or more, referred to a -Resident-), jointly and severally: WITNRSSETHs That owner hereby leases to Resident and the letter let fro= the former, the apartment/house designated as a ? yeiF l • wt E' .1 G ,o r hereinafter called the ",premises-, for the term of a i beginning on the !Sr'* day of C ending on the 3 F dap cO 7-,,t'-jL?,7?E- ' 19 and the rent of S?L.Vi' f/? sAi ,-?r7 ' 19 at UUL.LdrS h in advanc?This letteach an the day of each mont ing is upon the following terms and conditions: •r= 1. Residaht agrees to pay owner a security deposit of aewj Dollars ($ ? ) upon signing of th s agreement with receipt herein acknowledged paid by 2. Resident agrees to_p`ay to owner or Agent the monthly rats sat forth above on the /S day of each month, in advance, at the Rental Office of owner or Agent or such other place as Owner or Agent may from time to time request and further agrees to pay the first and last months rent at the time of occupancy. Resident also agrees to pay a late payment charge to ten (hg) percent per month on the amount of rent in default on the 2e day of each month which shall be included with that months renpl payment. If late rental payment is not received by the ? of each month (rent plus late payment charge), Owner or Agent will reserve the right to proceed with the necessary legal authorities to collect same. If any check for rent is returned to owner or Agent or insufficient funds or other reason, late charges will continue until rent is actually paid by Resident. 3. Owner or Agent may terminate this lease without cause by giving thirty (30) days prior'written notice to Resident, but DQ termination by owner or Agent without cause may take effect during the one-year term of the lease. • 4. Resident agrees to use the apartment only as the personal residence of Resident and fthetrtchildren, and not to assign this lease or sublet the apartment. Resident agrees not to alter or make additions to the apartment, its painting, its fixtures, change o a without Owner's or Agent's written consent. Resident agrees not to do or to permit any act or practice injurious to the building, which may affect the insurance on the building, or which is contrary to any law. HARRISBURG APR 10 .uw 00/05/00 YON 15:15 FAX S. Resident understands that the equipment for utilities to serve the premises in in0a;10 t?proilL and Resident %green that the cost of the utilities shall a paid as follows: Heating for premises to be paid by Heating of water for premises to be paid by Electricity for promises to be paid by Gas for premises to be paid by Sewer charge to be paid by Hater consumption to be paid by Trash removal to be paid by Cable Television to be paid by Telephone to be paid by Resident agrees that Owner or Agent shall have the right temporarily to stop the service of electricity, or water, in the event of accident affecting the same or to facilitate repairs or alterations made in the premises or elsewhere in owner's or Agent's property. Owner or Agent shall have no liability for failure to s ply heat, air conditioning, hot water or other services or utilities when such failure shall be beyond Owner's or Agent's control or to ..enable owner or Agent to service or repair installations.. • 6. Resident aqr care in the use of the apartment, the appliances therein, and all other parts or Owner's or Agent's property, to give notice to owner or Agent cf the need for repair thereof, and to oav for all renairs ro rtie s..srtment Owner-IjL-or O d 11 other-parts of ?d of e R' t owner or Agent will make necessary repairs to the apartment and the app] lances therein within a reasonable time after Resident notifies Owner or Agent of the need for repairs. RANGE: serial number REFRIGERATOR: serial OTHER APPLIANCES: number 7. Resident agrees that owner or Agent shall not be liable for property damage or personal injury occurring in the apartment or elsewhere on owner's or Agent's property unless the damage or injury results directly from owner's or Agent's negligence. 8. All residents are required to carry "renters insurance" for the premises with an amount equal or greater to the value of all personal belongings of the resident. NamA- Insurer _ Amount 1. 2. 3. a. s. HARRISBURG WOOS APR 10 WWU 06/05/00 YON 15:15 FAX 10 006 6. 7. s.• 96 Yf, due to circumsU&NMa0 beyond the owner's or Agent's control, the premises shall not be ready for occupancy at the beginning of the term, this lease shall nevertheless remain in effect and the rent shall be abated proportionately until the promises are so ready, and Owner or Agent shall not be liable for delay; provided, that if the premises shall not be-for occupancy sixty (60) days after said beginning, Resident shall have the right to cancel this lease by written notice delivered to owner or Agent at any time after the expiration of said sixty (60) days, but not after the premises are ready for occupancy. Resident's remedy shall be limited to such right of cancellation, neither party shall have any further right against the other, save the Owner or Agent shall repay any deposits made by Resident. If Resident shall occupy the premises prior to the beginning of the term, such occupancy shall be subject to the terms of this lease, and Resident shall pay prior to occupying the premises rent for the same period from the date of.,subh occupancy to the beginning of said term. r 10. If the-apartment is damaged by fire or other casualty, Owner or Agent shall repair it within a reasonable time and rent shall continue unless the casualty renders the apartment untenantable,' in which case this lease shall terminate and Resident, upon payment of allt to the date the apartment is suxrendered, shall not be°lfab As or'eany further rent. If only a portion of the apartment is rendered untenantable, the Resident may, with mutual agreement of owner or Agent, alternatively choose to continue in possession and shall thereupon be entitled to a pro- rata reduction in the amount of rent, provided that election to prc cead under this alternative shall not be a waiver of the Resident's right to terminate the lease if repairs are not made within a reasonable time. 11. Owner or Agent, or any person authorized by him, with the prior specific consent of Resident, which consent shall not be unreasonable withheld, shall have the right to enter the apartment at reasonable times to inspect, make repairs or alterations as needed, to enforce this lease, and, after notice of termination is given, to show the apartment 'to prospective residents; provided, however, that Resident's consent shall not be necessary in case of emergency. 12. Resident agrees to pay the security deposit set forth above prior to occupancy of the apartment. The security deposit shall be held by owner or Agent as security for the payment of all rent and other amounts due from Resident to owner or Agent, for the Resident's performance .?aeao,_.and against any damages caused to the apartment or any other part of Owner's or Agent's property by Resident, his family and guests. Resident understands HARRISBURG APR 10 20% 06/05/00 YON 15;16 FAX Zero. wltnln thirty (30) days following termination of this lease and/or physically vacating of apartment, owner or Agent shall return the security deposit, less any deductions from it on account of amounts owed by Resident to owner or Agent, to Resident by check payable to all persons signing this lease mailed to a forvardina e Upon terminating of lease and vacating of apartment within terms and conditions not forth in the lease Resident shall return „n baud say o=_saen yacAr hC. . it keys are not returned within this time period, Owner or Agent will have the right to change the locks on the premises specified in the lease and charge such look change to Resident. 13. This lease confers no rights on Resident to use for any purpose any of the property of Owner or Agent other than the interior of the apartment hereby leased, except the walks and roadways giving access thereto and such other areas, if any, as Owner or Agent may from time to time designate for the use of residents. When the use by Resident of any other portion of Owner's or Agegtls property is permitted, it shall be subject to the rules and regulations+asstablished`by Owner or Agent. 14. If Resident shall fail to pay rent, or any other sum, to Owner or Agent when duet shall default in any other provisions of this leases or shall remove or attempt to remove his possessions from the premises before paying to Owner or Agent all rent due to the end of the lease term, Owner or Agent, in addition to all other remedies by law, mays (a) discontinue utility service provided by ownerr (b) terminate this leaser (c) bring an action or recover possession of the premises# (d) bring an'action to recover the whole balance of the rent and other charges due herein under, of whatever kind and nature, together with any and all Consequential damages caused by Resident's default, including reasonable attorney's fees and court costs. 15. Resident agrees to waive his right to any interest on security deposits held by the owner. 16. Resident agrees e o pets?ahall be allowed on premises including visiting pets without prior written consent of the Owner.. 17. Resident agrees that all security deposits as well as the right to take possession of the promises will be forfeited if Resident does not take possession of the lease apartment/house within seven (7) days of the beginning of the lease term. Prior arrangements may be made with the owner in writing prior to the HARRISBURG W 007 Nett 10 2000 05/05/00 MON 15:17 PAZ first flay of the lease. 18. Resident agrees to waive his right to a thirty (30) day notice of eviction and agrees that Owner may begin proceedings to remove Resident from premises immediately upon notification to Resident in writing. 19. RESIDENT AGREES THAT HE WILL COMPLY AND PROCURE COMPLIANCE OF MEMBERS OF HIS FAMILY, AND HIS GUESTS WZTH THE OCCUPANCY REGULATIONS WHI AM XTED HEREON AND WHICH ARE ATTACHED. Zo. This lease is subject and subordinate to the lien of all mortgages now or at any time hereinafter placed upon any part of Owner's or Agent's property which includes the apartment, to extensions or renewals thereof, and to all advances now or hereafter made on the security thereof. Resident agrees, upon request, to execute such further instruments evidencing such subordination as owner or Agent may request, and if Resident fails to do no, Owner or Agent is empowered to do so in the name of Resident. :r... If, THIS "REEMENT 18 A LEGALLY BINDING CONTRACTS IY YOU DO NOT UNDERSTAND TBId AGREEMRNT, PLEASE CONSULT AN ATTOMMY-AT-LAW11 916 The term "Resident" used herein shall refer collectively to all persons named above, and signing this lease as Resident, and the liability or each such person shall be joint and several. Also signing on this lease shall be the parents or legal guardians of resident who by signing hereafter shall be liable, jointly and severally, for the entire lease herein. Notice given by owner or Agent to any person named as Resident or by any such person to owner or Agent, shall Jaind - 4 p9=%9na signing this lease as Resident. The term "Resident" shall also refer to any persons named as heirs, executors, administrators, successors, or the respective parties hereto as if they were in every case named and expressed. WITNESS: (SEAL) Res nt (SEAL) (SEAL) 10008 ##!###ii#t##*#*!*i*!i##!i!#*i*#**i##!##*#*ii*#!###i#i**#i*A*!*#i#i (SEAL) Resident (SEAL) HARRISBURG APR 10 iuuu 06/.05/00 NON 15:17 FAX ?araatwr*atratatawaa++;•+ww*wwwt+aarawwtwaa+r•twrrrtwtrarrwataawwt Resident (SEAL) (SEAL) (SEAL) Intending to be legally bound, and in consideration of the lease with the above Resident, the undarailJned, jointly and severally, hereby become surety to owner or Agent for the performance or the lease.?y,??,,,i??rantees payment of all sums becoming owing to owner or Agent by Resident. This agreement shall remain in effect throughout the term of the lease or any renewal thereof. The liability of the undersigned is absolute, continuing and unconditional and Owner or Agent shall not be required to proceed against Resident or invoke any other remedy before proceedintp 'against the undersigned. owner or Agent expressly agrees--to notify the guarantor in the event of breach or default. REGMATIONS 1• AVU cat, other pa t or animal of any kind will be brought, d or kept in the apartment or elsewhere on the owner's . 2.• Resident(s) members of hie (their) family, his (their) visitors and servants shall not at any time make any noise, do anything or conduct theinselves in any way which disturbs any other resident or interferes with the rights, comfort, or conveniences of any other resident. Musical or sound reproducing instruments or singing within the apartment shall be inaudible outsidwathowatpartment_between Xi o'clock each night and 9 o'clock the following morning. 3• No resident shall place or permit to be placed or maintained any sign or advertising matter or device or any roof aerial or other structure'in any window of the apartment or elsewhere in or upon the owner's property. 'No resident shall place or permit prior consent or the owner or Agent. Damage to storm doors and windows due to negligence will be the responsibility of resident. 4. Resident shall use plumbing and electrical installations only for their intended purposes and shall be fully responsible for the maintenance of same and for cleaning any stoppages in waste water lines. Q009 S. Maximum occupancys No more than U 1 person(s) will be HARRISBURG WR 10 wuu 06/05/00 YON 15:18 PAS WHO permitted to oeoup as y the apartmant, such person(s) designated 6. Reaident(s) agraa(e) that owner or agent may change thous regulations from time to time as may be required to protect the apartment or owner's other property or add to residents enjoyment of it. 7. Resident(s) are allowed only -2- parking space(s) in apartment parking lot. Multiple unit buildings where there are a limited number of parking spaces shall be on a first serve basis. 8. No washer/dryer or dishwasher will be permitted to be kept or used at promises. 9. Trash removal on the exterior of the building shall be the responsibility of ALL resident(s). At any time which the owner deems ++appropriate, an inspection may be made of the exterior of',the building. If two ($) or more of any of the following dtems are tAu qp,10-exterior, EACH resident will be assessed a charge of $5.00 which must be included in the following months rental payment. RL8ID88T($) MIS (85'78) READ T= AHOV1 R80IILATIOMB. Owner ? ill keepall? littinn owner's name and resident will pay owner for by the due date of the utility ompany. MAMISBURG ArK 10 WUU 5 INITIALS CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at TM Harrisburg, Pennsylvania, with first-class postage prepaid on the Z S day of 2000, addressed to the following: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 Mr. Craig Berdanier 403 North Hanover Street Carlisle, PA 17013 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: John A. S ler, Esquire Attorney I. D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant James J. Collins CO C _ ? DONNA K. HURLEY, Plaintiff vs. CRAIG BERDANIER and JAMES J. COLLINS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-3699 CIVIL CIVIL ACTION - LAW IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT JAMES J. COLLINS BEFORE BAYI.EY AND HESS J.J. ORDER AND NOW, this /2' day of June, 2001, the motion of the defendant, James J. Collins, for summary judgment, is DENIED. BY THE COURT, Joseph D. Buckley, Esquire For the Plaintiff John A. Statler, Esquire For Defendant Collins Craig Berdanier, Pro Se RR 4, Box 4012 Duncannon, PA 17020-9406 -14,ZKevi A. Hess, J. 0 :rlm ' •?1 I1 I .? .• • ...I ??.. dl• ?1 v1 n l ?.•?1'll-.i o : Ull\ l 1 ?'Ci'?I 114", IiA DONNA K. HURLEY, Plaintiff VS. CRAIG BERDANIER and JAMES J. COLLINS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-3699 CIVIL CIVIL ACTION - LAW IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT JAMES J. COLLINS BEFORE BAYLEY AND HESS J.J. OPINION AND ORDER Before the court is a motion for summary judgment filed by defendant, James J. Collins. This action has been brought against Mr. Collins, as a landlord, for injuries caused by a dog kept by his tenant. According to the complaint filed in the case, on May 17, 1999, the plaintiff, Donna Hurley, was attacked by an Akita dog owned by her then neighbor, Craig Berdanier, as she was attempting to return the dog to Mr. Berdanier's property after it had been found roaming the neighborhood. Mr. Berdanier was, at the time, renting a home located at 403 North Hanover Street, Carlisle, Cumberland County, from Mr. Collins. According to filed depositions, the dog in question, Hoss, had never bitten nor attacked anyone prior to causing injury to Donna Hurley. Mr. Berdanier had, however, informed Mr. Collins about the high-strung tendencies of this specific breed of dog. (Deposition of Craig Berdanier, p. 41,1. 9-19) Mr. Berdanier had concerns about Hoss. When the dog was around strangers it had a tendency to growl. Mr. Berdanier placed a sign on the doghouse that read "Beware of Dog." Mr. Collins had visited the premises at 403 North Hanover Street on a number of occasions. Mr. Berdanier and Mr. Collins had agreed that Mr. Berdanier was to restrain the dog by a rope or 99-3699 CIVIL chain and was to construct a fence to keep the dog confined when the dog was outside. A lease provision prohibiting pets was deleted. 'rhe defendant's motion for summaryjudgment is based on Pennsylvania Rule of Civil Procedure 1035.2(21 which states: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in ajury trial would require the issues to be submitted to ajury. When determining a motion for summaryjudgment, the court must consider the facts in a light most favorable to the nonmoving party and all doubts of the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98, 674 A.2d 1038, 1041 (1996). Summary judgment is applicable only in cases that are clear and free from doubt. Hoffman v. Brandywine Hospital, 443 Pa.Super. 245, 250, 661 A.2d 397, 399 (1995). The present case involves the responsibility of an out-of-possession landlord for an attack by his tenant's dog. An out-of-possession landlord is generally not liable for attacks by animals kept by his tenants. Palermo v. Nails. 334 Pa.Supcr. 544.547, 483 A.2d 871, 873 (1984). A landlord may, however, be held liable for injuries caused by animals kept by his tenants if the landlord has knowledge of the dangerous nature of the animal and where the landlord has the right to control the animal by retaking possession of the premises. Id. In order to grant summary judgment in this case, it must be shown that the plaintiff has failed to produce evidence of the 99-3699 CIVIL landlord's knowledge of the dog's viciousness and, also, the right of the landlord to retake possession of the premises. There is no question in this case that the landlord had knowledge of the presence of the animal. The question then becomes whether he had reason to believe that the animal was dangerous. Courts have recognized various criteria that helped determine whether a person is aware of an animal's vicious propensities. These include the breed and size of dog, the purpose for which the dog is kept, frequent snapping at and biting of people, complaints brought to the owner's attention, fighting with other dogs, frequent confinement, occasional muzzling, warning signs on the owner's premises and statements by the owner as to the dog's character. 13 AM.Jurs.2d Proof of Facts, Section 10, Page 496 (1977). In Palermo, the court held that the landlord did have actual knowledge of the vicious propensities of the tenant's dog. Palermo, 334 Pa.Super. at 548, 483 A.2d at 873. In that case, the defendant, Mary Castrogiovanni, owned a house where her nephew, Raymond Nails, lived as a tenant at sufferance. Id. The court found that the defendant had a close and personal relationship with her tenant and frequently visited the residence, allowing her to observe the dog's vicious behavior. Id. at 548, 483 A.2d at 873. The court also noted that a police officer had informed the defendant of an attack by the tenant's dog prior to the incident involving the plaintiff. In Snyder v. Milton Auto Parts. Inc., the court held that the defendant did have knowledge about the viciousness of its dogs. Snyder v. Milton Auto Parts. Inc., 285 Pa.Super. 559, 563, 428 A.2d 186, 188 (1981). In the case, the defendant, Milton Auto Parts, occupied land enclosed by a fence, and inside the fence were several large watchdogs. Id. at 560, 428 A.2d 99-3699 CIVIL at 187. One of the dogs attacked the plaintiff, James Snyder, outside of the fenced area. Id. The court found that the dog attacked in a manner of a trained attack dog. Id. at 561, 428 A.2d at 188. There were several signs placed around the fence that read "Beware of Dogs" and the dogs were seen regularly jumping on the fence and trying to get out at people. Id. The court found that the frequent confinement of the dogs was to keep the dogs from getting too friendly because they were used for the purpose of preventing trespassers and theft from the business. Id. at 562, 428 A.2d at 188. All of the above circumstances led the court to reason that the defendant did have knowledge of the dangerous propensities of the dog prior to the incident. Id. Courts have also recognized that knowledge of tendencies that may cause harm, not necessarily of vicious propensities, is sufficient to hold the defendant liable. Groner v. Hedrick, 403 Pa. 148, 151, 169 A.2d 302, 303 (1961). In Groner v. Hedrick, the court held that the defendant did have knowledge of the possibility of harm from the dog's tendency to jump up on people. Id. In the case, the dog owned by defendants, Dorothy and Frank Hedrick, jumped on the plaintiff, Bertha Groner, and injured her. Id, at 150, 169 A.2d at 303. The defendants were aware of the dog's tendency to jump on people. Id. The court reasoned that the knowledge of the dog's tendency to jump on people and possibly cause harm was sufficient to satisfy the knowledge requirement. Id. at 151, 169 A.2d at 303. The court further reasoned that a large, strong and overly friendly dog can be as dangerous as a vicious one. Id. It is true that the facts in the matter subjudice are arguably not as egregious as those presented in Palermo and Sider. Nonetheless, we cannot agree with the defendant that his right to summary judgment is clear and free from doubt. The landlord, in this case, was informed concerning the high-strung tendencies of the specific breed of dog. A "Beware of Dog" warning 99-3699 CIVIL sign had been posted. Pains were taken to assure that the dog would not have contact with people outside the leased premises and that the dog, in fact, would be tied up at all times while in the yard. We are, in short, satisfied that there are questions of material fact concerning Mr. Collins's knowledge of the dog's propensities. The second element of liability requires that the landlord have the right to control or remove the animal by retaking possession of the premises. In Palermo, supra, the court held that the defendant did have a right to control the property and was able to retake possession of the premises. The Palermo case involved a tenancy at sufferance which the court observed is the lowest grade of estate in real property. Palermo v. Nails, 334 Pa.Super. at 548, 483 A.2d at 873. In Palermo the court discussed the case of Uccello v. Laudenslaver, 44 Cal.App.3d 504,118 Cal.Rptr. 741 (1975), noting that: In Uccello, a minor child sued a landlord for injuries received when she was bitten by an animal that was kept on premises leased by the landlord. The trial court granted a nonsuit after the plaintiff's opening statement. The record on appeal disclosed that the tenant had entered into a month-to-month lease with the appellee landlord which could be terminated on two weeks notice. The landlord visited the tenant's premises, saw the "Beware of Dog" signs posted all over his property, and gave the tenant specific permission to keep the dog. In addition, the dog had previously attacked and bitten a neighbor at a time when the landlord resided on the same street as his tenants. The California Court of Appeal reversed, holding that the minor child stated a recognizable theory of liability against the landlord. The Court further held that public policy imposes a duty of care on a landlord if a landlord has actual knowledge of the animal's vicious propensities and maintains such a degree of control over the premises that he can 99-3699 CIVIL eliminate the presence of the dangerous animal. The Court reasoned that it was legally and socially unacceptable for a landlord to fail to act when he knows that it is likely that the dangerous animal will attack an innocent person on his tenant's property. We agree with the holding and reasoning set forth in Uccello.... Id., at 873. The lease in this case, as in Uccello, is also month to month. Mr. Collins not only tolerated the presence of the dog; having had the right to exclude pets on the leased premises, he waived that restriction in the lease. We are satisfied that the evidence proffered concerning Mr. Collins's control of the presence of the dog at 403 North Hanover Street is sufficient to allow this case to survive summary judgment. ORDER AND NOW, this /4' day of June, 2001, the motion of the defendant, James J. Collins, for summary judgment, is DENIED. Joseph D. Buckley, Esquire For the Plaintiff John A. Statler, Esquire For Defendant Collins Craig Berdanier, Pro Se RR 4, Box 4012 Duncannon, PA 17020-9406 Am BY THE COURT, Kevi t . Hess, J. 6 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONNA K. HURLEY, Plaintiff V. NO. 99-3699 CIVIL TERM CRAIG BERDANIER and JAMES J. COLLINS, CIVIL ACTION - LAW Defendants PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY Please discontinue the above captioned matter as against Defendant James J. Collins with prejudice as it has been settled by agreement of the parties. Thank you. Date: AA x'19 , 2002 submitted Attorney of thaya ID # 38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF THE FOREGOING PRAECIPE TO DISCONTINUE WAS DULY SERVED VIA UNITED STATES MAIL FIRST CLASS, POSTAGE PREPAID ON THE FOLLOWING PERSON: JOHN A. STATLER, ESQUIRE GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 MARKET STREET P. O. BOX 1268 HARRISBURG, PA 17108-1268 r -9 Date: Vy .. /y 2002 C-1 -t ?:. _. ? __. 1. V. 1:. J ?- ?? :? •J ?O Nt m V ? T Y _y q 6 ? im J v , N m r a d n O W N F? F . ? a FSQ = N V