HomeMy WebLinkAbout99-04508..ll
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., a minor
by his parents and natural guardians,
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., in
their own right,
CIVIL DIVISION
NO.: 99 -
Code:
Plaintiffs,
vs.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
husband and wife,
Defendants.
COMPLAINT IN CIVIL ACTION
JURY TRIAL DEMANDED
Filed on behalf of Plaintiffs,
Franklin J. Lynch, Jr., et al.
Counsel of record
for this Party:
ROBERT C. EDDINS, ESQUIRE
PA I.D. #25453
2770 South Park Road
Bethel Park, PA 15102
(412)831-8799
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
1
FRANKLIN J. LYNCH, JR., a minor by his
parents and natural guardians DARLENE C
LYNCH and FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and FRANKLIN J. LYNCH,
SR., in their own right,
Plaintiffs,
VB.
No.:
BRIAN L. JOHNSON, and JOHN M. DEVINE and
JENNIFER L. DEVINE, husband and wife,
Defendants.
NOTICE TO DEFEND
You have been sued in Court. If you wish to defend against the claims Bet
forth in the following pages, you must take action within twenty (20) days after
this Complaint and Notice are served by entering a written appearance personally
or by attorney, and filing in writing with the Court your defenses or objections
to the claims set forth against you. You are warned that if you fail to do so,
the case may proceed without you and judgement may be entered against you by the
Court without further notice for any money claimed in the Complaint or for any
other claim or relief requested by the Plaintiff. You may lose money or property
or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO 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 _
(717)249-3166
1-800-990-9108
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
FRANKLIN J. LYNCH, JR., a minor )
by his parents and natural guardians )
DARLENE C. LYNCH and )
FRANKLIN J. LYNCH, SR., and )
DARLENE C. LYNCH and )
FRANKLIN LYNCH, SR., in their )
own right, )
Plaintiffs, )
VS. ) No.:
BRIAN L. JOHNSON, )
JOHN M. DEVINE and )
JENNIFER L. DEVINE, husband )
and wife, )
Defendants. )
COMPLAINT IN CIVIL ACTION
AND NOW, come the Plaintiffs, FRANKLIN J. LYNCH, JR., a minor by his parents and
natural guardians, DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR. and DARLENE C.
LYNCH and FRANKLIN J. LYNCH, SR., in their own right by their attorney, Robert C. Eddins,
Esquires, and brings this Civil Action averring as follows:
1. The Plaintiffs are DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR., parents and
natural guardians of their minor son, FRANKLIN J. LYNCH, JR., all of whom reside at 284
Stumpstown Road, Mechanicsburg, Cumberland County, Pennsylvania.
2. The Defendant, BRIAN L. JOHNSON, is an adult individual who resides at 300
Stumpstown Road, Mechanicsburg, Cumberland County, Pennsylvania.
3. The Defendants, JOHN M. DEVINE and JENNIFER L. DEVINE, are husband and wife,
who reside at 5252 Rockport Street, Columbus, Ohio, 43235.
4. The Plaintiffs believe and aver that all times material hereto, and at the time of the
occurrences herein referred to, the Defendants, BRIAN L. JOHNSON, JOHN M. DEVINE and
JENNIFER L. DEVINE, were responsible for the injuries sustained by minor Plaintiff, FRANKLIN
J. LYNCH, JR., as set forth fully below.
5. On or about October 18, 1997, the Defendant, BRIAN L. JOHNSON, was the owner of
a Japanese Akita fighting dog.
6. The Defendants knew or should have known that the dog was of a vicious and
mischievous nature and was used and accustomed to frighten, attack and bite human beings.
COUNTI
FRANKLIN J. LYNCH, JR, a minor by his parents and natural guardians
DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR.
VS.
BRIAN L. JOHNSON
7. The averments of paragraphs one through six above inclusive are incorporated herein by
reference and made part hereof as though the same were set forth fully at length.
8. On or about October 18, 1997, while minor plaintiff was visiting Defendant, BRIAN L.
JOHNSON'S son at their home of 300 Stumpstown Road, the dog, which had been allowed to
2
wander the home freely, attacked and bit minor Plaintiff without provocation, causing the following
injuries:
a) Facial injuries involving multiple areas of the right cheek, right lower lip and right
upper lip with involvement of the nasal sill and columella and the chin,
b) Facial scarring right cheek, upper lip, nose, left temple area, and neck;
c) Post-traumatic nasal columella retraction
d) Airway obstruction
e) Injuries to mouth and teeth;
f) Trauma due to exposure and treatment of rabies; and
g) Psychological injuries.
9. As a direct and proximate result of the negligence of the Defendant as hereinabove and
hereinafter set forth, minor Plaintiff, FRANKLIN J. LYNCH, JR., has suffered in the past and may,
for an indefinite period of time in the future, suffer the following:
a) Pain, suffering and inconvenience;
b) Emotional distress;
c) Impairment of his general health strength and vitality;
d) Loss of life's pleasures;
e) Disfigurement;
0 Embarrassment.
10. The Plaintiffs believe that some or all of the aforementioned injuries and damages may
be of a permanent and lasting character.
11. Further, as a direct and proximate result of the negligence of the Defendant as
hereinabove and hereinaftermore particularly set forth, minorPlaintiff, FRANKLIN J. LYNCH, JR.,
has in the past and may for indefinite period of time in the future, be unable to engage in his usual
activities.
12. All of the aforementioned injuries and damages were caused directly and proximately
by the negligence of said Defendant, in general and in the following particulars:
a) In failing to properly attend to the dog;
b) In failing to watch and supervise the activities of the dog;
c) In failing to wam minor Plaintiff of the vicious propensities of the dog;
d) In failing to properly restrain and/or secure the dog so that it would not present a
danger to minor Plaintiff;
e) In permitting the Akita to roam unattended when Defendant knew or should have
known that minor Plaintiff was on Defendant's property;
0In failing to maintain current rabies vaccinations thereby resulting in minor Plaintiff
being forced to undergo a series of rabies shots;
g) In otherwise failing to exercise that regard and care for the rights and safety of
minor Plaintiff required of Defendant under the law.
WHEREFORE, in consideration of the foregoing, minor Plaintiff, FRANKLIN J. LYNCH,
JR., by his parents and natural guardians, DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR.,
claim damages of the Defendant, BRIAN L. JOHNSON, for an amount in excess of Twenty-Five
Thousand ($25,000.00) Dollars.
COUNT II
FRANKLIN J. LYNCH, JR., a minor by his parents and natural guardians
DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR.
VS.
JOHN M. DEVINE and JENNIFER L. DEVINE husband and wife
13. The averments of paragraphs one through twelve above inclusive are incorporated herein
by reference and made part hereof as though the same were set forth fully at length.
14. Prior to October 18, 1997, the Defendants, JOHN M. DEVINE and JENNIFER L.
DEVINE, were the owners of the premises located at 300 Stumpstown Road, Mechanicsburg,
Cumberland County, Pennsylvania.
15. Prior to October 18, 1997, the Defendants, did enter into an Agreement to lease the
aforementioned premises to the Defendant, BRIAN L JOHNSON. A copy of said Lease is attached
hereto as Exhibit "I ".
16. Pursuant to the terms of the Lease, Defendant BRIAN L. JOHNSON, agreed to do
nothing upon the leased premises that would increase the risk of a hazard. The Defendants, JOHN
M. DEV INE and JENNIFER L. DEV INE, specifically retained the right to enter the premises leased
to Defendant, BRIAN L. JOHNSON, for the purpose of making inspections of said premises.
5
17. During the period of the aforementioned Lease, Defendant, BRIAN L. JOHNSON, with
knowledge and permission of Defendants, JOHN M. DEVINE and JENNIFER L. DEVINE, brought
the Akita on said premises, thereby, causing a hazard to be created regarding individuals who
lawfully entered the leased premises.
18. The Defendants, JOHN M. DEVINE and JENNIFER L. DEVINE, were negligent in
general and in the following particulars:
a) In permitting the Defendant, BRIAN L. JOHNSON, to bring a vicious animal onto
said leased premises;
b) In failing to conduct necessary inspections which, if conducted, would have
revealed the existence of a dangerous and hazardous condition caused by keeping an animal of
known vicious propensity upon the leased premises;
c) In failing to prevent an increased hazard upon the premises owned by the
Defendants by permitting a dog of vicious propensity to be on the leased premises during the term
of the aforementioned lease.
19. As a direct and proximate result of the Defendant, JOHN M. DEVINE and JENNIFER
L. DEVINE'S negligence, alone and/or in combination with the negligence of the Defendant,
BRIAN L. JOHNSON, the Plaintiffs sustained the injuries and damages set forth above and below.
WHEREFORE, in consideration of the foregoing, minor Plaintiff, FRANKLIN J. LYNCH,
JR., by his parents and natural guardians, DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR.,
claim damages of the Defendants, JOHN M. DEVINE and JENNIFER L. DEVINE, for an amount
in excess of Twenty-Five Thousand ($25,000.00) Dollars.
COUNT III
DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR.
VS.
BRIAN L. JOHNSON,
JOHN M. DEVINE and JENNIFER L DEVINE
20. The averments of paragraphs one through ten above, inclusive, are incorporated herein
by reference and made part hereof as though the same were set forth fully at length.
21. As a result of the injuries to minor Plaintiff, FRANKLIN J. LYNCH, JR., Plaintiffs,
DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR., have sustained the following damages:
a) Hospital expenses;
b) Medical and rehabilitative expenses which have been incurred and will be incurred
in the future.
WHEREFORE, in consideration of the foregoing, DARLENE C. LYNCH and FRANKLIN
J. LYNCH, SR., claim damages of the Defendants, BRIAN L. JOHNSON, JOHN M. DEVINE and
JENNIFER L. DEVINE, for an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars.
A JURY TRIAL IS HEREBY DEMANDED.
Respectfully submitted:
Robert C. Eddins, Esquire
Attorney for Plaintiffs
LEASE
Muds this _ day of? 19 between JOHN DEVINE and
JENNIFER DEVINE of 300 Stumpstown Road, Mechanicsburg, Cumberland County,
Pennsylvasia, hereinafter styled the party of the first part, and KATHERINE WILES and
BRIAN JOHNSON, of 40 Regency Wood North, Carlisle, Cumberl4nd County, Pennsylvania,
hereinafter styled the party of the second part.
WITNESSETH, that the said party of the first part, in consideration of the rent and
covenants hereinaRer mentioned, doth demise and lease unto the said patty of the second part to
be used as a residence, the premises situated to the County of Cumberland and Conunonwealth
of Pennsylvania, described as follows: Lot No. 12, Final Plan of Subdivision of Monroe
Meadows, dated November 24, 1986, as recorded in Plan hook 53, Page 34.
'1) HAVE AND TO HOLD unto the said party of the second part, subject to the
conditions of this lease for the term beginning on the 1 st day of December, 1996, and ending on
the 30th day of April, 1997,
IN CONSIDERATION OF WHICH the said party of the second part agrees to pay to the
said party of the first part for the use and occupancy of the said premises, the sum of Two
Thousand Dollats ($2,000.00), payable as follows, viz: Five Hundred Dollars ($500.00), upon
the execution of this Lease and on the first day of each succeeding month.
AS A FURTHER CONSIDERATION for the use and occupancy of said premises the
said party ofthe second part hereby agrees to faithfully keep and be bound by the following
covenants, conditions and agrccntents, viz:
The said premises are to be kept and maintained in as good repair and condition as at
present and at the expiration of this lease, they arc to be surrendered in like repair and condition,
nutural wear and damages happening by fire, storm or other casualties only excepted.
The promises are to be kept in a clean and sanitary condition and garbage which may
accumulate thereon during the term are to be removed, and in case of failure to remove the same
the party of the fast part may collect as rent due and in arrears double the cost of removal; the
water, sanitary sewer, power, trash removal or other service for the use of the occupants of the
said premises during the said term shall be paid for by the said party of the second part unless
otherwise provided heroin, or the same may be collected by the said party of the fast part as rent
due and in orrem.
Nothing Shall be done upon said premises contrary to the conditions of the policies of
i UMCd upon the buildings than= whereby the hazard may be increased or the insurance
invalidated; neither the whole nor any portion of the said premises shall be sublet, nor shall this
lease or any interest therein be assigned, nor shall the party of the second part remove this lease
or any interest therein be assigned, nor shall the party of the second part remove or attempt to
remove from said premises during the term of this lease, without the written consent of the said
parry of the first part; and no unlawful business shall at any time be carried on upon said
premises,
The party of the first part expressly reserves the right to enter upon the premises at
reasonable times for the purpose of making necessary inspection, repairs, or to show the same to
prospective purchasers or lessees, and may display "for rent" or "for sale" cards thereon.
The removal of any goods from the premises, whether by day or by night, without the
written consent of the party of the first part, shall be deemed a clandestine and fraudulent
removal and such goods shall remain liable to distress for a period of thirty (30) days after such
removal wherever they may be found.
if default shall be made in the payment of any part of the said rent after the saute
becomes due, or in case of a breach or evasion or any attempt to break or evade any of the
covteunrs or conditions of this agre.ment, the entire rent reserved for the full term of this lease
remaining unpaid shall become due and payable at once and may forthwith be collected by
distress or otherwise, and at the same time the party of the first part may forfeit and annul the
unexpired portion of this lease and enter upon and repossess the said premises with or without
process of law, and without giving any notice whatsoever.
Acceptance by the party of the first part of any of the said rent at any time after the same
shall become due, after default has been made in the payment thereof, or any failure to enforce
any of the rights herein reserved to the party of the first part, or any of the penalties, forfeitures
or conditions herein contained, shall not in any wise be considered a waiver of the right to
cnlbrce the same at any time without any notice whatsoever, and any attempt to collect the rent
by one proceeding shall not be considered as a waiver of the right to collect the same by any
uther proceeding, but all of the rights of the parry of the first part, and all forfeitures, penalties
and conditions may be enforced together or successively at the option of the party of the first
W.
It is further agreed that if the party of the second part shall become insolvent, make an
assignment for the benefit of creditors, commit any act of bankruptcy, file a voluntary petition to
bankruptcy, or if any judgment shall be entered or an involuntary petition in bankruptcy filed
against the said party of the second pan, all the rent reserved for the full term of this lease shall
become due and collectable immediately by distress or otherwise.
The Prothonotary or any attorney of any Court of Record of Pennsylvania is hereby
authorized to appear for and to confess a judgment against the said parry of the second part and
in favor of the said party of the first pan for the whole amount of said rent as hereinbefore set
fortll.
And flee said party of the second part hereby waives the usual notice to quit, and agrees
to surrender said premises at the expiration of said term, or the termination of this lease, to
surrender said promises at the expiration of said term, or the termination of this lease, without
tiny notice whatsoever. And upon any proceeding instituted for the recovery of said rent, either
by distress or otherwise, the said party of the second part waives tltc benefit of all appraisement,
stay and exemption laws, the right of inquisition on real estate, and all bankruptcy or insolvency
laws now in force or hereafter passed.
Upon the breach of any of the covenants or agreements of this lease or upon its
termination by forfeiture, default or expiration, the Prothonotary or any attorney as aforesaid is
hereby authorized to appear for and to confess judgment in an amicable action of ejectment
agauist the said party of the second part and in favor of the said party of the first part for the
premises herein described and to direct the immediate issuing of a writ of habere facias
possessmonem with clause of freri racial for costs, waiving all irregularities, without notice and
without asking leave of court.
It is further agreed that the terms and conditions of this agreement and lease shall in no
way be changed or altered except by a writing signed by all of the parties hereto; and if the said
patty of the second part shall continue in possession of the said premises after the expiration of
said term, at the option of the said party of the first pan, such holding over may be held and
deemed a renewal of this agreement for another like term, the same as though a new agreement
of leasing, identical with this, had been executed and delivered by the said parties hereto for a
smrcceeding term.
The oonditions of this agreement shall extend to the administrators and executors of all
the parties hereto.
IN WITNESS WHEREOF. the parties aforesaid lravc hereunto set their hands and seals
the day and year first above written.
i
Witness
ltncs?
Wdncss
RA II.ES
4-
BRIAN l0}LNSU
V E R I F I C A T I O N
The undersigned, DARLENE C. LYNCH, individually and as parent
and natural guardian of FRANKLIN J. LYNCH, JR., avers that the
statements of fact contained in the foregoing COMPLAINT IN CIVIL
ACTION are true and correct to the best of her information,
knowledge and belief, and are made subject to the penalties of 18
PA. Con. Stat. Ann. Section 4904 relating to unsworn falsification
to authorities.
DATED: 1 0- / y .?pOC7
Darlene C.Lynch
V E R I F I C A T I O N
The undersigned, FRANKLIN J. LYNCH, SR., individually and as
parent and natural guardian of FRANKLIN J. LYNCH, JR., avers that
the statements of fact contained in the foregoing COMPLAINT IN
CIVIL ACTION are true and correct to the best of his information,
knowledge and belief, and are made subject to the penalties of 18
PA. Con. Stat. Ann. Section 4904 relating to unsworn falsification
to authorities.
i
DATED:
Franklin J. nch, Sr.
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SHERIFF'S RETURN - REGULAR
CASE NO: 1999-04508 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
FRANKLIN J JR ET AL
VS.
JOHNSON BRIAN L ET AL
BRIAN BARRICK Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within COMPLAINT IN CIVIL ACTION was served
upon JOHNSON BRIAN L the
defendant, at 15:34 HOURS, on the 10th day of August
1999 at 300 STUMPSTOWN ROAD
MECHANICSBURG, PA 17055 CUMBERLAND
County, Pennsylvania, by handing to KATHRYN WILES (ADULT IN
CHARGE)
a true and attested copy of the COMPLAINT IN CIVIL ACTION
together with NOTICE
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So answer
Docketing 18.00 ?
Service 6.20
Affidavit .00
Surcharge 8.00 omas ine, eri
$32.20 ROBERT C. EDDINS
08/11/1999
by
epu ri
Sworn and subscribed to before me
this day of
19 99 A. D.
9
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., a minor
by his parents and natural guardians,
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., in
their own right,
CIVIL DIVISION
No.: 99-4508 Civil Term
Code:
AFFIDAVIT OF SERVICE
Plaintiffs,.
VS.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
Defendants.
OF COMPLAINT ON DEFENDANTS,
JOHN M. DEVINE and JENNIFER L.
DEVINE
Filed on behalf of Plaintiffs,
Franklin J. Lynch, Jr., et al.
Counsel of Record
for this Party:
ROBERT C. EDDINS, ESQUIRE
PA I.D. #25453
2770 South Park Road
Bethel Park, PA 15102
(412)831-8799
Y
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., a minor )
by his parents and natural )
guardians, DARLENE C. LYNCH and )
FRANKLIN J. LYNCH, SR., and )
DARLENE C. LYNCH and FRANKLIN J.)
LYNCH, SR., in their own right, )
Plaintiffs, )
VS. ) No.: 99-4508 Civil Term
BRIAN L. JOHNSON and )
JOHN M. DEVINE and )
JENNIFER L. DEVINE, )
Defendants. )
AFFIDAVIT OF SERVICE
I, ROBERT C. EDDINS, ESQUIRE, do hereby certify that a true
and correct copy of the COMPLAINT IN CIVIL ACTION filed in regard
to the above captioned matter was served on the Defendants,
John M. Devine and Jennifer L. Devine, 5252 Rockport Street,
Columbus, Ohio, 43235, by certified mail, number Z039-130-419 on
August 13, 1999. Return receipt is attached hereto as Exhibit "A".
?7/i Kf4?i Yfi??+? 3?
Date: A
Robert C. Eddins, Esquire
SWORN TO AND SUBSCRIBED BEFORE ME
this 1`04- day of August, 1999.
Notar YU1D11C
Notarial Seal
Carol A. Franz, Notary Public
Bethel Park Boro. Allegheny Coun
My Commission Expires Nov. 5, 20
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to: .
Ia. Artlds Nunber
JOHN M. DEVINE Z039-130-419
JENNI-F£3t ir. DEVINE eb.SerAosType
5252 ROCKPORT STREET Registered
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f6 Received SY: (PdnfNeme) 8. Addraseee's Address (Only Nrequest ry
and lee Is Feld)
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Jefferson J.Shipman, Esquire
I.D. M: 51785
! GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Additional Defendants, John M. Devine and Jennifer L. Devine
I
FRANKLIN J. LYNCH, JR., a IN THE COURT OF COMMON PLEAS OF
minor, by his parents and CUMBERLAND COUNTY, PENNSYLVANIA
natural guardians, DARLENE C.
LYNCH and FRANKLIN J. LYNCH,
SR., and DARLENE C. LYNCH
and FRANKLIN J. LYNCH, SR., CIVIL ACTION - LAW
in their own right,
Plaintiffs
VS. NO. 99-4508 CIVIL TERM
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE, husband
and wife,
Defendants JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY:
PLEASE enter the appearance of the undersigned on behalf of
the Defendants, John M. Devine and Jennifer L. Devine, in the
above-captioned matter.
GOLDBFrRG, KATZMAN & SHIPMAN, P.C.
Jefrelson J. Shipmar/, Esquire
320' Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorneys for Defendants, John M.
Devine and Jennifer L. Devine
DATE: August 25, 1999
28593.1
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
served on the following counsel of record, by depositing the same
in the United States Mail, postage prepaid, in Harrisburg,
Pennsylvania, on August 25, 1999:
Robert Eddins, Esquire
2770 South Park Road
Bethel Park, PA 15102
Attorney for Plaintiffs
Mr. Brian Johnson
300 Stumpstown Road
Mechanicsburg, PA 17055
GOLDBERG, KATZMAN & SHIPMAN, P.C.
4 J ff son J. Ship n, Esquire
3 0 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorneys for Defendants, Devine
I.D. No: 51785
Telephone: 717-234-4161
28596.1
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3ohnson, Duffle, Stewart & Weidner
By: Michael J. Cassidy
I.D. No. 82164
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
Attorneys for Defendant Brian L. Johnson
FRANKLIN J. LYNCH, JR., a minor by his
parents and natural guardians DARLENE C.
LYNCH and FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and FRANKLIN J.
LYNCH, SR., in their own rights,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4508 Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
V.
BRIAN L. JOHNSON, JOHN M. DEVINE and
JENNIFER L. DEVINE, husband and wife,
Defendants
DEFENDANT BRIAN L. JOHNSON'S
ANSWER TO COMPLAINT
AND NOW, this 31'+ day of August 1999, comes the Defendant, BRIAN L. JOHNSON, by and
through his attorneys, Johnson, Duffle, Stewart & Weidner, and avers as follows:
1. Admitted.
2. Admitted.
3. Denied. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of this averment.
4. Denied. This averment is denied as a conclusion of law to which no responsive pleading is
required.
5. Admitted in part. Denied in part. It is admitted that on or about October 18, 1997,
Defendant Brian L. Johnson was the owner of an Akita. Defendant denies the characterization that
Defendant owned a "Japanese Akita fighting dog."
6. Denied. This averment is denied generally under Pa.R.C.P. No. 1029(e).
Count)
7. Admitted.
8 - 12. Denied. These averments are denied generally under Pa.R.C.P. No. 1029(e).
Count ll
13 - 19. Denied. These averments are deemed denied as they do not apply to Answering
Defendant, and as such no responsive pleading is required.
CountN
20. Admitted.
21. Denied. This averment is denied generally under Pa.R.C.P. No. 1029(e).
WHEREFORE, Defendant Brian L. Johnson respectfully requests this Honorable Court enter
judgment in his favor.
Respectfully Submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
By:
Michael J assidy
Attorney I. D. No. 82164
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
:126247 Attorneys for Defendant Brian L. Johnson
AND NOW, this 31 `? day of 1999, the undersigned does hereby certify that he
did this date serve a copy of the foregoing ANSWER TO COMPLAINT upon the other parties of record by
causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne,
Pennsylvania, addressed as follows:
Robert C. Eddins, Esquire
2770 South Park Road
Bethel Park, PA 15102
Mr. and Mrs. John M. Devine
5252 Rockport Street
Columbus, OH 43235
JOHNSON, DUFFIE, STEWART & WEIDNER
By: ?- ,'/ l) r?
Michael J. Y ssidy
LU
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Jefferson J.Shipman, Esquire
Z.D. M: 51785
GOLDBERG, KATZMAN & SHIPMAN, P.C.
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Additional Defendants,
John M. Devine and Jennifer L. Devine
FRANKLIN J. LYNCH, JR., a IN THE COURT OF COMMON PLEAS OF
minor, by his parents and CUMBERLAND COUNTY, PENNSYLVANIA
natural guardians, DARLENE C.
LYNCH and FRANKLIN J. LYNCH,
SR., and DARLENE C. LYNCH
and FRANKLIN J. LYNCH, SR., CIVIL ACTION - LAW
in their own right,
Plaintiffs
Vs.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE, husband
and wife,
Defendants
NO. 99-4508 CIVIL TERM
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: Franklin J. Lynch, Jr., a minor, by his parents and
natural guardians, Darlene C. Lynch and Franklin J. Lynch,
Sr., and Darlene J. Lynch and Franklin J. Lynch, Sr., in
their own right, Defendants and Brian L. Johnson, Defendant
YOU ARE REQUIRED to plead to the within New Matter and Cross
Claim within twenty (20) days of service hereof or a default
judgment may be entered against you.
KATZMAN & SHIPMAN, P.C.
Date: 9 I 9119
vuiyu,a aa, Y r.3llulie
P.O B x 1268
Harrisburg, PA 17108
Attorneys for Defendant, Devine
Telephone: (717) 234-4161
Identification No.: 51785
Jefferson J.Shipman, Esquire
I.D. M: 51785
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Additional Defendants, John M. Devine and Jennifer L. Devine
FRANKLIN J. LYNCH, JR., a IN THE COURT OF COMMON PLEAS OF
minor, by his parents and CUMBERLAND COUNTY, PENNSYLVANIA
natural guardians, DARLENE C.
LYNCH and FRANKLIN J. LYNCH,
SR., and DARLENE C. LYNCH
and FRANKLIN J. LYNCH, SR., CIVIL ACTION - LAW
in their own right,
Plaintiffs
Vs.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE, husband
and wife,
Defendants
NO. 99-4508 CIVIL TERM
JURY TRIAL DEMANDED
ANSWER, NEW MATTER AND CROSS CLAIM OF DEFENDANTS,
JOHN M. DEVINE AND JENNIFER L. DEVINE
AND NOW, come the Defendants, John and Jennifer Devine, by
and through their counsel, Goldberg, Katzman & Shipman, P.C., and
file the following Answer, New Matter and Cross claim:
1. Admitted.
2. Admitted.
3. Admitted.
4. Denied. The averments contained in Paragraph 4 are
conclusions of law to which no response is required. If a
response is deemed to be required, the averments contained
therein insofar as they relate the answering Defendants are
specifically denied and strict proof demanded at the time of
trial.
5. Denied. After reasonable investigation, the answering
Defendants are without sufficient knowledge or information to
form a belief as to the truth of the averments in paragraph 5 and
the same are, therefore, denied.
6. Denied. The averments contained in paragraph 6 are
conclusions of law to which no response is required. If a
response is deemed to be required, the averments contained there
are specifically denied as they in any way relate to answering
Defendants and strict proof is demanded at the time of trial.
COUNT I
Franklin L. Lynch, Jr., a minor, by his parents
and natural guardians, Darlene Lynch and Franklin J. Lynch, Sr.,
vs. Brian Johnson
7. The answering Defendants incorporate herein by
reference their answers to paragraphs 1 through 6 above as though
fully set forth herein at length.
8-12. The averments contained in paragraphs 8 through 12
are directed to another party and, accordingly, no response is
required. If a response is deemed to be required, the averments
2
contained there are specifically denied as they may in any way
relate to the answering Defendants.
WHEREFORE, the Defendants, John and Jennifer Devine,
respectfully that judgement be entered in their favor and that
Plaintiffs' Complaint be dismissed with prejudice.
COUNT II
Franklin L. Lynch, Jr., a minor, by his parents
and natural guardians, Darlene Lynch and Franklin J. Lynch, Sr.,
vs. John M. Devine and Jennifer L. Devine, husband and wife
13. The answering Defendants incorporate herein by
reference their answers to paragraphs 1 through 12 above as
though fully set forth herein at length.
14. Admitted.
15. Admitted.
16. Denied. The averments in paragraph 16 are conclusions
of law to which no response is required. If a response is deemed
to be required, the averments contained there are specifically
denied.
17. Denied. The averments in paragraph 17 are conclusions
of law to which no response is required. If a response is deemed
to be required, the averments contained there are specifically
denied.
3
18. Denied. The averments contained in paragraph 18,
subparagraphs a. through c. are conclusions of law to which no
response is required. If a response is deemed to be required,
the averments contained therein are specifically denied. By way
of further answer, it is specifically denied that the answering
Defendants, Mr. and Mrs. Devine, were in any way negligent with
respect to Plaintiffs' alleged cause of action.
19. Denied. The averments contained in paragraph 19 are
conclusions of law to which no response is required. If a
response is deemed to be required, the averments contained
therein are specifically denied. By way of further answer, it is
specifically denied that the answering Defendants, Mr. and Mrs.
Devine, were in any way negligent with respect to Plaintiffs'
alleged cause of action.
WHEREFORE, the Defendants, John M. and Jennifer L. Devine,
respectfully that request that judgment be entered in their favor
and that Plaintiffs' Complaint be dismissed with prejudice.
4
COUNT III
Darlene Lynch and Franklin J. Lynch, Sr.,
vs. Brian Johnson,
John M. Devine and Jennifer L Devine
20. The answering Defendants incorporate herein by
reference their answers to paragraphs 1 through 19 above as
though fully set forth herein at length.
21. Denied. After reasonable investigation, the answering
Defendants are without information sufficient to form a belief as
to truth of the averments contained in paragraph 21 relating to
medical expenses and the same are therefore denied and strict
proof demanded at time of trial.
WHEREFORE, the Defendants, John M. and Jennifer L. Devine,
respectfully that request that judgment be entered in their favor
and that Plaintiffs, Complaint be dismissed with prejudice.
NEW MATTER
22. That the Plaintiffs have failed to state a cause of
action for which relief may be granted.
23. That the Plaintiffs' injuries and damages were not
caused by any acts, omissions, or breaches of duty by answering
Defendants, but were caused in whole or in part or were
5
contributed to by the negligence, fault or want of care of the
Plaintiffs.
24. That the Plaintiffs' alleged cause of action is barred
in whole or in part by the by the Pennsylvania Comparative
Negligence Act, 42 Pa. C.S.A. §7102, et sea., or by the Doctrine
of Comparative Negligence.
25. That the Plaintiff, Franklin Lynch, Jr., may have
assumed the risk of any injuries allegedly sustained by him by
reason of his own negligence and carelessness.
26. If it should be found that there was any negligence on
the part of the answering Defendants, which negligence is
expressly denied, any such negligence was not a proximate cause
of any damages to the Plaintiffs.
27. That the incident, and any resulting injuries, were
caused by an intervening superseding cause.
28. That the answering Defendants did not have notice,
actual or constructive, of any hazardous condition at the
property.
29. That the answering Defendants had no notice, actual or
constructive, of any vicious propensities of the dog.
WHEREFORE, the answering defendants, John and Jennifer
Devine, respectfully request that judgment be entered in their
6
favor and that the Plaintiffs' Complaint be dismissed with
prejudice.
CROSS CLAIM
NEW MATTER PURSUANT TO PA RCP 2252(d)
OF THE PA. R.C.P.
John M. Devine and Jennifer L. Devine
v. Brian Johnson
30. That answering Defendants incorporate their answers and
New Matter defenses as set forth above.
31. That if it is determined that the Plaintiffs are
entitled to recover any and all of the damages sought in their
Complaint, which as to Defendant, John and Jennifer Devine, is
specifically denied, then in that event liability rests solely
with Defendant, Brian L. Johnson, based on the allegations set
forth in the Plaintiffs Complaint.
32. That if it should be determined that the Plaintiffs are
entitled to recover any or all of the damages sought in their
Complaint, which right as to Defendants Devine is specifically
denied, then in that event Defendant, Brian L. Johnson, is
jointly and/or severally liable with Defendants, John and
Jennifer Devine, or liable over to them, for contribution and/or
indemnity.
7
WHEREFORE, Defendants, John M. and Jennifer L. Devine,
respectfully request that judgment be entered in their favor and
that Plaintiffs, Complaint be dismissed with prejudice.
Respectfully submitted,
G bH RG, KATZ SHIP7' P.C.
J e f 4ejn J. Shipm n, Esquire
32 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorneys for Defendants, John M.
Devine and Jennifer L. Devine
28646.1
8
VERIFICATION
We, John M. Devine and Jennifer L. Devine, have read the
foregoing Answer and New Matter and hereby affirm that it is true
and correct to the best of our personal knowledge, or information
and belief. This Verification and statement is made subject to
the penalties of 18 Pa.C.S. §4904 relating to unsworn
falsification to authorities; we verify that all the statements
made in the foregoing are true and correct and that false
statements may, subject us to the penalties of 18 Pa. C.S. §4904.
DATE: ?_ f
28650.1
w
n M. Devine
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
served on the following counsel of record, by depositing the same
in the United States Mail, postage prepaid, in Harrisburg,
Pennsylvania, on September 7, 1999:
Robert Eddins, Esquire
2770 South Park Road
Bethel Park, PA 15102
Attorney for Plaintiffs
Mr. Brian Johnson
300 Stumpstown Road
Mechanicsburg, PA 17055
GOLDBERG, KATZMAN & SHIPMAN, P. C.
?-?? --Y----
3 0 Market yStreet
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorneys for Defendants, Devine
I.D. No: 51785
Telephone: 717-234-4161
28596.1
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Johnson, Duffle, Stewart & Weidner
By: Michael J. Cassidy
I.D. No. 82164
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
FRANKLIN J. LYNCH, JR., a minor, by his
parents and natural guardians DARLENE C.
LYNCH and FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and FRANKLIN J.
LYNCH, SR., in their own rights,
Plaintiffs
V.
BRIAN L. JOHNSON, and JOHN M. DEVINE
and JENNIFER L. DEVINE, husband and wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4508 Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEFENDANT BRIAN L. JOHNSON'S
REPLY TO CROSS-CLAIM OF DEFENDANTS
JOHN M DEVINE AND JENNIFER L DEVINE
AND NOW, this -&day of September 1999, comes the Defendant, BRIAN L. JOHNSON, by and
through his attorneys, Johnson, Duffle, Stewart & Weidner, and files the following Reply to Cross-claim:
NEW MATTER
22 - 29. The averments contained in paragraphs 22 through 29 are directed to another party
and, accordingly, no response is required. If a response is deemed to be required, the averments contained
therein are specifically denied as they may in any way relate to the answering Defendants.
WHEREFORE, Defendant Brian L. Johnson respectfully requests that judgment be entered in his
Attorneys for Defendant Brian L. Johnson
favor and that Plaintiffs' Complaint be dismissed with prejudice.
CROSS CLAIM
NEW MATTER PURSUANT TO Pa RCP 2252(d)
OF THE Pa.R.C.P.
John M. Devine and Jennifer L. Devine
v. Brian Johnson
30. The answering Defendant incorporates herein by reference his answers to paragraphs 1
through 21 of Defendant Brian L. Johnson's Answer to Complaint, and paragraphs 22 through 29 above, as
though fully set forth herein at length.
31 -32. Denied. The averments contained in paragraphs 31 and 32 are conclusions of law to
which no response is required. If a response is deemed to be required, the averments contained therein are
specifically denied.
WHEREFORE, Defendant Brian L. Johnson respectfully requests that judgment be entered in his
favor and that Plaintiffs' Complaint be dismissed with prejudice.
Respectfully Submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
By:
Michael assidy
Attorne . No. 82164
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
:126979 Attorneys for Defendant Brian L. Johnson
I verify that the statements made in this Complaint are true and correct to the best of my knowledge,
information and belief. I understand that false statements made herein are made subject to the penalties of
18 Pa. C.S.A §4904, relating to unswom falsification to authorities.
Date: tn?
Brian L. Johnson
AND NOW, this 73" day of September 1999, the undersigned does hereby certify that he did this
date serve a copy of the foregoing REPLY TO CROSS CLAIM OF DEFENDANTS JOHN M. DEVINE AND
JENNIFER L. DEVINE upon the other parties of record by causing same to be deposited in the United States
Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:
Robert C. Eddins, Esquire
2770 South Park Road
Bethel Park, PA 15102
Attorney for Plaintiffs
Jefferson J. Shipman, Esquire
GOLDBERG, KATZMAN & SHIPMAN, P.C.
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Defendants John M. and Jennifer L. Devine
JOHNSON, DUFFIE, STEWART & WEIDNER
By: C?
Michael J. sidy
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., a minor
by his parents and natural guardians,
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., in
their own right,
Plaintiffs,.
Vs.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
CIVIL DIVISION
No.: 99-4508 Civil Term
Code:
PLAINTIFFS' REPLY TO NEW
MATTER OF DEFENDANTS,
JOHN M. DEVINE and
JENNIFER L. DEVINE
Filed on behalf of Plaintiffs,
Franklin J. Lynch, Jr., et al.
Defendants.
Counsel of Record
for this Party:
ROBERT C. EDDINS, ESQUIRE
PA I.D. #25453
2770 South Park Road
Bethel Park, PA 15102
(412)831-8799
REPLY TO NEW MATTER
AND NOW, come the Plaintiffs, FRANKLIN J. LYNCH, JR. a minor
by his parents and natural guardians, DARLENE C. LYNCH and FRANKLIN
J. LYNCH, SR., and DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR., in
their own right, by their attorney, Robert C. Eddins, Esquire, and
files the following Reply to New Matter of Defendants, JOHN M
DEVINE and JENNIFER L. DEVINE:
1. In response to Paragraph number 22 of Defendant's New
Matter, said paragraph sets forth a legal conclusion and as such no
reply is deemed necessary. To the extent that response may be
required, it is averred that Plaintiff's Complaint specifically
sets forth a cause of action for which relief may be granted.
2. In response to Paragraph number 23 of Defendant's New
Matter, said paragraph is specifically denied. It is specifically
denied that minor Plaintiff's injuries and damages were caused in
whole or in part or were contributed to by the negligence, fault or
want of care of the Plaintiffs. To the contrary, Plaintiffs acted
in a careful, cautious and prudent manner at all times relevant
hereto.
3. In response to Paragraph number 24 of Defendant's New
Matter, said paragraph sets forth a legal conclusion and as such no
reply is deemed necessary. To the extent that response may be
required, it is averred that Plaintiffs were not comparatively
negligent to any degree and acted in a careful, cautious and
prudent manner at all times relevant hereto.
4. In response to Paragraph number 25 of Defendant's New
matter, said paragraph sets forth a legal conclusion and as such no
reply is deemed necessary. To the extent that a response may be
required, it is specifically denied that minor. Plaintiff, Franklin
Lynch, Jr., assumed the risk of any injuries sustained by him by
reason of his own negligence and carelessness. To the contrary,
minor Plaintiff, Franklin Lynch, Jr., acted in a careful, cautious
and prudent manner at all times relevant hereto.
5. In response to Paragraph number 26 of Defendant's New
Matter, said paragraph is specifically denied. It is specifically
denied that any such negligence on the part of Defendants, John M.
Devine and Jennifer L. Devine, was not a proximate cause of any
2
damages to the Plaintiffs. To the contrary, the injuries and
damages sustained by Plaintiffs were the direct and proximate
result of the negligence of the Defendants, John M. Devine and
Jennifer L. Devine, as set forth fully in Plaintiffs' Complaint.
6. In response to Paragraph number 27 of Defendants' New
Matter, said paragraph sets forth a legal conclusion and as such no
reply is deemed necessary. To the extent that a response may be
required, it is specifically denied that the incident, and any
resulting injuries, were caused by an intervening superseding
cause. To the contrary it is averred that the injuries and damages
sustained by Plaintiffs were the direct and proximate result of the
negligence of the Defendants as set forth fully in Plaintiffs'
Complaint.
7. In response to Paragraph number 28 of Defendants' New
Matter, said paragraph is specifically denied. It is specifically
denied that the Defendants, John M. Devine and Jennifer L. Devine,
did not have notice, actual or constructive, of any hazardous
condition at the property. To the contrary, it is specifically
3
averred that Defendants, John M. Devine and Jennifer L. Devine,
were aware of the hazardous condition at the property and
negligently allowed said hazardous condition to remain at the
property.
8. In response to Paragraph number 29 of Defendants, New
Matter, said paragraph is specifically denied. It is specifically
denied that the Defendants, John M. Devine and Jennifer L. Devine,
did not have notice, actual or constructive, of any vicious
propensities of the dog. To the contrary, it is specifically
averred that Defendants, John M. Devine and Jennifer L. Devine,
knew or should have known of the vicious propensities of the
Japanese Akita fighting dog owned by Defendant, Brian L. Johnson,
and negligently allowed said dog to remain at the property.
WHEREFORE, Plaintiffs, FRANKLIN J. LYNCH, JR., a minor by his
parents and natural guardians, DARLENE C. LYNCH and FRANKLIN J.
LYNCH, SR., and DARLENE C. LYNCH and FRANKLIN J. LYNCH, SR., in
4
their own right, demand that judgment be entered in their favor and
against Defendants, JOHN M. DEVINE and JENNIFER L. DEVINE, husband
and wife.
Respectfully submitted
l
&derrtt C. Eddins, Esquire
Attorney for Plaintiffs
5
V E R I F I C A T I O N
The undersigned, FRANKLIN J. LYNCH, SR., individually and as
parent and natural guardian for Franklin J. Lynch, Jr., avers that
the statements of fact contained in the foregoing REPLY TO NEW
MATTER are true and correct to the best of his information,
knowledge and belief, and are made subject to the penalties of 18
PA. Con. Stat. Ann. Section 4904 relating to unsworn falsification
to authorities.
DATED:/ ]?a
Franklin J. 1 ch, Sr.
V E R I F I C A T I O N
The undersigned, DARLENE C. LYNCH, individually and as parent
and natural guardian for Franklin J. Lynch, Jr., avers that the
statements of fact contained in the foregoing REPLY TO NEW MATTER
are true and correct to the best of her information, knowledge and
belief, and are made subject to the penalties of 18 PA. Con. Stat.
Ann. Section 4904 relating to unsworn falsification to authorities.
DATED: 1 xAA A QM o
Darlene C. Lynch
CERTIFICATE OF SERVICE
I, Robert C. Eddins, Esquire, do hereby certify that a true and correct copy of the foregoing
REPLY TO NEW MATTER was sent by first class mail, postage pre-paid this 2111 day of
September, 1999 to the following counsel of record:
Jefferson J. Shipman, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108
Michael J. Cassidy, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
P. O. Box 109
Lemoyne, PA 1043-0109
By:4 ??oe
Robert C. Eddins, Esquire
Attorney for Plaintiffs
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., a minor
by his parents and natural guardians,
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., in
their own right,
Plaintiffs,.
VS.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
CIVIL DIVISION
No.: 99-4508 Civil Term
Code:
NOTICE OF SERVICE OF
INTERROGATORIES AND
REQUEST FOR PRODUCTION
OF DOCUMENTS DIRECTED
TO DEFENDANT, BRIAN L.
JOHNSON
Filed on behalf of Plaintiffs,
Franklin J. Lynch, Jr., et al.
Defendants.
Counsel of Record
for this Party:
ROBERT C. EDDINS, ESQUIRE
PA I.D. #25453
2770 South Park Road
Bethel Park, PA 15102
(412)831-8799
NOTICE OF SERVICE OF INTERROGATORIES AND REQUEST
FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT
TO: PRanim VARY, cumBERLAND ODUNTY
I hereby certify that on December 21, 1999, an original copy of Interrogatories and Request
for Production of Documents Directed to Defendant, Brian L. Johnson, were served on the
Defendant by mailing same to:
Michael J. Cassidy, Esquire
Johnson, Duffle, Stewart & Weidner
301 Market Street
P. 0. Box 109
Lemoyne, PA 17043-0109
Robe C. Eddins, Esquire
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the within NOTICE OF SERVICE
OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED
TO DEFENDANT, BRIAN L. JOHNSON, upon:
Michael J. Cassidy, Esquire
Johnson, Duffle, Stewart & Weidner
301 Market Street
P. 0. Box 109
Lemoyne, PA 17043-0109
(Counsel for Defendant, Brian L. Johnson)
by first class mail, postage pre-paid in the above referenced case on this 211 day of December, 1999.
Ro rt C. Eddins, Esquire
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., a minor
by his parents and natural guardians,
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., in
their own right,
Plaintiffs,.
VS.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
CIVIL DIVISION
No.: 99-4508 Civil Term
Code:
NOTICE OF SERVICE OF
INTERROGATORIES AND
REQUEST FOR PRODUCTION
OF DOCUMENTS DIRECTED
TO DEFENDANTS, JOHN M.
and JENNIFER L. DEVINE
Filed on behalf of Plaintiffs,
Franklin J. Lynch, Jr., et al.
Defendants.
Counsel of Record
for this Party:
ROBERT C. EDDINS, ESQUIRE
PA I.D. #25453
2770 South Park Road
Bethel Park, PA 15102
(412)831-8799
NOTICE OF SERVICE OF INTERROGATORIES AND REQUEST
FOR PRODUCTION OF DOCUMENT DIRECTED TO DEFENDANTS
TO: PROTHONOTARY, CUMBERLAND COUNTY
I hereby certify that on December 21, 1999, an original copy of Interrogatories and Request
for Production of Documents Directed to Defendants, John M. Devine and Jennifer L. Devine, were
served on the Defendants by mailing same to:
Jefferson J. Shipman, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
Strawberry Square
P. 0. Box 1268
Harrisburg, PA 17108
Robert C. Eddins, Esquire
Attorney for Plaintiff
NOTICE OF SERVICE OF INTERROGATORIES AND REQUEST
FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANTS
TO: PROTHONOTARY, CUMBERLAND COUNTY
I hereby certify that on December 21, 1999, an original copy of Interrogatories and Request
for Production of Documents Directed to Defendants, John M. Devine and Jennifer L. Devine, were
served on the Defendants by mailing same to:
Jefferson J. Shipman, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
Strawberry Square
P. 0. Box 1268
Harrisburg, PA 17108
r•
'? )041j-4-X Robert C. Eddins, Esquire
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the within NOTICE OF SERVICE
OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED
TO DEFENDANT, JOHN M. DEVINE and JENNIFER L. DEVINE, upon:
Jefferson J. Shipman, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
Strawberry Square
P. 0. Box 1268
Harrisburg, PA 17108
(Counsel for Defendants, John M. Devine and Jennifer L. Devine)
by first class mail, postage pre-paid in the above referenced case on this 2111 day of December, 1999.
rw 4,
Robert C. Eddins, Esquire
Attorney for Plaintiffs
-i
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CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22•F
IN THE MATTER OF: COURT OF COMMON PLEAS
FRANKLIN J. LYNCH, JR., ET AL TERM, 0
-VS- CASE NO: 99-4508
BRIAN L. JOHNSON, ET AL
As a prerequisite to service of a subpoena for documents and thin gs pursuant
to Rule 4009.22
MCS on behalf of JEFFREY SHIPMAN. ESQUIRE
defendant certifies that
(1) A notice of intent to serve the subpoena with a copy of the subpoena
attached thereto was mailed or delivered to each party at least
twenty days prior to the date on which the subpoena is sought to be
served,
(2) A copy of the notice of intent, including the proposed subpoena, is
attached to the certificate,
(3) No objection to the subpoena has been received, and
(4) The subpoena which will be served is identical to the subpoena which
is attached to the notice of intent to serve the subpoena.
DATE: 01110/2000
JEFFREY SHIPMAN, ESQUIRE o
Attorney for DEFENDANT
DEII-154574 1 6 6 0 5- L O 1
COMMOIVGTEALTH OF PENNSYLVAN2A
COUNTY OF CUMBERLAND
IN THE MATTER OF: COURT OF COMMON PLEAS
FRANKLIN J. LYNCH, JR., ET AL TERM, 0
-VS- CASE NO: 99-4508
BRIAN L. JOHNSON, ET AL
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
CARLISLE PEDIATRIC ASSOC. MEDICAL
TO: ROBERT EDDINS, ESQUIRE
MICHAEL J. CASSIDY, ESQ.
MCS on behalf of JEFFREY SHIPMAN, ESQUIRE intends to serve a subpoena
identical to the one that is attached to this notice. You have twenty (20)
days from the date listed below in which to file of record and serve upon the
undersigned an objection to the subpoena. If no objection is made the subpoena
may be served pursuant to the applicable Pennsylvania Rules of Civil Procedure
4009.24. Complete copies of any reproduced records may be ordered at your
expense by completing the attached counsel card and returning same to MCS or
by contacting our local MCS office.
DATE: 12/21/1999
CC: JEFFREY SHIPMAN, ESQUIRE - 22740D806
Any questions regarding this matter, contact
MCS on behalf of
JEFFREY SHIPMAN ESQUIRE
Attorney for DEFENDANT
THE MCS GROUP INC.
1601 MARKET STREET
1800
PHILADELPHIA, PA 19103
(215) 246-0900
DE02-109922 1 6 6 0 5- C O 1
f
COMMONIVEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
FRANKLIN J. LYNCH , JR., ET AL.
VS.
BRIAN L. JOHNSON, ET AL.
File No. # 99-4508
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 400922
TO: CUSTODIAN OF RECORDS FOR: CARLISLE PEDIATRIC ASSOC.AND DR. E. ROSARIO
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or
things: RFP ATTA(•14F11
at THE MCS GROUP, INC.. 1601 MARKET STREET SUITE# 800 PHILADELPHIA PA 1910
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in
advance, the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within tweny (20) days after its service, the party
serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME JEFFERSON SHIPMAN, ESQUIRE
ADDRESS: 320 MARKET STREET P.O. BOX 1268
HARRTSBURO PA. 17108
TELEPHONE: (215) 246-0900
SUPREME COURT ID *:
ATTORNEY FOR: THE DEFENDANT
BY THE COURT:
f/•
DATE Kkos...• l I ( (?i 7 % Prothonotary/ erk ivil Division
c ?'ta , r
v Deputy
Seal of the Court
(Eff. 7/97)
EXPLANATION OF REQUIRED RECORDS
TO: CUSTODIAN OF RECORDS FOR:
CARLISLE PEDIATRIC ASSOC.
84 BELVEDERE STREET
CARLISLE, PA 17013
RE: 16605
FRANKLIN J. LYNCH, JR.
INCLUDING ALL RECORDS FROM DR. E. ROSARIO.
Any and all records, correspondence, files and memorandums, handwritten
notes, billing and payment records, relating to any examination,
consultation, care or treatment.
Dates Requested: up to and including the present.
Subject : FRANKLIN J. LYNCH, JR.
284 STUMPSTAWN RD., MECHANICSBURG, PA 17055
Social Security N: 161-66-1278
Date of Birth: 08-01-1984
SU10-227526 1 6 6 05 - T-0 1
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., a minor
by his parents and natural guardians,
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., in
their own right,
CIVIL DIVISION
No.: 99-4508 Civil Tenn
SECOND NOTICE OF
Plaintiffs,. DEPOSITION OF JOHN M.
DEVINE and JENNIFER L.
VS. DEVINE
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
Defendants.
Filed on behalf of Plaintiffs,
Franklin J. Lynch, Jr., et al.
Counsel of Record
for this Party:
ROBERT C. EDDINS, ESQUIRE
PA I.D. #25453
2770 South Park Road
Bethel Park, PA 15102
(412)831-8799
M
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR.,
a minor, et al,
Plaintiffs
vs.
BRIAN L. JOHNSON and
JOHN M. DEVINE and JENNIFER L
DEVINE,
Defendants
CIVIL ACTION - LAW
No. 99-4508 CIVIL TERM
NOTICE OF DEPOSITION
To: Jefferson J. Shipman, Esquire
Goldberg, Katzman & Shipman
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, PA 17108
Michael J. Cassidy, Esquire
Johnson, Duffle, Stewart & Weidner
301 Market Street
P.O. Box 109
LeMoyne, PA 17043-109
KINDLY TAKE NOTICE that the deposition of Defendants, JOHN M. DEVINE
and JENNIFER L. DEVINE, will be taken pursuant to the Pennsylvania Rules of Civil
Procedure, before a Notary Public duly authorized to administer oaths on TUESDAY, MAY 16,
2000 at 11:00 a.m. at the law offices of Robert C. Eddins, Esquire, 2770 South Park Road,
Bethel Park, Pennsylvania 15102, at which time and place you are invited to appear and take such
part as shall be fitting and proper and at any adjournments thereof.
Robert C. Eddins, Esquire
Attorney for Plaintiffs
No. 99-4508
CERTIFICATE OF SERVICE
I, ROBERT C. EDDINS, ESQ., do hereby certify that a true and correct copy of the
foregoing NOTICE OF DEPOSITION was sent by first class mail, postage pre-paid this 3A_?_
day of APRIL 2000 to the following counsel of record:
Jefferson J. Shipman, Esquire
Goldberg, Katzman & Shipman
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108
Michael J.Cassidy, Esquire
Johnson, Duffle, Stewart & Weidner
301 Market Street
P. O. Box 109
LeMoyne, PA 17043-0109
By ( (' a n?
Robert C. Eddins, Esquire
Attorney for Plaintiffs
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., a minor
by his parents and natural guardians,
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., in
their own right,
Plaintiffs,.
CIVIL DIVISION
No.: 99-4508 Civil Term
NOTICE OF DEPOSITION
OF KARI REEHER and
AFFIDAVIT OF SERVICE
VS.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
Filed on behalf of Plaintiffs,
Franklin J. Lynch, Jr., et al.
Defendants.
Counsel of Record
for this Party:
ROBERT C. EDDINS, ESQUIRE
PA I.D. #25453
2770 South Park Road
Bethel Park, PA 15102
(412)831-8799
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR.,
a minor, et al.,
Plaintiffs,
1
VS. ?
BRIAN L. JOHNSON and ,
JOHN M. DEVINE and
JENNIFER L. DEVINE, ,
Defendants.
CIVIL ACTION - LAW
No.: 99-4508 CIVIL TERM
NOTICE OF DEPOSITION
TO. Michael J. Cassidy, Esquire
301 Market Street
P. 0. Box 109
Lemoyne, PA 17043
Jefferson J. Shipman, Esquire
320 Market Street
P. 0. Box 1268
Harrisburg, PA 17108
PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of
Civil Procedure, the deposition of KAKI REEHER will be taken on
oral examination before a Notary Public duly authorized to
administer oaths on Tuesday, June 6, 2000 at 4:30 P.M. at the
offices of Michael J. Cassidy, Esquire, 301 Market Street, Lemoyne,
Pennsylvania, 17043.
At which time and place you are invited to appear and take
such part as shall be fitting and proper.
The scope of inquiry will include all matters pertaining to
the Plaintiff's claim.
Robert C. Eddins, Esquire
Attorney for Plaintiffs
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., ]
a minor, et al., ]
Plaintiffs, ]
]
VS. ]
BRIAN L. JOHNSON and ]
JOHN M. DEVINE and ]
JENNIFER L. DEVINE, ]
Defendants. ]
CIVIL ACTION - LAW
No.: 99-4508 CIVIL TERM
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA)
) ss:
COUNTY OF ALLEGHENY )
I, EDGAR J. SIPTROTH, JR., being a duly constituted Constable in and for the County of
Cumberland County, Commonwealth of Pennsylvania, do hereby depose as follows: I served the
attached Subpoena on the deponent Kari Reeher by handing said Subpoena to Ms. Reeher at
at
-?_ o'clock -9.M. on the 3/ sr _ day of w ed5 it , 2000.
SWORN and SUBSCRIBED BEFORE ME
this _3_ day of 12000.
Ava,vl
otary Public
NOTARIAL SEAL
F?j A A. HEFFELFINGER, Notary Public
r Spring T tvp., Cumberland County
'm_nlsslnn Expires Sept. 9
, 2002
c
\ V _ COMMONWEALTH OF PENNSYLVANIA
??? L r I L?L? ?l )l ?? 1 } Q COUNTY OF CUMBERLAND
??,?c???cle,nPC
To1) g? ?a\A L .
File No. 5;f-5'50Y SUBPOENA TO ATTEND AND TESTIFY
TO: Mrs Kari Reeher
313 Stoner Road
Mechanicsburg, PA 17055
You are ordered by the court to come to the office of Michael Cass_id
Street, Lemoyne, Pennsylvania
(Specify courtroom or other place)
at Lemoyne Cumberland County, Pennsylvania, on Tuesday, June 6 20(
at 4:30 o'clock,_P_M.,totestify onbehalf of Minnr ni.i..tiff,
Franklin Lynch, Jr., et al.
in the above case, and to remain until excused.
2. And bring with you the following:
If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to
the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not
limited to costs, attorney fees and imprisonment.
REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa. R. C. P. No. 234.2(a):
Name: Robert C. Eddins, Esquire
Address: 2770 South Park Road
Bethel Park, PA 15102
Telephone: (412)831-8799
Supreme Court ID # 25453
BY THE COURT:
Prothonotary/Cler , CT vil Division
Date: 2L:f?? .ZGr 1CZv may„ h. }YC.r0„',
Seal of the Court
Deputy
Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in
connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R. C.
P. No. 234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph
2.
(Eff.7/97)
CERTIFICATE OF SERVICE
I, Robert C. Eddins, Esquire, do hereby certify that a true and correct copy of the foregoing
NOTICE OF DEPOSITION OF TRAVIS WILES and KARI REEHER was sent by first class mail,
postage pre-paid this 26" day of May, 2000, to the following counsel of record:
Jefferson J. Shipman, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
Strawberry Square
P. 0. Box 1268
Harrisburg, PA 17108
Michael J. Cassidy, Esquire
Johnson, Duffle, Stewart & Weidner
301 Market Street
P. 0. Box 109
Lemoyne, PA 17043-0109
By: -41_/C
Robert C. Eddins, Esquire
Attorney for Plaintiffs
91
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., a minor
by his parents and natural guardians,
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., and
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., in
their own right,
Plaintiffs,.
CIVIL DIVISION
No.: 99-4508 Civil Term
SECOND NOTICE OF
DEPOSITION OF TRAVIS
WILES
VS.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
Filed on behalf of Plaintiffs,
Franklin J. Lynch, Jr., et al.
Defendants.
Counsel of Record
for this Party:
ROBERT C. EDDINS, ESQUIRE
PA I.D. #25453
2770 South Park Road
Bethel Park, PA 15102
(412)831-8799
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., ]
a minor, et al., ]
Plaintiffs, ]
l
VS. ]
BRIAN L. JOHNSON and ]
JOHN M. DEVINE and ]
JENNIFER L. DEVINE, ]
Defendants. ]
CIVIL ACTION - LAW
No.: 99-4508 CIVIL TERM
SECOND NOTICE OF DEPOSITION OF TRAVIS WILES
TO: Michael J. Cassidy, Esquire Jefferson J. Shipman, Esquire
301 Market Street 320 Market Street
P. 0. Box 109 P. O. Box 1268
Lemoyne, PA 17043 Harrisburg, PA 17108
PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of
Civil Procedure, the deposition of TRAVIS WILES will be taken on
oral examination before a Notary Public duly authorized to
administer oaths on Tuesday, June 6, 2000 at 4:00 P.M. at the
offices of Michael J. Cassidy, Esquire, 301 Market Street, Lemoyne,
Pennsylvania, 17043.
At which time and place you are invited to appear and take
such part as shall be fitting and proper.
The scope of inquiry will include all matters pertaining to
the Plaintiff's claim.
Robert C. Eddins, Esquire
Attorney for Plaintiffs
CERTIFICATE OF 4FUVI E
I, Robert C. Eddins, Esquire, do hereby certify that a true and correct copy of the foregoing
NOTICE OF DEPOSITION OF TRAVIS WILES and KARI REEHER was sent by first class mail,
postage pre-paid this 261 day of May, 2000, to the following counsel of record:
Jefferson J. Shipman, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108
Michael J. Cassidy, Esquire
Johnson, Duffle, Stewart & Weidner
301 Market Street
P. O. Box 109
Lemoyne, PA 17043-0109
By:
Robert C. Eddins, Esquire
Attorney for Plaintiffs
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In
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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 Argument Court.
CAPTION OF CASE
(entire caption must be stated in 5111)
FRANKLIN J. LYNCH, JR., a minor, by his parents and
natural guardians, DARLENE LYNCH and FRANKLIN J. LYNCH. SR.,
and DARLENE LYNCH and FRANKLIN J. LYNCH, in their own
rights,
VS.
BRIAN L. JOHNSON, JOHN M. DEVINE and
JENNIFER L. DEVINE,
(Plaintiff)
(Defendant)
No. 4508 Civil
19 99
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
demurrer to complaint, etc.):
John J. Devine and Jennifer L. Devine's Motion for Summary Judgment
2. Identify co<msel who will argue case:
(a) for plaintiff: Robert C. Eddins, Esqurie, 2770 South Park Road,
Address: Bethel Park, PA 15102
(b) for defendant: John R. Ninosky, Esquire, GOLDBERG, KATZMAN &SHIPMAN, P.C.,
Address: P.O. Box 1268, Harrisburg, PA 17108-1268
Attorneys for Defendants, Devine
Michael J. Cassidy, Esquire, P.O. Box 109
in wo nei?.ti,nPA .,17D4309, Attvstf.Qr.sDeCfe?neantsJohnson
3. Z will notify all parties Lem
wi na
been listed for argument_ g t„ &. t r.
4. Argurent Court Date: August 30, 2000
Dated: August 4, 2000 'Attorney for Defendants, Devine
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
served on the following counsel of record, by depositing the same
in the United States Mail, postage prepaid, in Harrisburg,
Pennsylvania, on August 4, 2000:
Robert Eddins, Esquire
2770 South Park Road
Bethel Park, PA 15102
Attorney for Plaintiffs
Michael Cassiday, Esquire
Johnson, Duffie, Stewart and Weidner
P.O. Box 109
Lemoyne, PA 17043-0109
Attorneys for Defendant Johnson
GOLDBERG, KATZMAN & SHIPMAN, P.C.
? J
By k
Joh R. Ninosky, Esquire
I.D. #: 78000
Jefferson J. Shipman, Esquire
I.D. #: 51785
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorneys for Defendants, Devine
I.D. No: 51785
Telephone: 717-234-4161
28596.1
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P1%3510 Cumberland County Prothonotary's Office Page 1
Civil Case Inquiry
1999-04508 LYNCH FRANKLIN J JR ET AL (vs) JOHNS ON BRIAN L ET AL
Reference No..: Filed........: 7/26/1999
Case Type.....: COMPLAINT Time...... 2.11
Judgment..... : .00 Execution Date 0/00/0000
Judge Assigned: Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
---- Case Comments ---- --------- Higher Crt 1.:
Higher Crt 2.:
************************************************ ********************************
General Index Attorney Info
LYNCH FRANKLIN J JR PLAINTIFF EDDINS ROBERT C
284 STUMPSTOWN ROAD
MECHANICSBURG PA 17055
LYNCH DARLENE C PLAINTIFF EDDINS ROBERT C
284 STUMPSTOWN ROAD
MECHANICSBURG PA 17055
LYNCH FRANKLIN J SR PLAINTIFF EDDINS ROBERT C
284 STUMPSTOWN ROAD
MECHANICSBURG PA 17055
JOHNSON BRIAN L DEFENDANT CASSIDY MICHAEL J
300 STUMPSTOWN ROAD
MECHANICSBURG PA 17055
DEVINE JOHN M DEFENDANT SHIPMAN JEFFERSON J
5252 ROCKPORT STREET
COLUMBUS OH 43235
DEVINE JENNIFER L DEFENDANT SHIPMAN JEFFERSON J
5252 ROCKPORT STREET
COLUMBUS OH 43235
********************************************************************************
* Date Entries
********************************************************************************
- FIRST ENTRY - - - - - - - - - - - - - -
7/26/1999 COMPLAINT - CIVIL ACTION
-------------------------------------------------------------------
8/11/1999 SHERIFF'S RETURN FILED
LITIGANT JOHNSON BRIAN L
SERVED 8/10/99 COMPL
COSTS $32.20 ROBERT C EDDINS 8/11/99
-------------------------------------------------------------------
8/23/1999 AFFIDAVIT OF SERVICE
--------------------------------- ---------------------------
8/26/1999 PRAECIPE FOR ENTRY OF APPEARANCE FOR JOHN M DEVINE AND JENNIFER L
DEVINE BY JEFFERSON J SHIPMAN ESQ
-------------------------------------------------------------------
9/01/1999 DEFENDANT BRIAN L JOHNSON'S ANSWER TO COMPLAINT
--------------------------------------------------------------------
9/08/1999 ANSWER AND NEW MATTER AND CROSS CLAIM OF DEFENDANTS JOHN M DEVINE
AND JENNIFER L DEVINE
-------------------------------------------------------------------
9/23/1999 DEFENDANT BRIAN L JOHNSONS REPLY TO CROSSCLAIM OF DEFENDANTS
JOHN M DEVINE AND JENNIFER L DEVINE
-------------------------------------------------------------------
9/24/1999 REPLY TO NEW MATTER
-------------------------------------------------------------------
12/29/1999 NOTICE OF SERVICE OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF
DOCUMENTS DIRECTED TO DEFENDANT BRIAN L JOHNSON
-------------------------------------------------------------------
12/29/1999 NOTICE OF SERVICE OF INTERROGATOREIS AND REQUEST FOR PRODUCTION OF
DOCUMENTS DIRECTED TO DEFENDANTS JOHN M AND JENNIFER L DEVINE
-------------------------------------------------------------------
1/14/2000 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE
4009.22
-------------------------------------------------------------------
4/06/2000 NOTICE OF DEPOSITION
-------------------------------------------------------------------
6/05/2000 NOTICE OF DEPOSITION OF KAKI REEHER AND AFFIDAVIT OF SERVICE
f.
PIN510 Cumberland County Prothonotary's Office Pa e
Civil Case Inquiry g 2
1999-04508 LYNCH FRANKLIN J JR ET AL (vs) JOHNSON BRIAN L ET AL
Reference No..: -
Case Ty e.....• COMPLAINT Filed........: 7/26/1999
Judgment......: .00 Time.........: 2:11
Judge Assigned: Execution Date 0/00/0000
Disposed Desc.: Jury Trial....
------------ Case Comments __ DigppUSed Date. 0/00/0000
------- HigF?er Crt 1.:
-----------------------------------------Higher Crt 2.:
6/05/2000 SECOND NOTICE OF DEPOSITION OF TRAVIS WILES
--------------
8/04/2000 JOHN M DEVINE AND JENNIFER L DEVINES MOTION FOR SUMMARY JUDGMENT
-------------------------------------------------------------------
8/04/2000 PRAECIPE FOR LISTING CASE FOR ARGUMENT - JOHN J DEVINE AND JENNIFER
L DEVINES MOTION FOR MOTION FOR SUMMARY JUDGMENT - BY JOHN R
NINOSKY ESQ
- - - - - - - LAST ENTRY - - - - - _ _ _
*
Escrow ation
* Fees & Debits Bev*Bal** Pymts/Adl**
TAXPONICMPLT 35.00 35.00 .00
•00
SETTLEMENT 5.00 5.00 .
0
JCP FEE 5.00 5.00 00
------------------------
--------.00
45.50 45.50
* End of Case Information
00S
Ifh.l
Jefferson J.Shipman, Esquire
I.D. p: 51785
John R. Ninosky, Esquire
I.D. R: 78000
OOLDBLRO, XhTZM W i sHIPMAN
P.C
,
.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Defendants John M. Devine and Jennifer L. Devine
FRANKLIN J. LYNCH, JR., a
i IN THE COURT OF COMMON PLEAS OF
m
nor, by his parents and CUMBERLAND COUNTY, PENNSYLVANIA
natural guardians, DARLENE C.
LYNCH and FRANKLIN J. LYNCH,
SR., and DARLENE C. LYNCH
and FRANKLIN J. LYNCH, SR., CIVIL ACTION - LAW
in their own right,
Plaintiffs
VS.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE, husband
and wife,
Defendants
NO. 99-4508 CIVIL TERM
JURY TRIAL DEMANDED
ORDER
AND NOW, this day of
2000, upon
consideration of John M. Devine and Jennifer L. Devine's Motion
for Summary Judgment and Plaintiffs' response thereto, it is
hereby ordered that the Motion for Summary Judgment is GRANTED.
Plaintiffs, cause of action against John M. Devine and Jennifer
L. Devine is hereby DISMISSED WITH PREJUDICE.
BY THE COURT:
t"y P'1
Jefferson J.Shipman, Esquire
I.D. /: 51785
John R. Ninosky, Esquire
I.D. /: 78000
GOLDHEHG, XRTEMAN i SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Defendants John M. Devine and Jennifer L. Devine
FRANKLIN J. LYNCH, JR., a IN THE COURT OF COMMON PLEAS OF
minor, by his parents and CUMBERLAND COUNTY, PENNSYLVANIA
natural guardians, DARLENE C.
LYNCH and FRANKLIN J. LYNCH,
SR., and DARLENE C. LYNCH
and FRANKLIN J. LYNCH, SR., CIVIL ACTION - LAW
in their own right,
Plaintiffs
Vs.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE, husband
and wife,
Defendants
NO. 99-9508 CIVIL TERM
JURY TRIAL DEMANDED
JOHN M. DEVINE AND JENNIFER L. DEVINE'S
MOTION FOR SUMMARY JUDGMENT
AND NOW, come Defendants John M. Devine and Jennifer L.
Devine, by and through their counsel, Goldberg, Katzman &
Shipman, P.C., who file this Motion for Summary Judgment by
respectfully stating the following:
1. This is a dog bite case which was commenced with the
filing of a Complaint on July 26, 1999. (A copy of the Complaint
is attached hereto as Exhibit A).
P'1 r"1
2. Plaintiffs allege that on October 18, 1997, minor
Plaintiff, Franklin L. Lynch, Jr. (hereinafter "Frankie"), was
visiting Defendant Brian L. Johnson's stepson at the Johnson home
located at 300 Stumptown Road, Mechanicsburg.
3. Plaintiffs allege that Frankie was bitten by Mr.
Johnson's dog on October 18, 1997. (See Exhibit A, Paragraph 8).
4. Mr. Johnson's dog was an Akita. (See Deposition of
Brian Johnson attached hereto as Exhibit C, Pages 9 and 10).
5. On October 18, 1997, the Mr. Johnson and his fiancee,
Kathy Wiles were renting their home from the Devines pursuant to
a lease which is attached hereto as Exhibit B.
6. Mr. Johnson and his fiancee moved into the home during
the fall of 1996. (Exhibit C, Page 7, lines 16-24).
7. The Devines had vacated the home on the same day that
Mr. Johnson and his fiancee moved into the home. (Deposition of
John M. Devine and Jennifer L. Devine, attached hereto as Exhibit
D, Page 16, lines 2-3).
8. Consequently, the Devines were no longer in possession
of the property at the time of the alleged incident.
9. At no time prior to the alleged incident did the
Devines receive any information that Mr. Johnson was having any
problems with his dog. (Exhibit D, Page 11, lines 18-22).
2
r1 ?
10. At no time did any raise a complaint to the Devines
that Mr. Johnson and Ms. Wiles had an Akita. (Exhibit D, Page 11
line 23 through Page 12 line 1)
11. Prior to October 18, 1997, Mr. Johnson's dog never bit
anyone. (Exhibit C, Page 12 line 23 through Page 13 line 3).
12. Prior to October 18, 1997, the dog was not observed in
any way which indicated the dog, unprovocated, would bite
somebody or almost bite somebody. (Exhibit C, Page 15, lines 16-
20).
13. Mr. Johnson had lived in the home, with the dog, for
almost a year prior to the alleged incident and had no problems
with the dog. (Exhibit C, Page 17, lines 4-6).
14. Other children in the neighborhood had played with dog
without any problems. (Exhibit C, Page 18, lines 18-22).
15. Ms. Wiles confirmed during her deposition testimony
that the dog did not bite anyone prior to October 18, 1997. (See
Deposition of Katherine Wiles attached hereto as Exhibit E, Pages
10 through 12).
16. Ms. Wiles also confirmed that the Devines had no notice
or knowledge of any problems with the dog prior to October 18,
1997• (Exhibit E, Page 12, lines 12-16).
17. Pa.R.C.P. 1035.2(2) states:
After the relevant pleadings are closed, but
within such time as not to unreasonably delay
3
i^'%?
r`+
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, and 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 a jury trial would require the
issues to be submitted to a jury.
18. When presented with a motion for summary judgment, the
court must view the record in a light most favorable to the non-
moving party, and all doubts as to the existence of a genuine
issue of material fact must be resolved against the moving party.
Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996).
19. Summary judgment may only be granted in cases that are
clear and free from doubt. Johnson v. Harris, 419 Pa-Super. 541,
615 A.2d 771 (1992).
20. A motion for summary judgment functions to expedite
litigation. Pfaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973).
21. A motion for summary judgment operates so that
unnecessary trials can be avoided. Giannini v. Carden, 286
Pa.Super. 450, 429 A.2d 24 (1981).
22. Generally, a landlord out of possession is not
responsible for attacks by animals kept by his tenant on leased
premises where the tenant has exclusive control over the
premises. Palermo v. Nails, 334 Pa.Super. 544, , 483 A.2d
4
r'1
871,873 (1984).
n
23. The Devines were out of possession of the property, and
Mr. Johnson had exclusive control of the property.
24. The Devines had no notice, actual or constructive, that
the Johnson dog had any dangerous propensities.
25. As a matter of law, Plaintiffs cannot demonstrate a
cause of action against the Devines.
WHEREFORE, Defendants John M. and Jennifer L. Devine
respectfully request that this Honorable Court enter summary
judgment in their favor.
Respectfully submitted,
GOLDBERG, KATZMAN S SHIPMAN, P.C.
Jefferson J. Shipman, squire
Attorney I.D. No.: 51785
John R. Ninosky, Esquire
Attorney I.D. No.: 78000
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for the Devines
Date: c4/S/CC
47284.1
5
n
Exhibit A
X004
188Rb;A ? '?oj",0 Fez 161P" ',4015000 ERIE INS COLS Q1003
FR@CI : SFl*ROdt INC F44M NO. 614 ZeS 9174
• F1+9. 13 1995 11:26M P]
IN TIM COURT OF COUMON PLEAS OF CUMBpM.AND CCXWM.
FRANKLIN 1. LYNCFL 1R, a miaaa
Iy Wspa mta sad aalnrol goasdim&
DAREME C. LYNCH jmd
MIANKLiN 1. LYNC$ SR, mi
DAUME C. LYNMand
FRAM UN 7 LYNCH; Site .. iq
dutivoamtight,
plaiadffi„
V{.
BRIAN L. YCIffivSON and
JOHNU DW%?M and.
JEXNMML. DEV3NE,
btubaad and witie.
DaBmdantAL
CIVIL DIVMON
x0;: 44 - oil cc?
Coda:
cnroi ? i
?V r
l f
a cam,
COM8LA1Nf IN Cam, ACr=
A4Y TRIAL Dwo.1-mm
Filed on bahaifarplait?i$e.
Fla Wk L Lynch, 7r., et aL
Counsel ofmotd
for;bia Patty.
ROBERT C. EDDINS, ESQUIRE
MtD-#25453
2776 Sainh Pads ROM
Dathel Park; 2A •15102
(412)831-8799
1
1 '
1be0a??l? YON 086??SfAI 1618/'\602Ya60
'Fi" . A.H VR= INC
ERIE INS _MS 61005
.- ?. 6100{
PHW NO. 614 265 9174 RAY. 17 1999 11:29RN P4
IN TIM CO%MT On C0MmW pla" OF CLV4UE L= COUXW, PEWDYLVA7.TA
CIVIL nlvx= N
"A'QCL P J. LYMCG, OR-. a minor by his )
Parents mad natural guardians DARUM C. )
LWC$ mod FAMCCOM J_ LYRC& ¦A. , attd I
DRRZM i C. IV= and FRA1TZZAIN J. LY=, )
apt. , is tbair own right. )
al&i"Lffs, )
1
w_ )
) Ya..
BRIAN L. J=8M. end JOLT M. DAVDM and )
ammmx a L. DMVZ?, husband and wife, )
Defendants. )
MCTICe Ta ?swn
You ban been shed iu Court. If you w3.mh to defend against the cleias sat
loath in the folloring pages. you swat take aetien within twenty (20) days Alter
tubs Complaint and Yociae are scarred hY entering a written appearance
sally
or by atto2aay, and filing in writing vita the court youc defaasas or ob par
to the C;siaa Not forth against yea. Y0o are named tbat LE ???
the naUK MAY proceed vitho8t you and Judgment you nail to do so,
Court without furthaz notice jeer my he entered agaiaat You yY the
Othar Clain Or relief xegnssted money claimed is the Caeplaiat or any
or other ehs plaintiff. You, may lase meaey sz
rights iapertsat to you. erty
Yw mmovm 2A= 2$11 ]?"XR To TM LAWYER AT OYCF. IF you DO NOT
LLUYEA M C MAIM AFFORD =M. 00 TO OR =a= = 72M OpPrCR aft }0A2g a A
PM ED OCT NO= Tw CAM' WT LZOAL Mub. TO
C LAM COUM an A9SOCTATI01r
2 LMMTr AVZN M.
CU=L8, RL 17033
(717)34!-7166
1-e00-220-9101
08/24/00 TUE 16:02 FAI 9181114 6 16 0 6 0 Q006
1a Boa 89 YOM 09:20 FA7< 1a0296 ERIE INS COLS - ?_ X006
S 'lmCJC INC
PHOW NO. 614 aSS 9174 Ru9. 13 1999 11:29RI PS
IN TIM COURT CP COAMONPLEAS OF CUN BERLAND COUNTY, PWNSYLVANIA
Chit. VISION
FBAMIN J. LYNCH, JR., a wbw )
by his proms and bannal guudiaoa )
DARLENE C. LYNCH and )
FRAN=JN 7 LYNCH, SR., and )
DARLENE C. LYNCH and )
FRANKLIN LYNC SX.inthair )
own rW% )
Plamd?9, )
Va. ) No.:
BRIAN L. JOHNSON. )
JOHN M DBVDM and )
JENNIFER L. DBVIIV$ husband. )
and wife„ )
Ddandbla.
)
AND NOW, aomo the'PlaiothN PRANKLIN L LYNCH, M. a minor by his parents and
natural zuax-d a9, DARLFNE C. LYNCH and FRAN 1J N L LYNCH, Siz and DARLENE C.
LYNCH and FRANKLIN J. LYNCH. SR., m then own rust by dish attoxwW, Rowe C. Eddim,
Esquitas, and bdup this Civil Aetioat a anog as follows:
1. Tha Plamtifs an DARLENE C. LYNCY3 and FRANKLIN I. LYNCE. SR., patta+ts and
aabtral gaetdiana of their miner sou, FRANKLIN 1. LYNCH, JR., iii of whom reside at 2E4
Snntpatnwn Roa& b&=bxA=btsrg, CmWwlmd County. Peaasylvama.
08/24/99 TILE 16:02 FAX 918144616060
16/08 '99 ICON 09:27 FAX 161/"'60296 ERIE INS COLS
FROM S SWgrROCJC INC PHOW N0. : 614 265 9174
11007
®1008
Rug. 13 1999 11:^s9m P6
2. TU Da$eedant, BRIAN L. J01MON. i6 an adult individual who resides at 300
Stmnpsrewn Road. Meduandibum Cumberland Commy, Pamtsylvama.
3.ThaDefmdants6RMNM.DTSVDM=dJffidNMMX DP.VDIE,arebluba0deadwife,
who reside at 5252 Ronigat Ske tS Columbus. Ohio. 43235.
4. The Plaintiffs believe, and aver that all tinm matmial hems. and at the time of the
accu mua basin rafmad to, the Defendants, BRIAN L. JO5 MCK JOHN x DEVDM and
JMQ4W RL.DBVBdB w oresponublefw&cizdmdwsud%iwdbymatw?laintiff,PRANI=
T. LYNCH, JR., an set forth fully below.
S. On or about Oambm 19. 1997, the Defendant. BRIAN L. JOHNSON, ryas the owner of
a Japanese Ak#z fi*dnS dog.
S. The Defoodsms knew or should have known that the dog was of a vicious and
misclrievous natms and was used and aewtstomod to Aighten, attack and bite humanbs&p.
FRAN1MW J. LYNCH, JR. a minor by hie psrerds and natural gur¢dians
DARL MM C. LYNCH and FRANKLIN L LYNCH, SR.
vs.
BRIAN L. JOUST
7. The cyan ants ofpmgepbs one through 9h above inclusive site hmorpatatedhsralaby
reface WA made part heroof as though the s me ware set Borth fully at length.
9. On ar about Octobar 19,1997, whs7a minor plaiatiEfww vialting Dafandan; BRIAN L.
JOHNSON'S sea at du& home of 300 Stompnown Road, the dog, which bad bean allowed to
2
08/21/00 TUB 16:02 FAT 018111516060
16/06 !00 NON 06:27 FAT 161"V0206
FRi71 : SIA RoW INC
ERIE INS COL$_^ IM008
12007
PHME N0. 614 265 9174 Aug- 13 4999 11:30M P7 -?..
wanftt tehom6aeft.
lWini":
°)Faoia]iDjUrlainV a U11p1 alto/oftherighteho*.=+8yt lowerlipagdri$bt
WMlip with fnvelvaaaat of tha nasal 6M ad Wt malls and the chi=
b) Facial aeon," r*, obe* nppa H. mask let! t mVle zml6 mad necir
t:) Pe6*11amm & nuai calumea Sao
d) Airway abspvedon
9) hUMOS tO Nmtft and btaft
I) Trauma duo to ngmon and treatmco of rabies; -n d
8) P*vholOgioal mode.
9. Ao a diroct sad Prate zeanlt o£tbe
o6g$gegoa of the Defendant as btadaabove attd
has6inaRersafortb. enIMPlaintig FRAMLW1. Lyb=, yX. bas cnffemedintbe;lm mdmay,
for as indeffalie period of time in the fhtnrq auffer$,e followhW
s) pain. vmffming MW incauvaajeoer
b) E02060nal distedta;
°) T=Pama t cfbis Scmd health atlmlgth and vitality,
d) Loss of Uh-.s pleum
;
d
e) eei:
q Bmbsaa6aaleat.
3
08/24/00 TUE 18:03 FAX 018144518080
16/99 '00 YON 00:27 FAX 181^180208 ERIE INS COLS
FRAM i *WrgtaX INC PHME NO. 7 614 26S 9174
Rug. 13 1999
0009
Q006
3w" pa
10. The PlaluM believe that mm or au of fife afetmalaooad b&du sad ,
be ;7f& p®anaft sad lad h* obmmdw.
11. F1 zdw, as it dbma and proximate reault of the wfApnee of the ag
baeunaboveaadflereiaaReemoreparbeukdyaetfolth.m?aotPL FR.ANJUJ Y.ilk
hors i
n the put mtd foray for iadefmite period of time in the f amm be unam, to =gapuai
aetividat.
12. All of the aftcmcadoned it juries and damages wwo muted directly and
by lhe meigmea etaaid Defepda A is general sad In tba foilowing parpieutats:
a) In failing to Pmpaly attend to the dog;
b) In fnbg to watch sad alferviae *a activities of the dog;
c) Ia AM= to worm nmforPlaiutiff of the vkiong pmpee>sitW of the dog;
d) Yn falling to propedy radrAn and/or secure dw dos so that it would not sot a
danger to mugs PlainW,
e) In pel ak*gthe Amato roam unfundedwhm Do&udaut kaaw or
kown thatmiaurPlaiaWww on Defendauesprcpmtr
f) In failing m maintpbt current rabies vaoinadona
being &=4 to undet'go a saita ofrabies shots;
S) In adu2wite falling to exercise that regard sad care for the rights and t&w of
minorPhiatfffrequkod cfDdeudant under the brw.
4
.r
08/24/90 TUE 16:00 FAX 918144616060 QI010
16/08 90 XGN 09:26 FAX IBY 160290 ERIE INS COLS -,' 0000
FROM : SHRrdt= INC PHONE NO. t 614 265 9174 Rug 13 1999 11:31AM P9
ORB, is considaadoa oftba foreBoinL miuorPl"fE FRANIO M L LYNCH,
MC. byhia ptrmts andnawal guardianr, DABiMQB C, LYNCH and FAANKLINL LYNC$ SR..
claim data6gae of the D6fendant, BRIAN L. JOHNSCN, for an 6mouat in access of Ttvemly--Five
Thousand (US.000.00) Dalian.
FRANIIGIJN J. LYNC$ JB., a minor bybis Words and noWal guardians
DARUDM C. LYNCH god FRANBI.IN J. LYNCH, Sit
Vs.
JOHN hL DEVINiE said JENAil]PER L. DEVINH, husband end wih
13. Theaveaaen sefp=MPpbsoWQ%ronghtwelveaboveincWvesmincaiparsttdhasin
by refercaee and made put he rm9 as though the same mere set forth wy at length.
14. Prior to October 13. 1997, the petfmdants, JOHN M, DRVDM and JENNIFER L.
DEVINB. were the owners of the prendam located at 300 Shuripstown Road, Mecbanicsbm&
Cumberland Cnutsty. Pennsyivaam
iS. Prior to October M 1997. the DdItadants, did eater into an Agreement to lease the
ofmcmemaionedpsnmiamtoU=DefeAdoll HMANLJOHNSON. AcopyrofsaidLaaseisatmotted
berate as Exhibit "1'%
16. Pursuant to the tams of the Lease. DeSasdamt BRIAN I.. JOHNSCIN. agreed to do.
wddng upon the leased ptemisa that would increase the risk of a hazard. The DetimdattQS, JOHN
M.DBv=andJE1VNII+F3IL.DEVINE,speciSeallyretaumd, ha n& toentwtheptamisesleased
t* Dofsadant BRIAN L JOHNSON, for tho pmpese of [caking inspections of said psassoieq,
5
08/24/00 TOE 18:01 FAX 918144818080 12011
18108 '90 RON 00:28 Fat IG."80208 ERIE IN* COLS 010
FRq 1 ' gOga= INC PME NO. 614 263 9174 tiua. 13 1999 11:31AM Pie
17. Dudug theperiod of the afatammtlosed Lease, Dafiwmim, BRIAN L. ".Wit
lmowled11evtdpemsissionofDefeadaats.J0HNXDEVDMaddJPNNWERL coot
the Alda an said pzamim, therft causing a bazard to be created regardinX who
lawllrlly enteaad tale leased pmmiaee
IL 773e DOOMdantr, JOHN M DEVDM and TBNNIM L. DEVINP. evem nelfgaot in
Son" and is the following pardaulars:
a) Inpemtitdaetha Dafendmut,DRIANL. JOHNSON, tobringavicious anjal Ollie
said leased pra rises;
b) ern failing to eeaduct necemmy izapeetlons whieb, if ccmh=bed, wol have
revealed dw eadstatloe of a dangerous assd hasudoya condition caosad by keeping m utimal of
. blown vicious propensity upon tba leased praadm-.
c) In Wft to prsvaht as in4 tmod, hazard tq= the premises owned by tba
Definfd2n by permitting a. dog of vicious propmdry to be on the kaxed premises dmkg the Inam
oft to afartimemionod lea9e.
19. As a direct and paoatm2te result of the Dd6ndm% JOHN M. r)P.VDM ad Mean
L DEME'S negligence, done and/or ha combination with the ne0sence of tie Dc ndant,
BRIAN L. JOHNSON, tht: Plaintiffs sustained the Navies and damages set forth above end below.
oVJ?LEFOBB, is oonaidrtatiotr ofthefore8oirlC+ rriinorF>lai»ti$ FiLINKLIIdJ. LYNt:H,
JR.,byhispaw= andnamalgaudiana,DARLENSC.LYNCHmdIUtAAII{I1NJ.LYNCFJ.SR..
6
08/24/99 TOB 16:04 FAX 918144618060 14012
1a/A6 so 1IOQ1 09:x5 FAX 161"0296 ERIE INS COLS ra011
PROM : SH'Rla= INC PHONE NO. : 614 265 9174 Aug. 13 159 11:31AM P11
claim damsEas of theDefu dants, JOHN M DEVM and J8NNUrf2t L. DEVINE.., fay an a=nnt
in exreas of Twmty-Five Thousand ($25.000.00) Dollar.
DARLMM C. LYNCH and FRANIUN J. LYNCH, SA
va.
BRM L JOHMON.
JOHN hd- n MOand ?p*l MM L. DJYM
20. The avermmia ofparasr4ft am tbmugh ten above, inclusive, am h=potawdbervin
by rdmmw and made part hereof a dwugh the same wore set forth dilly at length.
21. As a zeault of the injrtdw to minor PlabWA FRANKLIN J. LYNCH, JR., plaintiffs,
DARLE'NE C LYNC K and FRAl•=M L LVNCEL SR., have $Wained the following damages:
e) EraPital expones;
b) Mcdical and mbab iHtative expenses which have b wan incurred and wW b e ineunvd
in the fume.
WHER.EFORE,ineenWditwJcncftbefineg&LDARLMMC.LYNCH aIIdFRANK W
L LYNCH, SR, claim damsges ofdwDafm&u te, BRIAN L. JOHNSON. JOENXDEVJNB and
IM MM T. DSVMFE for an =mint in excess of Tw=W--Five Thousand (525400.00) Doilan.
A JURY TRIAL 1S ICY DEMAND3M.
RespedfUlly submitted:
Stu
kobw C. Eddins. Esquire
Attorney for'Plaind
7
•s%8/,A4 U xW oillWPni 1°1Meo ss" mt1E INS COLS ®015
. cols
qM : SHAM= INC PHONE No. 1614 26S 9174 Aug. 13 1999 3I:32AM P12
lrftde _ der of .1D,,,,: bebnen JOHN DBVM ¦td
JOWMIMOYMMOGO 61ampstrmu INN mach"Cabur9, CUmbalww C.UVAY
Pa+oelQ+aai? let+etatdlrt etiyLed }htpecpr ofdr fuse part, and lEJ?Tl•IGRiNIi WII?g aed
tiP :.•. ? • • B?AlAN JOi3Ngt]N, of40 Ragmty wood Noah. C.rJak. gtmbeilnd Camgy Pstnryly?tie.
•' httriselYorotjdedatsp?tapof'dtReseatdptet .
• 1vA1Qd.thsadraidp4br?tbe&etbut.laaesttidtatiaeofthetratmi .
mver?tl Itttel9altenm a.d, do@l dtnaae and last ado ihs said prey of dw semtd put d
be atoll as aadsmse, daepnmatsaadtathd bt dm Cowq of Ctaaborlatdaed e:an®aawal?
otPmnsylwoli dRmz hed w hUW4 : utNa 12. FinslAw of CWmWs(aa "mum
Mmdotra. d=dNovccdw24,193L u nttatled APha gook 53. Paga M4
TORAVEA110a11DiIf>I1ltestntlteaidpMyofQs tosoadp?rt sohjedmdts
aooddc= of d& lema for do tam begCaieg an do ld day of betember.19l6, and =din as
dw 30* dtd af-AptiL W7,
1N CQW OF VARM { Ow add pally of ewstaend pan affsa tep W tt the
said peatyofdk•fiatpatforgo naeendoe Pmwofthastillptemites,Owanmafltft
'26sUeted Do1bRt (52.000.001 Deyebls a lhtfow:, vir Five Flua,faad Aultat (f30p.08), apes
the etmtdh4 of die Y.aw Dail ea the Sm dvy sCaeh wmeed6g morah.
' Ac w ]17A'i>?it CON91D8RA71CbI he dte utt tad•etsttpmay of eld premiea dst
add ptsbr a?the aemedpat taaaby aa? m sid?r 1? .nabs 6m.od by dr leb.Mea
oerma<ts, sot?ddtiona aed age?omy +ric
08/224/,09 TUE 16:06 FAX 918144616060
le/00 s9 YON 00:29 FAX 1d1/?50296
FROM :•' 944% XK INC
,CIE INS. COLS X011
- - ?, ? _ (b 011
PFDNE N0. 614 20 9174 Fay, i1 1999 11332AM P15 '
Tm sitdv"z are to be kept a0d ma6+uined iu u Boodnm k u d dmtdittau mar
AMOetf aesl at the espitstioq orthu VeoM1 dW mu s, b. sattandaQ w k6 mpo*Md seodtten,
:ts0adlvpe?nd&Mtw hmeonfiv
71M! P" we to be kept in a aim aed iaei4y and t athW Whtoh no
asomol'21 dwm6 Harries the teem = to be ntmovod, dad in cam of 8t7umfts ¦ tier um
du stag oldie faseparm;y e0gt6tar est! due andis ttftdenble the eastoframovdp Qt.
WA'M t fbffy sauar poem, trash rumve ar edur MW= sarQe Ose nuke aanponts eel lh.
widpremisssdteinstheraido mstallhepatdfar* t%aidpotyorth.a.emdlwTugl p
of dl`w sWmlfdedBerrie,msatesamemaybe=Ueu dbydwSlidpantofthestmpartasrm
des and to ants,
?dmR?biptts time dpon aatd'prmiro s:mfma todp eeedidons eytbs pgt?s of
ide?dm+a+etyocith?balldte4sth0teaeerLaefrjtbd}s IMWbahmmc4mltsin'acaee.
a.?t:--=orb. wkai.,oar•
+mYp.tCm Drabs said *Wm dolt be utblet, am ftU dim
lea.. ae day iefa.at dase? W ammuod, mar aw do"d vw se.md bat maev, toot i..ss
erdty irtrmtatbarinb. emr:;n.a,aarshall Ihspceyaftho raced psd remove a dteeetepta
tratove 7r0te aa;dptamises dwingdw b mofthy bssgtMithatte the Wriremoemeot elder said
ps4Y ofd t?nepmt aedae rmlawfnt besieea dart dt asy mm be anrkd 04 epue;uid
tts?sar. .
lupteti ONO*0Po op mlynmvesthe Wdmearsop0nt?m p*relhutat
msaonnhledMW*rthsptrrposeofrnaldegbm mlr%VftUDa.tepavs,Ito V,eram.to
[aro0"r.tive1"bssowlermes,andmayftlay der not"or"forak-andsdte<ess.
71t?redovddeopr hoods fiamdu pomytsny Eby ?, orbyoiElq, wid„tetbe
attitras eeasmtoftheputy oftMt tint t?err. ibtU be damad a t:taedsadna.na tttotedntmt
=ova mdSO& radar SIAU>emate Uabla to d4taas ford plod 0fthrty (3? dsYs dips saeb
almost whasrorthey maybe 11s"
08/24/88 TOE 16:08 FAX 818144818060 IMC18
16/06 . 88 YON 08:x8 PAX 161"0288 ERIE ULJ_.COLS _ QI014
fRM S1IgtRO= ItJC RAM No. 7 614 265 9174 Aug. 13 1999 11:33FM P14
ffde&u)! ehtll tar taade is Atepaymrat pf atY pact 1f the aid nu after tltg am
beomm dart or to emos of a bromb, esaalaa a Wa amt to beak at OM& any g f dw
otpt Umll or oaltdltwu of tbia agro mmo. the ®tda rm nauod for low toll terns ofpda long
tteWd 4a11 booms dtm and pgable a1 b6wmd,eay Sw bwiAt be mile' by
dltwm sr atkowho. and at. w mis time the pasty ofJbg psee may faefs7e aM?mtW tha
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08/24/66 TUE 16:06 FAX 018144616060 X016
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` FROM ' SFOiPR000 INC PHOI.g hq. 614 265 9174 T .`
F149. 13 1999 Sl:.UM p17
i
The under"gn041, IDAit MM C. LYRCH, indiv-1dually and as pareht
and natural guardian of FAX T, LYNCH, JR., avexa that the
•tatemants of fact contained is tba toregoinq COMPL&MM IN CIVIL
ACTIM axe tzue and correct to " best of har infoxm tieri.
Imovledge and belief, and are made Subject to the penalties of 19
PA. Con. Stat. Ana, Ssetion 4904 relating to unsworn falsification
to authorities.
Ly1TSD ? ??? r -'7 7
7
Darlene C.LYaeh
09/24/90 TUE 16:07 FAX 619144616060
16/06 ,99 YON 06:31 FAX 16360299
FRbn : QVMMM INC
r
7%e undoreigaed, Y3IANRLIDI r. LYNCxt, 9R. , individually and as
pak=t and natural 9ua2:diaa of ,%W y. LYNCH, OR. # avers that
the statemomts of fact contained in the foregoing COMMINT Iy
CIVIL ACYXQK are true and, correct to the best of hia infoYmation,
knowledge and belief, and are made subject to the Denaltiae of 18
PA. Can. Stat. Ants, Section 4904 relating to uesvorn falsification
to authorities.
11d1T8D: -af) I
...`
ERIE INS COIL, X61016
FFGE NO. 7 614 266 9174 Rub. 12 1999 11:35M
Pie
10
p'rankli
h, sr.
lo?
r'1
,--1\
LEASE
Made this 15- day of NO t/ , 19% between JOHN DEVINE and
JENNIFER DEVINE of 300 Stumpstown Road, Mechanicsburg, Cumberland County,
Pennsylvnaia, hereinafter styled the party of the first part, and KATHERINE WILES and
BRIAN JOHNSON, of 40 Regency Wood North, Carlisle, Cumberland County, Pcnnsylvania,
hereinafter styled the party of the second part.
WITNESSETH, that the said party of the first part, in consideration of the rent and
covenants hereinafter mentioned, doth demise and lease unto the said party of the second part to
be used as a residence, the premises situated in the County of Cumberland and Commonwealth
of Pennsylvania, described as follows: Lot No. 12, Final Plan of Subdivision of Monroe
Meadows, dated November 24, 1986, as recorded in Plan Book 53, Page 34.
TO HAVE AND TO HOLD unto the said party of the second part, subject to the
conditions of this lease for the term beginning on the 1st day of December, 1996, and ending on
the 30th day of April, 1997.
IN CONSIDERATION OF WHICH the said party of the second part agrees to pay to the
said party of the first part for the use and occupancy of the said premises, the sum of Two
Thousand Dollars ($2,000.00), payable as follows, viz: Five Hundred Dollars ($500.00), upon
the execution of this Lease and on the first day of each succeeding month.
AS A FURTHER CONSIDERATION for the use and occupancy of said premises the
said patty of the second part hereby agrees to faithfully keep and be bound by the following
covenants, conditions and agreements, viz:
HARRISBURG
JAN 0 7 2000
The said premises are to be kept and maintained in as good repair and condition as at
present and at the expiration of this lease, they are to be surrendered in like repair and condition,
natural wear and damages happening by fire, storm or other casualties only excepted.
The premises are to be kept in a clean and sanitary condition and garbage which may
accumulate thereon during the term are to be removed, and in case of failure to remove the same
the party of the first part may collect as rent due and in arrears double the cost of removal; the
water, sanitary sewer, power, trash removal or other service for the use of the occupants of the
said premises during the said term shall be paid for by the said party of the second part unless
otherwise provided herein, or the same may be collected by the said party of the first part as rent
due and in arrears.
Nothing shall be done upon said premises contrary to the conditions of the policies of
insurance upon the buildings thereon whereby the hazard may be increased or the insurance
invalidated; neither the whole nor any portion of the said premises shall be sublet, nor shall this
lease or any interest therein be assigned, nor shall the party of the second part remove this lease
or any interest therein be assigned, nor shall the party of the second part remove or attempt to
remove from said premises during the term of this lease, without the written consent of the said
party of the first part; and no unlawful business shall at any time be carried on upon said
premises.
The party of the first part expressly reserves the right to enter upon the premises at
reasonable times for the purpose of making necessary inspection, repairs, or to show the same to
prospective purchasers or lessees, and may display "for rent" or "for sale" cards thereon.
The removal of any goods from the premises, whether by day or by night, without the
written consent of the party of the fast part, shall be deemed a clandestine and fraudulent
removal and such goods shall remain liable to distress for a period of thirty (30) days atSt:r svNU RG
removal wherever they may be found.
JAN 0 7 2uuU
If default shall be made in the payment of any part of the said rent after the same
becomes due, or in case of a breach or evasion or any attempt to break or evade any of the
covenants or conditions of this agreement, the entire rent reserved for the full term of this lease
remaining unpaid shall become due and payable at once and may forthwith be collected by
distress or otherwise, and at the same time the party of the first part may forfeit and annul the
unexpired portion of this lease and enter upon and repossess the said premises with or without
process of law, and without giving any notice whatsoever.
Acceptance by the party of the first part of any of the said rent at any time after the same
shall become due, after default has been made in the payment thereof, or any failure to enforce
any of the rights herein reserved to the party of the first part, or any of the penalties, forfeitures
or conditions herein contained, shall not in any wise be considered a waiver of the right to
enforce the same at any time without any notice whatsoever, and any attempt to collect the rent
by one proceeding shall not be considered as a waiver of the right to collect the same by any
other proceeding, but all of the rights of the party of the first part, and all forfeitures, penalties
and conditions may be enforced together or successively at the option of the party of the first
part.
It is further agreed that if the party of the second part shall become insolvent, make an
assignment for the benefit of creditors, commit any act of bankruptcy, file a voluntary petition in
bankruptcy, or if any judgment shall be entered or an involuntary petition in bankruptcy filed
against the said party of the second part, all the rent reserved for the full term of this lease shall
become due and collectable immediately by distress or otherwise.
The Prothonotary or any attorney of any Court of Record of Pennsylvania is hereby
authorized to appear for and to confess a judgment against the said party of the second part and
in favor of the said party of the first part for the whole amount of said rent as hereinbefore set
forth. HARRISBURG
JAN 0 7 NN
1
And the said party of the second part hereby waives the usual notice to quit, and agrees
to surrender said premises at the expiration of said term, or the termination of this lease, to
surrender said premises at the expiration of said term, or the termination of this lease, without
any notice whatsoever. And upon any proceeding instituted for the recovery of said rent, either
by distress or otherwise, the said party of the second part waives the benefit of all appraisement,
stay and exemption laws, the right of inquisition on real estate, and all bankruptcy or insolvency
laws now in force or hereafter passed.
Upon the breach of any of the covenants or agreements of this lease or upon its
termination by forfeiture, default or expiration, the Prothonotary or any attorney as aforesaid is
hereby authorized to appear for and to confess judgment in an amicable action of ejectment
against the said parry of the second part and in favor of the said party of the first part for the
premises herein described and to direct the immediate issuing of a writ of habere facias
possessionem with clause of freri facias for costs, waiving all irregularities, without notice and
without asking leave of court.
It is further agreed that the terms and conditions of this agreement and lease shall in no
way be changed or altered except by a writing signed by all of the parties hereto; and if the said
party of the second part shall continue in possession of the said premises after the expiration of
said term, at the option of the said party of the first part, such holding over may be held and
deemed a renewal of this agreement for another like term, the same as though a new agreement
of leasing, identical with this, had been executed and delivered by the said parties hereto for a
succeeding term.
The conditions of this agreement shall extend to the administrators and executors of all
the parties hereto.
HARRISdUiIG
JAN 0 7 ZUW
IN WITNESS WHEREOF, the parties aforesaid have hereunto set their hands and seals
the day and year first above written.
Witness
Witness
Witness
Witness
? kh"
KATHERINE WjEE-S
n?
BRIAN JOHNSON
HARRISBURG
JAN 0 7 2000
OCT-28-97 TUE 6:23 ?M 4'`Q913126963 FAX NO, =--77375161 P. 5" ?
AGREEMENT OF SALE
Agreement of Sale made this /57- day of n w.,. ? C11 . 1996, between JOHN
DEVINE and JENNIFER DEVWE, his wife of 300 Stumpstown Road, Mechanicsburg,
Cumberland County, Pennsylvania (Seller);
AND
KATHERINE WILES and BRIAN JOHNSON of 40 Regency Wood North, Carlisle,
Cumberland County, Pennsylvania (Buyer). The Seller agrees to sell and convey to the Buyer
who agree to purchase the premises known and numbered as 300 Smmpstown Road,
Mechanicsburg, Cumberland County, Pennsylvania, Lot No. 12, Final Plan of Subdivision
Monroe Meadows, dated November 24, 1986 as recorded in Plan Book 53, Page 34, being also
the same premises as described in Deed Book B-36, Page 20.
1. Purchase Price: The Buyer agrees to pay for the said property the sum of One
Hundred Thirty-five Thousand Dollars ($135,000.00) as follows: Two Thousand Dollars
($2,000.00) deposit made by Buyer upon execution of Agreement of Sale; and the balance of
One Hundred Thirty-three Thousand Dollars ($133,000.00) in cash at the date of settlement,
noted below.
2. Afort eree Financing: Buyer will have forty-five (45) days from date of this
Agreement to secure mortgage financing and in the event mortgage fmancing is not obtained
within that said period of time, this Agreement is null and void.
HARI-ii6tWi-ju
JAN 0 7 2000
OCT-28-97 Tl1E 6:24 PH "N913126963 FAX NO. ?--77375161 P. 6.' 7
3. Se(rfement: Settlement will be held on or before April 1, 1997 at a location and
time selected by the Buyer. In the event settlement does not occur on or before May 1, 1997,
Buyers shall vacate the premises and forfeit Two Thousand Dollars (52,000.00) of the deposit
monies.
4. ,Encatnbranees; The premises are to be conveyed clear of all encumbrances and
easements except those appearing of record and visible on the premises.
5. possession, Buyers will occupy the premises on December 1, 1996 and will be
bound by a Lease, dated December 1, 1996, and incorporated herein by reference.
6. ApRortionment: Real estate taxes, utilities, and fuel will be apportioned as of
the date of settlement.
7. Real Estate Transfer Taxes: Real Estate Transfer Taxes will be divided equally
between Seller and Buyer.
8. Titte: The title is to be good and marketable and such quality as will be insured
by any reputable title insurance company at normal rates and deed will be by special warranty.
9. Time: The parties bind themselves, their heirs, executors, and successors for the
faithful performance of the terms of this Agreement
10. Realtor: There is no realtor involved in the sale and no commission is due any
realtor.
11. Certifications: Any certifications including surveys shall be at the expense of
Buyer and shall be accomplished ten (10) days after date of mortgage commitment, noted in
paragraph --
HARRISBURG
JAN 0 7 20
OCT-28-97 TUE 6:%4 ?M 4? 131.6963 FAY. NO. 7-113731E1 P. 7' 7
TN WITNESS WHEREOF, the said parties have hereunto set their hand and seal the day
and year first above written.
HARRISBURG
JhN 0 7 ZO
Witness BkYLN JOHNSO
Exhibit C
JOHNSON, BRIAiv
2117100
LYNCH VS
JOHNSON AND DEVINE
1 COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
2
3 FRANKLIN J. LYNCH, JR., A
MINOR, BY HIS PARENTS AND
4 NATURAL GUARDIANS DARLENE C.
LYNCH AND FRANKLIN J. LYNCH,
5 SR., AND DARLENE C. LYNCH AND
FRANKLIN J. LYNCH, SR., IN
6 THEIR OWN RIGHTS,
PLAINTIFFS
7
VS NO. 99-4508 CIVIL
8
BRIAN L. JOHNSON, AND JOHN M.
9 DEVINE AND JENNIFER L. DEVINE,
HUSBAND AND WIFE,
10 DEFENDANTS
11
12
13
14
15 DEPOSITION OF: BRIAN L. JOHNSON
16 TAKEN BY: DEFENDANTS JOHN AND
JENNIFER DEVINE
17
BEFORE: DONNA J. FOX, REPORTER
18 NOTARY PUBLIC
19 DATE: FEBRUARY 17, 2000, 11:45 A.M.
20 PLACE: GOLDBERG, KATZMAN & SHIPMAN, P.C.
320-E MARKET STREET
21 HARRISBURG, PENNSYLVANIA
22
23
24
25
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
JOHNSON, BRIAs.
2/17/00
LYNCH VS
JOHNSON AND DEVINE
2
a
NCES:
FICE OF ROBERT C. EDDINS
F I
STIPULATION
ERT C. EDDINS, ESQUIRE 2 It is hereby stipulated by and between counsel
R • PLAINTIFFS 3 for the respective parties that reading, signing, soling,
4 certification and filing are waived; and that all objections
JO?HNSON.
DUF'FIE, STEWART & WEIDNER 5 except as to the form of the question are reserved to the
HAEL J. CASSIDY, ESQUIRE 6 time of trial.
6 FOR• DEFENDANT JOHNSON 7
7 GOLDBERG, KATZMAN & SHIPMAN, P.C.
8Y: JEFFERSONA SHIPMAN, ESQUIRE 8 BRIAN L. JOHNSON, called asa witness, being
8 9 sworn, testified as follows:
FOR. DEFENDANTS JOHN AND JENNIFER DEVINE to
9
ALSO PRESENT: I I DIRECT' EXAMINATION
10 12
DEBRA WALLACE 13 BY MR. SHIPMAN:
1
1
12
14
Q Would you please state your full name and
13 15 resident address for the record.
14 16 A Brian Lee Johnson, 300 Stumpstown Road,
15 17 Mechanicsburg, Pennsylvania.
1
6
17
18
Q Mr. Johnson, my name is Jeff Shipman. I'm an
18 19 attorney here in Harrisburg and I represent Mr. and Mrs.
19 20 Devine in a lawsuit that was filed against you and my
20
21 21 clients by the plaintiffs in the case, the Lynches.
22 22 The purpose for our meeting here today is for
23 23 us to have a meeting and to ask questions about that case
24
25
24 ,
principally about the dog bite accident that happened.
25 As you can see there's a young lady here who
3 5
F TABLE OF CONTENTS 1 is transcribing what 1 say and what you say. So it's
WITNESS 2 important for you to listen to m
y questions and the
3 questions of the other attorneys, if there are any other
R
DEFENDANTS JOHN 4 questions, carefully and then to give a verbal spoken
D JENNIFER DEVINE DIRECT CROSS 5 response so she can take down your answers. Okay?
5 Brian L. Johnson 6 A All right.
By Mr. Shipman 4 7 Q If for any reason you don't understand a
6
7 By Mr. Cassidy 19 8 question that is asked of you today, just let us know and
8 9 We'll try to ask the question again.
9 10 Also, if for any reason you want to take a
10 11 break and talk to your attorney about anything, then please
11 12 let me know that and we'll be happy to do that. Okay?
12 13 A Yes.
13 14 Q Can you tell me initially a little bit about
14 15 yourself. How old you are, where you're employed and
IS
16 16 something about yourself? How old are you currently?
77 17 A I'm 34-32. Excuse me.
1 18 Q Where do you work?
19 19 A Smith's Auto. It's in Mechanicsburg. I du
20 20 collision repair.
21 21 Q How long have you worked there?
22 22 A It's been about a y:ar now.
23 23 Q Where were you working before that?
24
25 24 A LB Smith Ford.
25 Q What did you de for them?
GEIGER & LORIA REPORTING SERVICE -1.800-222-4577
2
JOHNSON, BRIAiv
2/17/00
LYNCH VS
JOHNSON AND DEVINE
6
A Collision repair.
Q Did you graduate from high school?
A Yeah.
Q Which high school?
A Cumberland Valley, Cedar Cliff.
Q What year did you graduate?
A '85.
Q Any military?
A No.
Q Any college?
A No.
Q After high school did you go into the
collision repair business?
A I worked for my father at a plastic plant for
a while. Then I got into that.
Q Where was that?
A What?
Q Where was that plant located?
A Silver Springs Road in Mechanicsburg,
Q What was the name of that?
A Cresline Plastic.
Q Cresline?
A Yeah.
Q Are you married?
A No.
7
Q Do you live with a Kathy Wiles?
A Yes.
Q Do you have any children with her?
A None with her. Just stepchildren more or
less.
Q What are your stepchildren's names?
A Travis and Nicole.
Q Are they adopted children?
A No. Just morally my stepchildren, basically.
Q Are they Kathy's two children?
A Yes.
Q How old is Travis?
A I believe 12, 13.
Q How old is Nicole?
A Seventeen.
Q How long have you lived at your current
address?
A It's about three years now.
Q Do you remember when you moved to that
location?
A I'm not sure or the date.
Q Was it sometime in the fall, early fall of
1996?
A Yeah, around there. 1 remember it was cold.
Q How was it you came about becoming interested
8
I in that praperty? What was it that interested you in the
2 property? And did you know my clients, the Bovines? How
3 did that come about that you moved into that property?
4 A My Rance, Kathy, worked at a bar and 1 guess
5 they came In there and she talked to them. And on occasions
6 they said they had a house for sale. So that's more or less
7 how 1 got Interested In It.
8 Q Where did Kathy work at that time?
9 A I can't remember the name of the place.
10 Q But apparently the Devines came into the bar
11 and met Kathy there while she was working?
12 A Right.
13 Q And made her aware that their house was
14 available?
is A Yes.
16 Q Prior to that you didn't have any contact with
17 the Devines, you didn't know them at all?
is A No.
19 Q At some point was there a renal arrangement
20 that was entered into between you and the Devines?
21 A Yeah. After I guess we made a lame agreement
22 up, because we couldn't afford the place and they wanted to
23 get out or the house, so we made a lame agreement up.
24 Q Initially there was a lease agreement that was
25 prepared. Did the Devines prepare that?
9
I A Yes.
2 Q Was it signed?
3 A Yes.
4 Q According to our records, you moved into the
5 house sometime in the fall of 1996. When you moved into the
6 house, di d you have the dog Harley at that point in time?
7 A Yes.
8 Q When was Harley purchased?
9 A Probably six months before we moved Into
10 there.
I I Q Was he bought as a puppy?
12 A Urn-hum.
13 Q You have to say yes.
14 A Yes.
IS Q Where did you buy the dog?
16 A Safari World.
17 Q Ata mall?
18 A Yeah, a pet store.
19 Q Where was Safari World? Which mall was that
20 located?
21 A Camp Hill Mall. It's where the Boscov's Is.
22 Q Had you ever owned a dog before?
23 A Yes.
24 Q flow about an Akita, have you ever owned an
25 Akita be fore?
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
3
1-11
JOHNSON, BRIAN
2/17/00
LYNCH VS
JOHNSON AND DEVINE
10 12
1
2 A No.
Q W I when other you moved there did you riot remember having any
ere you specifically looking for Akita, or 2 contact with the plaintiffs, the Lynches?
3 did you go to the store and that one happened to be 3 A Can you repeat that?
4 available? 4 Q Alter you moved to the Slumpslown Road
5 A That happened to be available. 5 address, do you have a recollection of having any
6 Q So you weren't specifically looking for thi4 6 communication -
7 type of doing? 7 A Afters moved?
8 A No. 8 Q Yes.
9 Q Wbere were you living at the time that you 9 A The day we moved In 1 war talking to
10 bought him? 10 Mr. Lynch. You said the Lynches?
11 A A trailer park. I I Q Yes.
12 Q Which trader park? 12 A I was thinking of the Devlnes. No contact
13 A Regency Woods North. It's off 114. 13 with them.
14 Q Were you renting a mobile toiler there? 14 Q Up until this accident happened in October of
15 A No. My fiancee owned It. 15 1997, which would have been about a year after you had moved
16 Q How long had you been living there with her? 16 into The property, was there any communication or dealings
17 A Two, three years. 17 between you and the Lynches at all?
is Q So you were living at the hailer, and you is A My child -or Travis played with their kid.
19 bought Harley while you were there. You brought Harley back 19 I went down mad met them once, Mr. Lynch.
20 to the trailer. And did you stay in the toiler then for 20 Q How frequently did Travis and the Lynches' son
21 about six months before you moved to the Stumpsm" Road 21 play? Was it a frequent event?
22 address? 22 A Yeah, pretty often.
23 A Yo, approximately. 23 Q Prior to October 18, 1997, did Harley ever
24 Q What was the basic reason for wanting to move, 24 bile anybody?
25 to gel a bigger place with a bigger lot? 25 A No.
11 13
1 A Yeah, more or Ins. Plus the dog, we couldn't 1 Q Never bit anybody in your family? Never bit
2 keep him in the trailer. 2 any of the neighbor children or neighbors at all?
3 Q Was there a specific prohibition within the 3 A No.
4 toiler park community, for not having the dog? 4 Q Do you have a recollection of this particular
5 A 1 can't really remember. 5 day Travis and the Franklin Lynch coming up to your house?
6 Q Before you moved to the Stumpstown Road 6 A I remember the day it happened, ya.
7 address, were there any problems at all with Harley? Did he 7 Q What do you remember about the two boys coming
8 ever bite anybody? Did he ever attack anybody? 8 up to the house?
9 A No. 9 A I don't really remember them coming to the
10 Q How was he to a pet? About this time before 10 house. All I remember is when they came out yelling.
I I this incident how was he? Was he a gentle dog? I I Q What were you doing when this accident
12 A Yeah, just a regular puppy. 12 happened?
13 Q Who was principally in charge of taking care 13 A i believe 1 was working In the garage, working
14 of him? 14 on the car or something.
15 A I was. 15 Q The Lynch boy has given a deposition and he
16 Q And you had a vet? 16 has a recollection of walking with Travis from his house up
17 A Yas. 17 to your house with the dog on a leash. Do you have a
18 Q Was that the Willow Mill Veterinary Clinic? IS recollection of seeing them come up to your house?
19 A Yes. 19 A What I remember Travis said that he was going
20 Q Shortly alter you bought him, did you take him 20 to take the dog for a walk. That's the last I remember
21 t o the vet? 21 seeing him.
22 A Yes. 22 Q So you don't really remember them coming back
23 Q You got his shots? 23 and going into the house?
24 A Yes. 24 A No. It was two years ago.
25 Q When you moved to the Stumpstown Road address, 25 Q The Lynch boy also mentioned going into the
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
JOHNSON, BRIAN LYNCH VS
2/17/00 JOHNSON AND DEVINE
14 16
1
2 Image and getting a football and carrying that into the
house. Do you remember that? I them In tune about the lease and stuff and our financial
3
A I don't remember.
' 2
3 situation.
Q Kathy principally handled that?
4 Q So you
re in the garage, and the next thing 4 A Yes.
5 you know something his happened? 5
Q Did they overcome back to Penmylvania or to
6
7 A Yes.
Q Tell me In your words what you remember at 6 Mechanicsburg to slay at your house or visit with you aner
8
that point. 7 you moved in?
9
A Theyjust come around and Franklin was running S
9 A Not that I remember, no.
Q W
h
10
out. And Franklin was crying. And l what happened. And
10 as t
ere any reason why the Devine would
have any knowledge about the dog?
I I they said Harley bit Frmtkle. So I told them to go call for I I A The day we moved In
he was there when we
12 Frauk11n9 dad to come up and gel him. I was just silting 12 ,
brought the dog over.
13 there. 1 went and got a rag or something to hold on his 13 Q Did he have any objection to that?
14 nose to stop the bleeding. 14 A No.
15 Q He was obviously bitten around his face? 15 Q The lot where you are
if I understand
16
17 A Yes'
Q And bleeding badly
I'm sure? 16 ,
correctly, it's a fairly substantial lot.
Is
19 ,
A Ye.
Q Was (here any conversation that you can 17
18 A Yes
Q It's at [cut 3 and o half acres?
20
remember about how this happened, how it was that Harley 19
20 A 3.2, something like that.
t
h
Q A
21 would bile Franklin? What the boY$ were doing at the time, 21 ot
er t dogs in the neighborhood?
re Yes
A
, one ne right beside us.
22 whether they were playing with the dog? Was there any 22 Q What kind of dog is that?
23 conversation about that? 23 A It's a mix.
24 A Not that i remember. Just from what Travis 24 Q Did anybody in the neighborhood ever object to
25 told me after It happened. 25 your having Harley?
15 17
1 Q What did he tell you? I A No.
2 A He said they were just sitting there playing 2 Q No complaints about the dog of any kind?
3 or Travis was on the phone talking to somebody to come over 3 A No.
4 to play, And Franklin was sitting there playing with the 4 Q You had lived there at least a year with the
5 dog with one of his toys or something and catching. That's 5 dog and never had any problem with him whatsoever?
6 all Travis really said. 6 A Yes.
7 Q Does the dog have a toy that the Lynch boy 7 Q When the Lynch boy would come over on other
8 would have been playing with? 8 occasions to your house, would you see him playing with
9 A He had rawhide bona, a big pull rope with 9 Harley?
10 knob on It. 10 A Yes. Sometimes they would pull his ears and
I I Q Were they usually in the house? I I tall, and I would remind him not to. So 1 mean he would
12 A Yes. They were always in the house. 12 Irritate him.
13 Q Was it one of thou toys that Travis was 13 Q Prior to this accident happening?
14 talking to you about? 14 A Yes. Sometimes 1 had to tell them several
is A yes. 15 times not to do it.
16 Q Up to this point had you ever seen Harley act 16 Q What would he be doing, pulling his tail or
17 i n a way that unprovoked just bite somebody or almost bite 17 his ears?
18 anybody?
19 A
' Is A Yeah, most of the time. He would torment him
None. That
s why 1 was - I didn't know -1 19 sometimes.
20 was shocked. 20 Q And you would have to tell him not to do that?
21 Q After you moved into the heave, did you have 21 A Yes,
22 any communication with the Devines, my clients? 22 Q How was the Lynch boy when he was over at your
23 A After we moved in. 23 house? Did he behave himself? Didn't he behave himself?
24 Q After you moved into the house. 24 A lie was just like a regular teenage bay. He
25 A Yes. My fiancee did. She more or less kept 25 was a little hyper.
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
JOHNSON, BRIAN
2/17/00 LYNCH VS
JOHNSON AND DEVINE
18
I Q Did you ever have to ask him not to do zo
2 something like maybe running around the house, thuowmil
3 things inside the house, misbehaving in some fa
hi 1 A t do right now.
2 Q What did you pay for the goperry or the
s
on, other
4 than what you have described with respect to the dog? 3 house?
4
5 A N0. not really. A 125, 130,000.
5
6 Q How about Haley with other children in the Q Do You remember how much money you put down on
6 i
?
7 neighborhood up to this point in time this dog bite
8 incident, would Harley be gentle and nice around the oth t
7
A 1 believe 11 was 10, 10,000.
er
9 children in the neighborhood? 8
Q Is the home being financed?
10 A Yeah. The kids nest door, the
they get on him and 9 A Va.
10 Q Wh
i
II ride around on his back and stuff. They're fairl
oun o
s you mortgage company?
1
y y
g.
12 Q What are their names? 1 A I'm not really sure. My fiancee handles the
13 A There's four of them. I can't offhand really
14 think about it. 12 bills
D
Q Are you currently in your mortgage?
IS
Q What's the last name of the family?
16 A Fl
k
bi
' 14 A Ye.
IS Q Since you purchased the home
have
ou m
d
a
en
nder- or they
re not married either,
17 R ,
y
a
e
16 any additions to the home?
onya Eby.
17 A No
18
Q So they have four children who would play with
19 the do g7
g' .
IB
Q Have you done any extensive remodeling to the
20 A Yeah. 19 home?
20 A No
21
Q And never any problem with them?
22 A No .
21 Q Have you ever signed a deed that gives your
.
23 Q Other than the day that you moved in and 22 fiancee any interest in he house?
23
24 Mr. Devine was there .• 1 think y
you said Mr. Devine was
25 there? A No.
24
Q llooked back on he original lease
25 agreement. That wadrawn upbemeenyourselfandyoa
19
21
I A Yes.
2 Q Was Mrs. Devine there? I fiancee. Is that Ms. Wiles?
3 A She already went to Ohio. 2 A Yes.
J
Q Wh
i
'
4
Q Other than that time, was Mr. Devine ever y
sn
t sheen owner of the house?
4
5 around the dog onany other occasion? A She couldn't get credit for It, for the
5 fi
6 A Not that I remember, no. nancing.
6
Q D
7 MR SHIPMAN: I think those arc all the
8
i agreement,
you have any e Yourrsseel that is a verbal agreement
bebetwtweeen n
d M
7
olf
d
M
W
quest
ons 1 have, Mr. Johnson. Thank you. s
s.
,
y
n
an
.
iley
8 this is half her house?
9
10 CROSS-EXAMINATION
I I
9 A Morally, yes.
10 Q Is the only reason that the house is not in
12 BY MR EDDINS: I 1 her name because of the fact she couldn't get the financing?
13 Q Mr. Johnson, I have a fewjust preliminary 12 A Plus we're not married.
IJ Q P
t
h
14 questions. Your attorney was kind enough to fax me some u
t
e not married part asid, for a second.
14 Had she been able to gel hecredit
would
h
h
15 interrogatories the other day. 1 noticed here on one of the
16 i ,
s
e
ave been a
15 named buyer to the home?
nterrogatories, number 14, that states the defendant, which 16 A ' Yes
17 is you, does not have any insurance coverage which could
18
i .
17 Q Have you given her assurances that if
sat
sfy part or all ofanyjudgment which may be entered in
19 this action or to indemnify or reimburse
Y payments
ti
f IS something happens.
8 that you would put her name on it or
sa
s
y
20 judgment. Is that your understanding, that you have e no 19 protect her somehow with the house?
20
21 insurance coverage for this?
22 A A If passible.
21 Q Is she helping pay the mortgage?
Yes.
2J
Q Let's talk a little bit then about a few other
24
li
22 A Yes.
23 Q You don't know what the mortgage balance is
pre
minary things. The home that you are purchasing, who 24 today?
25 owns the home7 25 A I think It's 122, 123.
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JOHNSON, BRIAN
2/1
7/00 LYNCH VS
JOHNSON AND DEVINE
22
24
1
2 Q So it hasn't gone down that much at this
point? 1
Q
Which credit union do you belong to?
3 A I think I paid 2,000 on the principal so far A
7 Ito
e
t spelling).
4 .
Q You say you're employed? Q Howd do o you you bel l
o nng g to to that?
55
A Yes. 4 A Through Kathy.
Q Where are you employed? 5 Q
6 Is she employed?
7
8
A Smith's Auto In Mechanicsburg.
Q Wh
d A
7 Q St1f-employed.
What type of work or what type ofem
lo
me
t
at
o you do there? p
y
n
8 does she have?
9
to A Collision repair.
Q Do you have any benefits on yourjob? 9 A
10 Cleaning.
11
A Health benefits. Q Does she have a cleaning service?
12
Q Do you have any retirement plan? I I A
12 Yes. She works by herself.
13 A Not that I'm aware of Q Do you know how much you paid for the Dodge
14 .
Q At the other place where you worked, 1 believe 13 track?
14 A
Roughly 17.
15
16 it was a Ford place?
A Yes. 15 Q Do you know what you owe on it?
17
18
Q What was the name of that? 16 A
17 Q No. I have no Idea.
Does Kathy make those pa
ments?
A LB Smith Ford. 18 A y
Yes
19
20
Q Did you have a retirement program with them?
19
Q .
You have a motorcycle?
2I A Yes,
Q Is that still in existence? 20 A
21 Q Yes.
Is that a Harley?
22 A To my knowledge, no. 22 A Yes
23
24
Q Did you cash that out when you left there?
A
23
Q .
How much did you pay for that?
25 No.
Q Whet happened to the retirement plan? Is it 24 A
25 Q Twelve.
I
h
f
s t
at
inanced?
23 25
he Ford? I A Yes.
1 believe, yeah.
D
k
F 2 Q
Who fi n anced that?
o you
now what the value of your retirement 3 A Harley Credit.
sir?
No. 4 Q Do you have any idea what the balance that you
6 Q
Have you ever received a statement from the S owe on
6 A that Harley is?
A
7
Ford dealership that gives you an idea what the value is?
7 Q round 11 and a half.
Do you own a boat?
8
9 A No.
Q Do you own any vehicles? 8 A
9 Q No.
Does your fiancee own a boat?
10
it A Yeah.
Q Is it cars? 10 A Yes, Kathy does.
12
A I have a car and a motorcycle. I I Q
12 A What kind of boat is that?
'
13
Q What kind of car do you have?
13 Q 85, a Celebrity.
Does Kathy own a car?
14 A A 96 Dodge Ram. 14 A Yeah.
15
16 Q Is that a truck?
A Yp 15
Q Do you have a savings account?
17 Q Is that financed) 16 A
17 Q Yes, jointly with Kathy.
Where is the savings account?
18
19 A Yu
Q Who finances it? 18 A Marlchoice (phonetic spelling).
20
A I have it on a loan through the bank. 19 Q
20 have a sa Beside Marichoice (phonetic spelling), do you
vings account anywhere else?
21 Q Which bank? 21 A No.
22
23 A Marlchoice.
Q What is it called? 22 Q Are you the beneficiary of any tout fund, if
24
A Marichoice (phonetic spelling). it-s, 23 you know what I mean by that?
24 A No.
25 federal credit union. 25 Q Has anyone died and felt you a lot of money
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JOHNSON, BRIAN
2117/00 LYNCH VS
JOHNSON AND DEVINE
26
That pays you monthly benefits? I dog?
go back a little bit, Mr. Johnson
1
F 2 A Yeah, that's more or Ins...
7
.
b,
ided through your attorney a lease 3 Q Did he know what kind of d
,
of sale and addendum:. Idon't have any dales y A I'
5 m not sure.
Q I know he sees the dog
but
d
n we agree they were all si ed b
gn y yourxif
7 and Ms. Wiley; is that correct?
.
.
6 with you what type of dog it was?
8 A Yu.
y
Q When you tint moved into the Stumpstown Road 7 A No.
8
Q understand you have no insurance
coverage to
JO
property, did you have any discussion with the Devine
I I
d 9 pay for this claim. Has an one, an company
, extended
Y Y pany her
10 They call cost of defense to you? Has anyone unde
t
k
regar
ing insurance?
12 A Not to my knowledge
no. r
a
en to
I I pay for your defense of this case, what they call
,
13 Q When you signed the lease and realized you 12 reservation of rights?
13 A N
14 were moving into the Slumpstown Road property, did you have
15 an
con
i o.
14
MR.
:You know what I'm talking about
y
rom concern
ng what would lap if you had a frt
16 INS:
.
IS BY MR LD
.
regarding the contents ofwhat
you put in the house? .
17 A I
' 16 Q Is there a
hcre any reservation of rights that has
t didn
t really come to mind.
18 Q A 17 been extended in this case?
rc you aware that there is an insurance 18 A No
19 policy known as renter's insurance?
20 A Yes, after this happened 1 thought about It .
19
Now,
going back
some quest
to
Q
you were
,
21 found out about It, thought about It 20
asked today
what
M
, accord diing you have
Shipman,
ing to w
.
22 Q Before this happened did you think about ill 21 testified Wore, re a
, Harley had never attempted to bite anyone
23 A No. 22 before?
24 Q When you moved in the Stumpstown property --
25
d 23 A Right.
24 Q I've been provided today with a statement
a
an
it looks like what 1 see here, you moved in in December ,
25 recorded statement of who is identified as Jennifer Devine.
27 29
I of'96. Does that sound about right?
2 A I According to this statement, understand 1 didn't see it
Va.
3 Q So the dog was actually only two months old 2 until today, but it says hem that she talked to a neighbor,
3
,
4 is that true? Kari Reber, R-a-b-c-r. Do you have such a neighboR
5 A Yes. 4 A No. 1 don't know.
6
Q 1 shouldn't say two months old. You had only You never heard of that name before
5 Q , Reber?
6 It says K-a-r-i R-c-bt-r
7 had him for two months.
8 According to the documents 1 had
you bought .
7 A There might be. 1 don't know of her.
8
,
9 the dog in September of'96 and it was a puppy
is that Q It says here Mrs. Devine reports that she was
9
k
,
10 right? as
ed whether your dog had any history of biting or snapping
I I A Yes. 10 at people, and she claimed in her statement she found out
12 Q Are you talking another two months the dog is I I after the fact the dog had attempted to bite another
12 neighbor boy. A neighbor, a mother, the boy told me that
13 still a puppy, is that correct?
14 13 her son was playing on the swing that Kenneth's son came
A Yet.
15 Q Is there any question in your mind that the 14 over to their yard why the dog and the dog tried to pull
15
16 Devines knew you had the dog? their son off the swing.
16 You never heard that?
17 A No. They did know. 17 A No.
i8 Q 1 saw somewhere in interrogatories that the
19 18 Q Did Travis ever tell you that on one occasion
fact of the matter was Mr. Devine had to slay ommight 19 Harley tried to pull a boy off a swing?
20 because his cal wouldn't come out because it saw your dog? 20 A No.
21 A Right'
22 Q Did you and Mr. Devine talk about the dog when 21 Q You don't know anything about this?
22 A Uh-huh.
23 you moved in?
24 23
Q You have to say yes or no.
A About?
25 24 A Yes.
Q About anything: This is a great place for the 25 MR. CASSIDY- What was your answer?
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JOHNSON, BRIAN
2/17/00
LYNCH VS
JOHNSON AND DEVINE
30
1 A 1 have no indication that this happened.
2 BY ME. EDDINS:
3 Q Before today did you ever receive information
4 that a neighbor claimed that her son had apparently claimed
5 to have been almost attacked by your dog?
6 A No.
7 Q You never heard that before today?
8 Somewhere I noticed that a letter was sent by
9 either yourself or Ms. Wiley to Erie Insurance Company. Do
10 you know anything about that letter?
I1 A No.
12 Q Alter this incident happened, did you have any
13 communication with Devines about what happened?
14 A My gance: did.
15 Q Did you, yourself?
16 A Not that 1 remember, no.
17 Q Do you know why she communicated the dog bite
18 to the Devines?
19 A I don't really remember.
20 Q Do you know if she had any discussion with the
21 Devines about if their insurance company would cover this?
22 A 1 believe so, yes.
23 Q Did you have any discussion with the Devines?
24 A Yes.
25 Q About insurance coverage?
31
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A No, l didn't.
Q Did you have any discussion with an insurance
agent regarding whether this was covered?
A No.
Q Did you leave this up to her to handle, the
insurance aspect of it?
A Who, Kathy?
Q Kathy.
A Idon't remember lfshe was calling them or
not.
Q One of the things that I looked at in the
discovery, apparently you had encountered some problem in
being able to finalize the settlement regarding this house.
Is that true?
A Yes.
Q What was the nature of the problem which you
had?
A The down payment.
Q Were you having problems getting financing?
A Just coming up with the down payment.
Q Until you had enough on the down payment, they
wouldn't approve the loan, is that true?
A I believe so, yes.
Q Now, I saw things were extended. There was a
period when the you were given an additional time to
32
purchase he house, is that true?
2 A Yes.
3 Q Then I saw somewhere the fact that if you
4 didn't have the settlement completed by July Ist, '97, the
5 property would be listed for sale by advertising and a yard
6 sign placed on the property. I know you didn't close on
7 July 1st, is that true?
8 A 1 believe so.
9 Q And was a sign put up on the yard between the
10 time of July Ist and the day when you actually closed on the
II property?
12 A You're saying there was?
13 Q I'm asking you, was there?
14 A No.
15 Q So did the Devines agree to extend once again
16 a time limit to allow you to purchase the property?
17 A Yes.
is Q During that period of time when it appears
19 there were no written agreement that covered that period of
20 time, what was your understanding regarding paying rent?
21 A 1 think we were still paying half their
22 mortgage for them.
23 Q Was there any discussion ever about insurance
24 that what you were paying went toward insurance?
25 A No.
33
I Q Did you say you were paying half the mortgage,
2 was that your •.
3 A 1 believe that Is What it was.
4 Q During the period of time, let's say from July
5 Ist, 1997, through your closing, which I believe did occur
6 sometime in November of 1997, was there any other
7 documentation concerning the sale of this house?
8 A No, not to my knowledge.
9 Q So the only documents that really apply were
10 the ones that you provided to your attorney who has given
1 I them to me, is that correct?
12 A Yes.
13 Q Did you obtain insurance when you closed on
14 the house?
15 A Yes.
16 Q Who is your insurance company now?
17 A I'm not sure.
18 Q Going back to this incident here, l think 1
19 have heard you testify that on several occasions you had to
20 wam Franklin Lynch from tormenting Harley?
21 A Yes.
22 Q Was he the only boy that you had to warn from
23 tormenting Harley?
24 A I believe so.
25 Q You say several limes that he would do this?
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JOHNSON, BRIAN
2/17/00 LYNCH VS
JOHNSON AND DEVINE
34
1 A Yeah, when he spent nlghb at the house. 38
2 Q When he tormented Harley, what would he do? Well,1 Sups the way Franklin always did It,
1 A
3 A From what I remember, he Just would lease him 2
II really bothered me.
3
,
4 Pull hit ears and Talk Q Pardon me?
5 Q By that time I think, Iet1 say m wound the 4 A I sold the way Franklin always did It, I thick
6 time when he was bihen by Harley. Harley was a fairly good 5 II really bothered me. That's why 1 didn't remember it.
6
Q D
7 sized dog, right? o you today recall anyone else - I'm going
8 A Yes 7 to be specific. I understand about Franklin what you have
9 Q Whit did he weigh at the time he
was put to 8 said. I'm asking you beside Franklin Lynch, did anyone else
10 steep? 9 ever pull on the dog's tail orpull his can that you recall
11 A I would say 115 pounds. 10 today?
12
Q On these occasiom when Harley (sic) pulled on 1 l A That I recall myself?
13 has tail, pulled has ears, whet, if anything, did Ifulcy do? 12 Q Yes
13 A
'
14 A Probably dt there and try to nudge him pray. I
m sure I have.
14
15 He would he come up and grab him on the arm and stuff like
16 that Q Well, we'll gel to you. Beside you and
IS Franklin, anyone else ever
ulled on th
i
.
17
Q Is there something that you actually saw p
e ta
lor pulled his
16 can?
18 Harley do with Franklin? 17 A Not that 1 can think of.
19 A Not That I remember. 18
Q When you pulled on his rail or yanked his
20
Q
How do You remember that Franklin tormented 19 can, what did Harley do with you?
21 the
dog? 20 A Turned around and gnawed on my arm.
22 A 1 know. 1 remember having to tell him this 21
Q When you say gnawed on your arm, is that
23 kind of stuff before. I'm not sure what happened
at the teeth?
24 time it happened. 23 A Yes.
25 Q You remember then what Franklin did to the 24
Q Did he ever break your skin when he was
25 gnawing on your arts?
35
37
1 dog, he is yanking, allegedly pulling at the dog, but you
2 don't rcrnember what the dog's response was
i
h 1 A
No. Fle was playful, pleybuddy.
;
s t
at what
3
You're testifying today? 2 Q Do you remember what you told Franklin when he
4 A Yes. 3 engaged in this activity, toward Harley?
5 Q And you had to warn Franklin on several
6 occasions that he shouldn't torment Hanle
is that ri hl?
7 4 A No.
5
Q Mr. Johnson, do you recall when the boys came
,
8
7 A Your. 6 to you and asked permission to go in the house to make a
8 Q Do you recall today, sitting here today, what 7 phone call?
8 A No
9 Harley's response was? Did he bite his arm?
10 A 1 d
' .
9 Q When you becarne aware of the fact that Harle
on
t remember what the response was.
II Q Wh
F y
10 had bitten Franklin, you were outside, is that correct?
en
ranklin pulled his ear or pulled his II A Yes
12 tail, would Harley turn around and lick him in the face? .
12
Q Did
13 A 1 don't know. you ever in the house at that point?
14
Q Was Franklin Lynch the only individual that 13 A Not that I remember.
14 Q H
15 ever tormented this dog? ow did you get a hold of Franklin's parents?
15 A
16 MR SHIPMAN: I'm going to interject an
17 I sent Travis in to call.
16 Q ? What did you do for Franklin outside?
objection at this point. You have asked this witness
IS several limes that same question
and 1 think he has 17 A From what I remember, I held- I remember
,
19 answered it to the best of his ability. 18 holding rags on his face to stop the blood.
20 BY MR EDDINS: 19 Q Was he bloody?
20
21 Q Did anyone else other than Franklin Lynch ever A Yeah.
21 Q Was he scared?
22 pull Harley's tail or pull his ears like you have described? 22 A Yes
23 A I'm sure there has been, but 1 don't remember. 23 Q Was he crying?
24 Q Why would you say you're sure there has been 24 A Yes
25 but you don't remember? .
25 Q Was he trying to look in the minor to see his
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
10
JOHNSON, BRIAN
2/17/00 LYNCH VS
JOHNSON AND DEVINE
38 40
I hcc7
2 A I don't remember. I recall what was said but it didn't include the toy. Is that
3 Q When Mr. Lynch came up, what conversation, if 2
3 right?
A From my knowledge
no.
4 any, did you have with him?
5 A He yelled about - he asked what happened or 4 ,
Q In fact, the stale trooper who indicated when
6 minetbiag. And he said If you knew the dog bit, why did you 5
6 It it arrived at your home, the woy l understand the s4lemeof.
said that them was no provocation by Franklin i
d
7 have him around. And think I said I didn't know, he never
7 n regar
to
this incident?
8 bit before. And then 1 offered to lake him to the hospital
' 8 A Right. That's the impression 1 was under
9 and I
ll handle the hospital bills, and he stormed out, look
10
q .
Q So that was the original version you were
off.
1 I Q When did you talk to your son about what 10 given by your son, that Franklin hadn't done anything to the
12 happened inside the house? 11
12 dog, is that correct?
A Yes.
13 A After.
14 Q When after? Was it shortly alter? IJ
Q Now, the second version now has Franklin whet,
IS A I don't remember 14 yanking something in his mouth?
.
16 Q At ante point you talked to a police officer IS
16 A From what Travis says, he was playing around
i
,
17 is that right? w
th one of his toys.
18 A Yea 17
Q Did this second version come after the lawsuit
19 Q I mean you have seen a summary of the polio 18
19 was filed in this cafe?
A I don't remember if It was before or after
20 officers satement, have you not?
21
20 .
Q Was it around the time the lawsuit was filed?
A Yes, yesterday.
22 Q According to the state police officer. he did 21
22 A I'm not sure.
Q Wh
h
23 mine to your house, is that correct?
23 en you
eard the aCCOnd verslen, did you
call the state police up and say that the original version
24 A Yes.
25 Q And that was the day ofthis event? 24
25 was given to you was wrong?
A
No.
39 41
I A 1 believe, yes.
2 Q Was Travis present when the police officer I
2 Q Did you ever call the dog control people and
3 came to the house? tell them the original version that was being given was
4 A I'm not sure.
5 3
4 wrong?
A No, not that I rememoer.
Q Do you remember talking to the police officer? 5 Q You say that you don't have a specific
6 A Vaguely.
7 Q Wh
:
T 6 recollection of when Travis told you the second version?
en
av
s explained to you what happened, 7 A No.
8 exactly what did he tell you?
9
' 8 Q 1 meanjust understanding I won't try to pin
A I don
t remember the original story. 1 think 9 you down to a day, but was it within a year, two years ago?
10 Harley bit Franklin. That's all he really said. 10 A No. 1 honestly I have no Idea when this
I I Q I'm sorry. You don't remember the original 1 I really came out.
12 story?
1 A 12 Q I understand that you have had dogs before the
Not really, no.
14 13 Akita, is that correct?
Q Do you remember a second story that was not 14 A Yes,
15 the original story?
16 A 15 Q What kind of dogs did you have?
1 forget bow long It took. And Travis came 16 A Mutts, and I had a Labrador before, air daily
17 out and said something about that wasn't the way it really 17 when 1 was a kid.
18 bappeoed from the first, that Harley Just bit him. He said 18 Q Mr. Johnson, you never been a professional dog
19 that he was playing with n toy or Franklin was playing with 19 handler, have you?
20 a toy or something and teasing Harley with It. That's what 20 A No.
21 he told me the nest story.
22
' 21 Q When you purchased Harley, did you have any
Q Let
s go back. Apparently then your son has 22 reason to go like to an obedience class with Harley?
23 given you two versiom, is that coned? 23 A No.
24 A Yes.
25 Q One version, the original one, you don't 24
25 Q Did you take him for any formal training?
A
No.
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
11
JOHNSON, BRIAN
2/17/00 LYNCH VS
JOHNSON AND DEVINE
42 44
1 Q 1 saw somewhere in the literature there's
2 A1dta clubs associations of people that own Akitas
H I MR. EDDINS: 1 have nothing further. Thank
.
ave
3 you ever belonged to one of those?
4 A 2 you, sir.
3 MR. SHIPMAN: 1 have nothing else
No.
5
Q Were you aware when you bought the dog, .
4
(The deposition was concluded at 12:45 p.m.)
5
6 dkere't a nickname for i4 a Japanese fighting dog. Had you 6
7 ever hard that before? 7
8 A No. 8
9 Q Were you aware that Japanese Akitas have been 9
10 used w gaud dogs? 10
II A No. 11
12 Q Whose idea was it to get the Akita? Was it 12
13 yours or Ms. Wiles? 13
14 A 1 think It was one of the kid's birthdays, and 14
15 1 decided -we went walking through the pet store. 1 15
16 decided to buy them a puppy. 16
17 Q There was no plan to get an Akita? Youjust 17
18 wanted to buy a puppy and you saw it was cute? 18
19 A Yeah, a cute little dog. 19
20 Q Regarding the rabies vaccination, did you 20
21 become aware of this incident that the vaccination had 21
22 expired? 22
23 A Yes. I think they even had the vaccination 23
24 thing on the bulletin board and 1 Just overlooked It. 24
25 Q You received a citation about the vaccination, 25
43 45
1 is that correct?
2 A Yes' I STATE OF PENNSYLVANIA ss.
3 Q When you found out that Harley's vaccination 2 COUNTY OF DAUPHIN
3
4 had expired did you convey that information to the Lynches? 4 1, Donna J. Fox, a Reporter Notary-Public
5 A Yes, I believe so.
6 Q D ,
5 authorized to administer oaths within and for the
o you do it or did Ms. Wiley?
7 6 Commonwealth of Pennsylvania and take depositions in the
A Kathydld.
8 Q M
b
I'll
l 7 trial of causes, do hereby certify that the foregoing is the
ay
e
c
ear this up in my mind. Is it
9
i
' 8 testimony of Brian L. Johnson.
your test
mony today that you didn
t know the boys were 9 1 further certify that before the taking of
10 going inside the hove before this happened? 10 said deposition, the witness was duly sworn; that the
11 A I don't remember If it happened or not. It's 11 questions and answers were taken down stenographically by
12 two years ago.
13 Q Y
' 12 the said reporter, Donna J. Fox, a Reporter Notary-Public,
oujust don
t recall?
14
' 13 approved and agreed to, and afterwards reduced to
A Right. I didn
t recall seeing them coming to 14 typewriting under the direction of the said Reporter.
15 the house.
16 Q Had you ever told Franklin Lynch before he was 15 1 further certify that the proceedings and
16 evidence contained fully and accurately in the notes by me
17 bitten that he shouldn't go in the house because ofhis 17 on the within deposition, and that this copy is a correct
IS history oftormcming Harley? 18 transcript of the as=.
19 A No.
20 Q Had you ever placed any restrictions on 19 In testimony whereof, I have hereunto
20 subscribed my hand this 10th day of March, 2000.
21 Franklin Lynch regarding going into the house? 21
22 A No. 22
23 Q Have you ever filed a lawsuit against Eric 23 Donna 1. Fox, Reporter
24 Insurance Company which is known is a DECLATORY action? 24 My commission expires:
25 A No. 25 March 20,2000.
GEIGER & LORIA REPORTING SERVICE -1.800-222-4577
12
...? ,?
Page 1
JOHNSON, BRIAN
2/17/00
LYNCH VS
JOHNSON AND DEVINE
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about 4:23,24 5:11
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accident 4:24 12:14
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according 9:4 27:8
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account 23:4 25:15
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accurately 45:16
acres 16:18
act 15:16
action 19:19 43:24
activity 37:3
actually 27:3 32:10
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addendums 26:5
additional 31:25
additions 20:16
address 4:15 7:17
10:22 11:7,25
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administer 45:5
adopted 7:8
advertising 32:5
afford 8:22
after 6:12 8:21
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30:12 38:13,14,14
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afterwards 45:13
again 5:9 32:15
against 4:20 43:23
agent 31:3
ago 13:24 41:9
43:12
agree 26:6 32: 15
agreed 45:13
agreement 8:21,23
8:24 20:25 21:6,6
21:7 32:19
air 41:16
Akita 9:24,25 41:13
42:2,12,17
Akitas 10:2 42:2,9
allegedly 35:1
allow 32:16
almost 15:17 30:5
already 19:3
always 15:12 36:1,4
another 27:12 29:11
answer 29:25
answered 35:19
answers 5:5 45:11
anybody 11:8,8
12:24 13:1 15:18
16:24
anyone 25:25 28:9
28:10,2135:21
36:6,8,15
anything 5:1127:25
29:2130:10 34:13
40:10
anywhere 25:20
apparently 8:10
30:4 31:12 39:22
APPEARANCES
2:1
appears 32:18
apply 33:9
approve 31:22
approved 45:13
approximately
10:23
arm 34:15 35:9
36:20,21,25
around 7:24 14:9,15
18.2,8,11 19:5
25:6 34:5 35:12
36:20 38:7 40:15
40:20
arrangement 8:19
arrived 40:5
aside 21:13 26:1
asked 5:8 28:20
29:9 35:17 37:6
38:5
asking 32:13 36:8
aspect 31:6
associations 42:2
assurances 21:17
attack 11:8
attacked 30:5
attempted 28:21
29:11
attorney 4:19 5:11
19:14 26:4 33:10
attorneys 5:3
authorized 45:5
Auto 5:19 22:7
available 8:14 10:4
10:5
aware 8:13 22:13
26:18 37:9 42:5,9
42:21
away 34:14
A.M 1:19
B
back 10:19 13:22
16:5 18:1120:24
26:3 28:19 33:18
39:22
badly 14:17
balance 21:23 25:4
bank 23:20,21
bar 8:4,10
basic 10:24
basically 7:9
became 37:9
become 42:21
becoming 7:25
before 1:17 5:23 9:9
9:22,25 10:21
11:6,10 26:22
28:21,22 29:5
30:3,7 34:23 38:8
40:19 41:12,16
42:7 43:10,16
45:9
behave 17:23,23
being 4:8 20:8 31:13
41:2
believe 7:13 13:13
20:7 22:14 23:2
30:22 31:23 32:8
33:3,5,24 39:1
43:5
belong 24:1,3
belonged 42:3
beneficiary 25:22
benefits 22:10,11
26:1
beside 16:2125:19
36:8,14
best 35:19
between 4:2 8:20
12:17 20:25 21:7
32:9
big 15:9
bigger 10:25,25
bills 20:12 38:9
birthdays 42:14
bit 5:14 13:1,1
14:11 19:23 26:3
38:6,8 39:10,18
bite 4:24 11:8 12:24
14:21 15:17,17
18:7 28:21 29:11
30:17 35:9
biting 29:9
bitten 14:15 34:6
37:10 43:17
bleeding 14:14,17
blood 37:18
bloody 37:19
board 42:24
boat 25:7,9,11
bones 15:9
Boscov's 9:21
bothered 36:2,5
bought 9:11 10:10
10:19 11:20 27:8
42:5
boy 13:15,25 15:7
17:7,22,24 29:12
29:12,19 33:22
boys 13:7 14:21
37:5 43:9
break 5:1136:24
brian 1:8,15 3:5 4:8
4:16 45:8
brought 10:19
16:12
bulletin 42:24
business 6:13
buy 9:15 42:16,18
buyer 21:15
C
C 1:4,5 2:2,2
call 14:1128:10,11
37:7,15 40:23
41:1
called 4:8 23:23
calling 31:9
came 7:25 8:5,10
13:10 29:13 37:5
38:3 39:3,16
41:11
Camp 9:21
car 13:14 23:12,13
25:13
care 11:13
carefully 5:4
carrying 14:1
cars 23:11
case 4:21,23 28:11
28:17 40:18
cash 22:23
cassidy 2:5 3:6
29:25
cat 27:20
catching 15:5
causes 45:7
Cedar 6:5
Celebrity 25:12
certification 4:4
certify 45:7,9,15
charge 11:13
child 12:18
children 7:3,8,10
13:2 18:6,9,18
citation 42:25
CIVIL 1.7
claim 28:9
claimed 29:10 30:4
30:4
class 41:22
cleaning 24:9,10
clear 43:8
clients 4:218:2
15:22
Cliff 6:5
Clinic 11:18
close 32:6
closed 32:10 33:13
closing 33:5
clubs 42:2
cold 7:24
college 6:10
collision 5:20 6:1,13
22:9
come 8:3 13:18 14:9
14:12 15:3 16:5
17:7 26:17 27:20
34:15 38:23 40:17
coming 13:5,7,9,22
31:20 43:14
commission 45:24
COMMON 1:1
Commonwealth
45:6
communicated
30:17
communication
12:6,16 15:22
30:13
community 11:4
company 20:10
GEIGER & LORIA REPORTING SERVICE -1-800.222-4577
r
Page 2
JOHNSON, BRIAN
2/17/00
LYNCH VS
JOHNSON AND DEVINE
28:9 30:9,21
33:16 43:24
complaints 17:2
completed 32:4
concern 26:15
concerning 26:15
33:7
concluded 44:4
contact 8:16 12:2
12:12
contained 45:16
contents 3:126:16
control 41:1
conversation 14:19
14:23 38:3
convey 43:4
copy 45:17
correct 26:7 27:13
33:1137:10 38:23
39:23 40:1141:13
43:145:17
correctly 16:16
cost 28:10
counsel 4:2
COUNTY 1:145:2
COURT 1:1
cover 30:21
coverage 19:17,21
28:8 30:25
covered 31:3 32:19
credit 21:4,14 23:25
24:125:3
Cresline 6:21,22
CROSS 3:4
CROSS-EXAMI...
19:10
crying 14:10 37:23
cumberland 1:16:5
current 7:16
currently 5:16
20:13
cute 42:18,19
D
dad 14:12
daily 41:16
DARLENE 1:4,5
date 1:19 7:21
dates 26:5
DAUPHIN 45:2
day 12:9 13:5,6
16:11 18:23 19:15
32:10 38:25 41:9
45:20
dealership 23:7
dealings 12:16
DEBRA 2:10
December 26:25
decided 42:15,16
DECLATORY
43:24
deed 20:21
defendant 2:6 19:16
DEFENDANTS
1:10,16 2:8 3:3
defense 28:10,11
deposition 1:15
13:15 44:4 45:10
45:17
depositions 45:6
described 18:4
35:22
devine 1:9,9,16 2:8
3:4 4:20 18:24,24
19:2,4 27:19,22
28:25 29:8
Devines 8:2,10,17
8:20,25 12:12
15:22 16:9 26:10
27:16 30:13,18,21
30:23 32:15
died 25:25
DIRECT 3:4 4:11
direction 45:14
discovery 31:12
discuss 28:5
discussion 26:10
30:20,23 31:2
32:23
documentation 33:7
documents 27:8
33:9
Dodge 23:14 24:12
dog 4:24 9:6,15,22
11:1,4,11 13:17
13:20 14:22 15:5
15:7 16:10,12,22
17:2,5 18:4,7,19
19:5 27:3,9,12,16
27:20,22 28:1,3,5
28:6 29:9,11,14
29:14 30:5,17
34:7,2135:1,1,15
38:6 40:1141:1
41:18 42:5,6,19
dogs 16:2041:12,15
42:10
dog's 35:2 36:9
doing 10:7 13:11
14:21 17:16
done 20:18 40:10
donna 1:1745:4,12
45:23
door 18:10
down 5:5 12:19 20:5
22:131:18,20,21
41:9 45:11
drawn 20:25
DUFFIE 2:4
duty 45:10
During 32:18 33:4
ear 35:11
early 7:22
ears 17:10,17 34:4
34:13 35:22 36:9
36:16,19
Eby 18:17
EDDINS 22,2
19:12 28:14,15
30:2 35:20 44:1
either 18:16 30:9
employed 5:15 22:4
22:6 24:5
employment 24:7
encountered 31:12
engaged 37:3
enough 19:14 31:21
entered 8:20 19:18
Erie 30:9 4323
ESQUIRE 2:2,5,7
even 42:23
event 12:2138:25
ever 9:22,24 11:8,8
12:23 15:16 16:5
16:24 18:1 19:4
20:2123:6 29:18
30:3 32:23 35:15
35:2136:9,15,24
37:12 41:142:3,7
43:16,20,23
evidence 45:16
exactly 39:8
EXAMINATION
4:11
except 4:5
Excuse 5:17
existence 22:21
expired 42:22 43:4
expires 45:24
explained 39:7
extend 32:15
extended 28:9,17
31:24
extensive 20:18
F
face 14:15 35:12
37:18 38:1
fact 21:1127:19
29:1132:3 37:9
40:4
fairly 16:16 18:11
34:6
fall 7:22,22 9:5
family 13:1 18:15
far 22:3
fashion 18:3
father 6:14
fax 19:14
FEBRUARY 1:19
federal 23:25
few 19:13,23
fiance 8:4
fiancee 10:15 15:25
20:11,22 21:1
25:9 30:14
fighting 42:6
filed 4:20 40:18,20
43:23
Filing 4:4
finalize 31:13
financed 20:8 23:17
24:25 25:2
finances 23:19
financial 16:1
financing 21:5,11
31:19
Finkenbinder 18:16
fire 26:15
first 12:126:9 39:18
follows 4:9
football 14:1
Ford 5:24 22:15,18
23:1,7
foregoing 45:7
forget 39:16
form 4:5
formal 41:24
found 26:2129:10
43:3
four 18:13,18
fox 1:17 45:4,12,23
Frankie 14:11
Franklin 1:3,4,5
13:5 14:9,10,21
15:4 33:20 34:18
34:20,25 35:5,11
35:14,2136:1,4,7
36:8,15 37:2,10
37:16 39:10,19
40:6,10,13 43:16
43:21
Franklin's 14:12
37:14
frequent 12:21
frequently 12:20
from 6:213:16
14:24 23:6 33:4
33:20,22 34:3
37:17 39:18 40:3
40:15
full 4:14
fully 45:16
fund 25:22
further 44:145:9,15
garage 13:13 14:1,4
gentle 11:11 18:8
getting 14:131:19
give 5:4
given 13:15 21:17
31:25 33:10 39:23
40:10,24 41:2
gives 20:2123:7
gnawed 36:20,21
gnawing 36:22,25
go 6:1'210:3 14:11
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39:22 41:22 43:17
going 13:19,23,25
28:19 33:18 35:16
36:6 43:10,21
GOLDBERG 1:20
2:7
gone 22:1
good 34:6
grab 34:15
graduate 6:2,6
great 27:25
guard 42:10
GUARDIANS 1:4
guess 8:4,2136:1
H
half 16:18 21:8 25:6
32:2133:1
hand 45:20
handle 31:5 38:9
handled 16:3
handler 41:19
handles 20:11
happened 4:24 10:3
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
J,
Page 3
JOHNSON, BRIAN
2/17/00
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happens21:18
happy 5:12
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14:11,20 15:16
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4:21 25:3,5
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33:23 34:2,6,6,1 2
34:13,18 35:6112
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39:10,18,2041:21
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Health 22:11
heard 29:5,16 30:7
33:19 40:22 42:7
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helping 21:21
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21:8,11,17,18,19
29:7,10,13 30:4
31:5
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herself 2411
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11:20,2013:21
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34:14,15,22 35:12
38:4,7,8 39:18
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history 29:9 43:18
hold 14:13 37:14
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home 19:24,25 20:8
20:15,16,19 21:15
40:5
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hospital 38:8,9
house 8:6,13,23 9:5
9:6 13:5,8,10,16
13:17,18,23 14:2
15:11,12,21,24
16:6 17:8,23 18:2
18:3 20:3,22 21:3
21:8,10,19 26:16
31:13 32:1 33:7
33:14 34:1 37:6
37:12 38:12,23
39:3 43:10,15,17
43:21
HUSBAND t:9
hyper 17:25
Idea 23:7 24:16 25:4
41:10 42:12
Identified 28:25
Important 5:2
Impression 40:8
Incident 11:11 18:8
30:12 33:18 40:7
42:21
Include 40:1
indemnify 19:19
Indicated 40:4
Indication 30:1
Individual 35:14
information 30:3
43:4
initially 5:14 8:24
inside 18:3 38:12
43:10
Insurance 19:17,21
26:11,18,19 28:8
30:9,21,25 312,6
32:23,24 33:13,16
43:24
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nterested 7:25 8:1
8:7
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aterrogatories
19:15,16 27:18
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J _
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45:4,12,23
Japanese 42:6,9
Jeff 4:18
JEFFERSON 2:7
Jennifer 1:9,16 2:8
3.428.25
job 22:10
JOHN 1:8,16 2:8
3:3
Johnson 1:8,15 2:4
2:6 3:5 4:8,16,18
19:8,13 26:3 37:5
41:18 45:8
jointly 25:16
JR 1:3
Judgment 19:18,20
July 32:4,7,10 33:4
Just 5:8 7:4,9 11:12
14:9,12,24 15:2
15:17 17:24 19:13
31:20 34:3 39:18
41:8 42:17,24
43:13
K
Karl 29:3
Kathy 7:18:4,8,11
16:3 24:4,17
25:10,13,16 31:7
31:8 43:7
Kathy's 7:10
KATZMAN 1:20
2:7
keep 11:2
Kenneth's 29:13
kept 15:25
Idd 12:1841:17
kids 18:10
kid's 42:14
kind 16:22 17:2
19:14 23:13 25:11
28:3 34:23 41:15
knew 27:16 38:6
knots 15:10
know 5:8,12 8:2,17
14:5 15:19 21:23
23:3 24:12,15
25:23 27:17 28:3
28:5,14 29:4,7,21
30:10,17,20 32:6
34:22 35:13 38:7
43:9
knowledge 16:10
22:22 26:12 33:8
40:3
known 26:19 43:24
K-a-r-i 29:6
L 1:8,9,15 3:5 4:8
JOHNSON AND LYNCH VS
DEVINE
45:8
Labrador 41:16
lady 4:25
lap 26:15
last 13:20 18:15
LAW 2:2
5 lawsuit 4:20 40:17
40.20 43:23
LB 5:24 22:18
lease 8:21,23,24
16:120:24 26:4
26:13
leash 13:17
least 16:18 17:4
leave31:5
Lee 4:16
left 22:23 25:25
less 7:5 8:6 11:1
15:25 28:2
let 5:8,12
letter 30:8,10
let's 19:23 26:3 33:4
34:5 39:22
lick 35:12
like 16:19 17:24
18:2 26:25 34:15
35:22 41:22
limit 32:16
listed 32:5
listen 5:2
literature 42:1
little 5:14 17:25
19:23 26:3 42:19
live 7:1
lived 7:1617:4
living 10:9,16,18
loan 23:20 31:22
located 6:18 9:20
location 7:20
long 5:217:16
10:16 39:16
look 37:25
looked 20:24 31:11
looking 10:2,6
looks 26:25
lot 10:25 16:15,16
25:25
lynch 1:3,4,4,5,5
12:10,19 13:5,15
13:25 15:7 17:7
17:22 33:20 35:14
35:2136:8 38:3
43:16,21
Lynches 4:21 12:2
12:10,17,20 43:4
M
M 1:8
made 8:13,21,23
20:15
make 24:17 37:6
mall 9:17,19,21
March 45:20,25
Marichoice 23:22
23:24 24:2 25:18
25:19
MARKET 1:20
married 6:24 18:16
21:12,13
matter 27:19
may 19:18
maybe 18:2 43:8
mean 17:1125:23
38:19 41:8
Mechanicsburg
4:17 5:19 6:19
16:6 22:7
meeting 4:22,23
memorandums
26:5
mentioned 13:25
met 8:11 12:19
MICHAEL 2:5
might 29:7
military 6:8
Mill 11:18
mind 26:17 27:15
43:8
MINOR 1:3
mirror 37:25
misbehaving 18:3
mix 16:23
mobile 10:14
money 20:5 25:25
moothly 26:1
months 9:9 10:21
27:3,6,7,12
morally 7:9 21:9
more 7:4 8:6 11:1
15:25 28:2
mortgage 20:10,13
21:21,23 32:22
33:1
most 17:18
mother 29:12
motorcycle 23:12
24:19
mouth 40:14
move 10:24
moved 7:19 8:3 9:4
9:5,9 10:21 11:6
GEIGER & LORIA REPORTING SERVICE -1.800-222-4577
Page 4
JOHNSON, BRIAN
2/17/00
11:25 12:1,4,7,9
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moving 26:14
much 20:5 22:1
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Mutts 41:16
myself 36:11
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named 21:15
names 7:6 18:12
NATURAL, 1:4
nature 31:16
neighbor 13:2 29:2
29:3,12,12 30:4
neighborhood
16:20,24 18:7,9
neighbors 13:2
never 13:1,1 17:5
18:2128:2129:5
29:16 30:7 38:7
41:18
next 14:4 18:10
39:21
nice 18:8
nickname 42:6
Nicole 7:7,14
nights 34:1
None 7:4 15:19
North 10:13
nose 14:14
NOTARY 1:18
Notary-Public 45:4
45:12
notes 45:16
nothing 44:1,3
noticed 19:15 30:8
November 33:6
nudge 34:14
number 19:16
O
oaths 45:5
obedience 41:22
object 16:24
objection 16:13
35:17
objections 4:4
obtain 33:13
obviously 14:15
occasion 19:5 29:18
occasions 8:5 17:8
33:19 34:12 35:6
occur 33:5
October 12:14,23
Off 10:13 29:15,19
38:10
offered 38:8
offhand 18.13
OFFICE 2:2
officer 38:16,22
39:2,5
officer's 38:20
often 12:22
Ohio 19:3
Okay 5:5,12
old 5:15,16 7:12,14
27:3,6
once 12:19 32:15
one 10:3 15:5,13
16:21 19:15 29:18
31:1139:25,25
40:16 42:3,14
ones 33:10
only 21:10 27:3,6
33:9,22 35:14
oral 21:6
original 20:24 39:9
39:11,15,25 40:9
40:23 41:2
other 5:3,3 16:20
17:7 18:3,6,8,23
19:4,5,15,23
22:14 33:6 35:21
out 8:23 13:10
14:10 22:23 26:21
27:20 29:10 38:9
39:17 41:1143:3
outside 37:10,16
over 15:3 16:12
17:7,22 29:14
overlooked 42:24
overnight 27:19
P
owe 24:15 25:5
awn 1:6 23:9 25:7,9
25:13 42:2
owned 9:22,24
10:15
owner 21:3
owns 19:25
37:1
n
paid 22:3 24:12
Pardon 36:3
parents 1:3 37:14
JOHNSON AND LYNCH VS
DEVINE
park IO:I 1,12 1 I:4 19:24
part 19:18 21:13 prepare 8:25
particular 13:4 prepared 8:25
partles 4:3 present 2:9 39:2
Pay 20:2 21:21 pretty 12:22
24:2328:9,11 principal 22:3
Paying 32:20,21,24 principally 4:24
33:1 11:13 16:3
Payment 31:18,20 Prior 8:16 12:23
31:21 17.13
payments 19:19
24:17
pays 26:1
Pennsylvania 1:1,2
4:17 16:5 45:1,6
people 29:10 41:1
42:2
period 31:25 32:18
32:19 33:4
permission 37:6
pet 9:18 11:10
42:15
phone 15:3 37:7
phonetic 23:24 24:2
25:18,19
pin 41:8
place 1:20 8:9,22
10:25 22:14,15
27:25
Placed 32:6 43:20
Plaintiffs 1:6 2:3
4:21 12:2
plan 22:12,25 42:17
Plant 6:14,18
plastic 6:14,21
play 12:21 15:4
18:18
played 12:18
playful 37:1
Playing 14:22 15:2
15:4,8 17:8 29:13
39:19,19 40:15
PLEAS 1:1
please 4:14 5:11
Plus 11:121:12
point 8:19 9:6 14:8
15:16 18:7 22:2
35:17 37:12 38:16
olice 38:16,19,22
39:2,5 40:23
olicy 26:19
ossible 21:20
mnds 34:11
reliminary 19:13
Probably 9:9 34:1
problem 17:5 18:2
31:12,16
1 problems 11:7
31:19
proceedings 45:15
professional 41:18
program 22:19
prohibition 11:3
property 8:1,2,3
12:16 20:2 26:10
26:14,24 32:5,6
32:11,16
protect 21:19
provided 26:4 28:24
33:10
provocation 40:6
PUBLIC 1:18
Pull 15:9 17:10
29:14,19 34:4
35:22,22 36:9,9
pulled 34:12,13
35:11,1136:15,15
36:18
Pulling 17:16 35:1
Puppy 9:11 11:12
27:9,13 42:16,18
purchase 32:1,16
purchased 9:8
20:15 41:21
purchasing 19:24
purpose 4:22
Put 20:5 21:13,18
26:1,16 32:9 34:9
P.C 1:20 2:7
p.m 44:4
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question 4:5 5:8,9
27:15 35:18
questions 4:23 5:2,3
5:4 19:8,14 28:19
45:11
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rag 14:13
rags 37:18
Ram 23:14
rawhide 15:9
reading 4:3
realized 26:13
really 11:5 13:9,22
15:6 18:5,13
20:1126:17 30:19
4 33:9 36:2,5 39:10
1 39:13,1741:11
reason 5:7,1010:24
16:9 21:10 41:22
Reber 29:3,5
recall 35:8 36:6,9
36:1137:5 40:1
43:13,14
receive 30:3
received 23:6 42:25
recollection 12:5
13:4,16,18 41:6
record 4:15
recorded 28:25
records 9:4
reduced 45:13
regard 40:6
regarding 26:11,16
31:3,13 32:20
42:20 43:21
Regency 10:13
regular 11:12 17:24
reimburse 19:19
remember 7:19,24
8:9 11:5 12:113:6
13:7,9,10,19,20
13:22 14:2,3,7,20
14:24 16:8 19:6
20:5 30:16,19
31:9 34:3,19,20
34:22,25 35:2,10
35:23,25 36:5
37:2,13,17,17
38:2,15 39:5,9,11
39:14 40:19 41:4
43:11
remind 17:11
remodeling 20:18
rent 32:20
rental 8:19
renter's 26:19
renting 10:14
repair 5:20 6:1,13
22:9
repeat 12:3
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
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JOHNSON, BRIAN
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reports 29:8
represent 4:19
reservation 28:12
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reserved 4:5
resident 4:15
respect 18:4
respective 4:3
response 5:5 35:2,9
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restrk.;,ous 43:20
retirement 22:12,19
22:25 23:3
ride 18:11
right 5:6 8:12 16:21
20:127:1,10,21
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38:17 40:2,8
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rights 1:6 28:12,16
Road 4:16 6:19
10:21 11:6,25
12:4 26:9,14
ROBERT 2:2,2
Ronya 18:17
rope 15:9
Roughly 24:14
running 14:9 18:2
R-a-b-e-r 29:3,6
Safari 9:16,19
sale 8:6 26:5 32:5
33:7
same 35:18 45:18
satisfy 19:18,19
savings 25:15,17,20
saw 27:18,20 31:24
32:3 34:17 42:1
42:18
saying 32:12
says 29:2,6,8 40:15
scared 37:21
school 62,4,12
sealing 4:3
second 21:13 39:14
40:13,17,22 41:6
see 4:25 17:8 26:25
29:137:25
seeing 13:18,21
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seen 15:16 38:19
sees 28:5
Self-employed 24:1
sent 30:8 37:15
September 27:9
service 24:10
settlement 31:13
32:4
Seventeen 7:15
several 17:14 33:19
33:25 35:5,18
shipman 1:20 2:7,7
3:5 4:13,18 19:7
28:20 35:16 44:3
shocked 15:20
shortly 11:20 38:14
shots 11:23
sic 34:12
sign 32:6,9
signed 9:2 20:21
26:6,13
signing 4:3
Silver 6:19
Since 20:15
sir 23:4 44:2
sit 34:14
sitting 14:12 15:2,4
35:8
situation 16:2
six 9:9 10:21
sized 34:7
skin 36:24
sleep 34:10
Smith 5:24 22:18
Smith's 5:19 22:7
snapping 29:9
some 8:19 18:3
19:14 28:19 31:12
38:16
somebody 15:3,17
somehow 21:19
something 5:16
13:14 14:5,13
15:5 16:19 18:2
21:18 34:17 38:6
39:17,20 40:14
sometime 7:22 9:5
33:6
sometimes 17:10,14
17:19
somewhere 27:18
30:8 32:3 42:1
son 12:20 29:13,13
29:15 30:4 38:11
39:22 40:10
serry 39:11
sound 27:1
Specific 11:3 36:7
41:5
specifically 10:2,6
spelling 23:24 24:2
25:18,19
spent 34:1
spoken 5:4
Springs 6:19
SR 1:5,5
ss 45:1
state 4:14 38:22
40:4,23 45:1
statement 23:6
28:24,25 29:1,10
38:20 40:5
states 19:16
stay 10:20 16:6
27:19
stenographically
45:11
stepchildren 7:4,9
stepchildren's 7:6
STEWART 2:4
still 22:2123:1
27:13 32:21
Stipulated 4:2
STIPULATION 4:1
stop 14:14 37:18
store 9:18 10:3
42:15
stormed 38:9
story 39:9,12,14,15
39:21
STREET 1:20
stuff 16:1 18:11
34:15,23
Stumpstown 4:16
10:21 11:6,25
12:4 26:9,14,24
subscribed 45:20
substantial 16:16
summary 38:19
sure 7:21 14:17
20:1128:4 33:17
34:23 35:23,24
36:13 39:4 40:21
swing 29:13,15,19
sworn 4:9 45:10
TABLE 3:1
tail 17:11,16 34:4
34:13 35:12,22
36:9,15,18
take 5:5,10 11:20
LYNCH VS
JOHNSON AND DEVINE
13:20 38:8 41:24
45:6
taken 1:1645:11
taking 11:13 45:9
talk5:11 19:23
27:22 38:11
talked 8:5 29:2
38:16
talking 12:9 15:3,14
27:12 28:14 39:5
tease 34:3
teasing 39:20
teenage 17:24
teeth 36:22
tell 5:14 14:7 15:1
17:14,20 29:18
34:22 39:8 41:2
testified 4:9 28:21
testify 33:19
testifying 35:3
testimony 43:9 45:8
45:19
Thank 19:8 44:1
their 1:6 8:13 12:18
18:12 29:14,15
30:2132:21
thing 14:4 42:24
things 18:3 19:24
31:11,24
think 18:14,24 19:7
21:25 22:3 26:22
32:2133:18 34:5
35:18 36:4,17
38:7 39:9 42:14
42:23
thinking 12:12
thought 26:20,21
three 7:18 10:17
through 23:20 24:4
26:4 33:5 42:15
throwing 18:2
time 4:68:89:6
10:9 11:10 14:21
17:18 18:7 19:4
31:25 32:10,16,18
32:20 33:4 34:5,6
34:9,24 40:20
times 17:15 33:25
35:18
today 4:22 5:8
21:24 28:20,24
29:2 30:3,7 35:3,8
35:8 36:6,10 43:9
told 14:11,25 29:12
37:2 39:2141:6
43:16
torment 17:18 35:6
tormented 34:2,20
35:15
tormenting 33:20
33:23 43:18
toward 32:24 37:3
toy 15:7 39:19,20
40:1
toys 15:5,13 40:16
troller 10:11,12,14
10:18,20,20 11:2
11:4
training 41:24
transcribing 5:1
transcript 45:18
Travis 7:7,12 12:18
12:20 13:5,16,19
14:24 15:3,6,13
29:18 37:15 39:2
39:7,16 40:15
41:6
trial 4:6 45:7
tried 29:14,19
trooper 40:4
truck 23:15 24:13
true 27:4 31:14,22
32:1,7
trust 25:22
try 5:9 34:14 41:8
trying 37:25
tune 16:1
turn 35:12
Turned 36:20
Twelve 24:24
two 7:10 10:17 13:7
13:24 27:3,6,7,12
39:23 41:9 43:12
type 10:7 24:7,7
28:6
typewriting 45:14
Uh-huh 29:22
Um-hum 9:12
under 40:8 45:14
understand 5:7
16:15 28:8 29:1
36:7 40:5 41:12
understanding
19:20 32:20 41:8
undertaken 28: 10
union 23:25 24:1
unprovoked 15:17
until 12:14 29:2
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
Page 6
JOHNSON, BRIAN
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LYNCH VS
JOHNSON AND DEVINE
31:21
used 42:10
usually 15:11
vaccination 42:20
42:21,23,25 43:3
Vaguely 39:6
Valley 6:5
value 23:3,7
vehicles 23:9
verbal 5:4 21:7
version 39:25 40:9
40:13,17,22,23
41:2,6
versions 39:23
vet 11:16,21
Veterinary 11:18
visit 16:6
VS 1:7
W
waived 4:4
walk 13:20
walking 13:16
42:15
WALLACE 2:10
want 5:10
wanted 8:22 42:18
wanting 10:24
warn 33:20,22 35:5
wasn't 39:17
way 15:17 36:1,4
39:17 40:5
WEIDNER 2:4
weigh 34:9
Well 36:1,14
went 12:19 14:13
19:3 32:24 42:15
were 5:23 10:2,9,14
10:18,1911:7
13:11 14:21,22
15:2,11,12 26:6
26:14 28:19 31:19
31:24,25 32:19,21
32:24 33:1,9
37:10 40:9 42:5,9
43:9 45:11
weren't 10:6
we'll 5:9,12 36:14
we're 21:12
whatsoever 17:5
whereof 45:19
while 6:15 8:11
10:19
WIFE 1:9
Wiles 7:12 1:1
42:13
Wiley 21:7 26:7
30:9 43:6
Willow 11:18
witness 3:2 4:8
35:17 45:10
Woods 10:13
words 14:7
work 5:18 8:8 24:7
worked 5:216:14
8:4 22:14
working 5:23 8:11
13:13,13
works 24:11
World 9:16,19
wouldn't 27:20
31:22
written 32:19
wrong 40:24 41:3
V
yanked 36:18
yanking 35:140:14
yard 29:14 32:5,9
yeah 6:3,23 7:24
8:219:18 11:1,12
12:22 17:18 18:10
18:20 23:2,10
25:14 28:2 34:1
37:20 42:19
year 5:22 6:6 12:15
17:4 41:9
years 7:18 10:17
13:24 41:9 43:12
yelled 38:5
yelling 13:10
yesterday 38:21
young 4:25 18:11
1st 32:4,7,10 33:5
10 20:7
10th 45:20
10,000 20:7
1125:6
11:451:19
114 10:13
115 34:11
12 7:13
12:45 44:4
122 21:25
123 21:25
125 20:4
13 7:13
130,000 20:4
14 19:16
17 1:19 24:14
1812:23
19 3:6
1996 7:23 9:5
1997 12:15,23 33:5
33:6
2,000 22:3
20 45:25
2000 1:19 45:20,25
3
3 16:18
3.2 16:19
300 4:16
32 5:17
320-E 1:20
34 5:17
4 3:5
85 6:7 25:12
96 23:14 27:1,9
97 32:4
994508 1:7
GEIGER & LORIA REPORTING SERVICE -1.800-222-4577
?"'I% w . „o p n
Exhibit D
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN J. LYNCH, JR., CIVIL DIVISION
a minor, by his parents
and natural guardians
DARLENE C. LYNCH and
FRANKLIN J. LYNCH, SR., No. 99-4508 CIVIL
and DARLENE C. LYNCH
and FRANKLIN J. LYNCH,
SR., in their own rights,
DEPOSITION TRANSCRIPT OF:
Plaintiffs, JOHN M. DEVINE and
JENNIFER L. DEVINE
V8.
BRIAN L. JOHNSON and DEPOSITION DATE:
JOHN M. DEVINE and May 15, 2000
JENNIFER L. DEVINE, Tuesday, 11:30 a.m.
husband and wife,
Defendants.
PARTY TAKING DEPOSITION:
Plaintiffs
COUNSEL OF RECORD
FOR THIS PARTY:
Robert C. Eddins, Esq.
LAW OFFICE OF ROBERT C.
EDDINS
2770 South Park Road
Bethel Park, PA 15102
REPORTED BY:
Kimberly Y. Zandier, RPR
Notary Public
MNSCMff
Erie, PA
(9141453-5700
A7
Pittsburgh, PA
(412) 261-2323
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DEPOSITIONS OF JOHN M. DEVINE and JENNIFER L.
DEVINE, witnesses, called by the Plaintiffs for
examination, in accordance with the Pennsylvania
Rules of Civil Procedure, taken by and before
Kimberly Y. Zandier, RPR, a Court Reporter and Notary
Public in and for the Commonwealth of Pennsylvania,
at the offices of Robert C. Eddins, 2770 South Park
Road, Bethel Park, Pennsylvania, on Tuesday, May 16,
2000, commencing at 11:30 a.m.
APPEARANCES:
FOR THE PLAINTIFFS:
Robert C. Eddins, Esq.
LAW OFFICE OF ROBERT C. EDDINS
2770 South Park Road
Bethel Park, PA 15102
FOR THE DEFENDANT BRIAN L. JOHNSON:
Michael J. Cassidy, Esq.
JOHNSON DUFFIE STEWART & WEIDNER
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
(717) 761-4540
FOR THE DEFENDANTS JOHN M. DEVINE AND
JENNIFER L. DEVINE:
Jefferson J. Shipman, Esq.
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Erie, PA
(814) 453-5700
AUF
Pittsburgh, PA
(412) 261-2323
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* I N D E X*
JOHN M. DEVINE
Examination by Mr. Eddins - - - - - - - - - - 4
JENNIFER L. DEVINE
Examination by Mr. Eddins - - - - - - - - - - 20
ICertificate of Court Reporter - - - - - - - - 40
* INDEX OF EXHIBITS *
(No Deposition Exhibits were marked.)
Erie, 12) 261-2323
18141 453-5 -5700 (4412)
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JOHN M. DEVINE,
having been duly sworn,
was examined and testified as follows:
EXAMINATION
BY MR. EDDINS:
Q. Would you please state your name for the
record.
A. John Devine.
Q. Where do you live presently live, Mr. Devine?
A. 5252 Rockport Street, Columbus, Ohio, 43235.
Q. Concerning this particular incident, you're
aware that there was an incident involving the
plaintiff, Franklin Lynch, at a home which you
owned and I understand was in the process of
selling on October 20, 1997; is that correct?
A. Yes.
Q. First off, how long had you owned that house
prior to this incident?
A. Approximately three years.
Q. I've looked at some of the discovery material
that's been provided. Have you had occasion to
speak with an adjustor Deborah Wallace before
today?
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1 A. No.
2 Q• You saw that your wife
gave a recorded
3 interview; is that correct?
4 A. I knew of it, yes.
5 Q. Have you seen the copy --
i A. I don't remember if I have or not, to be honest
/ with you.
I Q. Okay. Did you ever give a tape-recorded
statement to Miss Wallace?
A. Not that I remember.
Q. Do you remember ever speaking to Miss Wallace?
A. Not that I remember.
Q. Directing your attention then to this
particular case, could you tell me the
circumstances under which you first met Brian
Johnson and I believe that's Miss Wiles,
Katherine Wiles?
A. I first met Katherine Wiles when she was
working at a restaurant and then later met
Brian Johnson.
Q. According to some of the discovery materials,
Miss Wiles indicates that she was a bartender
at a place called Theo's?
A. That's probably where I met her, yes.
Q. Is there a place called Theo's?
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1 A. Right.
d Q. Had you ever been there before?
3 A. Right.
i Q. Now, when you met Miss Wiles, I take it you met
her in her capacity as an employee of Theo's?
A. Right.
Q. Did you have occasion to enter into some
discussion with Miss wiles about your home?
A. Yes.
Q. Where did that discussion occur?
A. Theo's.
Q. According to Miss Wiles in the deposition, she
indicated that you used to come into Theo's
with another couple; is that correct?
A. Correct.
Q. What are the names of the other couple?
A. John and Sharon Burke.
Q. Is that B-u-r-k-e?
A. Yes.
Q. Where do they live?
A. Camp Hill.
Q. Do you have an address for them?
A. No. Not with me, I should say.
Q. Can you provide one?
A. Yes.
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Q. Do you still have their phone number?
A. Yes.
Q. Do you still keep in touch?
A. Yes.
Q. Now, again from Miss Wiles' deposition, she
indicated that John and Sharon Burke apparently
raised Akitas?
A. Right.
Q. Is that true?
A. Well, they had two of them.
Q. Do you know what an Akita looks like?
A. Yeah, I guess, I mean just because I know their
two.
Q. Well, I meant have you ever been to their home?
A. Right.
Q. And you've seen their dogs?
A. Right.
Q. And they are full-grown Akitas?
A. Yes.
Q. Where do they keep their dogs?
A. Throughout their house; inside, outside.
Q. Did they have anyplace where they would keep
the dogs outside?
A. Yes.
Q. Did they have like a special penned area?
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A. No.
Q. Did they have any children?
A. No.
Q. Did you ever own an Akita?
A. No.
Q. Then, as I understand it, the Burkes whom you
went with to Theo's owed Akitas; is that
correct?
A. Uh-huh.
Q. You have to say yes or no for the record.
A. Yes, sorry.
Q. I didn't give you some instructions. Basically
what they are is wait until I finish, then
answer. The two of us can't talk at the same
time. All your responses have to be verbal.
A. Okay.
Q. Now, regarding the conversations with Miss
Wiles, when you first started to discuss your
home with her, were you aware that they owned
an Akita?
A. No.
Q. Did she ever indicate to you that she even had
a dog?
A. No.
Q. At any point prior to Miss Wiles moving into
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your home, did you become aware that they owned
a dog?
A. No.
Q- When they moved into your residence, let's say,
the first couple days, did you become aware
that they had a dog?
A. The day of.
Q. And there was something mentioned in one of the
documents that you had a cat?
A. Two of them.
Q. Apparently your cats -- one of your cats hid
when the dog was brought in the house; is that
correct?
A. Right.
Q. When Miss Wiles and Mr. Johnson brought the dog
into your home, how big was the dog?
A. A puppy is my guess.
Q. Is it correct to say that when you saw the dog
you were fully aware of what kind of dog it
was?
A. Yes and no. I'm not a dog expert, so I don't
have any clue really.
Q. Well, having seen Akitas before, were you aware
of that when they moved into your home?
A. I suppose yes, to answer your question.
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Q. Now, when you became aware that they were
moving into your house with the dog, did you
have any discussion with them, them being the
Wiles and Johnston, about the dog?
A. No.
Q. Did you ever make any statement to them before
they moved in that the property would be big
enough for the dog to run around in?
A. No.
Q. So then it's your testimony today that the
first time you became aware that they had a dog
was when they moved in; is that right?
A. Right.
Q. And as I understand, you've testified today you
didn't have any discussion with them about the
dog after they moved in with it?
A. No.
Q. Was it acceptable for you --
A. That was fine. I mean we figured they were
closing.
Q. Did you have a closing date when they first
moved in?
A. I believe it was like April.
Q. And there was some delay in that; is that
correct?
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A. Right.
Q. And at any point after they moved into your
home until this incident occurred on October
20, 1997, did you ever go back and visit your
home?
A. No.
Q. Did you ever have any discussion, you, with
Miss Wiles or Mr. Johnson regarding the house
in between the time that they moved in and when
this incident occurred in October of 197?
A. Yes.
Q. Was it mostly over the financing issues?
A. Right.
Q. Did you ever have any discussion after you left
when they moved in about this dog that they
owned?
A. No.
Q. Did you ever receive any information from any
of your neighbors, that is the neighbors that
used to live around that area, that they were
having a problem with this dog?
A. No.
Q. Did anyone ever of make any complaint to you
about the fact that Mr. Johnson and Miss Wiles
had an Akita?
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A. No.
Q. How did you become aware of this incident?
A. I don't really remember. I don't know if I got
a phone call or a letter.
Q. Did you ever speak to Mr. Johnson about this
incident?
A. Just that it had happened.
Q. Well, did you ask him how it happened?
A. I don't really remember to be honest with you.
I can't remember how it happened. I think that
my wife handled it probably.
Q. Are you employed?
A. Yes.
Q. Where are you employed, air?
A. Shamrock Inspections.
Q. What do you do there?
A. Sales rep and insurance inspector.
Q. When you were in the process of selling the
property to Mr. Johnson and miss wiles, did you
apply to Erie insurance for a landlord's policy
of insurance?
A. I changed my policy with Erie prior to us
moving.
Q. Do you remember who your agent was up there?
A. It was on Mechanicsburg or Trendle Road.
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MR. SHIPMAN: Petrow.
THE WITNESS: Okay.
MR. SHIPMAN: That's P-e-t-r-o-w.
BY MR. EDDINS:
Q. Did you advise anyone from Erie Insurance that
Mr. Johnson and Miss Wiles would be renting the
property pending sale?
A. I don't remember. What I do think I told them
was tenants would be occupying.
Q. Well, let me ask you this: Do you remember if
you changed your policy, that is converted from
a homeowner to a landlord policy, was it after
you entered into an agreement with Miss Wiles
and Mr. Johnson for the sale of the house?
A. No, I believe it was before but --
Q. Had you had plans to move before you even
talked to Miss Wiles about buying the house?
A. Right.
Q. Had your house been listed with a real estate
agency before you talked to Miss Wiles?
A. Yes.
Q. What was the name of the real estate agency?
A. Jack Gaughn.
MR. SHIPMAN: G-a-u-g-h-n?
THE WITNESS: Right.
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MR. SHIPMAN: I see it enough around
the Harrisburg area, I should know that.
BY MR. EDDINS:
Q. So then you had actually put your house up for
sale before you had any discussion with Miss
Wiles; is that correct?
A. Right.
Q. Now, when you had the incident regarding your
dog -- I'm sorry, your cat with the dog owned
by Brian Johnson, did you tell your wife about
that incident?
A. Uh-huh.
MR. SHIPMAN: Let me just back up,
when you talk about an incident, you mean
the - - which point in time are you referring
to?
BY MR. EDDINS:
Q. When your cat was scared by the Johnson dog
when they first moved in, did you explain what
had happened to your wife?
A. Yes.
Q. In fa ct, as I understand somewhere along here
that you had to stay an extra night because you
were trying to find a cat?
A. I had planned to spend the night.
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Q. Uh - huh.
A . Because the movers were late, so it was too
late to drive home at that point.
Q. I'm going to read an answer to you which were
put in some interrogatories that were provided
to us by Brian Johnson.
I'm just going to read a statement to
you. It says here: John and Jennifer Devine
were aware that Johnson owned a dog before
Johnson and Wiles moved into the house. The
Devines told them that the property would be
ideal for them since the dog would have plenty
of land on which to run. Is that true?
A. I would say that's inaccurate but --
Q• I mean do you remember --
A. I don't remember having a conversation with
them about a dog prior to them moving in.
Q. It says prior to moving to Ohio, John Devine
spent an extra night in Pennsylvania because of
the fact his cat would not come out of bidding
while the dog was at the house. Did that
occur?
A. I spent the night that the house was vacant and
they came in and occupied, not an extra night.
I planned to spend that night.
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Q. Did you stay in the house with them?
A. No. They moved in at the time that we moved
out, that same night.
Q. You spent the night somewhere else then?
A. I spent the night at a hotel.
Q. Minus your cat?
A. No, I actually found the cat that night.
Q. Now, then as I understand, at some point, you
became aware of an incident that happened in
October of 197 with Franklin Lynch and
Mr. Johnson's Akita, Harley; is that correct?
A. Right.
Q. Today do you have any awareness of any
conversation that you may have had with
Mr. Johnson as for how that incident occurred?
A. No.
Q. Did you have any conversation with Miss Wiles
about how that incident occurred?
A. I believe that she called me on it and told me.
Q. Do you remember what she told you about what
had happened regarding that incident?
A. Just that some neighbor kid had been bitten by
their dog.
Q. Did she get into any detail with you about how
this occurred?
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A. No.
Q. Did she say anything about Franklin Lynch
provoking the dog in the biting?
A. Not that I remember.
Q. I mean do you recall today as you sit here
receiving any information from either Miss
Wiles or Mr. Johnson that led you to believe
that the Franklin Lynch boy somehow provoked
this dog into biting him?
A. No, I never had a discussion about the
incident.
Q. All right. Did you ever call the Lynches after
you learned that their son had been bitten?
A. No.
Q. Did you know Franklin Lynch, Sr., and Darlene
Lynch while you were there?
A. Never met them, no.
Q. Did you ever see the Franklin Lynch boy at all?
A. From a distance, never met him.
Q. Do you have children?
A. Yes.
Q. What were their ages when you lived there?
A. Only had the one, and she was nine months when
we moved.
Q. Do you know an individual named Kerri Reber?
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A. Kerri Reeher.
Q. Reeher?
A. Yes.
Q. How do you know her?
A. She was a neighbor from the back of our house.
Q. Have you talked to her within the last six
months?
A. Yes.
Q. When did you talk to her?
A. March 22nd.
Q. Of this year?
A. Right.
Q. Did she call you?
A. No.
Q. Who did she call?
A. I called her husband.
Q. Why did you call her husband?
A. It was his birthday.
Q. At that point, did he tell you that she had
received a letter from me?
A. Not that I'm aware of, no.
Q. Did you discuss this incident at all wi th them
when you called them?
A. No.
Q. Have you ever received any information that the
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Reeher's son had been I guess attacked or
attempted to be attacked by this dog, Harley?
MR. SHIPMAN: I object to the form of
the question, but you can answer it. He's
talking about attack and using words that --
I'm objecting on that basis.
BY MR. EDDINS:
Q. Let me rephrase it. Have you ever received any
information that the Reeher boy -- that Harley,
the Akita, somehow attempted to drag the Reeher
child from a swing set?
A. My wife had a conversation with Kerri I believe
on that.
Q. Did she tell you about this conversation?
A. My wife had, yes.
Q. When did you learn about this?
A. I couldn't tell you. After the fact of the
incident with the Lynch boy.
Q. Did you ever make any inquire, that is, any --
that may be a bad word. Did you ever question
anyone from Erie Insurance as to whether or not
Mr. Johnson was entitled to any insurance
coverage from Erie Insurance?
A. No.
Q. Did you ever on your own make any attempt to
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j ( 2 happened regarding the Lynch boy
on October 20, 1997?
3 A.
Yes, I would say.
' 4 Q. What
attempt did you make and -
5 A. I believe
I we handled it through either
6 Mr, Shipman or the insurance company, I don't
7 remember
which, because I think is how we found
a the story out.
9 Q. You don't recall who told you the story?
10 A. Right.
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MR. EDDINS: I have nothing further,
12 air.
Thank you.
(- 13
14 (The
proceedings were concluded at 11:50 P.m.)
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16 ------------- -
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JENNIFER L. DEVINE,
18
19 being first duly sworn,
was examined and testified as follows:
20
21 - - -
MR. SHIPMAN: I guess we didn't put
22 on the
record the stipulation at least in
23 central
24 Pennsylvania with regard to reading and
i
signed. We don't want to read
25 and sign, but we
just want to put on the record that the usual
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stipulations for the deposition where we are is
waiving reading and signing and waiving
objections except as to the form of the
question, so we will just put that on the
record. I assume that's fine with Mr. Devine's
as well.
MR. EDDINS: Okay.
EXAMINATION
BY MR. EDDINS:
Q. Would you please state your full name and your
address.
A. Jennifer Lynn Devine, 5252 Rockport Street,
Columbus, Ohio 43235.
Q. You've had the opportunity to sit here while
your husband was being deposed and the same
rules, of course, would apply to you.
One of the things that's kind of
important is if you let me finish the question
and then answer it because the court reporter
can't take down you and I talking at the same
time.
A. Okay.
Q. If at any time you wish me to rephrase a
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question, let me know, and I'll rephrase it.
If you wish to consult with your attorney,
Mr. Shipman, please feel free to do so at any
time. If you need a break, let us know, okay?
A. okay.
Q. Now, concerning this particular incident, you
gave a recorded statement I believe to I
imagine someone on behalf of Erie Insurance,
Karen Archer; is that correct?
A. Yes.
Q. And you've had the opportunity before today to
review that statement, I assume?
A. No.
Q. You haven't seen it?
A. Never.
Q. You never saw this statement?
A. Never.
MR. SHIPMAN: I have a copy here
so --
MR. EDDINS: Why don't you take a
minute.
MR. SHIPMAN: Jennifer, take a minute
and review that.
(There was a brief pause in the proceedings.)
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BY MR. EDDINS:
Q. First off, do you remember giving a statement
that was recorded on a tape-recorder to Karen
Archer?
A. Yes.
Q. You've had the opportunity today apparently to
read this statement for the first time; is that
correct?
A. Right.
Q. You've never seen that before today?
A. No.
Q. Now, one of the things that was discussed in
this statement was apparently after you learned
of this incident you had a conversation with a
neighbor; is that correct?
A. Yes.
Q. what was the neighbor's name?
A. Kerri Reeher.
Q. This is spelled R-e-b-e-r. What is the correct
spelling?
A. R-e-e-h-e-r.
Q. Had you known Kerri Reeher while you lived in
that home?
A. Yes.
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Q. When you learned of this -- and we will get to
how you learned of it -- did you make a call to
Kerri Reeher or did she call you?
A. I believe I called her.
Q. Why did you call her?
A. To find out what happened.
Q. Why do you think she would have known what
happened?
A. That's a small neighborhood.
Q. And obviously you were successful in reaching
her; is that correct?
A. Yes.
Q. Did she talk to you about what happened to the
Lynch child?
A. Yes.
Q. What did she tell you had happened to him?
A. She told me he was bit. She really didn't know
details, as I recall, and heard the same story
that the neighborhood had heard.
Q. What story did she lead you to believe that she
had heard that the whole neighborhood had heard
in terms of how it happened?
A. They were playing in the house, the,Wiles' boy
or Kathy's son was making a phone call, wasn't
watching the boy that got bit and the dog. The
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bite happened. Brian was in the garage.
Everybody realized what happened and called the
police and went to the hospital and so forth.
Q, when you talked to Kerri Reeher at least
initially, did she ever give you any
information that suggested that Franklin Lynch
somehow had provoked that dog into biting him?
A. It was never discussed.
Q. I mean from what you've testified, you had some
general information as to how this accident
happened; is that correct?
A. Just what I said.
Q. All right.
A. Nobody was looking.
Q, But that's what my question is. Initially when
you first talked to Kerri Reeher, did she ever
give you any indication that Franklin Lynch had
done anything to provoke Harley into attacking
him?
A. No.
Q. Now, we are going to leave here for a minute,
and we will get back to it, but since the
initial conversation that you've had with this
Kerri Reeher, have you ever talked about this
incident with her since that time?
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A. Yes.
Q. When did you last talk to her about the
incident?
A. Two weeks ago.
Q. And what was the substance of that
conversation?
A. That she had received a letter from you saying
that you had send her a previous letter which
she never got and wondered who you were and
what was going on.
Q. So she acknowledged that she received my last
letter; is that correct? She acknowledged she
received a letter from me?
A. Yes.
Q. She claims she didn't get the first letter; is
that what she told you?
A. Yes.
Q. Did she ask you what it was about?
A. She knows what it's about.
Q. Well, did she discuss with you anything about
this incident?
A. No.
Q. What did she tell you regarding the letter that
I had sent her?
A. She doesn't want to get involved.
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1 Q• Nobody does. But my question is she did get
2 the letter then?
3 A. Yes.
i Q. All right. Did she ask you what she should do?
5 A. She asked me what I thought of it.
Q. What did you tell her?
A. Do want you want to do.
Q. Did you tell her to contact anybody?
A. I gave her -- actually, I didn't her the
number. I told her I can give the number of
our attorney if you want to talk to him about
what you should. She never asked me for the
name.
Q. Did you give her the number?
A. No.
Q. Does she still live there?
A. As far as I know.
Q. Did she indicate to you when you first called
her right after you found out about this
incident that there had been a problem between
Harley and her son?
A. Yes.
Q. Could you tell me what she told you?
A. She told me that Ryan, her son, was swinging,
and the dog came over and was pulling on his
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pant's leg.
Q. When you say pulling here, what was he pulling
with?
A. His teeth.
Q. His teeth. Do you know if when she told you
this Mr. Johnson was present when this
occurred?
A. He was not.
Q. Do you know if Kathy Wiles was present?
A. She was not.
Q. Do you know who if anyone from that family was
present?
A. I don't believe anybody was.
Q. Was the dog running loose?
A. I believe so.
Q. Did Kerri Reeher indicate to you that she had
told either Mr. Johnson or Kathy Wiles about
this?
A. No.
Q. She kept it to herself?
A. She didn't indicate to me in anyway.
Q. Was her son injured at all?
A. No.
Q. Did she have to -- let me look back at the
original statement you gave, and I'll just read
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it to you. You said here, at least according
to the statement, that you found out after the
fact that the dog had attempted to bite another
neighbor boy. Did you tell Karen Archer this?
A. If that's what it says. It was a long time
ago.
Q. All right. It says: How did you find that
out? A neighbor, the mother of the boy --
MR. SHIPMAN: Just so that --
MR. EDDINS: We are on page 2.
MR. SHIPMAN: Page number 2.
MR. EDDINS: The very end, I'm sorry.
MR. SHIPMAN: You're asking her what?
What was the question?
BY MR. EDDINS:
Q. Well, the question was: How did you find that
out? And I just referred to that. And the
answer is: A neighbor, the mother of the boy
told me that her son was playing on the swing.
The tenant's son came over to their yard with
the dog, and the dog tried to pull their son
off the swing.
Now, realizing that you had given.
this statement some time ago, according to
this, it indicates that the tenant's son, I
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assume that would be Travis, was there.
A. That's probably right. This is a lot more
fresh to my memory than today.
Q. Okay. Did Kerri Reeher tell you that she had
to do something to get the dog away from her
son?
A. No.
Q. Do you know, did the dog just do what, walk
away?
A. I don't know.
Q. You don't know?
A. No.
Q. Did Kerri Reeher give you any other information
concerning whether Harley had ever done
anything to any of the other neighbors?
A. Not that I recall.
Q. Did you ever learn from any other neighbor that
Harley had attempted to attack, bite, pull
someone off an object from any other neighbor
beside Kerri Reeher?
A. No.
Q. When you learned this from Kerri Reeher, did
you have any conversation with Mr. Johnson or
Miss Wiles about that?
A. No.
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Q, Now, according to this statement that you had
given before, you were asked whether you were
aware they, and I assume they meant Johnson and
wiles, had a dog; is that correct?
A. I'm sorry, one more time? Is it somewhere I
can look at it?
Q. Page 3.
MR. SHIPMAN: We are on page 3.
MR. EDDINS: It's about the middle.
MR. SHIPMAN: Okay.
BY MR. EDDINS:
Q, The question is: Okay, uh-huh, and were you
aware that they had a dog? According to this
statement it said, answer: I knew prior to
them moving into the home they were talking
about getting a puppy. That's the last that
ever came up. We never asked about it. We
never told them they could or couldn't. It
just never came up. Is that what you told
Karen Archer on October 30, 1997?
A. Yes.
Q Now, Kathy Wiles indicated in her deposition
that before they moved into your home which you
6 owned that you had a conversation with her
while she was a bartender at Theo's regarding
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the purchase of the house; is that true?
A. Yes.
Q. And that you had come in with another couple
which apparently is this John and Sharon Burke?
A. Yes.
Q. And the conversation regarding the purchase of
the house would have occurred in the presence
of John and Sharon Burke; is that true?
A. We also went in by ourselves. I don't know
when the conversation originated.
Q. And you were aware that John and Sharon Burke
owned Akitas; is that correct?
A. Absolutely.
Q. Have you ever owned an Akita?
A. No.
Q. Had you ever heard anything about an Akita's
disposition prior to selling your home to Brian
Johnson and Kathy Wiles?
A. only from John and Sharon Burke.
Q. What did they tell you about those dogs?
A. That in Japan they help raise children, so I
didn't have any reason to fear bringing my
daughter to their home where they had a
swimming pool and two grown Japanize Akitas.
Q. How old is your daughter?
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A. when we left that home, she was nine months
old. She was born in January. It was in the
course of nine months that we visited their
home.
Q. I take it your daughter being nine months
wasn't playing with the Akitas?
A. No.
Q. Meaning you wouldn't put a nine-month-old on
the floor and let her play with the Akitas?
A. I put my nine-month-old in the chair and let
her sit on the floor, but she wasn't actively
playing with them.
Q. Apparently the Akitas owned by Mr. and
Mrs. Burke were allowed to run through the
house, and they weren't penned anywhere?
A. No.
Q. Do you still keep in touch with John and Sharon
Burke?
A. Yes.
Q. Have you talked to them about this incident?
A. only that somebody was looking to contact them.
Q. You mean you told them that someone might be
getting in touch with them?
A. Yes.
Q. Miss Wiles in her deposition indicated that she
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did tell you and your husband before she even
moved in that they had a dog; is that true?
A. I would say no.
Q. Just so we are clear, you're saying they didn't
tell you that?
A. I'm saying they told me they went to the mall
to look at a pet store and were thinking about
getting an Akita and that's why they were
talking to the Burkes.
Q. So is it correct to say that before they even
moved in you had some idea that they intended
to purchase an Akita?
A. Purchase a dog.
Q. You said Akita before. Did they mention Akita?
A. They talked to the Burkes about their Akitas.
Q. When they moved in, were you aware from your
husband that they did, in fact, have a dog?
A. The next day.
Q. And did you become aware of what kind of dog
that they had?
A. No.
Q. You didn't know it was an Akita?
A. No.
Q. Your husband never told you it was an Akita?
A. I don't believe he knew it was an Akita.
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Q. When you learned that Johnson had a dog, did
you ever have any conversation with them after
about the dog?
A. No.
Q. Were you concerned about the dog causing any
damage to your home?
A. No.
Q. Well, they were there for a longer period than
you anticipated; is that correct?
A. Yes.
Q. As I understand, one of the problems they had
was getting financing for the home; is that
correct?
A. Yes.
Q. Would it be correct to say that after they
moved in you had discussions with them about
being able to complete the sale?
A. Certainly.
Q. That was you?
A. Yes.
Q. Who would you mostly talk to?
A. Only Kathy.
Q. Would the subject of the dog ever come up?
A. No.
Q. When did you become aware that this incident
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had happened?
A. When they called and told us.
Q. And who called and what did they tell you?
A. 2 believe it was Miss wiles that called, and I
believe she told me that a neighbor boy had
been bit by a dog.
Q. Did she tell you how it happened?
A. I don't believe so, but I don't remember.
Q. Did you ask her how it happened?
A. No, I don't think so. I don't know. It's a
long time ago. I don't remember.
Q. Well, were you surprised when they told you
this happened?
A. Of course.
Q. Besides -- and apparently you did call at least
one of the neighbors to find out what happened;
is that correct?
A. Yes.
Q. Did you call anyone else to find out what
happened?
A. No.
Q. Now, I saw that you received a letter from I
believe Miss Wiles after the closing; is that
correct?
A. The card.
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Q. A card in which she -- one of the subjects was
she thanked you for your cooperation and being
patient regarding the financing; is that
correct?
A. Yes.
Q. She also indicated she was sorry for the dog
accident; is that correct?
A. Yes.
Q. Have you talked to them since you received that
card?
A. Not that I recall.
Q. I mean have you ever spoken to them after the
closing?
A. I don't believe so.
Q. Did you ever receive any other letter or
correspondence from Miss Wiles or Mr. Johnson
since you received the card that we talked
about following the closing?
A. No.
Q. When you talked to Kerri Reeher recently within
the lasts couple weeks about my letter, did she
indicate to you whether there were any other
neighbors that were aware of any problem
regarding Harley, the Akita?
A. It wasn't discussed.
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Q. Does Kerri Reeher work? Does she work during
the day? Do you know if she holds a job?
A. She didn't when we lived there.
Q. Did Miss Reeher or Mrs. Reeher ever give you
any indication in this last phone call that she
still remembered what she told you regarding
her son?
A. I don't think we talked about it. I don't
recall.
Q. Did she say why she didn't want to get involved
then?
A. It's a small neighborhood.
Q. Does she live in what proximity to Miss Wiles
and Mr. Johnson?
A. A football field, give or take.
MR. EDDINS: I have nothing further.
Thank you very much. Do you have any,
Mr. Cassidy?
MR. CASSIDY: I have no questions.
Thank you.
THE COURT REPORTER: Mr. Cassidy,
copy of the deposition?
MR. CASSIDY: No thank you. Not at
this time.
MR. SHIPMAN: I would like a
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four-page mini, please.
(The proceedings were concluded at 12:00 noon)
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1 (COMMONWEALTH OF PENNSYLVANIA )
2 (COUNTY OF ALLEGHENY
CERTIFICATE
SS:
3 I, Kimberlv Y. Zandier, RPR, a Court Reporter
4 and Notary Public in and for the Commonwealth of
5 Pennsylvania, do hereby certify that the witnesses,
6 JOHN D. and JENNIFER L. DEVINE, was by me first duly
7 sworn to testify to the truth, the whole truth, and
8 nothing but the truth; that the foregoing deposition
9 was taken at the time and place stated herein; and
10 that the said deposition was recorded
it stenographically by me and then reduced to printing
12 under my direction, and constitutes a true record of
13 the testimony given by said witnesses.
14 I further certify that the inspection, reading
15 and signing of said deposition were waived by counsel
16 for the respective parties and by the witnesses.
17 I further certify that I am not a relative or
18 employee of any of the parties, or a relative or
19 employee of either counsel, and that I am in no way
20 interested directly or indirectly in this action.
21 IN WITNESS WHEREOF, I have hereunto set my hand
22 and affixed my seal of office this 26th day of MAY,
23 2000.
24
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Ptf11o
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40:20
discovery
4:22; 5:21
discuss 8:18;
18:22; 26:20
brie, PA ?? PiMtburgh, PA
(814) 453.5700 (412) 261.2323
r
KZ59198. _..T
23:2; 29:10,
12,15; 31:9,
11; 38:16
either 17:6;
20:5; 28:17;
40:19
employed
12:12,14
employee 6:5;
40:18,19
end 29:12
enough 10:8;
14:1
enter 6:7
entered 13:13
entitled
19:22
Erie 12:20,
22; 13:5;
19:21,23;
22:8
Esq 1:16;
2:9,13,19
estate 13:19,
22
even 8:22;
13:16; 34:1,
10
Everybody
25:2
examination
2:2; 3:5.5,
9; 4:5; 21:9
examined 4:3;
20:19
except 21:3
EXHIBITS
3:14.5,16.5
expert 9:21
explain 14:19
extra 14:23;
15:19,24
-------------
F
-------------
13:3
fact 11:24;
14:22;
15:20;
19:17; 29:3;
34:17
family 28:11
far 27:17
fear 32:22
feel 22:3
Fetrow 13:1
field 38:15
figured 10:19
financing
11:12;
35:12; 37:3
find 14:24;
20:1; 24:6;
29:7,16;
36:16,19
fine 10:19;
21:5
finish 6:13;
21:20
first 4:19;
5:15,18;
8:18; 9:5;
10:11,21;
14:19;
20:18; 23:3,
8; 25:16;
26:15;
27:18; 40:6
floor 33:9,11
following
37:18
follows 4:3;
20:19
football
38:15
foregoing
40:8
form 19:3;
21:3
forth 25:3
found 16:7;
20:7; 27:19;
29:2
four-page
39:1
FRANKLIN
1:2.5,4.5,
5.5; 4:15;
16:10; 17:2,
8,15,18;
25:6,17
free 22:3
fresh 30:3
full 21:12
full-grown
7:18
fully 9:19
further
20:11;
38:16;
40:14,17
Page 3
------------
--
G-a-u-g-h-n
13:24
garage 25:1
Gaughn 13:23
gave 5:2;
22:7; 27:9;
28:25
general 25:10
getting
31:16;
33:23; 34:8;
35:12
give 5:8;
8:12; 25:5,
17; 27:10,
14; 30:13;
38:4,15
given 29:23;
31:2; 40:13
giving 23:3
GOLDBERG
2:19.5
got 12:3;
24:25; 26:9
grown 32:24
guardians
1:3.5
guess 7:12;
9:17; 19:1;
20:21
----------
-------------
hand 40:21
handled
12:11; 20:5
happened
12:7,8,10;
14:20; 16:9,
21; 20:1;
24:6,8,13,
16,22; 25:1,
2,11; 36:1,
7, 9, 13, 16, 20
Harley 16:11;
19:2,9;
25:18;
27:21;
30:14,18;
37:24
Harrisburg
2:21.5; 14:2
heard 24:18,
19,21; 32:16
diacuesed
23:13; 25:8;
37:25
discussion
6:8,10;
10:3,15;
11:7,14;
14:5; 17:10
discussions
35:16
disposition
32:17
distance
17:19
DIVISION
1:2.5
documents 9:9
dog 8:23;
9:2,6,12,15,
16,18,19,21;
10:2,4,8,11,
16; 11:15,
21; 14:9,18;
15:9,12,17,
21; 16:23;
17:3,9;
19:2; 24:25;
25:7; 27:25;
28:14; 29:3,
21; 30:5,8;
31:4,13;
34:2,13,17,
19; 35:1,3,
5,23; 36:6;
37:6
dogs 7:16,20,
23; 32:20
done 25:18;
30:14
down 21:22
drag 19:10
drive 15:3
DUFFIE 2:13.5
duly 4:2;
20:18; 40:6
during 38:1
-------------
E
-------------
Eddins 1:16,
17; 2:4,9,
9.5; 3:5.5,
9; 4:7;
13:4; 14:3,
17; 19:7;
20:11; 21:7,
11; 22:20;
Erie, PA
(814) 453-5700
AF
Pi"sburgh, PA
(4121261.2323
KZ59198. _..T
help 32:21
hereby 40:5
herein 40:9
hereunto
40:21
herself 28:20
hid 9:11
hidding 15:20
Hill 6:21
holds 38:2
home 4:15;
6:8; 7:14;
8:19; 9:1,
16,24; 11:3,
5; 15:3;
23:24;
31:15,23;
32:17,23;
33:1,4;
35:6,12
homeowner
13:12
honest 5:6;
12:9
hospital 25:3
hotel 16:5
house 4:19;
7:21; 9:12;
10:2; 11:8;
13:14,17,19;
14:4; 15:10,
21,23; 16:1;
18:5; 24:23;
32:1,7;
33:15
husband
1:10.5;
18:16,17;
21:17; 34:1,
17,24
-------------
-------------
idea 34:11
ideal 15:12
imagine 22:8
important
21:20
inaccurate
15:14
incident
4:13,14,20;
11:3,10;
12:2,6;
14:8,11,14;
16:9,15,18,
21; 17:11;
18:22;
19:18; 22:6;
23:15;
25:25; 26:3,
21; 27:20;
33:20; 35:25
INDEX 3:14.5
indicate
8:22; 27:18;
28:16,21;
37:22
indicated
6:13; 7:6;
31:22;
33:25; 37:6
indicates
5:22; 29:25
indication
25:17; 38:5
indirectly
40:20
individual
17:25
information
11:18; 17:6;
18:25; 19:9;
25:6,10;
30:13
initial 25:23
initially
25:5,15
injured 28:22
inquire 19:19
inside 7:21
inspection
40:14
Inspections
12:15
inspector
12:17
instructions
8:12
insurance
12:17,20,21;
13:5; 19:21,
22,23; 20:6;
22:8
intended
34:11
interested
40:20
interrogator-
ies 15:5
interview 5:3
involved
26:25; 38:10
involving
4:14
issues 11:12
-------------
-------------
Jack 13:23
January 33:2
Japan 32:21
Japanize
32:24
Jefferson
2:19
JENNIFER
1:7.5,10;
2:1,17.5;
3:8; 15:8;
20:17;
21:14;
22:22; 40:6
job 38:2
JOHN 1:7,9.5;
2:1,17;
3:4.5; 4:1,
10; 6:17;
7:6; 15:8,
18; 32:4,8,
11,19;
33:17; 40:6
JOHNSON 1:9;
2:12,13.5;
5:16,20;
9:15; 11:8,
24; 12:5,19;
13:6,14;
14:10,18;
15:6,9,10;
16:15; 17:7;
19:22; 28:6,
17; 30:23;
31:3; 32:18;
35:1; 37:16;
38:14
Johnson Ia
16:11
Johnston 10:4
JR. 1:2.5
-------------
K
229,__
23:4; 29:4;
31:20
Katherine
5:17,18
Kathy 28:9,
17; 31:22;
32:18; 35:22
Page 4
Kathy's 24:24
KATZMAN
2:19.5
keep 7:3,20,
22; 33:17
kept 28:20
Berri 17:25;
18:1; 19:12;
23:19,23;
24:3; 25:4,
16,24;
28:16; 30:4,
13,20,22;
37:20; 38:1
kid 16:22
Kimberly
1:20.5; 2:3;
40:3
kind 9:19;
21:19; 34:19
known 23:23;
24:7
knows 26:19
-------------
-------------
land 15:13
landlord
13:12
landlord's
12:20
last 18:6;
26:2,11;
31:16; 38:5
lasts 37:21
late 15:2,3
later 5:19
LAW 1:16.5;
2:9.5
lead 24:20
learn 19:16;
30:17
learned
17:13;-
23:14; 24:1,
2; 30:22;
35:1
least 20:22;
25:4; 29:1;
36:15
leave 25:21
led 17:7
left 11:14;
33:1
leg 28:1
Lemoyne 2:15
letter 12:4;
Erie, PA Pittsburgh, PA
(814) 453.5700 (4121261-2323
KZ59198. -,:T
18:20; 26:7,
8,12,13,15,
23; 27:2;
36:22;
37:15,21
listed 13:19
live 4:11;
6:20; 11:20;
27:16; 38:13
lived 17:22;
23:23; 38:3
long 4:19;
29:5; 36:11
longer 35:8
look 28:24;
31:6; 34:7
looked 4:22
looking
25:14; 33:21
looks 7:11
loose 28:14
lot 30:2
LYNCH 1:2.5,
4,4.5,5;5.5;
4:15; 16:10;
17:2,8,15,
16,18;
19:18; 20:1;
24:14; 25:6,
17
Lynches 17:12
Lynn 21:14
-------------
M
-------------
mall 34 6
March 18:10
marked 3:16.5
Market 2:14,
20
material 4:22
materials
5:21
mean 7:12;
10:19;
14:14;
15:15; 17:5;
25:9; 33:22;
37:12
Meaning 33:8
meant 7:14;
31:3
Mechanicsburg
12:25
memory 30:3
mention 34:14
mentioned 9:8
met 5:15,18,
19,24; 6:4;
17:17,19
Michael 2:13
middle 31:9
Might 33:22
mini 39:1
minor 1:3
Minus 16:6
minute 22:21,
22; 25:21
Miss 5:9,11,
16,22; 6:4,
8,12; 7:5;
8:17,25;
9:15; 11:8,
24; 12:19;
13:6,13,17,
20; 14:5;
16:17; 17:6;
30:24;
33:25; 36:4,
23; 37:16;
38:4,13
months 17:23;
18:7; 33:1,
3,5
mostly 11:12;
35:21
mother 29:8,
18
move 13:16
moved 9:4,24;
3.0:7,12,16,
22; 11:2,9,
15; 14:19;
15:10; 16:2;
17:24;
31:23; 34:2,
11,16; 35:16
movers 15:2
moving 8:25;
10.2; 12:23;
15:17,18;
31:15
much 38-.17
-------------
N
name 48,--
- --
13:22;
21:12;
23:18; 27:13
named 17:25
names 6:16
natural 1:3.5
need 22:4
neighbor
16:22; 18:5;
23:16; 29:4,
8,18; 30:17,
19; 36:5
neighbors
23:18
neighborhood
24:9,19,21;
38:12
neighbors
11:19;
30:15;
36:16; 37:23
never 17:10,
17,19;
22:15,16,17;
23:11; 25:8;
26:9; 27:12;
31:17,18,19;
34:24
next 34:18
night 14:23,
25; 15:19,
23,24,25;
16:3,4,5,7
nine 17:23;
33:1,3,5
nine-month-o-
ld 33:8,10
No. 1:4.5
Nobody 25:14;
27:1
noon 39:3
Notary 1:21;
2:3; 40:4,25
nothing
20:11;
38:16; 40:8
number 7:1;
27:10,14;
29:11
-------------
0
-------------
object 19:3;
30:19
objecting
19:6
objections
21:3
obviously
24:10
occasion
4:23; 6:7
occupied
15:24
Page 5
occupying
13:9
occur 6:10;
15:22
occurred
11:3,10;
16:15,18,25;
28:7, 32:7
October 4:17;
11:3,10;
16:10; 20:2;
31:20
office
1:16.5;
2:9.5; 40:22
offices 2:4
Ohio 4:12;
15:18; 21:15
okay 5:8;
8:16; 13:2;
21:7,24;
22:4,5;
30:4; 31:10,
12
old 32:25;
33:2
one 6:24;
9:8,11;
17:23;
21:19;
23:13; 31:5;
35:11;
36:16; 37:1
Only 17:23;
32:19;
33:21; 35:22
opportunity
21:16;
22:11; 23:7
original
28:25
originated
32:10
other 6:16;
30:13,15,17,
19; 37:15,22
ourselves
32:9
out 15:20;_
16:3; 20:1,
8; 24:6;
27:19; 29:2,
8,17; 36:16,
19
outside 7:21,
23
over 11:12;
ene, rA
(814) 453.5700 Pittsburgh, PA
(412) 261-2323
KZ59198. -..T
27:25; 29:20
owed 8:7
own 1:6; 8:4;
19:25
owned 4:16,
19; 8:19;
9:1; 11:16;
14:9; 15:9;
31:24;
32:12,14;
33:13
------P------
P.C 2:19.5
---
p.m 20:14
P.O. 2:14.5,
21
PA 1:18;
2:10.5,15,
21.5
page 29:10,
11; 31:7,8
pant's 28:1
parents 1:3
Park 1:17.5,
18; 2:4,4.5,
10,10.5
particular
4:13; 5:14;
22:6
parties
40:16,18
PARTY 1:12.5,
15.5
patient 37:3
pause 22:25
pending 13:7
penned 7:25;
33:15
PENNSYLVANIA
1:1.5; 2:2,
3.5,4.5;
15:19;
20:23; 40:1,
5
period 35:8
pet 34:7
phone 7:1;
12:4; 24:24;
38:5
place 5:23,
25; 40:9
plaintiff
4:15
Plaintiffs
1:7,13;
2:1.5,8
planned
14:25; 15:25
plans 13:16
play 33:9
playing
24:23;
29:19; 33:6,
12
PLEAS 1:1
please 4:8;
21:12; 22:3;
39:1
plenty 15:12
point 8:25;
11:2; 14:15;
15:3; 16:8;
18:19
police 25:3
policy 12:20,
22; 13:11,12
pool 32:24
presence 32:7
present 28:6,
9,12
presently
4:11
previous 26:8
printing
40:11
prior 4:20;
8:25; 12:22;
15:17,18;
31:14; 32:17
probably
5:24; 12:11;
30:2
problem
11:21;
27:20; 37:23
problems
35:11
Procedure
2:2.5
proceedings
20:14;
22:25; 39:3
process 4:16;
12:18
property
10:7; 12:19;
13:7; 15:11
provide 6:24
provided
4:23; 15:5
provoke 25:18
provoked
17:8; 25:7
provoking
17:3
proximity
38:13
Public 1:21;
2:3.5; 40:4,
25
pull 29:21;
30:18
pulling
27:25; 28:2
puppy 9:17;
31:16
purchase
32:1,6;
34:12,13
put 14:4;
15:5; 20:21,
25; 21:4;
33:8,10
-------------
-------------
question
9:25; 19:4,
20; 21:4,20;
22:1; 25:15;
27:1; 29:14,
16; 31:12
questions
38:19
------R------
-------------
R-e-b-e-r
23:20
R-e-a-h-e-r
23:22
raise 32:21
raised 7:7
reaching
24:10
read 15:4,7;
20:24; 23:8;
28:25
reading
20:23; 21:2;
40:14
real 13:19,22
realized 25:2
realizing
29:23
really 9:22;
12:3,9;
24:17
reason 32:22
Page 6
Reber 17:25
recall 17:5;
20:9; 24:18;
30:16;
37:11; 38:9
receive
11:18; 37:15
received
18:20,25;
19:8; 26:7,
11,13;
36:22; 37:9,
17
receiving
17:6
recently
37:20
record 1:15;
4:9; 8:10;
20:22,25;
21:5; 40:12
recorded 5:2;
22:7; 23:4;
40:10
reduced 40:11
Rasher 18:1,
2; 19:9,10;
23:19,23;
24:3; 25:4,
16,24;
28:16; 30:4,
13,20,22;
37:20; 38:1,
4
Rasher's 19:1
referred
29:17
referring
14:15
regard 20:23
regarding
8:17; 11:8;
14:8; 16:21;
20:1; 26:23;
31:25; 32:6;
37:3,24;
38:6
relative
40:17,18
remember 5:6,
10,11,12;
12:3,9,10,
24; 13:8,10;
15:15,16;
16:20; 17:4;
20:7; 23:3;
36:8,11
Erie, ? Pittsburgh,
(814) 453-5 -5700 A (4121261-2323
RZ59198. T
remembered
38:6
renting 13:6
rep 12:17
rephrase
19:8; 21:25;
22:1
REPORTED 1:20
reporter 2:3;
3:12; 21:21;
38:21; 40:3
residence 9:4
respective
40:16
responses
8:15
restaurant
5:19
review 22:12,
23
rights 1:6
Road 1:17.5;
2:4.5,10;
12:25
Robert 1:16,
16.5; 2:4,9,
9.5
Rockport
4:12; 21:14
RPR 1:20.5;
2:3; 40:3
rules 2:2.5;
21:18
run 10:8;
15:13; 33:14
running 28:14
Ryan 27:24
-------------
-------------
sale 13:7,14;
14:5; 35:17
Sales 12:17
same 8:14;
16:3; 21:17,
22; 24:18
saw 5:2;
9:18; 22:16;
36:22
saying 26:7;
34:4,6
says 15:8,18;
29:5,7
scared 14:18
seal 40:22
see 14:1;
17:18
seen 5:5;
7:16; 9:23;
22:14; 23:11
selling 4:17;
12:18; 32:17
send 26:8
sent 26:24
set 19:11;
40:21
Shamrock
12:15
Sharon 6:17;
7:6; 32:4,8,
11,19; 33:17
Shipman 2:19,
19.5; 13:1,
3,24; 14:1,
13; 19:3;
20:6,21;
22:3,18,22;
29:9,11,13;
31:8,10;
38:25
sign 20:24
signed 20:24
signing 21:2;
40:15
since 15:12;
25:22,25;
37:9,17
sir 12:14;
20:12
sit 17:5;
21:16; 33:11
six 18:6
small 24:9;
38:12
somebody
33:21
somehow 17:8;
19:10; 25:7
someone 22:8;
30:19; 33:22
something
9:8; 30:5
somewhere
14:22; 16:4;
31:5
son 17:13;
19:1; 24:24;
27:21,24;
28:22;
29:19,20,21,
25; 30:6;
38:7
sorry 8:11;
14:9; 29:12;
31:5; 37:6
South 1:17.5;
2:4,10
speaking 5:11
special 7:25
spelled 23:20
spelling
23:21
spend 14:25;
15:25
spent 15:19,
23; 16:4,5
spoken 37:12
Square 2:20.5
SR. 1:4.5,6;
17:15
SS 40:2
started 8:18
state 4:8;
21:12
stated 40:9
statement
5:9; 10:6;
15:7; 22:7,
12,16; 23:3,
8,14; 28:25;
29:2,24;
31:1,14
stay 14:23;
16:1
stenographic-
ally 40:11
STEWART
2:13.5
still 7:1,3;
27:16;
33:17; 38:6
stipulation
20:22
stipulations
21:1
store 34:7
story 20:8,9;
24:18,20
Strawberry
2:20.5
Street 2:14,
20; 4:12;
21:14
subject 35:23
subjects 37:1
substance
26:5
successful
24:10
suggested
25:6
Page 7
suppose 9:25
surprised
36:12
swimming
32:24
swing 19:11;
29:19,22
swinging
27:24
sworn 4:2;
20:18; 40:7
-------------
T
-------------
talked 13:17,
20; 18:6;
25:4,16,24;
33:20;
34:15; 37:9,
17,20; 38:8
tape-recorded
5:8
tape-recorder
23:4
teeth 28:4,5
tenant's
29:20,25
tenants 13:9
terms 24:22
testified
4:3; 10:14;
20:19; 25:9
testify 40:7
testimony
10:10; 40:13
thanked 37:2
Theo's 5:23,
25; 6:5,11,
13; 8:7;
31:25
things 21:19;
23:13
thinking 34:7
three 4:21
Throughout
7:21
today 4:25;
10:10,14;
16:13; 17:5;
22:11; 23:7,
11; 30:3
touch 7:3;
33:17,23
TRANSCRIPT
1:6.5
Travis 30:1
Trendle 12:25
Erie, PA Piftsburgh, PA
AU (44121261-12) 261-2
(814) 453--5 5700 2323
KZ59198. T
tried 29:21
true 7:9;
15:13; 32:1,
8; 34:2;
40:12
truth 40:7,8
trying 14:24
Tuesday 1:10;
2:4.5
two 7:10,13;
8:14; 9:10;
26:4; 32:24
-------------
U
-------------
under 5:15;
40:12
understand
4:16; 8:6;
10:14;
14:22; 16:8;
35:11
until 8:13;
11:3
up 12:24;
14:4,13;
31:17,19;
35:23
using 19:5
usual 20:25
------------
-------------
vacant 15:23
verbal 8:15
visit 11:4
visited 33:3
vs 1:8
-----------
W
wait 8:13
--
--
waived 40:15
waiving 21:2
walk 30:8
Wallace 4:24;
5:9,11
watching
24:25
way 40:19
weeks 26:4;
37:21
WEIDNER
2:13.5
WHEREOF 40:21
whether
19:21;
30:14; 31:2;
37:22
whole 24:21;
40:7
whom 8:6
wife 1:10.5;
5:2; 12:11;
14:10,20;
19:12,15
Wiles 5:16,
17,18,22;
6:4,8,12;
8:18,25;
9:15; 10:4;
11:8,24;
12:19; 13:6,
13,17,20;
14:6; 15:10;
16:17; 17:7;
28:9,17;
30:24; 31:4,
22; 32:18;
33:25; 36:4,
23; 37:16;
38:13
Wiles' 7:5;
24:23
will 21:4;
24:1; 25:22
wish 21:25;
22:2
within 18:6;
37:20
WITNESS 13:2,
25; 40:21
witnesses
2:1.5; 40:5,
13,16
wondered 26:9
word 19:20
words 19:5
work 38:1
working 5:19
-----Y--- -----
yard 29 20-
year 18:11
years 4:21
-------------
-------------
Zandier
1:20.5; 2:3;
40:3
40:24
Page 8
Erie, PA Pittsburgh, PA
AF (44121261-121261-2
(814) 453--5 5700 2323
/\
1u 1
Exhibit E
WILES, KATHERINE
2/17/00
LYNCH VS
JOHNSON AND DEVINF
11
12
13
14
15 DEPOSITION OF: KATHRYN WILES
16 TAKEN BY: DEFENDANTS JOHN AND
JENNIFER DEVINE
17
BEFORE: DONNA J. FOX, REPORTER
18 NOTARY PUBLIC
19 DATE: FEBRUARY 17, 2000, 12:45 P.M.
20 PLACE: GOLDBERG, KATZMAN & SHIPMAN, P.C.
320-E MARKET STREET
21 HARRISBURG, PENNSYLVANIA
22
23
24
25
1 COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
2
3 FRANKLIN J. LYNCH, JR., A
MINOR, BY HIS PARENTS AND
4 NATURAL GUARDIANS DARLENE C.
LYNCH AND FRANKLIN J. LYNCH,
5 SR., AND DARLENE C. LYNCH AND
FRANKLIN J. LYNCH, SR., IN
6 THEIR OWN RIGHTS,
PLAINTIFFS
7
VS NO. 99-4508 CIVIL
8
BRIAN L. JOHNSON, AND JOHN M.
9 DEVINE AND JENNIFER L. DEVINE,
HUSBAND AND WIFE,
10 DEFENDANTS
GEIGER & LORIA REPORTING SERVICE -1-800-222.4577
WILES, KATHERINE
2/17/00
LYNCH VS
JOHNSON AND DEVINE
2 4
1
2 APPEARANCES:
LAW OFFICE OF ROBERT C. EDDINS I STIPULATION
BY: ROBERT C. EDDINS, ESQUIRE 2 It is hereby stipulated by and between counsel
3 1 I'or the respective panics that reading, signing, sealing,
FOR - PLAINTIFFS 4 certification and filing arc waived; and that all objections
4
JOHNSON, DUFFIE, STE WART & WEIDNER
5
except as to the form of the question are reserved to the
5 BY: MICHAEL). CASSIDY. ESQUIRE 6 time of trial.
6 FOR-DEFENDANTJOHNSON 7
7 GOLDBERG, KATZMAN & SHIPMAN, P.C. 8 KATHRYN WILES, called as a witness, being
8 BY: JEFFERSON J. SHIPMAN, ESQUIRE 9 sworn, testified as follows:
FOR- DEFENDANTS JOHN AND JENNIFER DEVINE 10
9 11 DIRECT EXAMINATION
ALSO PRESENT; 12
10
TRAVIS WILES
13
BY MR. SHIPMAN:
II DEBRA WALLACE 14 Q Ms. Wiles, my name is Jeff Shipman. Pro an
12 15 attorney here in Harrisburg and I represent Mn and Mrs.
?a 16 Devine who have been sued along with Mr. Johnson by the
15 17 Lynches in Cumberland County. The purpose for our meeting
16 18 here today is for me to have an opportunity to ask you some
17
18 19 questions about that case.
19 20 As you can see there's a court reporter here
20 21 and she's transcribing what I say and what you say, So it's
21 22 important for to you listen to my questions and then give a
21 23 verbal, spoken response to any question that 1 ask you.
24 24 If for any reason you do not understand a
25 25 question that 1 ask you or that somebody else asks you, then
3 5
1 TABLE OF CONTENTS I let us know that and we'll try to rephrase the question so
2 2 that you do understand it.
3 WITNESS 3 A Okay.
FOR DEFENDANTS JOHN 4 Q Basically my questions arc going to involve
4 AND JENNIFER DEVINE DIRECT CROSS 5 moving to this house, discussions with the Devines and your
5 Kathryn Wiles 6 knowledge about this particular incident, and Harley, the
By Mr. Shipman 4 7 dog and all.
6 By Mr. Eddins 15 8 A Okay.
7 9 Q Can you tell me, first of all, arc you
8
9 10 employed, currently working somewhere?
10 11 A I'm self-employed.
11 12 Q What is the name of your business?
12 13 A Kathy's Sparkling Touch.
13 14 Q Is that a cleaning business?
14 15 A Yes.
15 16 Q - How long have you had that business?
16 17 A I've been selfsmployed for like five years.
17
IB 18 But that personal one, two years, a year, two years.
19 19 Q How old arc you?
20 20 A Thirty-sta.
21 21 Q You're living with Brian and your two
22 22 children?
23 23 A Yes.
24 24 Q At Stumpstown Road?
25 25 A Yes.
GEIGER & LORIA REPORTING SERVICE -1-800-222"'4577
2
WILES, KATHERINE
2/17/00
LYNCH VS
JOHNSON AND DEVINE
6
1 Q When did you first meet my clients, Mr. and 1
2 Mrs. Devine, if you remember? 2
3 A I was the bartender at Theo's, and 1 was 3
4 barlending on them. 4
5 Q Theo's over in the Lemoyne area? 5
6 A It's Lemoyne/Camp Hill, under the bypass. 6
7 Q Would the Devines frequent that place? 7
8 A Yes, they came In often. 8
9 Q Was there some discussion at some point about 9
10 the Devines'property? 10
I I A Yes. I had told them that we were looking for 11
12 a place, because we had a big dog and we needed a bigger 12
13 place for him. And they were telling us that they had a 13
14 house with a lot of land, which the couple that they were In 14
15 with raised Akltas. So that's pretty much what brought up 15
16 the house. It all led to that. 16
17 Q The people that they were with, who were 17
IS they? Ig
19 A They would come to Theo's with another couple, 19
20 but I don't remember their name. 20
21 Q This other couple had Akitas7 21
22 A Yeah, they raised Akitas. 22
23 Q So the Devines mentioned to you that they had 23
24 their house up for sale or were considering selling it? 24
25 A Yes. And I had asked them to bring In 25
7
1 pictures, and then they brought pictures In. 1
2 Q At some point did you go look at the house? 2
3 A Yes, we did. 3
4 Q You obviously liked it? 4
5 A Yes, we did. 5
6 Q The house has several acres that go with it? 6
7 A Yes. 7
8 Q At that point were you living in a trailer? 8
9 A Yeah, over on Regency. 9
10 Q Did you have the dog there with you at that 10
II point? 11
12 A Yeah. 12
13 Q Was that a problem? 13
14 A Yeah. He was too large. 14
15 Q We understand the dog was purchased at a local 15
16 mall. 16
17 A At Safari World. 17
18 Q As a birthday present? IS
19 A For my children. 19
20 Q You brought the dog home to your trailer? 20
21 A Yes. 21
22 Q How was he? How was the dog? 22
23 A He was a puppy. He was fine. 23
24 Q When you moved to the Stumpstown Road address, 24
25 was it pursuant to a lease arrangement with the Devincs? 25
A Yes.
Q The Devincs prepared that lease?
A Yes.
Q Through their attorney?
A Yes, through their attorney.
Q it was a typical lease where you would make
monthly payments to the Devines, U I undennnd?
A Yeah. We were paying them like the difference
of what our mortgage payment would be. That was all upon
selling our mobile home.
Q Did you sell the mobile home?
A Not for about a year later. I'm not quite
sure of the time on that, but It was around that.
Q Do you remember when you moved into the
Stumpstown Road address?
A No, I'm really not sure.
Q Could it have been sometime around December of
1996.
A I'm not positive.
Q When you moved into the Stumpstown Road
address, was Mr. Devine still there?
A Yes, he was there, with his cat.
Q Did he know at that point in time you were
moving in with the puppy, the Akins?
A Yes. Yes, he did. Actually, we had talked on
8
9
the phone previously to moving In and their moving company
was late, was delayed.
Q The Devines' moving company?
A Yeah, because we were supposed to move In In
the morning and the moving company was late.
Q When you moved in, was the dog still a puppy
or very young?
A I'm not sure. I'm not sure. 1 shouldn't
answer.
Q We think that you bought the dog sometime in
September 1996.
A I'm not positive.
Q After you moved into the property with the
dog, were then occasions when yaw son and the Lynch boy
would play together?
A Yes, they did.
Q Did the Lynch boy come to your home with some
regularity?
A Yes.
Q And did he play with the dog when he was
there?
A Yes.
Q Do you know at this point in time when there
was a bite incident, were there ever any confrontations or
problems between the dog and the Lynch boy?
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
3
WILES, KATHERINE
2/17/00 LYNCH VS
JOHNSON AND DEVINE
10
12
I A No.
2 Q Were there ever any olherpreblems with the
3 dog with any other people where the do
bit a
b
d I A Evans.
2
Q Brian previously testified that he has a
g
ny
o
y?
4 A No. 3 rccollectian of come children living nearby and coming over,
5 Q Were there ever any instances that were ev 4 1think next-door neighbors.
en
6 claw to being confrontational or a bite incident other than 5 A Ronya Eby. They have fourchlldren.
6
7 on this occasion obvioaslyl Q What is their last name?
8 A No. One time when • friend ofTravis' bled 7 A Donny Hefllefioger and Ronya Eby.
9 to take the dog food, he snapped. And It was done and over 9 AQ Would their children play with the dog?
Y
.
t'0
Q Was that before this incident? eah -well, they flue next door.
I I A Yes. 10 Q Did you ever have a problem with them?
12 Q But otherwise was the dog healthy, a calm dog?
II A Y I I A Oh, no.
12
Q I presume since you were not having an
es
14 Q Never an
any problems with him at all? y
13 problem with the dog at all up to this point, the Devines,
15 A No. He was too big for a lap dog. But that's 14 my clients out in Ohio, they had obviously no knowledge or
15
16 -no. notice of an
problem with the dog Wither?
17
Q Do you ever recall any instances where the No, they
16 A Noo, they didn't. No.
17 Q Wh
IS Lynch boy would tease the dog or torment the dog
pull on en do you first remember hearing about this
18
i
,
19 hb tailor his can? Because Mr. Johnson who was
i acc
dent? Were you at work?
just
n
20 here before you, he has a recollection of several instances 19 A That I knew that It happened?
20
Q Y
21 like that and having to tell Franklin not to do that. Do
22 as
21 ts I had come beck from shopping
And Brian
you remember anything like tutT
23 A He'd get rough and we'd ask him not to .
was
22 outside the garage and told me.
,
24 because Harley was still a puppy. 23
Q So you were shopping when this happened?
25 Q What kind of things would the Lynch boy do? 24 A Yeah. And he told me. And 1 thought I was
25
'
use -
J I didn
t think it was serious. And he said I'm
11 13
e'd bit him on the head. 1 don't know
tall thing. But I know 1 Asked hi
F I serious. And that's the first I wn not there during It
m at to hit him
the head, se t was afraid arwhat it would do to is 2 so I don't know anylhia2 about It
3
Q Did
being a u
p PP Y• you talk to Trivia about the incident?
QWoUId
hit him with an object? 4 A After the Joddeot, yes.
5
d
Q Wh
6 A No. Jus[h8 hand, Asst to la. But he at
o y ou remember him telling you a bout it?
7 would do It. And I'm sure if someone kept doing that to me, He pretty much didn
7 didn't really talk about It at a1Lt say anything. Travis
8 I wouldn't want It done. So I asked him to stop, and he
9
l S
Q At some point did he tell you what happened?
wou
d.
10 Q Did that happen on more than one occasion? 9 A No, not really. He confronted my daughter.
10 B
'
I I A A few Umas. ut he really didn
t tell me anything.
12 Q Do you remember him doing anything else to the 11 Q Travis confronted your daughter?
12 A
13 dog that caused you any concern? He speaks to my daughter.
13
14 A No. Q What did he tell daughter?
your
15 Q How was the Lynch boy when he was as your 14 A I'm not positive everything be told her,
15 because they talked In confidence. But then he came t
16 home? How did he behave?
17 o me,
16 1 guess it was later after the Incident. At Brat he had
A I never had a problem with Franklin.
IS Q Was the dog a good dog around other child 17 told me that Travis- or him and Franklin didn't remember
ren
19 in the neighborhood? IB whatha enedandhe-
PP that was pretty much the story we
20 A Yes. My girlfriend would come to the house 19 had the whole time along. And then t guess It was later he
20
21 when I wasn't there with her baby, and she would feel free went to my daughter and told her the story. And she came to
21 -:n
e and told me that she knew the story
I should talk to
22 to come In and sit there and wall for me.
23
' ,
22 Travis. And I said, well, I'm not going to because 1 didn't
Q What
s her name?
24 A Tracey. 23 want to break that confidence between the two of them. So 1
25 Q Do you know her last name? 24 didn't bring It up, and I didn't bring It up until it all
25 came around. Then we felt that we should bring it up.
GEIGER & LORIA REPORTING SERVICE -1.800-222-4577
WILES, KATHERINE
2117/00 LYNCH VS
JOHNSON AND DEVINE
14
1 Q Can you tell me what it is? is
1 A
Ile just told me about the nary about how Ins I A A letter just stating what happened and in
3 thought Franklin Instigated him on the way home with the do 2 apology letter that this happened in their home.
4 leath; and that when the
y got home, Franklin was playing g 3
Is this a four-page copy of the letter that
4
5 with Barley and had a toy of Harley's and held It up. And you u sent to the DCVines?
5
6 Harley went to grab the toy and blt Franklin Instead of the A Yes, it
is.
6
7 toy. f
t
Q Is this After?
g
Q During the deposition of Brian. that was 7 A Yes, It Is.
g
9 discussed u well, whetyoujun told as. Q Is this after you closed on the house?
10 MR EDDMS: I'm going to object. Idnn't 9 A I'm not positive.
I I know if that was discussed, not that version I0
Q
see any dote. 1 couldn't tell when
.
IZ BY MR SHIPMAN: I I
This
was sent.
.
13 Q That came up, and Mr. Eddins was Asking Brian 12 When you first moved into this home, did you
14 about that, that it was about the time this that lawsuit was 13 have any discussion with the Divines
regarding insurance?
15 filed and Brian did not really recall that. Do you know
not.
14 A No, sv e did
IS
16 approximately? Q Did you u ever ever have any conversations with
y
17 A Brian didn't know anything. My daughter had 16 Darlene Lynch after this incident occurnd regarding
IS told me this. In other words, I knew from Nlcale
Travis I7 insurance involving the Devises?
.
19 did not know that Nicole told me. And then when everythin 18
g
20 started happening, l came to Travis and told him that we 19
homeowner's insurance, and t said they were.
21 really need no know. But Brian didn't know anything until 20
Do you recall telling her that was your
21 i
22 later either. Nicole, my daughter, actually knew more than mpression when you moved in, that you were going to be
22
23 any of us, that he had told her. covered by the Divines' insurance?
24 Q That was something that was discussed in 23 A No,1 didn't. To be honest, I didn't even
25 confidence between them over some period of time and then 24 Think about any of that.
25
Q SO is it your Testimony today that you had no
15 17
ultimately became aware of It?
Yeah. And 1 didn't want to talk to him about
F I conversation whatsoever with the Devines regarding
2 i
ause it was between those two nsurance?
.
That's tine
3 A Me with the Divines?
.
The relationship with the Lynches has 4
Q You with the Divines.
usly become dimcult as a result of the lawsuit
l'm 5 A I had never spoken to them about that, na
,
ure.
Would f be correct about that? 6
Q I understand you met the Devines in a bar, is
8 A I don't know. 7 that correct?
8
9
MR. SHIPMAN: I think those are all the
10 questions 1 have. Thank you. A Yes.
q
Q You were a bartender. Where is this place?
11 IO A Theo's.
12 CROSS-EXAMINATION 11 Q Had you ever met them before they came into
13 12 the bar?
14 BY MR EDDINS: 13 A No.
IS
Q In the interrogatories which I have been 14 Q You indicated I think that when they first
16 provided, there's an indication in the interrogatories that 15 came in, they came in with a couple that raised Akitas?
17 Johnson and - I'm sorry. How do you pronounce your last
18 na
? 16 A Yes.
17
Q Had you already had the Akita when
ou first
me
I9 A Wiles y
18 talked to them?
20
Q -- telephoned the Devines during the week of
21 October IBth informing them of the incident whi
h i
l 19 A Yes.
Q
2 Were the Devines present with this couple when
c
n
va
ved
22 Franklin. They followed up the telephone call with a I
2 The
y came into the bar?
23 letter. They, is that you? 22 A
Yes.
24 A Yes, I did. 23 Q Did the Devines give you any indication that
25
Q What letter did you send the Devines? 24 they were familiar with what an Akita was?
25 A Yes.
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
WILES, KATHERINE
2/17/00
LYNCH VS
JOHNSON AND DEVINE
18 20
1 Q So you told the Devines you had an Akita, and I the papers that you provided to the Lynches?
2 their friends or the couple they were with raised Akitas, is 2 A I would Imagine, yes.
3 dwt correct? 3 Q 1 mean you had given them papers before, is
4 A Yes. 4 that correct?
5 Q Do you know who these people were? 5 A Yes.
6 A 1 really do not remember their name. 6 Q According to that bill of sale, who is the
7 Q First names? 7 owner of the dog?
8 A No. This was three years ago. No. 8 A It's Brian Johnson and Kathy Wiles.
9 Q Did this couple that raised Akitas come back 9 Q f guess my question is, were you half owner of
10 in with the Devines on other occasions? 10 the Akita that was (mown as Harley?
I I A Yeah, a few times. They're from the area. 1 I MR. CASSIDY: I'm going to object te the farm
12 Q Had you ever had any contact outside the bar 12 of the question to the extent that 1 think ownership is a
13 with these people that came in with the Devines as to who 13 legal conclusion and that is something for a Court to decide
14 they were? 14 in terms of actual ownership. If you're asking whether or
is A No. 15 not she's listed as being a payer for the dog, that's fine.
16 Q Who owned the dog? 1 mean I saw a bill of 16 But go ahead and answer the question.
17 sale in there. The bill of sale was made payable to 17 BY MR. EDDINS:
18 yourself and to Brian Johnson. is Q Do you own a car?
19 A 1 guess you could say Brian. The kids split 19 A Yes.
20 their money and bought it. 20 Q You know what owning a car is?
21 Q The kids, are they your kids? 21 A Yes.
22 A They're my children, yes. 22 Q My question is, in this use did you buy
23 Q Was the Akita registered? 23 Harley?
24 A Yes. 24 A No.
25 Q Do you have the papers that registered the 25 Q The fact that you were listed on the bill of
19 21
1 Akita? Do you have those? I'm not talking about the bill I sale or the bill there, whatever that is, means nothing?
2 ofsale. I'm talking about the kennel where you send in to 2 A l didn't write this.
3 register the dog. Do you know what I'm talking about? 3 Q Do you know where they would have been given
4 A Yes. 4 that information?
5 MR. CASSIDY: The American Kennel Society 5 A 1 knew the lady that we purchased the dog
6 papers? 6 from.
7 A Yes. 7 Q Is that her name Abby?
8 MR. CASSIDY: i don't think I have those. 8 A No. 11 was Barb.
9 BY MR. EDDINS: 9 Q Who is Abby?
10 Q Do you still have those? 10 A The owner of Safari. 1 guess Barb is an
11 A I think l gave all the information to my - Is I I employee.
12 all of lire Information with you? 12 Q So you don't know Abby?
13 MR. CASSIDY: I don't have that. 13 A No, l don't know Abby. But 1 know Barb.
14 MR. EDDINS: Off the record. 14 Q Did you have any discussion with Barb before
15 (Discussion held off the record.) 15 you purchased Harley concerning buying an Akita?
16 BY MR. EDDINS: 16 A • Yes.
17 Q I asked you did you register Harley, the 17 Q What was the nature of your discussion?
18 Akita, with the American Kennel Club. 18 A 1 just asked her if he was good with children
19
A No.
19 ,
If he would be-and how big he would get, and just the'
20 Q Were you pan owner of the dog? 20 questions to purchase a new dog.
21 A So you want to know whose name is on the paper 21 Q Before you ever saw Harley, did you and Brian
22 that bought the doe? 22 Johnson talk about buying an Akita?
23 Q I want to know who owned the dog. 23 A No.
24 A I'm not sure. I don't remember. 24 Q Did you just walk through and see Harley in
25 Q First off, let me show you, isn't that one of 25 the window?
GEIGER & LORIA REPORTING SERVICE -1.800-222-4577
n
WILES, KATHERINE
2/17/00
LYNCH VS
JOHNSON AND DEVINE
22
1 A Yes, we walked through. The children picked 1
2 that One. 2
3 Q In regard to your testimony, you indicated 3
4 that at one time when a friend tried to lake food oft' 4
5 Harley, he what, snapped? 5
6 A fie snapped. 6
7 Q What was the child's name? 7
8 A Cody. 8
9 Q What is she last name? 9
10 A It's Cody Wintermyer, but it's Tracey Evans' 10
II son. II
12 Q Just bear with me because 1 don't know the 12
13 neighbors . Tracey Evans, is that your friend? 13
14 A Yes. 14
IS Q Is she the one that brings her baby over? 15
16 A Yes. 16
17 Q And her son comes over? 17
18 A They were all outside playing. IB
19 Q You testified before, so I want to be clear, 19
20 Tracey would bring her small baby over? 20
21 A Yes. She came over to my house more than 21
22 once. 22
23 Q And she would wait in the house without you 23
24 even being there? 24
25 A Yes, with her baby daughter. 25
23
I Q And Harley was running around the house 1
2 freely? 2
3 A Yes. 3
4 Q But yet one time Tmceys son tried to take 4
5 food away from Harley and Harley snapped at him? 5
6 A Yes. 6
7 Q Didyouseethis? 7
8 A 1 don't remember. g
9 Q How do you know about it? 9
10 A Because Travis and Cody told us, or Cady came 10
I I In and told me. No, I didn't see. 1 was in the house. 11
12 Q What information did you have regarding how 12
13 this happened? 13
14 How old is Cody? 14
IS A Twelve. 15
16 Q Did Cody come inside and tell you that he was 16
17 pulling the dog's food and the Akita tried to bite him? 17
Is A 1 don't remember exactly how it was told. 18
19 Q Do you know who told you? Was it Travis or 19
20 Cody? 20
21 A He said something an the line of Harley 21
22 snapped at me. And his father asked him why. And then he 22
23 told him he tried to take his food, and then he was told him 23
24 not to do (bat again. 24
25 Q He said Harley snapped at me. I didn't know 25
24
why. 1 thought you said I didn't know why?
A fie said Harley snapped at me and then we asked
him why.
Q We is who?
A Me and his parents. Myself and his parents.
Q You said he tried to take his food away?
A Yeah. lie said he tried to take his dog dish
away.
Q Was Harley tied up when that happened?
A Yes.
Q Did you tie Harley in the backyard?
A Yes.
Q Was that before Franklin Lynch was bit?
A He was always - we had a run for him. lie was
always on a run.
Q I'm sorry. Was this incident regarding
Tracey's son?
A Before that. 1 don't remember.
Q After this incident Harley wound up in the
garage for 10 days, is that right?
A After the Franklin Incident?
Q After Franklin's incident, he was put in the
garage for 10 days, is that correct?
A Yes.
Q Then he was put to sleep, is that right?
25
A V®.
Q I assume that this incident didn't happen
after Franklin Lynch's nightmare?
A No.
Q It would have been before?
A Yes.
Q How old was Harley when this happened?
A 1 don't remember.
Q You had before that Franklin would on occasion
hit Harley on the head when Harley was a puppy, is that
correct?
A Yes.
Q Now, according to the lease information I had,
you buy the dog in September of 96 and you moved into the
Stumpsmwn Road property in December of '96, is that
conect?
A I'm not sure. That's what the lease says.
Q Does that make sense?
A Okay.
Q What I'm getting at, is the lease accurate as
to when you moved in, not when you bought it but when you
moved in?
MR. CASSIDY: If you don't know the exact
date, that's fine. But if you think that's generally
correct, you can say so.
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
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01" %
WILES, KATHERINE
2/17/00
LYNCH VS
JOHNSON AND DEVINE
26 28
1
2 A Yes.
BY MR. EDDINS: I A A few times, yes.
3
Q I'm not going to hold to you December Ist 2 Q When you warned him, what would he do,
4 .
I'm going by what the lease says. It says December 1st, 3
4 Franklin?
A "Okay."
5 April '97???? All I'm asking you, does that sound about 5
Q Did he go back and do it again Iater9
6 right, that you moved in when Harley was a smaller dog? 6 A Yeah. But ease Just a child. I mean they all
7 MR. CASSIDY: 1 believe you asked if they 7 look at me and don't do what I tell them V do
8
moved in around December.
8 .
Q Did Franklin ever have an object in his hand
9 MR. EDDINS: I'll try to simplify it. 9 when he hit Harley on the head?
10 BY MR. EDDINS: 10 A No.
I I Q In September when you buy Harley, how big was I I Q Did you ever discuss with Brian Johnson that
12
13 he? 12 Franklin was aggressive toward Harley?
A Hewes about 35 pounds. 13 A I don't remember.
14 Q About how old was he when you bought him? 14
Q This incident occurred during a time when you
15 A Eight weeks. 15 were not home, is that correct?
16 Q When you moved into the house, if you moved in 16 A Yes.
17 in December, then Harley would have been about four months 17 Q When you found out about the incident, did you
18 old or five months old? 18 ever ask Travis what had happened?
19 A 1 don't remember how old he was. But, yeah, 19 A Yes.
20 around there. 20 Q What did Travis tell you right after the
21 Q When you first moved in, was that the time 21 accident?
22 when Franklin would be hitting Harley on the had when he 22 A They didn't - he didn't see if.
23 was a puppy? 23
Q didn't what?
24 A No. We didn't know Franklin. We just moved 24 A The The
25 in. 25
Q Did'fravis tell you that he had to help gel
27 29
1 Q How long were you there before you knew I Harley air Fmnklin?
2 Franklin? 2 A No, he didn't tell me.
3 A Not long. I guess the following weekend. 3 Q From what Travis told you, he didn't see
4 Q Brian Johnson testified that I gum at the 4 anything regarding the bite?
5 time of his death the dog weighed amend 115 pounds? 5 A He just kept to that story for a while. Yes.
6 A Yes. 6
Q Have y ever prohibited your on from playing
7 Q Was there ever occasion when Harley was in 7 with Franklin in Lynch?
8 excess of a hundred pounds when Franklin would hit Harley on 8 A After the incident. After this, yes.
9 the had? 9 Q When?
10 A Well, yes. He did It up until the time that 10 A The day we got served with the papers.
I I this happened. I I Q Is that around the time when the second
12 Q So it was a fairly regular practice for 12 version came to your attention that your son had now wine up
13 Franklin to come in and hit Harley on the had with his 13 with that he was playing with the dog?
14 fist, I take it? 14 MR. SHIPMAN: Objection to the form of the
15 A No. He would just play with him, smack him. 15 question.
16 We didn't want him hitting the dog In the head. 16 A No.
17 Q You were afraid that Harley would be injured, 17 BY MR. EDDINS:
18 is that your testimony? 18 Q Let me ask it this way: 1 man you have said
19 A Well, yeah. He was a puppy. 19 now you have sat there and you're fiance has come in here
20 Q Did you wom Franklin on a number of ocasiom 20 and said that Travis changed his story.
21 not to hit Harley? 21 MR. SHIPMAN: Objection.
22 A 1 told them all not to roughhouse with the 22 BY MR. EDDINS:
23 dog. 23 Q My question now is, when did Travis in time
24 Q Specifically, did you tell Franklin Lynch 24 change his story to you, before or after the lawsuit was
25 not -• 25 riled?
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
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WILES, KATHERINt
2/17/00
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is
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A Before.
Q When before? Aweek before?
A 1 don't remember.
Q So when you get served with a lawsuit, that's
when you told your son not to play with Franklin anymore, is
that comet?
A When the papers came to the house, yes.
Q You were aware before you were served with the
papers that they were coming, weren't you?
A It wasn't positive what was happening.
Q Did you ever talk to Franklin before the
lawsuit was filed and it him what had happened?
A No. It was sort of like It Upset Travis, and
we never spoke to Franklin about It. I never did.
Q Franklin had been in your house since that
incident, is that correct?
A yet.
Q Did he ever discuss it with you?
A No. 1 discussed how he was doing, and that
was about it.
Q How did you think Franklin was doing?
A 1 thought Franklin seemed okay.
Q Did you ever talk to Darlene Lynch when you
discovered that the rabies vaccination that you had was not
current?
A Did I speak to her".
Q Yes.
A yes,
Q Were you the one that told her about the
rabies vaccination?
A I'm not sure.
Q Do you recall any discussion with Darlene
Lynch regarding the rabies vaccination?
A I'm not sure.
Q Did you understand that Fmnklin had to
undergo a series of rubies shots?
A Yu. She had told me.
Q Let me finish. When did you find that out?
A I don't remember when she told me.
MR. EDDINS: I have nothing further.
MR. SHIPMAN: 1 have nothing. Thank you.
(The deposition was concluded at 1:23 p.m.)
31
LYNCH VS
JOHNSON AND DEVINE
32
I STATE OF PENNSYLVANIA : its.
2 COUNTYOFDAUPHIN
3
4 I, Donna J. Fax, a Reporter Notary-Public,
5 authorized to administer oaths within and for the
6 Commonwealth of Pennsylvania and take depositions in the
7 trial of causes, do hereby certify that the foregoing is the
8 testimony of Kathryn Wiles.
9 1 further certify that before the taking of
10 said deposition, the witness was duly swore; that the
11 questions and answers were taken down stenographically by
12 the said reporter, Donna J. Fox, a Reporter Notary-Public,
13 approved and agreed to, and afterwards reduced to
14 typewriting under the direction of the said Reporter.
15 1 further certify that the proceedings and
16 evidence contained fully and accurately in the notes by me
17 on the within deposition, and that this copy is a correct
18 transcript of the same,
19 In testimony whereof, l have hereunto
20 subscribed my hand this 10th day of March, 2000.
21
22
23 Donna 1. Fox, Reporter
24 My commission expires:
25 March 20, 2000.
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JOHNSON AND LYNCH VS
DEVINE
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closed 16:8
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WILES, KATHERINE
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LYNCH VS
JOHNSON AND DEVINE
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during 13:1 14:8
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LYNCH VS
JOHNSON AND DEVINE
payer 20:15
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Pennsylvania 1:1,21
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Personal 5:18
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pictures 7:1,1
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PLAINTIFFS 1:6
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pounds 26:13 27:5,8
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prepared 8:2
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pretty 6:15 13:6,18
previously 9:1 12:2
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ROBERT 2:2,2
Ronya 12:5,7
rough 10:23
roughhouse 27:22
run 24:14,15
running 23:1
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show 19:25
signing 4:3
simplify 26:9
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sit 11:22
sleep 24:25
smack 27:15
small 22:20
smaller 26:6
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some 4:18 6:9,9 7:2
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still 8:219:6 10:24
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stipulated 4:2
STIPULATION 4:1
stop 11:8
story 13:18,20,21
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WALLACE 2:11
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week 15:20 30:2
weekend 27:3
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WEIDNER 2:4
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30:8,8,9 31:4
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whatsoever 17:1
whereof 32:19
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whole 13:19
WIFE 1:9
wiles 1:15 2:10 3:5
4:8,1415:19 20:8
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window 21:25
Wintermyer 22:10
witness 3:2 4:8
32:10
words 14:18
work 12:18
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World 7:17
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wouldn't 11:8
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27:22 29:3 30:5
31:4,12,14
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Tracey 11:24 22:10
22:13,20
Tracey's 23:4 24:17
trailer 7:8,20
transcribing 4:21
transcript 32:18
travis 2:10 10:8
13:3,6,11,17,22
14:18,20 23:10,19
28:18,20,25 29:3
29:20,23 30:13
trial 4:6 32:7
tried 10:8 22:4 23:4
23:17,23 24:6,7
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Twelve 23:15
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vaccination 30:24
31:5,8
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version 14:1129:12
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year 5:18 8:12
years 5:17,18,18
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WILES, KATHERINE
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LYNCH VS
JOHNSON AND DEVINE
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GEIGER & LORIA REPORTING SERVICE -1-800.222-4577
'`1 n
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
served on the following counsel of record, by depositing the same
in the United States Mail, postage prepaid, in Harrisburg,
Pennsylvania, on August 4, 2000:
Robert Eddins, Esquire
2770 South Park Road
Bethel Park, PA 15102
Attorney for Plaintiffs
Michael Cassiday, Esquire
Johnson, Duffie, Stewart and Weidner
P.O. Box 109
Lemoyne, PA 17043-0109
Attorneys for Defendant Johnson
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By
John R. N nosky, Esquire
I.D. #: 78000
Jefferson J. Shipman, Esquire
I.D. #: 51785
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorneys for Defendants, Devine
I.D. No: 51785
Telephone: 717-234-4161
28596.1
n
t_? i. rl rj
..T
Jefferson J.Shipman, Esquire
I.D. #: 51785
John R. Ninosky, Esquire
I.D. #: 78000
GOLDBERG, HATZMAN i SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Defendants John M. Devine and Jennifer L. Devine
AUG 4 200
FRANKLIN J. LYNCH, JR., a IN THE COURT OF COMMON PLEAS OF
minor, by his parents and CUMBERLAND COUNTY, PENNSYLVANIA
natural guardians, DARLENE C.
LYNCH and FRANKLIN J. LYNCH,
SR., and DARLENE C. LYNCH
and FRANKLIN J. LYNCH, SR., CIVIL ACTION - LAW
in their own right,
Plaintiffs
Vs.
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE, husband
and wife,
Defendants
NO. 99-4508 CIVIL TERM
JURY TRIAL DEMANDED
BRIEF OF DEFENDANTS JOHN M. DEVINE AND JENNIFER DEVINE
IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
I. Statement of Facts
This is an alleged dog bite case in which Plaintiffs allege
that on October 18, 1997, minor Plaintiff, Franklin L. Lynch, Jr.
(hereinafter "Frankie"), was visiting Defendant Brian L.
Johnson's stepson at the Johnson home located at 300 Stumptown
Road, Mechanicsburg. On this date, Plaintiffs allege that
Frankie was bitten by Mr. Johnson's dog. (a= Exhibit A attached
to the Devines' Motion for Summary Judgment, Paragraph 8). Mr.
Johnson's dog was an Akita. (See Deposition of Brian Johnson
attached to the Devines' Motion for Summary Judgment as Exhibit
C, Pages 9 and 10).
On October 18, 1997, Mr. Johnson and his fiancee, Kathy
Wiles were renting their home from the Devines pursuant to a
lease which is attached hereto as Exhibit B. Mr. Johnson and his
fiancee moved into the home during the fall of 1996. (Exhibit C,
Page 7, lines 16-29). The Devines had vacated the home on the
same day that Mr. Johnson and his fiancee moved into the home.
(Deposition of John M. Devine and Jennifer L. Devine, attached to
the Devines' Motion for Summary Judgment as Exhibit D, Page 16,
lines 2-3). The Devines moved to Columbus, Ohio, and have not
returned to the home. Consequently, the Devines were no longer
in possession of the property at the time of the alleged
incident.
At no time prior to the alleged incident did the Devines
receive any information that Mr. Johnson was having any problems
with his dog. (Exhibit D, Page 11, lines 18-22). At no time did
2
anyone raise a complaint to the Devines that Mr. Johnson and Ms.
Wiles had an Akita. (Exhibit D, Page 11 line 23 through Page 12
line 1). Prior to October 18, 1997, Mr. Johnson's dog never bit
anyone. (Exhibit C, Page 12 line 23 through Page 13 line 3).
Prior to October 18, 1997, the dog was not observed demonstrating
any propensity to bit a person without provocation. (See Exhibit
C, Page 15). Mr. Johnson had lived in the home, with the dog,
for almost a year prior to the alleged incident and had no
problems with the dog. (Exhibit C, Page 17, lines 4-6). Other
children in the neighborhood had played with dog without any
problems. (Exhibit C, Page 18, lines 18-22).
Ms. Wiles confirmed during her deposition testimony that the
dog did not bite anyone prior to October 18, 1997. (See
Deposition of Katherine Wiles attached to the Devines' Motion for
Summary Judgment as Exhibit E, Pages 10 through 12). Ms. Wiles
also confirmed that the Devines had no notice or knowledge of any
problems with the dog prior to October 18, 1997. (Exhibit E,
Page 12, lines 12-16).
Contemporaneously with the filing of this Brief, the Devines
have filed a Motion for Summary Judgment. The Devines
respectfully submit that a landlord out of a possession and
3
control of a premises cannot be liable for alleged injuries
caused by the tenant's dog.
II. ISSUE
SHOULD THIS HONORABLE COURT ENTER SUMMARY JUDGMENT IN
FAVOR OF THE DEVINES WHERE THEY WERE LANDLORDS OUT OF
POSSESSION AND CONTROL OF THE PREMISES WHERE THE
ALLEGED INCIDENT OCCURRED?
Suggested Answer: Yes
III. Argument
Pennsylvania Rule of Civil Procedure 1035.2(2) 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, and 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 a jury trial would require the
issues to be submitted to a jury.
When presented with a motion for summary judgment, the court
must view the record in a light most favorable to the non-moving
4
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Ertel
v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996). Summary
judgment may only be granted in cases that are clear and free
from doubt. Johnson v. Harris, 419 Pa.Super. 541, 615 A.2d 771
(1992). A motion for summary judgment functions to expedite
litigation. Pfaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973).
A motion for summary judgment operates so that unnecessary trials
can be avoided. Giannini v. Carden, 266 Pa.Super. 450, 429 A.2d
24 (1981).
A. Generally, Pennsylvania law does not impose
liability upon a landlord out of possession for
attacks by animals kept by his tenant; therefore,
the Devines are entitled to summary judgment in
this matter.
This matter arises from an alleged dog bite incident. It is
undisputed that the dog was owned by Mr. Johnson. It is
undisputed that the Devines no longer resided in the area at the
time of the alleged incident or were in possession of the
property. It is undisputed that Mr. Johnson and Ms. Wiles were
tenants of the Devines at the time of the incident.
5
The applicable law for a situation, as the present matter,
where a plaintiff institutes suit against the landlord out of
possession for injuries sustained by a tenant's animal can be
found in Palermo v. Nails, 334 Pa.Super. 599, 483 A.2d 871
(1989). The Superior Court stated, "Generally, a landlord out of
possession is not responsible for attacks by animals kept by his
tenant on leased premises where the tenant has exclusive control
over such premises." Id. at _, 983 A.2d at 873 (citations
omitted). The court went on to state further:
However, a landlord out of possession may be
held liable for injuries by animals owned and
maintained by his tenant when the landlord
has knowledge of the presence of the
dangerous animal and where he has the right
to control or remove the animal by retaking
possession of the premises.
Id.
In the present matter, it is undisputed that the Devines
were out of possession of the property. There is no evidence
that the Johnson dog had bit anyone before or attempted to bite
anyone prior to October 18, 1997. There is no evidence which
suggests that the dog had any dangerous propensity, much less
that the Devines had any notice of any alleged dangerous
propensities. Without demonstrating notice of the alleged
dangerous propensities of the Johnson dog, Plaintiffs cannot
6
remove this matter from the general rule that a landlord out of
possession cannot be held responsible for injuries caused by a
tenant's animal. Therefore, as a matter of law, Plaintiffs
cannot demonstrate a cause of action against the Devines, and the
Devines respectfully submit that they are entitled to summary
judgment in this matter.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
Jeff-6rson J. Shipman, Es uire
Attorney I.D. No.: 51785
John R. Ninosky, Esquire
Attorney I.D. No.: 78000
Attorneys for the Devines
Date:
49163.1 ) ?? /0G
7
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
served on the following counsel of record, by depositing the same
in the United States Mail, postage prepaid, in Harrisburg,
Pennsylvania, on August 4, 2000:
Robert Eddins, Esquire
2770 South Park Road
Bethel Park, PA 15102
Attorney for Plaintiffs
Michael Cassiday, Esquire
Johnson, Duffie, Stewart and Weidner
P.O. Box 109
Lemoyne, PA 17043-0109
Attorneys for Defendant Johnson
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By
Joh R. Niribsky, Esquiri
I.D. #: 78000
Jefferson J. Shipman, Esquire
Z.D. #: 51785
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorneys for Defendants, Devine
I.D. No: 51785
Telephone: 717-234-4161
28596.1
FRANKLIN J. LYNCH, JR.,
a minor, by his parents and
natural guardians,
DARLENE C. LYNCH
and FRANKLIN J. LYNCH,
SR., and DARLENE C.
LYNCH and FRANKLIN
J. LYNCH, SR., in their
own right,
Plaintiffs
V
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
husband and wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4508 CIVIL TERM
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this IV 4 day of SEPTEMBER, 2000, the motion for
summary judgment filed by defendants Devine is GRANTED.
By ourt,
Robert Eddins, Esquire
For the Plaintiffs
Michael Cassiday, Esquire
For Defendant Johnson
John R. Ninosky, Esquire
For Defendants Devine
Edward E. Guido, J
^ aV
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C1.
r
o,"
00 Epp 19 PH 2. 11
C(,,
PEA1?lS1ZVAIWI
FRANKLIN J. LYNCH, JR.,
a minor, by his parents and
natural guardians,
DARLENE C. LYNCH
and FRANKLIN J. LYNCH,
SR., and DARLENE C.
LYNCH and FRANKLIN
J. LYNCH, SR., in their
own right,
Plaintiffs
V
BRIAN L. JOHNSON and
JOHN M. DEVINE and
JENNIFER L. DEVINE,
husband and wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4508 CIVIL TERM
: CIVIL ACTION -LAW
OPINION AND ORDFR OF O RT
On August 4, 2000, defendants John M. Devine and Jennifer L. Devine
(hereinafter the Devines) filed the motion for summary judgment currently before us.
Plaintiffs have not filed a response as required by Pa. Rule of Civil Procedure 1035.3. -
The matter was scheduled for argument before this Court on August 30, 2000. The
Devines filed a brief in support of their position. Plaintiffs did not.
On October 18, 1997 minor plaintiff was bitten by defendant Johnson's dog at the
home of defendant Johnson. Defendant Johnson was in possession of the home pursuant
to a written lease agreement with the owners, defendants Devine. It is undisputed that
NO. 99-4508 CIVIL TERM
defendants Devine were not in possession of the premises. It is further undisputed that
the Devines had no knowledge that the dog in question was anything other than a friendly
house pet. Based upon those undisputed facts, we will grant the motion for summary
judgment.
Defendant's motion for summaryjudgment is based upon Pa. Rule of Civil
Procedure 1035.2 which provides as follows:
After the relevant pleadings are close, but within such time as not to
unreasonably delay trial, any party may move for summary judgment
in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a
necessary element of the cause of action or defense which could be
established by additional discovery or expert report, or
(2) 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 a jury trial would
require the issues to be submitted to a jury.
In determining whether to grant a motion for summary judgment we must examine the
record in the light most favorable to the non-moving party. Ertel v. Patriot-News Co.,
544 Pa. 93, 674 A.2d 1038 (1996). All doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Id. Summary judgment may
only be granted in cases that are clear and free from doubt. Hoffman v. Brand in
]-1=, 443 Pa.Super. 245, 661 A.2d 397 (1995).
The law applicable to a suit against a landlord out of possession for injuries
inflicted by a tenant's animal was summarized by our Superior Court in Palermo v. Nail,
334 Pa. Super. 544, 483 A.2d 871 (1984). As the Court stated:
NO. 99-4508 CIVIL TERM
Generally, a landlord out of possession is not responsible for attacks
by animals kept by his tenant on leased premises where the tenant has
exclusive control over such premises.
However, a landlord out of possession may be held liable for injuries
by animals owned and maintained by his tenant when the landlord has
knowledge of the presence of the dangerous animal and where he has
the right to control or remove the animal by retaking possession of the
premises. (citations omitted)
483 A.2d 873. Applying the law to the facts before us, it is clear that summary judgment
is appropriate.
AND NOW, this 192 day of SEPTEMBER, 2000, the motion for summary
judgment filed by defendants Devine is GRANTED.
By the Court,
SIS Edward F.- Guido
Edward E. Guido, J.
Robert Eddins, Esquire
For the Plaintiffs
Michael Cassiday, Esquire
For Defendant Johnson
John R. Ninosky, Esquire
For Defendants Devine
:sld