HomeMy WebLinkAbout94-01385
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ILLIH II. W. GIH8LD BRIHT A. IH THI COURT 0' COIOlOH PLIAS
GIHSLIR, individually and a. CUNBIRLAHD COUNTY, 'IHHSYLVANIA
p.rent. and natural qu.rdi.n.
ot TABITHA GIH8LIR and JOSIAN
GIH8LIR1 BRIHT A. OIHSLIR ..
Adain1.trator ot the I.t.t. of
GLORIA 8. GIH8LIR, d.c....d'
TABITHA GINSLIR, .nd JOSIAH
GIHSLIR,
Plaintiff.
v. CIVIL ACTIOH - LAW
LION D. MYIRS, and GLORIA I.
MYIRS, individually and
t/d/b/a a. "My.n W.lding and
supply servic.", and PAUL O.
DYARNAN, JR.,
(i'/-
(\\I,_L ~t"-""'-
/-';J )"
Def.ndant.
NO.
IHI
....01.1 .01 "IT o. aUMVnM'
To the ProtbonotarYI
Pl.a.e i..ue a Writ of Summon. in a civil action again.t
Def.ndant., Leon D. Myer., Gloria E. My.r., individually and
d/b/a "Myer. W.ldinq and supply Servic.", and PaulO. Dyarman,
Jr.
Th. addr..... and the id.ntity of coun.el for the r..p.ctiv.
part i.. are ..t forth in the attachm.nt to
By
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Attorney. for Plaintiff.
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I>l.z: III 'M ~ E-< ..:IWOJIIlO U
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Amount
To Sllltl') G"nlfler
To TAbitha Gensler
To JOSiAh Gensler
To Brent and Ellen Gensler
pur8uant to the Wrongful
Death Act for the
wrongful death of
Gloria Gensler
TQ the Estate of Gloria
Gensler pursuant to the
Survival Act
~
$
50,000
10,QOO
7,500
$
27,500
s
$
5.000
100,000
TOTAL
5. Brent and Ellen Gensler, as parents and natural
guardians of Tabitha Gensler and Josiah Gensler with the joinder
of Dennis Lebo as Guardian of the Estates of Tabitha and Josiah
Gensler and Brent Gensler as Administrator of the Estate of
Gloria Gensler are authorized to execute all required documents
in order to obtain the payment of the under insured motorist
benefits from Nationwide Insurance Company.
6. Brent and Ellen Gensler, as parents and natural
guardians of Tabitha and Josiah Gensler and Dennis Lebo, the
Guardian of the Estates of Tabitha and Josiah Gensler, are hereby
authorized to pay legal fees and expenses out of the proceeds to
be received on behalf of Tabitha Gensler in the amount of $2,350
and from the proceeds to be received on behalf of Josiah Gensler
in the amount of $1,762.
7. Brent A. Gensler, as Administrator of the Estate of
Gloria Gensler is hereby authorized to pay to McNees, Wallace &
Nurick legal fees and expenses of $3,819 with respect to the
wrongful death claim and $3,819 with respect to the survival
action claim.
B. Plaintiff, Brent A. Gensler is hereby authorized to pay
the net wrongful death and survival action proceeds in a single
sum payable jointly to Brent A. Gensler and Ellen M. W. Gensler.
BY THE COURT!
J.
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1. Plaintiffs, Brent A. Gensler and Ellen M. W. Gensler,
are hU8band and wife residing at 2267 Newville Road/ Carlisle,
Pennsylvania 17013.
2. Said Plaintiff.s are the parents and natural guardians
of Plaintiffs Tabitha Gensler and Josiah Gensler. They also were
the parents of Gloria Gensler, deceased. Plaintiff, Brent A.
Gensler, is the administrator of the estate of GloriQ Gensler,
deceased.
3. Defendants, Leon D. Myers and Gloria E. Myers, are
husband and wife with a place of business at 2817 Ritner Highway,
Carlisle, Pennsylvania. One or both of the Defendants Myers were
doing business as Myers Welding and Supply Service on May 27,
1992.
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4. Defendant, PaulO. Dyarman, Jr" is an adult individual
residing at 30 Oaklawn Drive, Shippensburg, Pennsylvania 17257.
On May 27, 1992/ he was employed and acting in the course and
scope of his employment with Myers Welding and Supply Service.
5. The present action arises out of a tragic motor vehicle
collision that occurred on May 27, 1992/ in the Borough of
Carlisle at the intersection of the Ritner Highway (Route 11) and
Allen Road (Route 465). Plaintiff, Ellen Gensler, was operating
her 1976 AMC Hornet northbound on Allen Road and approaching the
intersection with Route 11. Defendant, PaulO. Dyarman, was
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operating a 1985 Ford custom truck westerly on the Ritner Highway
and Bpp~oaching the intersection with Allen Road. Tabitha,
Josiah and Gloria Gensler wer.e passengers in the vehicle driven
by Mrs. Gensler, Mrs. Gensler and her children were restrained
in seatbelts and car seats. As Ellen Gensler was crossing the
intersection, her auto was struck on the right side by the truck
being d~iven by Defendant Dyarman.
6. As a rosult of the collision, Gloria Gensler suffered
fatal injuries and was pronounced dead at the scene by the
Cumberland County Coroner, Michael Norris. Ellen Gensler, who
was several months pregnant at the time, duffered critical
injuries and was life flighted to the Hershey Medical Center,
together with her son, Josiah Gensler, who was also seriously
injured. Her daughter, Tabitha Gensler, also suffered serious
injuries and was originally taken to the Carlisle Hospital and
then life flighted to the Hershey Medical Center.
7. Defendants, Leon D. Myers, Gloria E. Myers, and Myers
Welding and Supply Service had a Pioneer Commercial Auto policy
issued by Erie Insurance Exchange that provided liability
coverage for the 1985 Ford truck involved in the collision. That
policy provided liability protection limits for bodily injury of
$500,000 per person with un overall maximum of $1,000,000 per
accident.
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8. Defendants Myers and Myers Welding and Supply Company
did not have any other insurance policies that would provide any
other liability coverage for thia collision.
9. Defendant, PaulO. Dyarman, Jr., the driver of the
vehicle at the time of the collision, had an auto policy with
Nationwide Insurance Company covering his personal automobiles.
That policy, however, had an eXGluoion which excluded coverage
while he was operating a third party's vehicle that was used in a
business or occupation. The Nationwide policy issued to
Defendant Dyarman does not provide any coverage with respect to
the collioion of May 27, 1992.
10. Without admitting liability, Erie Insurance Exchange
has tendered the $1,000,000 policy limits available under its
policy in exchange for a general release from Plaintiffs to
Defendants and subject to court approval of the settlement.
11. Plaintiffs have agreed to accept a settlement based on
payment of the policy limits and the allocation of proceeds as
set forth below, subject to court approval of the settlement.
12. Plaintiffs' vehicle was also insured by Nationwide
Insurance Company. Nationwide has consented to this settlement
thereby preserving Plaintiffs' under insured claims under the
Nationwide policy. Nationwide has also tendered the
$50,000/$100,000 limits of underinsured motorists coverage under
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the policy issued to the Genslers covering the 1976 AMC Hornet
being driven by Mrs. Gensler at the time of the accident,
13. Plaintiff, Ellen Gensler, suffered severe multiph
trauma. Sha suffered closed head injuries, a pelvic fracture,
and a right femul" fracture. She had a large hematoma on the
right front temporal region. She has several large hematomas in
the left basal-ganglia reglon. She had diffuse multiple inter-
parenchymal hemorrhage. She was eighteen to twenty weeks
pregnant at admission.
14. Mrs. Gensler was unresponsive to verbal commands or
stimuli for many weeks and was on a ventilator and had a
tracheotomy and a feeding tube. She was on the ventilator for
three weeks. She had the feeding tube and tracheotomy for seven
months. She was discharged from the University Hospital to the
University Rehab Center on June 22, 1992. She went from the
Rehab Center back to the hospital on October 25, 1992, for
induction of labor and the birth of her child who was born on
that day. The child was named Lydia Gensler. She then returned
tn the rehab unit with her new daughter. She was discharged from
the rehab unit on December 18, 1992.
15. In the Rehab Center, Mrs. Gensler received speech
therapy, physical therapy, occupational therapy, and rehab
therapy. In rehab, she was unable initially to communicate
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either orally or with gestures. Gradually, her ability to
cO\l\l11unicate improved. At t.he time of discharge, she had Dub-
stantial physical and neurological impairment. From discharge to
the present, ahe has continued to make progress. She is mentally
competent and capable of caring for herself and her children with
the assistance of her husband, Brent Gensler. Despite her
remarkable improvement, however, she has suffered permanent
neurological and physical impairment as a result of the tragic
collision. Although her claim is worth subatantially more, the
maximum available under the Erie Insurance policy for her claim
is $500,000.
16. Tabitha Gensler was two years old at the time of the
collision, having been born on August 2, 1989. She was admitted
on the day of the accident and remained hospitalized until June
8, 199~. She suffered a compound comminuted open left frontal
skull fracture with dural and brain laceration. A left front
craniotomy with debridement of necrotic brain, repair of dural
laceration Elnd platl.ng of the comminuted akull fracture was
performed on May 27, 1992. She also suffered a laceration near
her right knee. She was given Dilantin to prevent seizures and
wore a helmet to guard against the possibility of further damage
due to falls for about two months after the injury. Fortunately,
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Tabitha has progressed well and appears to be developing
normally. Her m~dical bills totaled $~3,042.97.
17. Josiah Gensler was one year old at the time of the
collision, having been born on January 16, 1991. Josiah also
suffered serious injuries in the collision. He suffered closed
head injuries, facial lacerations, fractures of both bones in the
left lower forearm, fractures of both the fibula and tibia in the
right lower leg and injury to his liver. He was hospitalized
until June 4, 1992. His fractures appear to have healed in the
normal course. As of September 22, 1992, he did not appear to
have any clinical deformity and had full range of motion. The
prognosis is that he will develop normally in both the upper and
lower extremities. He otherwise appears to be normal. The
medical bills for his care and treatment totaled $13,890.96.
18. Gloria Gensler was four years old at the time of the
collision. She was pronounced dead at the scene. She was a
bright, curious child. Her parents, Brent and Ellen Gensler, had
a warm, loving relationship with her. They had a reasonable
expectation of much future enjoyment of Gloria's development had
she survived. They have suffered substantial damages within the
meaning of the wrongful death act. Likewise, Gloria's estate has'
suffer~d a substantial loss as a result of her death for purposes
of a survival action.
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19. Lydia GenAler, who was born on October 25, 1992,
seemingly was normal at birth and appeared to be developing
normally. Tragically, ahe died on January 3, 1993. The autopsy
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did not find any connection between her death and the collision
of May 27, 1992. Pl~intiffs, Brent and Ellen Gensler, have not
and do not intend to make any claims against Defendants as a
result of the death of Lydia Gensler.
20. The combined value of the claims for Tabitha Gensler,
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Josiah Gensler, the wrongful death claims of Brent and Ellen
Gensler as a result of Gloria's death, and the survival action
claim on behalf of the estate of Gloria Gensler are far in excess
of the remaining $500,000 available under the Erie Insurance
policy that provided insurance coverage to Defendants.
21. Plaintiffs, with the advice of counsel, have decided
that the follawing apportionment of the $1,000,000 of total
insurance coverage, subject to the $500,000 individual limit, is
fair and equitabler
Ellen AMOUNT
1. To Gensler $500,000
2. To Tabitha Gensler 100,000
3 . To Josiah Gensler 75,000
4. To Brent Gensler and Ellen Gensler
pursuant to the Wrongful Death Act
for the wrongful death of Gloria Gensler 275,OOc)
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IS.
To the Estate of Oloria Oen~ler
pursuant to t,he Survival Act
TOTAL
~OIOOO
$1,000,000
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22. Plaintiffs, Brent Gensler and Ellen Gen~ler, as the
parents and natural guardians of Tabitha Gensler and Josiah
Gensler, believe that the settlement of the claims of Josiah
Gensler and Tabitha Gensler against the Defendants and the
apportionment of the settlement proceeds as set forth above, less
attorney's fees and expenses, 1s in the respoctive bost interests
of Tabitha Gensler and Josiah Gensler. Brent and Ellen Gensler
request the court to approve the settlement of the claims of
Tabitha Gensler and Josiah Gensler against the nam~d Defendants
with the allocation of $100,000 of the insurance proceeds to
Tabitha Gensler and $75,000 to Josiah Gensler.
23. Plaintiff, Brent Gensler, as the Administrator of the
Estate of Gloria Gensler, requests court approval of the
settlement of the wrongful death and survival actions against
Defendants with the total amount allocated to the wrongful death
and survival actions from the settlement insurance proceeds to be
$325,000. of that sum, Plaintiff, Brent Gensler, further
requests approval of the allocation of $50,000 to the survival
action and $275,000 to the wrongful death action. He further
requests court approval of the payment of the wrongful death and
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27. Plaintiff, Brent Gensler as Administrator of the Estate
of Gloria Gensler, requests the Court to approve the allocation
of Under insured Motorist Benefits with the total amount allocAted
to the wrqngful death and survival claims being $3~,500. Of that
sum, Plaintiff further requests approval of the allocation of
$5,000 to the survival action and $27,500 to the wrongful death
actions. He further requests approval of the payment of the
wrongful death and survival action proceeds in a single sun:
payable jointly to Brent and Ellen Gensler.
28. Plaintiffs have been represented in this matter by
McNees, Wallace & Nurick. McNees, Wallace & Nurick has agreed to
represent the Plaintiffs based primarily on the standard hourly
billing rates for the personnel at the firm that are performing
the legal services in this matter, together with reimbursement
for expenses. The total legal fees incurred or estimated to be
incurred through the approval of the Petition are $18,000. Total
expenses incurred or to be incurred through the approval of tho
Petition are estimated to be $5,500.00. Plaintiffs request
approval of the payment of total legal fees and expenses of up
to $23,500, with the legal fees and expenses allocated to each of
the claims ss followsf
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~OUNT
1.
:I.
3.
4.
Kllen Gensler claim
TAbitha Gensler claim
Josiah Gensler claim
Wrongful death claim
Survival action
$11,750.00
:1,350.00
1,762.00
3,819.00
5.
3.819.00
TOTAL $23,500.00
McNees, Wallace & Nurick will credit the amounts previously paid
for lega). fees and expenses toward the above amount of $23,500.
29. With respect to the net insurance proceedB proposed to
be paid on behalf of Tabitha and Josiah GenBler, Plaintiff.s are
filing a Petition for the Appointment of Dennis Lebo as guardian
of the pe1'9onal estates of Tabitha Gensler and Josiah Gensler,
and are requesting that the guardian be authorized to receive the
insurance proceeds directly from Erie Insurance Exchange and
Nationwide Insuranoe Company, to pay the attorneys fees and
expenses of McNees, Wallace & Nurick as to Buch claims and to
invest the balance with Guardian Angel Financial Advisory aB set
forth in said Petition.
30. Plaintif.fs further request thatl
(al Brent A. Gensler, as AdminiBtrator of tqe
Estate of Gloria Gensler be authorized to oxecute a
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genlllral release that releases Defendants and their
insurer Erie Insurance exchange, and
(b) Brent A. and Ellen M. W. Gensler, as parents
and natural guardians of Tabitha Gensler and Josiah
Gensler, with the joinder of Dennis Lebo as guardiAn if
appointed by the court, be authorized to execute
general releases that release Defendants and their
insurer, Erie Insurance Exchange.
Brent and Ellen Gensler will also execute general releases with
respect to their individual clams in favor of Defendants and Erie
Insurance Exchange.
31. Plaintiffs further request authorization to execute any
necessary and appropriate documents in order to obtain the Under-
insured Motorists Benefits from Nationwide Insurance Company.
WHEREFORE, Plaintiffs request the court to approve the
settlement and distribution of the proceeds as set forth above.
Respectfully submitted,
MCNE2ES I (A}LA/, & NJRI~K
By /"t '0t~ !~,
De ano M. Lant1.
I.D. No. 21401
100 Pine Street
Po . 0 . Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
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Attorneys for Plaintiffs
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VERIFICATIOtl
I verify that the statements made in the foregoing document
are true and correct to the best of my knowledge, information And
belief. I understand that false statements are made subject to
the penalties of 18 Pa. C.S. 54904, x'elating to unsworn
falsification to authorities.
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Datedc June 10 I 1994
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VIllRIFICATION
I verify that the statements made in ths foregoing document
are true and correct to the beat of my knowledge, information and
belief. I understand that false statements are made subject to
the penalties of 18 Pa, C.S. 54904, relating to unsworn
falsification to authorities.
F()O.JL Vv~ ~ U 1!1\~ ~L
~.. en.ler '
DAted, June~(), 1994
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ELLEN M.W. GENSLER, BRENT A,
GENSLf!R, Individually and al
parenti and natural guardlanl
01 TABITHA GENSLER and JOSIAH
GENSLER; BRENT A. GENSLER al
Admlnlltrator 01 the Eltal. 01
GLORIA S. GENSLER, dee.ald;
TABITHA GENSLER. and JOSIAH
GENSLER,
PLAINTIFFS
V.
LEON D, MYERS, and GLORIA E,
MYERS, Individually and
t/d/b/a a 'My.rl Welding and
Supply Servlc'I,' and PAUL 0,
DVARMAN, JR"
DEFENDANTS
In Re: Eltat'l 01
TABITHA GENSLER and JOSIAH
GENSLER; minor ohlldr.n 01
ELLEN M'w. GENSLER and
BRENT A, GENSLER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
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: 84-1G88 CIVIL TERM
21.94.64G ORPHANS' COURT
~~
AND NOW, thll _ll_ day 01 Augult, 1894, upon con.'deraIJon of plalntilll'
petition I lor approval 01 (1) IIttl.ment 01 two minor plaintiff,' clalm., (2) . wrongful
d.ath and lurvlval clalm, (G) the payment 01 attorneY'1 fe.. and expenl" .. to thOIl
clalml, and (4) Ih. lohlme 01 dlltrlbutlon of the clalml 01 all plalntllll from the
proc..dl of the Erie Inlurance ElCchange, defendantl' liability Inlurer, and
Natlonwld. Insuranc. Company, plalntlfll' und.rlnlurld motorllt Inlurlr, IT"
OADIAID:
94.1385 CIVIL TERM
21.84.843 ORPHANS' COURT
AM2U.tfi
To Ellen Geneler . 150.000
To Tabitha Gen.ler . 10,000
To Jo.lah Geneler . 7,1500
To Brent and EII.n Gen.ler
purlluant to the Wrongful
Oeath Act lor the
wrongful death of
Gloria Genller . 27,1500
To the E.tate of Gloria
Genller purluant to the
Survival Act . 15.000
TOTAL $ 100,000
15, Brent and Ellen Genller, 88 parenti and natural guardian. of the minor.,
Tabitha Gen.ler and JOllah Gen.ler, and Brent Genller 88 Admlnlltrator of the E.tate
of Gloria Genller, are authorized to execute all required document. to obtaln the
payment of the underln.ured motorllt benefltl Irom Nationwide Ineurance Company.
6. Legal feel and expenlel 88 requelted are approved out of the
proceed I to be received by the minor, Tabitha Genller, In the amount of $2,3150, and
out of the proceed. to be received by the minor, JOllah Genller. In the amount of
".762,
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7. Legal fe.. and e)Cpen... 88 reque.ted of $3,819 for the wrongful death
clalm, and $3,819 for the .urvlval clalm, are approved.
8, Purluantto Pa, Rule of Civil Procedure 2OG9(b)(2), the petition to Invett
the net proceeds payable to the minor. Tabitha Genller and JOllah Gen.ler In
accordance with the recommendatlonl of Guardian Angel Financial Advl.ory, 18
.3.
S4.1385 CIVIL TERM
21.S4.843 ORPHANS' COURT
DENIED, The petition to appoint Dennll Lebo at the guardian of the eltat.. of
Tabitha and JOllah aenller. 18 DENIED.
9, The proceede payable to Tabitha a.nller and JOllah aenller Ihlll be
made by check requiring the endoreement of plllntlffl' counlel, Delano M. Lantz,
Elqulre, Pureuant to Pa, Rule of Civil Procedure 2039(b)(2):
(a) The total net eum of $107,850 payable to Tabitha G.nller Ihall b.
Invelted BY PLAINTIFFS' COUNSEL In one or more laving accountl at the hlgh..t
Interelt rate avallable IN THE NAME OF TABITHA QEN8LER, BORN AUQUIT I,
1888 In banks. building and loan 88soclatlons or savings and loan 81loclatlon. In
which the deposits are Insured by a federal government agency, 81 chosen by her
parents, provided that the amount deposited In anyone or such .avlng. Inltltutlon.
.hall not exceed the amount to which the acoounts are thus Inlured. Every luoh
aocountshall contaln a proVIsion that, NO WITHDRAWAL CAN BE MADE UNTIL
THE MINOR ATTAINS HER MAJORITY EXCEPT AI AUTHORIZED BY A PRIOR
ORDER OF COURT.
(b) The total net sum of $80,738 payable to Josiah Gensler Ihall be
Invested BY PLAINTIFFS' COUN8EL In one or more saving account. at the hlgh"t
Inter..t rate avaltablelN THE NAME OF JOSIAH QEN8LER, BORN JANUARY 11,
1881 In banks, building and loan 8880clatlons or savings and loan association. In
which the depollts are Insured by a federal government agency, 81 cholen by hi.
parents. provided that the amount deposited In anyone or luch I8vlngl Inltltutlonl
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84.138& CIVIL TERM
21.(14.843 ORPHANS' COURT
.hlll not .)(olld th. amount to which the account. art thuI Inlurtcf, Every luch
account Ihall contain a provlllon that, NO WITHDRAWAL CAN 81 MADI UNTIL
THE MINOR ATTAINS HIS MAJORITY EXCIPT AS AUTHORIZID IY A PRIOR
ORDIR OF COURT.
10. Compliance with thl. order by PLAINTiffS' COUNSIL la required within
till dlya after checka are received by coun..' for the net prooeed. payabl. to the
minor plalntlffe, Upon opening the reltrlcted account.. PLAINTiffS' COUNSIL ahall
Immtcflately flle In the office of the Prothonotary, and direct a copy to thl.judge,
proof of laid depo.lta In compliance with thl. order,
Delano M. Lantz, Eaqulr.
For Plaintiff.
Timothy I. Mark, Elqulre
For Defendant.
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