HomeMy WebLinkAbout94-07130
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5. Denied, Viewing the record in a light most favoruhle to Pluintiffs, evidence has been
revealed which classifies Plaintiff us u husiness invitee und therefore, moving Dcfendunts, owed a
higher duty of care to Plaintiff, which the record shows Defendants violuted,
6. Denied. Viewing the record in u light most favurahle to Pluintiffs, there al'\: material
issues of fact with regard to the nature of the fall that should be determined hy a jury.
7. Denied, Viewing the record in u light most favorahle to Plaintiffs, evidence has heen
revealed showing that moving defendunts created the conditions on the evening in question amI had the
wherewithal to correct it at their fingertips and failed to do so,
8. Denied. Viewing the record in a light most favorable to Pluintiffs. there are material
issues of fact identified in the record as to the nature and circumstances of Plaintiff's fall.
9. Denied. Viewing the record in u light most favorahle to Plaintiffs. Defendants arc not
entitled to summary judgment as a malleI' of luw for the reasons set forth In Plaintiffs' lIccolllpanying
brief.
i.
WHEREFORE. Plaintiffs, Michael Dickert and Chllrlolle Dickert, respectfully request that this
Court deny Defendants' Motion for summary judgment.
RESPECTFULLY SUBMITIED,
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STI PULATION
It is hereby stipulated by and between
counsel for the respective parties that reading,
signing, sealing, certific~tion and filing are
hereby waived; and all objections except as to the
form of the question are reserved to the time of
trial.
MICHAEL J. DICKERT, called as a witness,
being duly sworn, testified as follows:
EXAMINATION
BY MR. MARK:
Q. Would you please state your full name for the
record.
A. Michael J. Dickert.
Q.
Mr. Dickert, my name is Tim Mark.
We were
introduced before the deposition began today. I
represent Wintermyer in a lawsuit you and your
wife instituted that's pending now in Cumberland
County. Do you understand that?
A. Yes, sir.
Q. If at any time today I go too quickly, too fast,
or for whatever reason you do not hear or did not
understand my question, stop me.
I'll either have
the court reporter read it back to you, or I'll
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Exam./Mark - M. Dickert
history? Have you ever been diagnosed with any
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diseases of any part of your body?
A. I am diabetic.
Q. When were you first diagnosed as being diabetic?
A. About three years ago.
Q. Who diagnosed that?
A. When I took my DLT physical, I failed for high
blood sugar.
I saw my doctor who has since
retired, Petruccelli in Bath, and he put me on
Diabeta.
Q. In Bath, Pennsylvania?
A. Yes.
Q. Do you know who took over Petruccelli's practice?
MRS. DICKERT:
Sorathia, S-o-r-a-t-h-i-a.
BY MR. MARK:
Q. Is that a he or a she?
MRS. DICKERT: lie.
BY MR. MARK:
Q. Are they in Bath, too?
A. Yes, same office.
Q. So if I would do a request of that office, I would
get your medical ~ecords that would have existed
on Petruccelli for you?
A. Yeah.
Q. How long would Petruccelli have been your family
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Exam./Mark - M. Dickert
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ophthalmologist in order to have your eyes checked
to see whether or not the blood sugar would affect
your eyesight?
A. Yes.
Q. Did you go and have an eye exam?
A. Since then?
Q. Yes.
A. Yes.
Q. Who was the last person you had an eye exam with?
A. I don't remember.
Q. Was it the same person that you've seen over the
last several years, or have you--
A. Yes.
Q. --gone to different places?
A. I don't-- I'd have to try to find the records at
home.
Q. If you would, would you let your lawyer know so
that he can advise us name and address and stuff
and dates so that we can get the records from
them.
Fair enough?
A. Yes.
Q. Have you ever worn eyeglasses?
A. Yes.
Q. Do you wear contacts now?
A. No.
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Exam./Mark - M. Dickert
22
arthroscopic and removed. And I don't know what
else he did then.
I'd have to check the medical
records.
Q. Did you get workers' compensation for that injury?
A. Yes.
Q. What employer?
A. When I-- With my right knee or my left knee?
Q. Right knee.
A. Right knee, Builders Transport.
Q. And the left knee would have been back in '85.
That would have been Flexsteel?
A. Yes.
Q. Other than the reconstructive surgery in your left
knee and the surgery in your right knee that we
discussed, did you ever have any other surgeries
connected with any of your lower extremities?
A. Not that I -- not that I can remember.
Q. Other than the operation to your right arm, have
you ever had any surgeries on your upper body?
A. Just normal teeth, wisdom teeth and stuff taken
out.
Q. Let's go back to December of 1992. At that time
you were working at Builders, and you were doing
trucking for them?
A. Yes.
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Q. Why don't you describe on a daily basis what your
Exam./Mark - M. Dickert
23
A.
work for them would be.
Okay.
I was running a dedicated run that I helped
set up.
I'd pick up a load at night, run it to
Gloucester City, New Jersey or Oowningtown, drop
it, pick up a trailer, go back to Carlisle, pick
up another loaded trailer of appliances and run it
over to Kearny, New Jersey, either drop and hook
there, or I'd back into a dock, live unload it,
and go back to Carlisle and take my break.
Q. Let's break that down, that dedicated load, so
A.
that I have a complete understanding of it. You
would leave your home in the Allentown area and go
to what, Carlisle to pick up a load?
Okay.
I would leave my house on a Sunday evening
and drive to Carlisle, pick up my truck and go
over to Whirlpool, pick up a load of appliances,
usually take it either straight into Gloucester
City, New Jersey, or I'd drop it at Oowningtown at
the Sunoco plant.
Q. That would take you to Sunday evening. Did you
get paid from the time you left your home until
the time you got to the depot in Carlisle, or
would you only be paid from the time you actually
picked up your truck at Carlisle and went over to
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Exam./Mark - M. Dickert
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after 10:00 to head for r don't remember if it was
Downingtown or Gloucester City.
Q.
So that you were--
Had you been at the Whirlpool
Distribution Center earlier before you fell?
A. Yes.
Q. How many occasions that day?
A, Oh, probably about twice.
Q. So this was actually the third time you were there
on the premises?
A. At least.
Q. Could be more, could be less?
A. It could be about-- I'd say about three times.
Q. Now, your procedure when you enter Whirlpool, you
have your truck, you have your tractor. Do you
have your trailer attached sometimes?
A. Sometimes.
Q. The first time you went to Whirlpool the day of
your accident, you had a trailer?
A. Yes.
Q. Because you were coming back from Downingtown?
A.
r was coming back from Kearny.
No.
Q. Kearny. The procedure back then on this day, the
day you fell, would you have to go to the guard
house and identify yourself and sign in, or what
was the procedure?
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Exam./Mark - M. Dickert
Okay. We'd stop at the guard shack.
30
He'd log us
in. He'd check the trailer to see what was inside
it, if there was return appliances, make sure the
trailer was swept out.
If there was dirt on the
floor, we always swept the trailers out before we
dropped them so they'd have a clean trailer for
the tow motors.
Q. Then would he direct you to a particular dock or a
particular area?
A. He would call in, see if they needed an empty
trailer.
If not, we would drop it in the empty
trailer line.
If they needed it in the dock, we
would back it into the dock.
Q. Before we began your deposition, I showed you the
Whirlpool site plan that counsel for Whirlpool
supplied to us or DMC supplied to us. And I
familiarized you with it, and you said, if I
recall correctly, that it accurately depicts the
area, although it doesn't show the loading docks.
Is that true?
A. Yes.
Q. Can you use my blue pen-- I wish I had a
different color.
MR. BIALKOWSKI:
I have a red marker if you
want to use that.
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Exam./Mark - M. Dickert
32
hard on a drawing like this to get some
perspective. But using the route that you just
drew for me from the guard house over to Number 3
to the X, was it necessary for you to maneuver
your tractor and your trailer around these areas
in order to get to the final destination spot?
A. I only had my tractor when I went in. Yes, you
couldn't go through here. This was grass. There
was trailers here, and there was some trailers
here and trailers here.
(Indicating)
Q. For the record, as you come in from the guard
station, there are horizontal markings around your
red line. Those are the areas you meant here and
here and here where there were trailers, right?
A. Yes.
Q. If you had yo~r tractor, was the trailer already
in place over by Number 3?
A. The trailer I picked up that night?
Q, Yes.
A.
It was in the dock.
Yes.
Q. Did your accident occur before or after you had
hooked your tractor up to the trailer?
A. It was after I had hooked the tractor to the
trailer.
Q. Now, how much time would have elapsed from the
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Exam./Mark - M. Dickert
34
the premises?
A. Yes.
Q. You actually passed by the--
A. I went through the guard shack.
Q. The first time you were there around noon, did you
follow the same area that--
A. No.
Q. Where did you go when you were there at noon?
A. I don't remember if I put the empty trailer in the
dock or not. But the normal procedure was to come
in and make a right, then make a left and go all
the way around instead.
Q. And end up where?
A. If there was an empty trailer, drop it in the line
here.
(Indicating)
Q. So at the first-- So as you come in through the
guard house, you'd make that right-hand turn, and
as you got around to the curb, you would make a
left instead of making a right?
A. Yes.
Q. And then the third time was about what time? You
said it was about five minutes to hook up your
trailer?
A. Normal time to hook up.
Q. About what time had you actually entered onto the
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Exam./Mark - M. Dickert
guard company that was working in the evening
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usually.
Q. Who was that?
A. I don't know the name.
Q. At 10:00 is it the same guard that had been there
from 3:00 to 5:00?
A. Yes.
Q. Did you have any conversations with the guard at
10:00 about the road conditions?
A. Yes.
Q.
What did you say to the guard?
.t
A.
I said something to him about the
all the ice
and the conditions.
Q. What was it about the ice and the conditions that
you needed to talk to him about?
A. I asked him about the -- that the parking lot
didn't look like it was treated.
I asked if
the if anybody came in and treated the parking
lot so we could walk better.
Q. What did the guard say to you?
A. The guard said, no, that Steve called up and
canceled the salt truck, that he could save 1500
bucks and it would get warm the next day and it
would change to rain and all wash away.
Q. Do you know who Steve, the Steve that he
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Exam./Mark - M. Dickert
39
to see ahead of yourself, and is that what you
were able to see, ice, and is that why you had the
conversation with the guard?
A. Yes.
Q. He said Steve called and canceled the salt truck.
Is that what you said?
A. Yes, the people who serviced the parking lot.
That's what the guard told me.
Q. Did the guard tell you when that call had been
made to cancel?
A. No.
Q. From the conversation, did it lead you to believe
it occurred sometime before the conversation you
had with him then?
A. Yes.
Q. What about the guard shack at that time, did it
appear to be well salted as it had been when you
were there at 3:00 to 5:00?
A. Yes.
Q. Did the fact that the guard told you that Steve
had called and canceled the salt truck lead you to
have any concern for your safety in negotiating
the parking lot with your rig?
A. To some degree.
Q. What degree? Can you explain what you meant by
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Exam./Mark - M. Dickert
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A. Yes.
Q. Did you encounter difficulty in walking at that
time?
A. No.
Q. Why?
A. The parking lot was serviced, salted and sanded
with antiskid, whatever they put on.
Q. Once you got on your tractor, you didn't get out
of your tractor until after you had hooked up the
tractor to the trailer at 10:00?
A. Well, I got out to go into the guard shack.
Q. I guess I should have asked you that. You did
actually physically go into the guard shack on
each occasion?
A. Yes.
Q. It was well salted you said. Did you encounter
any difficulty at all either going into or coming
from the guard house at 10:00 that evening?
A. You mean from my tractor to the guard house?
Q. Yes.
A. No.
Q.
So now you got back in your tractor.
You followed
the red route that we marked, and you ended up
then backing your tractor and affixing it to the
trailer at the X?
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Exam./Mark - M. Dickert
63
You never told anybody that?
A. No, I did not.
Q. Do you know anybody by the name of Brian Bahn,
B-a-h-n?
A.
Brian Bahn.
I know a Brian, but I don't know his
last name.
Q. Now, who is the Brian you know? What was his job?
A. I'm not even sure if it's a Brian if he was
working at DMC.
I don't remember for sure the
guy -- the guy's name that ran the yard horse.
Q. Well, they told us it was your conversation with
Brian Bahn who was the yard jockey.
You didn't
tell him that?
A. Earlier that day when I was in the first time?
Q. They said you had a conversation with Brian a few
days after this incident and you said that you
slipped off the steps of your tractor.
A. No, I did not.
Q. You had no conversation like that?
A. I might have had a conversation with him, but I
did not say I slipped off the steps of my tractor.
They were not slippery.
Q. So as your leg is now becoming black and blue 10
to 12 hours after this incident, did a thought
occur to you that you ought to tell your
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Exam./Mark - M. Dickert
dispatcher that you had fallen the night before?
64
A. I thought there was no damage.
Q. There's no company policy with your employer to
report all accidents regardless of how
insignificant you thought they were?
A. If we're hurt and we need attention, we have to
report it and go get immediate attention. At that
time I did not think I needed to see a doctor.
Q. Well, at that point it's becoming black and blue.
What else was happening to your leg at that time,
ten hours --
A. Now I'm starting to lose a little bit of mobility,
and it wad starting to get stiff.
Q. It was starting to hurt more?
A. I don' too
Q. Oh, you don't--
A. I'm sorry, I just don't feel pain.
Q. At least the color, the color of it and the loss
of motion, did that give you any cause to consider
calling your employer to report the accident then?
A. Yes.
Q. Did yOU?
A. I didn't for I think a day or two later.
Q. This was now the 29th. Now we're 12 hours later.
This is the 29th. The report I have is you didn't
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Exam./Mark - M. Dickert
65
contact your employer until the--
A. Following week.
Q. --until the 3rd or 4th of January?
A.
Right.
Everybody was shut down for the holiday
for the first of -- if I remember right, January
1st.
And we were shut down from I think the 31st,
January 1st and 2nd. Then I redispatched my load
for Monday morning. And I also talked to my
employer I think at home and left him know that I
redispatched a load.
I ran to Kearny, came back.
I shut the truck down, called my doctor, and went
down to see him.
Q. How many loads had you taken between the 29th and
the time you reported it?
A.
I wouldn't know.
I'd have to try to find my
logbook and check.
Q. Would you?
A. Probably two or three maybe.
Q. Would you look at what I'm going to mark-- I'm
going to mark your diagram Exhibit 1 to your
deposition.
I'm going to mark as Number 2 what
purports to be your statement of injury to your
employer.
I want you to take a look at that and
if you would to verify that it is what I said it
was.
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Exam./Mark - M. Dickert
67
fell on left knee and twisted right knee badly.
When I banged my knee--
r can't make it, the
dots.
Q. When I banged knee before, pain would go away.
Three or four days later pain is still
Increasing--
A. And now losing motion on right knee.
Q. Was that an accurate statement then?
A. I would say so, yes.
Q. Now, up above it says to whom you reported the
injury -- that's the middle of the page -- John
Sohn, S-o-h-n.
A. S-o-h-n.
Q. Date and time you reported the injury, January 3,
6:10 p.m.
A.
Right.
I called him at home.
Q. How many hours did you work before injury, three
hours and three-fourths?
A. Three and three-quarter hours.
Q. Is that accurate inforrr.ation?
A. I would have to check my logbook.
Q. What were you doing when injured/how were you
injured, checking trailer after hookup, pretrip
inspection.
A. Yes.
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Exam./Mark - M. Dickert
Q. From what you told me, were you doing a pretrip
68
inspection at the time of this accident?
A. Pretrip inspection is when you check the lights
and make sure the tires are okay.
Q. You were actually doing that?
A. Well, a pretrip is when you have to walk around
the trailer.
I had to walk down the side of the
trailer in order to remove the chock block.
Q. Well, a pretrip inspection according to FedDOT
requires you to go around the whole trailer,
doesn't it?
A. Yes.
Q. Did you ever do a pretrip inspection that day?
A. Yes.
Q. Whem?
A. I used to go over the whole trailer when I got
back to the guard shack.
Q. But you actually were not doing a pretrip
inspection at the time you fell?
A.
No.
I was just walking back alongside the
trailer.
Q. The other thing I'm going to mark as Exhibit 3 is
a supervisors report of injury. This is not
something I imagine that you'd fill out.
But this
appears to go from John Sohn to Amy, refers to
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Exam./Mark - M. Dickert
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you, your employee number, and location of injury,
Whirlpool warehouse, 10:00 p.m., Carlisle, fell,
both knees.
There's a checkmark saying, injured, has not
received doctor, hospital care. Would this have
been accurate information that you had not
received doctor or hospital care if this report is
dated January 4, 1992?
A. I saw the doctor-- I should have seen the doctor
that afternoon. This was filed when John came in,
in the morning and faxed down to Amy.
Q. I have some photographs, but I'd like to take a
break at this point to allow her to catch up, the
court reporter to catch up in marking these before
we get all out of order.
(Dickert Deposition Exhibits #1 through 10
marked for identification)
(Recess taken)
BY MR. MARK:
Q. Mr. Dickert, in answers to some of the discovery
requests, do you remember filling out your answers
to the written interrogatories of Vista Two?
A. Is that the documents that I filled out?
MR. HOLKO: These would have been written
questions that we provided answers for. You would
FlLllIS & ,lkLUC.H REI'OIITrNG SERI'ICE
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78
would have been taken by putting a Number 6.
Just
put a Number 6 with a circle around it.
A. I don't know exactly the dock numbers, but from
what I can -- as far as I can tell what the dock
numbers--
Q. And Number 7. And Number 8 would probably be
about the same area. And Number 9.
We're going
to have some difficulty with the original. So the
record correctly reflects, each time that you're
referring to an exhibit, phctographic exhibit,
you've put an X and the number, and you've circled
both?
A. Yes, I did.
Q. Exhibit 10, why was this taken, do you know?
A. Yes, to show that -- to show that the lot even
after snow has fallen has not been serviced
between trailers where we have to walk. The only
good thing about that is we can hold against each
side of the trailer while we're walking down.
Q, In this particular case on this particular evening
when you fell, there was no trailer to the other
side of you?
A. No.
Q. So it was just basically this trailer, and then
there was space beside the trailer on either side?
HUllS {, ,I"'LUCAS IIEPOllll."G SEIlI'ICC_
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Exam./Mark - M. Dickert
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A. The next set of docks.
Q. When you said in your statement you walked down
the left side of your trailer, just so I know,
what's the left side of the trailer? Is it the
side that you exit from the tractor, or is it the
opposite side?
A. It's the driver's side.
Q. Do you know when these photographs were taken?
A. These are my photos, aren't they?
MR. HOLKO: Yes.
A. These were taken after I had gotten my final
diagnosis from the doctor and consulted my
attorney.
MR. HOLKO: He's looking for a date and time
frame.
A. That would be someplace around March.
BY MR. MARK:
Q. Of '93?
A.
Of '93 I would say.
I'm not sure of the date,
though.
Q. I thought I saw something where your employer was
thinking about trying to get you to operate a van
that had automatic transmission on it instead of a
tractor, or am I looking at a different case? Did
you ever talk to your doctor about whether you're
FlUlIS 1', '\/cLUC,IS I!EI'ORTING SERI'ICE
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Exam./Mark - M. Dickert
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going to continue to be a truck driver?
A. Yes, I did.
Q. Was there a period of time where your employer
made an accommodation for you so you didn't have
to use a clutch?
A. No. The only thing-- My last part of my job with
them was working in the office dispatch.
Q. How did that work out?
MR. HOLKO:
Let me just interrupt. Wasn't
there a time when you had an automatic tractor?
A. No. They gave me a new tractor with a different
type transmission to it.
BY MR. MARK:
Q. You did work as a dispatcher?
A. Yes.
Q. Did that work out?
A. No.
Q. Why not?
A. Walking on the concrete floors constantly was
making my legs more stiff and causing more
problems.
I went to see my doctor. He gave me
medication which helped. And I was taking aspirin
to try to help a little bit of the -- to relieve
the inflammation.
And all at once I walked into work, and they
FILIUS & ,1!.'LlIC..\5 I!EPOllTl.llG SEll VICE
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Q. But Dr. Dragann did all your knees?
84
A. All my knee surgery.
Q. When you first arrived at the premises, this would
be before noon, you did go through the guard area
and onto the premises, correct?
A. Yes.
Q. At that point did you have any trailer with you?
A. Yes.
Q. It was empty?
A. As far as I can remember.
Q. Now, at that point in time, if I recall correctly,
you said that your windshield was freezing but
there was no ice on the ground at all anywhere on
the premises?
A. I don't recall any ice on the premises that caused
any problems. My truck did not slide, and I did
not have trouble unhooking my trailer.
Q. At that point in time, the first time that you
went there which would be before noon on the day
of the accident, did you see any type of salt or
antiskid material anyplace on the premises?
A. At the guard shack outside.
Q. So when you got there before noon the first time
you were there that day, you did see salt or
antiskid material around the guard shack?
FILIUS & McLUc'H REPOIlTlNG SERVICE
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Exam./Bialkowski - M. Dickert
you fell, was that loaded or unloaded?
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A. Loaded.
Q. So it was fully loaded when you picked it up?
A. I don't know if it was fully loaded, but it did
have a load in it.
Q. So then you went directly from there to Gloucester
City?
A. Yes.
Q. Did you stop anywhere along the way?
A. I don't recall.
Q. What would your route be to Gloucester City?
A. I would go down south on Route 11, pick up the
Pennsylvania Turnpike especially if they're
expecting bad weather, run across the PA Pike, get
off at the Valley Forge interchange, take 76 south
down across the Walt Whitman bridge, come off the
Walt Whitman bridge to the second exit, bear off
right onto 130 south, go to the first light, turn
right, go down over the railroad tracks to the
first light, turn left, go down to the bar, make a
right, make a quick left and into their gate.
Q. When you would arrive at Gloucester City, would
you have to check in so that there would be a log
that's showing what time you would arrive there?
A. There was no log.
FlLlllS &'\/cWCAS R[POIlTlNG SERVICE
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Exam./Bialkowski - M. Dickert
rig and back it up to a loading dock?
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A. Yes.
Q. Would you unlock it? The thing was sealed, wasn't
it?
A. The trailer?
Q. Yes.
l>.. Yes.
Q. Would you unseal it at that point?
A. Yes.
Q. Is there any type of written record made of that
process when you unseal it?
A. Not that I know of.
Q. Although these two gentlemen would have opened the
gate, would there be anybody different that would
have been there when you backed the trailer into
the loading dock area?
A. Sometimes they had an extra man come in to give
them a hand.
Q. Does somebody have to sign saying, okay, we've now
received this trailer and they sign some documents
so that you're covered to show that you've
delivered it to where you're supposed to deliver
it?
A. I'm trying to remember if they-- One of the
customers that I went to, I don't remember which
FILIUS & ,llfLllCAS REI'OR'fING SERVICE
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Exam./Bialkowski - M. Dickert
one is which, I would give them the copy of the
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bills. and I would pick up the signed bills for
the trailer that I was picking up which would be
already inside the empty trailer. On the other
hand, sometimes they would sign my copy of the
bills and let me go.
Q. You don't have any recollection of this?
A. I think this is the one where I dropped the
trailer, left the bills in with them, and then I
picked up the empty trailer with the signed bills
on the inside is what I think the procedure was
there.
Q. You say the signed bills on the inside. Are they
inside the empty trailer?
A. Yes, just laying inside the door.
Q. The trailer has a door as opposed to a-- You mean
the back that picks up?
A. The empty trailer would be pulled away from the
dock, okay, and the doors would be closed to the
trailer normally. I just opened up the right
door, reach inside, pick up the signed bills.
Q. And those would be the bills for the load that you
had just delivered?
A. No. Those would be for the load that I delivered
the day before. Do you want me to verify what I
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Exam./Bialkowski - M. Dickert
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mean?
Q. Yes, because what I'm having trouble understanding
is that you're responsible.
Gosh knows what's in
that trailer, could be worth thousands of dollars.
And it sounds like what you're saying is that when
it leaves your possession it's your word against
somebody else's as to whether or not you actually
delivered it to where you were supposed to. You
don't have anything to back you up, if somebody
had a question about the trailer, you'd say, look,
here's the paper that so and so received it in a
certain time?
A. Nope, never needed one.
Q. At Gloucester City, was that a DMC facility, or
what facility was it?
A. It was-- They did the local distributing of the
appliances to the stores on the south side of
Jersey and into the Philadelphia area if I
remember right.
I might have 50 orders on that
trailer.
Q. This Gloucester City, if I was going to go look
for this site, what would be--
A. John Jeffries.
Q. John Jeffries, that's the name of the--
A. Yes.
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Exam./Bialkowski - M. Dickert
or be there when the seal is opened.
100
MR. HOLKO: When? Is this just generally or
on this day, the day after?
BY MR. BIALKOWSKI:
Q. I was going to say generally would you unload
trailers?
A. I would assist.
Q. The time that you had the accident that after your
fall you then drove to Gloucester City, did you
assist in the unloading of that trailer?
A. No.
Q. Why not?
A. It was not required at that location.
Q. Between the time that you had your fall and the
time that you first went to see a doctor, did you
assist in unloading any of the trailers that you
had delivered to the various locations?
A. No, I did not.
Q. Why?
A. My leg was bothering me, and I just didn't-- They
didn't request that I help.
Q. Let me try to break it down. Were there any
times-- Again, I'm just talking about whatever
deliveries you had made from the time you had your
fall up until the time you first saw your
FILIUS & ,\!cLUCIS REPORTING SfllI'ICE
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Exam./Bialkowski - M. Dickert
physician. Were there any times that you were
101
requested to assist and that you told people that
I can't because my legs are bothering me?
A. Probably Kearny.
Q. Probably Kearny?
A. Yes.
Q. Do you know who you would have spoken with at
Kearny?
A. No, I do not anymore.
Q. Again, I'm just trying to figure out where the
paperwork would be. There wasn't a guard house or
a logbook that you logged in at Kearny or
Gloucester City, correct?
A. No, sir.
Q. But you did have paperwork concerning your load
that would eventually get back to you?
A. Yes.
Q. would a copy come back to you and a copy also go
to your employer?
A. I don't remember how that load went. We used to
have a truck trip manifest that the driver
carried. We carried a manila envelope with a
bunch of other bills on the inside, okay. Those
were the delivery bills for the people that I was
delivering to for them to make the secondary
FlUlIS & McLUCAS REPORTING SERVICE
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Exam./Bialkowski - M. Dickert
102
deliveries to the customer.
Q.
In terms of any of the work
any of the
deliveries that you would have made between the
time of your accident and the time that you had
your first meeting with your physician, would your
employer which would be Builders Transport have
copies of documents per.taining to those various
deliveries or should they?
A. Yes.
Q. Where is your employer's main office?
A. Camden, South Carolina.
Q. Again, I may have asked this before in a different
way, but would you also actually have copies, if
you know?
A. Not anymore.
Q. Not anymore. When is the last time you saw a
physician for your injuries?
A. Probably about two and a half months ago.
Q. I believe you testified that after your injury you
did have one surgery.
A. I've had two -- no, four--
Q. Since the surgery--
A. --since I fell.
Q. Since you fell, you've had four surgeries?
A. Yes.
FlUlIS & MrWCM REI'OIIT/SG SERVICE
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Reexam./Mark - M. Dickert
Ice driver's daily log?
109
A.
I don't know.
I threw a lot of them out.
Q. Would you make a search for your December and
January logs.
I'm more particularly interested in
making sure that you maintain them so that we have
a picture of your December of '92 and your January
of '93.
I may ask for photocopies of the last
week in December.
But if you can maintain the originals or let
your counsel know whether the originals still
exist, we can make photocopies later.
If you tell
them that you looked and they don't exist, I'm
sure your employer didn't keep copies after you
turned them in.
A. They are required by law.
Q. But this long now?
A. Yes. To my knowledge, they are to keep them.
Q. Well, if you wouldn't mind, if you can't find
yours, can you ask for copies from your employer--
A. Yeah.
Q. --for December and January?
A. I can call the company and ask them if they still
maintain them.
Q. Because you followed the law and you accurately
filled out those logs each day, didn't you?
FlLIlIS & "'cLUC,IS RCPOI!TING SEI!Vlcr
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1""'\
WITNESSES
DIRECT CROSS
I
1 NAME
J BRIAN 1'. BAliN
4 BV: MR. HOLKO
5 BV: Mil., I'RlCE
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I STIPULATION
1 It is hereby stipulalCd by and betwo:n counsel
J for the respective parties that rending, signing, scnling,
4 certificalion and filing arc hereby waived; and that all
5 objections except as to the fonn of the question arc
6 reserved to the time of trial.
7
8 BRIAN P. DAIlN. called as a witness, being duly
9 sworn, testified as follows:
10 DIRECT EXAMINATION
II BY MR. 1I0LKO,
11 Q Would you stale your full name, please?
I J A Brian Paul Boon,
14 Q Would you spell your last name?
IS A B-A-H-N.
16 Q Mr. Boon, my name is Joe Holko, and I rcprcs<.'nt
17 MichllCl and Charlotte Dickert in a case that was pending
18 in Cumberland County ogainst Distribution Manogement
19 Corporation and various olher defendants. You're here
10 today after I've requested your deposition, and this is to
11 give me a chance to ask you some questions about what you
n know and perhaps what you don't know about an incident
13 which occurred on D.:ccmber 28th of 1992, involving Mr,
24 Dickert, If at any time you don't understand one of my
15 questions, please ask mc 10 repeat the question, rephrase
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Multi-Page ""
r"
BRIAN P. BAlIN
NOVEMBER 6, 1996
Page 4
Page 2
Page 3
I lhe queslion, define a tcnn for you so that you haw a
1 clear. fair question before going ahead and answering it
J Is that okay wilh you?
4 A Yes.
5 Q If at any time you need to take a brcalc or
6 speak to Altorney Bialkowski, please let us know and we'll
7 acconunodalc you, Okay?
8 A Nods,
9 Q I understand you n:ccntly had some surgery on
10 your right knee as a result of a motorcycle accident
II There is no requirement that you stay scall:d durilli this
t1 deposition, so please reel free to move around and we will
IJ ask you questions, even while you're standinlJ or walkins,
14 A Okay.
15 Q Unless you are in SO much pain or discomfort we
16 would adjourn the deposition and continue at anolhcr time.
17 Okay?
18 A Yes.
19 Q Sir, arc you on any medication today?
10 A Yes.
11 Q What arc you on?
n A Pcrcocct.
1J Q When did you last take a Pcrcocct?
14 A About ten o'clock this morning.
15 Q How long have you been taking the Pcrcocct?
Page S
I Would that be the last couple days, a week or so?
1 A Two a day since September 18th.
J Q And September 18th Wlls the date of your
4 surgery?
5 A Yes.
6 Q Is that under prescription from a doctor?
7 AVes.
8 Q Does it affect your ability do think clearly or
9 to answer questions?
10 A No.
II Q Are you on any other medication besides the
11 Percocet?
IJ A No.
14 Q Sir, where do you live?
15 A Do you want the full address?
16 Q Yes, please.
17 A 106 West Locust Stn:el, Mechanicsburg,
18 Pennsylvania.
19 Q What's the Zip Code there?
10 A 17055.
11 Q How long have you lived there'?
22 A Five years.
1J Q Docs anyone live there with you?
24 A No.
25 Q Is that a house'/
Page 2 - Page 5
BRIAN P. BAlIN
NOVEMBER 6, 1996
t"'\
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Page 6
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I ^ Apartmenl. 1 Managelllt.'1\l Corporalion,
2 Q Whal is your social security number'? 2 Q So that would have bu:n around 19~8'!
3 ^ 191-54-6662. 3 ^ July at' .~~. is whc'll my firsl Jay 01 OMC,
4 Q How old o.re you'l 4 Q W11ut wa.'i your position or what were you lured
5 ^ 33. 5 for in July of '88 al OMC~
6 Q Your date of birth'l 6 A Warehouseman,
7 ^ March 7th, 1963. 7 Q As your posilion _hanHed Ihere 01 DMC7 Which I
8 Q Where did you go 10 school? 8 understand is now ERX,
9 ^ Mechanicsburg Senior High. 9 A Okay, I was hired as a warehouseman. bul aftcr
10 Q When did you graduate? 10 Ihe initiallraining and learninH the wan:house, I became
II ^ 1981. II a yard jockey. a swilcher,
12 Q Whal did you do after high school'! 12 Q When did you become a yard jockey swilcher? Or
13 ^ Worked in a prinling company. 13 is thaI one and the same thing'!
14 Q How long did you work there? 14 A Swilcher/yarJ jockey, it's the same Ihing,
15 ^ Two years. 15 Let's sa:. we slurted in July, About Scpl<:mbo:r of '88.
16 Q Whal did you do after the printing company? 16 Q What is your posilion now wilh ERX7
17 ^ Moved 10 South Carolina. 17 A WarchoUS<.'Illan.
18 Q Did you work in South Carolina? 18 Q When did you go back no wan:bousing?
19 ^ Yes. 19 ^ When we cbanged over 10 ERX,
20 Q What did you do there? 20 Q When did you change over to ERX?
21 ^ Worked in a body shop. 21 A 1993,
22 Q How long were you in South Carolina'! 22 Q Is it fair to say that since July of 1988, you
23 ^ That would have been a year and a half. 23 have been continuously employed with OMC. and now ERX7
24 Q Then where did you go? 24 A Yes.
25 ^ Massachusetts. 25 Q Were you employed anywhere else during Ibe time
Page 7 Page 9
I Q Did you go 10 Massachusetts 10 live?
2 ^ Yes.
3 Q Did you work there?
4 ^ Yes, 1 did.
5 Q What did you do in Massachuscns?
6 ^ Sold used cars.
7 Q How long did you sell used cars?
8 ^ I was there about nine months,
9 Q Then what did you do?
10 ^ Moved back 10 Mechanicsburg.
II Q Did you take employment al thnttime?
12 A Yes.
13 Q Where is that?
14 ^ Book of the Month Club in Mechanicsburg,
15 Q What did you do for them?
16 ^ That was a Wlll'ehouse.
17 Q What did you do at the warehouse?
18 A Shipping lUld receiving,
19 Q How tong were you there?
20 ^ Six months.
21 Q Can you give me a time fl1lll1C when this was,
22 what year? Or how mlUlY years ago?
23 A Mid 1980s. Let's sec. 1986, I started at
14 Black and Decker. That was a wnrchouse. I worked there
25 for two ycan. Then I got hin:d at Distribution
I you were employed with DMC or ERXI
2 A No.
3 Q Did you have a usual schedule, or do you have a
4 usual schedule'!
5 A Now?
6 Q Now, yes,
7 A Yes, 8 to 4, Monday through Friday. Daylight
8 hours.
9 Q Back in 1:J.:Cl.'Illbcr of '92, what was your
10 sclJcUule?
11 A 6 a,m. to 2:30 in the afternoon,
12 Q Was that also Monday through Friday?
13 A Yes,
14 Q In 1992, was lhe facility opened on weekends?
15 A Yes, because they had a security gunrd there,
16 lUld I gucss loads -- someone was always watching the gate.
17 And tbel'e was lul inbound load coming in, someone had to
18 check it in, put it in the yard. you know, have the driver
19 drop il in the yard lUld have him get an empty lUld go ahead
20 and leave, make sure Ihe trailer was C'lllpty. That was the
21 outside camers.
22 Q Tell me what your responsibilities or duties
23 were as a yard jockey,
H A Putting tr.i1c'TS in the doors and pulling tbe
25 enlplies out, putting th<.'Ill out in the yard along witb the
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I loads Ihal were going out of there, I Q You said that you would maneuver the: It:lilers
2 Q Wh<.'l\ you say pUlling the trailers into lhe 2 to the doors, is lhal right?
3 doo"," 3 A Yes.
4 A Backing them into the doors so they eould be 4 (Discussion held off the record.)
S unloaded or loaded, S BY MR. HaLKO:
6 Q Give me a couple examples, If someone brought 6 Q Were there occasions when: drivers who were
7 in a load .. would they bring in loaded trailers to that 7 bringing the loads in would put the trailers and maneuver
8 facility'! 8 tm:m to the door'!
9 A Say" 9 A Yes.
10 Q They bring in a loaded trailer or the:y're 10 Q I guess what I envision is someone comJng in
II bringing in an emply trailer, I guess that's the: only two 11 with a trailer, whe:the:r it wus loadl:d or unloaded, and
12 possibilities, I take it? 12 dropping it, and you pick it up and put it to the: door, is
13 A Yeah, they Wt.-re doing that, They were doing 13 that one way of doing it?
14 all that. 14 A Yes,
l' Q They were also coming in and picking up loaded " Q I take it the other way of doing it is the
16 trailers? 16 driver themsclves would come in, check with the gunrd.
11 A Loaded traile", going out tn the customers, 17 check with you, and they'd say take it to door No. 43?
18 Q What type of loads wen: being dropped off at 18 A Yes.
19 DMC in. say, December of '92'! 19 Q And they would then back it in?
20 A That would be an inbound load, they wen: coming 20 A Yes,
21 straight from the factory, Whirlpool factnry, TIley would 21 Q Mr. Miller, whose deposition we took just
22 be dropped in the: yard, and th<'l\ the person inside would 22 before yours, told us tbat there's one chock block
23 call me on the rodio and tell me to PUI that in the door 23 connected to the dock by a cbain at c:ach door. Is that -
H so it could be unloaded. 24 A Yes,
2S Q What \VIIS being delivered to DMC was .. 2S Q And that's the: way it was in December of '92?
Page II Page 13
I A Full trailer loads. I A Yes.
2 Q .. Whirlpool appliances and other products? 2 Q Whose responsibility was it to put the chock
3 A Yeah, just .. yeah, appliances. 3 block under the .. I guess the: wheel of the It:li1cr7
4 Q And I take it that inbound loads would then be, 4 A Mille.
, what, off loaded? S Q Did you do that for all the It:lilc:rs, even the
6 A Urn-hum. 6 ones that the other drivers would back up into the doors?
7 Q In the: warehouse? 7 A Not theirs,
8 A (Nods affirmatively.) 8 Q Not thcirs?
9 Q And then would be prepared to be loaded and 9 A Just the ones that I backed in.
10 then become outbound loads, is that right'1 10 Q Did you have any responsibility to make sure
II A No, I would pull the: empty .. after it was II that the chock blocks were in place so that if you were
12 unloaded, I would pull the cmpty out of the door and put 12 doing your job running around the ynnl as a yard jockey,
13 it over the: designated area for in .. outbound.. what do 13 you would see that one wasn't there, you would put it
14 I want to say? The inbound carriers come in with a full 14 tbere?
IS load, but pick up an empty to leave with. Now.. IS A I was supposed to, but didn't.
16 Q I take itthcre would be empty trailcrs dropped 16 Q Didn't do it all the time?
17 off to be loadcd'! 11 A (Shakes head negatively.)
18 A To be loaded, that's what Builders did. 18 Q How many doors arc there?
19 Q When you talk about Builders, you're talking 19 A 43,
20 about Builders Transport'! 20 Q An: those loading doors and unloading doors, I
21 A Yes. 21 guess, only on one side of the building?
22 Q What other companies back in December of '92, 22 A Yes,
23 wcre coming in taking outbound loads besidcs Buildcrs', 23 Q Would you say in IJ.:cember of '92, that that
24 A '92. SI. Jonesbury and Pyramid Lines. I 24 racility was a busy facilily, a slow facility? How would
2S believe thaI was it. 2S you describe it'! Was Ihis a busy operation in Dcccmber of
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1 '92?
1 A I can't answer that question.
3 Q I suess on a typical day, if t1l<.'re is such a
4 typical day, is the: siNaI ion whe:re you have like one or
, two trucks that come: in ond go out or is it somelhing that
6 you have maybe 20 or 40 trucks come in and OUI?
7 A Since we changed over 10 ERX. it's 60 trailcrs
8 going out a day.
9 Q What was it like before when it was DMCI
10 A When it wus DMC we only had two shifls there.
II I believe in the winter we slowed down.
11 Q Can you give me on idea whatlhe ovcrogc was in
13 the winter when DMC w... handling the distribution?
14 A What, oUlbound, inbound'/
U Q Either one, Maybe both.
16 A I don't know.
17 Q On a typical day in the winter, how busy wen:
18 you at moving trucks and trailers and whalnot?
19 A Probably 90 trailers on my shift.
10 Q Your shin was from 6 a.m. to 2:30 p.m.?
11 A Thot's bocking them in and pulling them out.
11 Q When you would come: to work at 6 o,m" would
13 then: be trui1cn that you would nc:d to move and relocale
14 as soon os you camc LO work?
l' A Yes,
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I would you run Ihose lests?
2 A TIleY have a diesel lire pump oul in the pump
J house, You'd have 10 run Ihat once a wc:ck and IIll:n nush
4 each syslem oul. check alllhe gauges. read Ihe gauges.
.5 wrilC it down Cor insumncc purposes.
6 Q flow many people worked at DMC in Ol:cember of
7 '92, during Ihe daylighl hours'!
H A Is that including office people and everything'!
9 Q Yes,
10 A During Ihe daylight hours, I would say 35,
II Q What about at night. say, afler 6 p.m:!
12 A 15,
13 Q What would those people be doing at niKilt'/
14 A loading lrailers and pulling orders.
15 Q Now, I guess I'm not real clear on Ihis,
16 because Sleven Saholchick leslified 01 a deposition Ihat
17 DMC would basically close up, shut down. about 6:00 at
18 niglll, that it would be open from like 5 a,m. 106 p,m..
19 And Mr. Miller basically confinncd that and said that when
20 he was working, he'd come in at noon and be Ihere till
21 8:00, and that belw""Tl 6 and 8 o'clock it would nonnally
22 be him and the guard, but nobody clse, Can you explain
2J what you're talking about?
24 A I can clarify Ihat, When we changed over to
2' ERX a couple of the forkllfl drivers went out 10 Joplin,
Page 15 Page 17
I Q Were th:rc trailers that people would just drop I Missouri, to be lruck drivers, That was in '93, when we
1 in the yard and you'd have to put them to one of the 2 turned over. The one lruck driver was supervisor on
3 doors? J .....ond shift before we changed over to ER)(. Allen
4 A Yes. 4 Johnson. He was second shift supervisor. That was during
, Q And would you work basically continuously 5 DMC years. This was an operation going on second shifl
6 during that shift moving trailers? 6 before we changed over to ER)(.
7 A No, I'd get some brcaks. 7 Q When did the Sl.'Cond shift start and end?
8 Q Other than moving trailers and putting th: 8 A I can't answer that accurnlely. I think it was
9 chock bloclcs under the wheels, did you do anything else, 9 regular already 4 10 12.
10 any other responsibilities, whether it be loading, 10 MR. PRICE: 4 p,m. to 12 midnight?
11 unloading, checking bills oflading, manifest, whatever 11 TIlE WlTIIESS: Yes.
12 they may be? 12 BY Mil. HOLKO:
13 A 1 would run a forklift if it was slow till th:y IJ Q What's the situation now at ERJ(7 How many
14 needed me. 1 was also .. they had me in charge of th: 14 hours and how many shifts arc there?
u flfC system of the building, too. 15 A Three full shills, Monday through Friday.
16 Q What did you have to do with rcgard to th: fire 16 Q So Allen Johnson would have been the second
17 system? 17 shift supervisor'/
18 A Weekly test and make sure everything was up to 18 A Second shift supervisor" foreman.
19 par. 19 Q The fon:man, And it's ..
20 Q This is one of those overhead fire supprcssion 20 A Because the guys that arc on Sl.'Cond shin now
21 system? 21 with the seniority, he was in charge of them,
22 A Yes, sprinkler. 22 Q So Allen Johnson would hal'e bc<.'l\ the guy in
23 Q And you have to watch th: gauges? 2J charge during lhe ...'Cond shift? (
24 A Yes. 24 A &'Cond shift, yes,
2' Q And the tests that you would have run, how 25 Q And who was the guy in charge during the first
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I Q Was Tex'sjoh 10 be allhe guord house during
2 the daylight hours?
3 A Yes,
4 Q And I lake it that you and Tex would have to
5 inlerface on a daily, hourly basis, maybe minute by minute
6 basis, dcpc:nding on how many trucks were coming in and
7 where they were going?
8 A Yes. We each had a radio.
9 Q So you had a radio and you'd get him on the
10 radio?
II A Yes.
12 Q Did anyone else have a radio?
13 A 'There: was one in the offie.: in the wwebousc
14 telling me what they needed done out in the yard.
15 Q If you were out in the yard there was a radio
16 on your truck?
17 A Yes.
18 Q And if you were in the offie.:, there was a
19 radio in thcrc:?
20 A Yes,
21 Q The radio in the office, could anyone else hear
22 that radio?
23 A Yes, Anyone standing ncarby.
24 Q Did anyone shure that office with you?
25 A I was out in the truck all the time.
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I shift'l
2 A Steve Sabotchick.
3 Q Who is Curtis Clifton'}
4 A He just got a ncw job title. He would be my
5 regional manager.
6 Q And did he have an office at 21 Roadway Drive?
7 A Yes.
8 Q Is that where he would report to work?
9 MR, PRICE: What time frame are we talking
10 about'1
II BY MR, HaLKO:
12 Q In December of '92. Curtis Clifton.
13 A You're talking about what his job title was
14 then'l
15 Q Right.
16 A Okay. He was .. he was in charge of Steve
17 Sabotehick who was in charge of the rest of us. So
18 warehouse supervisor.
19 Q Who is Chuck Kline? Do you know who that is'!
20 A He was president of Distribution Management
21 Corporation.
22 Q Where did he go to work'! Did he come to 21
23 Roadway Drive'! Did he have an officc?
24 A He'd show up once or twice a year. I believe
25 he is from Ann Arbor, Michigan.
. '
Page 19
I (Discussion held off the n:cord.)
2 BY MR. !lOLKO:
3 Q What went on during the second shift?
4 A Loading, order pulling.
5 Q I guess if the second shiftlx:gan at 4:00 and
6 you would end your day nonnally at 2:30, how was it or how
7 did you know what went on, on the second shift if you wen:
8 never then:?
9 A Talking to the other lift operators and stuff.
10 Q But it's your testimony, though, that then:
II would be about IS people" and I'm not going to hold you
12 to the number, but approximately 1 S people ..
13 A In the warehouse S<.'Cond shift.
14 Q" in the warehouse, second shift, And would
I 5 thai also include the janitor mainlenance person?
16 A Yes,
17 Q Would that also include the guard'!
18 A Yes,
19 Q Now, did DMC have their nwn guards who are
20 employed by DMC?
21 A Just one.
22 Q Who was that'1
23 A Patrick Shane.
24 Q That was Tex'l
25 A Tex.
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I Q If you were in the office and the radio is
2 there, was there anyone that shared that particular
3 office?
4 A That's where Sieve sat. That was his area.
5 Q ...t's assume that Tex is at the gUlll'd house and
6 you're in the yard, you both have your radios on, and T,,,(
7 is talking to you and you're talking to Tex. Would the
8 radio in the office be on so someone could hear what you
9 were talking ahout?
lOA Yes, they were all on the same channel.
II Q So there's thn:c radios then?
12 A Three radios. Plus they had a few hand holds
I 3 in there that ..
14 Q They could carry out into the warehouse?
15 A Into the warehouse. None of the lift opc:rutors
16 had any of them.
17 Q From time to time would Steve use the radio to
18 contuct you out in the yard?
19 A Yes.
20 Q And do you know where those radios were used on
21 the second shift?
22 A Just to the yard truck and guard house, if they
23 didn't want to use the telephone.
24 Q Wh<:n you ended your day at around 2:30 in the
25 afternoon, was there someone else who came on for the
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BRlANP. BAHN
NOVEMBER 6, 1996
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Page 22
1 second shift to be tbe yard jockey?
2 ^ Someone would have to move the trailers, I
3 believe Al Johnson would do it, to the best of my
4 knowledge.
5 Q Other than you and Mr. Johnson, did anyone else
6 move trailc:rs around the yard who wore: employees of DMe?
7 A Ves. Steve Sabotehick would jump in and move
8 some wund once in a while if somoone couldn'tlind me,
9 Q What about Tex, could he move ..
10 ^ No.
11 Q Did DMC keep anti.skid material, sail, cinders,
12 SlIIld, anything like that, in or wund the building in
13 Dca:mber of '92.
14 ^ Just for on the steps going into the offiee.
15 that area, when: people had to walk, suit and tics walking
16 inside.
17 Q Were you ever involved in spreading any of
18 that.. it's called anti.skid .. anti'slip malerial?
19 A No.
20 Q Did you ever observe anyone doing that,
21 actually spreading it?
22 A I'm not sure who the company was that moved our
23 snow, but they did .. I did see it done.
H Q Did they use ..
25 A I'm not sure what company thaI was.
Page 23
1 Q Did they use the material that you had
2 available at the warehouse?
3 A No, we didn't have any of that SlUff th.-re,
4 they would have had to bring it in. It was anti.skid, It
5 wasn't sa1~ it was the lilt Ie stones, That real line,
6 gritty stuff.
7 Q Now, Mr. Miller testified that there wen: one
8 or two skids of SO pound bl18s of Ice-Melt that at one time
9 were lcept inside door 43, and there wen: two or three
10 skids of SO pound bl18s stacked four feet high that were
11 lcept by the office and the maintenance shop in 1992, and
12 had '-' then: as far as he can rcmcmbcr when he started
13 in October of 1990.
14 A That WIlS with salt pellets.
15 Q So that was there?
16 A Yes.
17 Q What was that used for?
18 A Where the people had 10 .. like I said, the
19 steps. There's a rwnp at door I, they put it on tb..-re
20 bc:causc if people would back into the wun:house with their
21 pickup truek.! and pick up one or two eppliances. But that
22 slUIT wasn't designed to melt. They don't spread it on
23 the roads or anything.
H Q Do you know where that material Clll11C from,
25 where it was purchased from, how it got thcn:?
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1 A No. I don't.
2 Q Mr. Miller m''I1lioned Ihat he believes Ihat one
3 place where he rem''1llbers il being delivered from was
4 Harrisburg Paper Company, Docs Ihat refresh your
S n.'colleetion of when: il may hove come from"
6 A That rings a bell,
7 Q Do you know where lIamshurg !'aper Company is'!
8 A Yes,
9 Q When: is il'! Are you going to tell me
10 HarrisbW]!'!
11 ^ They changed it.
12 Q When: is thaI'!
13 A I think it's off of Derry SIn:ct here, It's
14 across from Ihe Easl Mall. across 83 there.
IS Q Hus your reeolkclion been refreshed as to who
16 may have delivered Ihe..
17 ^ II was Harrisburg Paper,
18 Q It's your underslanding that Ihis is like some
19 type of pellets'!
20 A lee-Meil, the stuff everyone buys for at Iheir
21 house, the little while balls. Tex used a lot of it out
n by Ihe guard house,
23 Q Did you ever observe Ihat material being used
24 in and around where the troilers were parked?
25 ^ No.
Page 2S
1 Q Never?
2 A Never.
3 Q Did you ever observe the company who would do
4 your snow plowing use some type of anti-skid, slip,
5 aggregate of some kind on the parking lot, on the lot"
6 A In 1992?
7 Q Right. Or at any time. Let's talk about any
8 time.
9 ^ Yes.
10 Q When was that? When was the first time you
11 observed that being done"
12 ^ I can't remember.
13 Q Was it before December of '92 or after December
14 of '92"
IS ^ I would say after.
16 Q Now, have you observed -- I'm going to use the
17 word anti-skid material as a generic fonn, salt, cinder,
18 sand, aggregate, that type of stuff, Quik-Joe, whatever
19 you want to call it. Ice-Melt. Have you seen that
20 anli.skid material used in and around the trailers where
21 the trailers arc parked',
22 ^ No, just the lane of traffic.
23 Q You say just the lane of traffic',
24 ^ Yeah.
25 Q That would be the n where the trucks would
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I huve to drive through to get to the dooN" I one at the front door where you walk in the office and one
2 ^ Yes. 2 at door 1. That' s a concrete rump to get up into the
3 Q So where the traikN are bocked up back to the 3 wlll'Chouse,
4 loading dock, you have never ob>;Cl'Ved any anti-skid 4 Q Did DMC have any type of truck or any other
$ malc-nal? $ piece of .:quipment that could have been used to spread the
6 ^ No, 6 Ice' Melt?
7 Q In and around that =? 7 A No.
8 A (Shakes head negatively,) 8 Q Were you working on December 28th of 1992?
9 Q Is there any reason why it's not used in that 9 A I can't answer that.
10 1ll'Cll'} 10 Q Did anyone ask you to check your records or
II A There's too many lrailers in the yard, II your time shc:cl.'lto see whether you wm: working on that
12 Q When snow plowing activities would take place, 12 day'}
13 would the trailers be moved to accommodatc: the snow 13 A HlIS anyone lISked me'}
14 equipme'llt to move the snow in and around the traikrs'} 14 Q Y.:ah, hll:! anyone asked you to check that?
1$ A To a certain ext<.'llt, U A No, I know they probably have the time cards
16 Q I take it that would be something you would do? 16 yet from that time period.
17 A Yes. 17 Q lIus anyone told you that you wen: working or
18 Q So if a company such lIS Wintc:nnyer would come 18 not working?
19 out to do snow removal, you have in the pust moved 19 ^ No.
20 trailers away from the docks so Ihat they eould plow the 20 Q Do you know what the weather conditions were
21 snow more efficiently? 21 that day?
22 A Yes, 22 A I don't know.
23 Q Have you SCl.'ll those trucks that are removing 23 Q HlIS anyone told you what the weather conditions
24 the snow also spread anti-skid matc:rial on the lot at DMCI 24 Wl:I'C that day?
2$ ^ 'This is in '92? 2$ A No.
Page 27 Page 29
I Q At any time. I Q Have you had any discussions with Mr.
2 A Yes. 2 Sabotchick or Mr. Miller or Mr. Kline or Mr. Clifton about
3 Q When was the nrst time you saw that happen? 3 this lawsuit, this deposition?
4 A I can't rcrncmber. They were using within -- 4 A I know Sieve had to come in here nrst, and I
$ they got the tires on about six foot high or whatever, the $ lISked him what it was all about.
6 front end loaders, That's what they wm: using to remove 6 Q What did he Iell you?
7 the snow. They scraped it down pretty good, 7 A He explained to me it WlIS just a question ..
8 Q Are these skids of Ice-Melt still there today? 8 you know, question.
9 Do you know? 9 Q Did you look at any documents or papers or
10 ^ I can't answer that for sure. I believe they 10 photographs or diagrams or anything like that before
II had some left OVe". They bought, like Dickert said, three II coming here today?
12 or four skids of it, forklift mechanics brought it in the 12 A No.
13 back of his truck, taking that home, people were helping 13 Q In preparation for your deposition. No?
14 themselves to it. The only way to spread that stuff you 14 A No, I did nil out a paper .. it was like a
U carry a bag around. 1$ questionnaire probably coming up on two years.
16 Q The only way to spread it is to carry the bag 16 Q Where were you when you ntled out that paper?
17 around? 17 A Curt Clifton gave it to me, At work.
18 A Ves. It Wlll",'t designed 10 do big an:WI. 18 Q It was some type of written questions that you
19 Steps, sidewalks. 19 had to put answers down to?
20 Q Was that material in the 50'pound bags ever 20 A Ves. Yes and no.
21 broke'll down into, say, 5.gallon buckets? 21 Q Do you have any nrsthand infonnation about
22 ^ Ves, 22 what happ<'lled to Mr. Dickert on that day? By that I menn,
23 Q Do you have any idea how many buckcts of this 23 nrsthand meaning either you saw it, you observed it? Let
24 material was around in 1992" 24 me ask it tbis way: Were you present wh<.'ll Mr, Dickert
2$ ^ I would say four. Two at the guard house and 25 feU on I),:u:mber 28tb. 1992?
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1 A (='t answer that
2 Q Did you see him fall?
3 A No, ( = 't answer that either,
. Q Why can't you answer that?
5 A Because this happened at lctl o'clock at night,
6 Q Right
7 A (wouldn't have been there.
8 Q Wu there ever an occasion where you were
9 called back after your rltSt shift was compleled tn come
10 back and do something?
11 A Yes,
12 Q On what ocellSions?
13 A To move trailers,
I. Q Did you ever have a conversation with Mr,
" Dicl<crt after his fall .- that's the question, Did you
16 ever have any convtrSlltion with Mr, Dickert after he fell,
17 at any time after he fell?
18 A I've talked to him at a funeral a couple weeks
19 ~o,
20 Q Wbcrc was the fUllCl'lll?
21 A For (ndiantown Gap. (just asked him how he
U WIIS doillll, and he said lIS well lIS can be expccled. That
23 was it
2. Q Whose funeral was it?
25 A He used to work for Builders Transport and then
Page 31
1 we hired him. David Irving.
2 Q David Irving used to work for Buihlt:rs
3 Transport, then ERX hired him, and then he died?
. A Yes.
5 Q Let me rcask the question. Have you had any
6 conversation with Mr. Dickert lIS to hi. fall, lIS to what
7 happened, bow it happened, what he was doing, where he
8 was?
9 A (can't answer that ('m not-- afler it
10 happened - I can't give you a yes or no answcr,
II Q Now, Mr. Dickert hIlS a nickname. Do you know
12 what it is?
13 A Pappy.
1. Q Is thlll how you refer to him?
" A Yes.
16 Q Has anyone told you how Mr. Dickert's fall
17 occurred, what happened?
18 A I heard he slipped on the ice.
19 Q Do you know ....ho you heard that from?
20 A It would have been the security guard.
21 Q Who was the security guard that you heard that
22 from?
23 A Tex.
2. Q Do you know whether Tex WIIS on duty when it
2S happened? This would have been llI'Ound ll.'ll o'clock at
Page 32
1 night
2 A lIe Will! a lIaylight guard, so""
3 Q Do you know who lhe night time gunrd WaS in
~ DcC<.'111hcr or '92. or numes of any or the guard.'!
5 ,\ Yeah. 1 knew lwo of Ihem. hUl I'm lrying to
6 lhink of lheir names. Yes, One Wll.' Harold Slokes, I
7 b<:lieve he was lhe one from midnighlto 8. I'm not sure
8 or the guard that was nn second shift, I'd know his name
9 if you said it (don't know lhe name.
10 Q Who was the person or persons at DMC who would
11 make the de 'Cis ion 10 call ror a company like Wintcnnycr to
12 come out and eilher plow snnw or put anli-skid malerial?
13 A Sieve Sabolehick,
I~ Q Did you have any involvement or inpul in making
15 lhat d,cision'! For instan.:c. you'd come in and, hey,
16 Sieve, it's getting bod out here. you betler call them,
17 Or, hey, we nced this in this area. it's so. like, you
18 should see it, I nearly ran inlo a trailer, or somelhing
19 like thaI" Do you see --
20 A Yeah, (understand, Sieve's the kind of guy
21 that would like to make that call first. (would just put
22 chains on the lruck and ('d through the snow with chains
23 on it
24 Q Do you remember on Decemb<:r 28th, 1992. you had
25 chains on your truck when you wc'" in the yard that day?
Page 33
1 A No. I don't n:memb<:r,
2 MR. PRICE: l'm sorry. whut was the question
3 again?
4 MR. HaLKO: Whcther he had chains on his truck
5 on December 28th, 1992,
6 MR, PRICE: He doesn't know if he worked that
7 day,
8 BY MR. HaLKO:
9 Q Since the time you slarted working with DMC.
10 even today when you're working with ERX. huve there been
11 occasions where the lot hIlS been so icy that you have
12 called or Sieve hIlS called or someone hIlS called from DMC
13 for an outside contractor to come in and spread anti-skid
14 material on the lot?
15 A Yes.
16 Q When WIIS the r ltSt time that you can recall
17 that happc'lling? You startcd thcre in '88.
18 A First time,
19 Q Let me ask it this way" did that occur at any
20 time b<:fon: o<:cemb<:r of 1992? That would be like the
21 Winter of '88, '89, '90 and '91.
22 A No, because the winters we'11.'ll'l really that
23 rough. And not to sound like they wen: cheap, but we got
24 to watch the snow removal budget.
25 Q Who would say that'!
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
.......,
Page 34
I A Curt Clifton,
2 Q So you were aware there was a hudget for "'OW
3 removalllCtivilies'l
4 A I believe,
S Q What about ~incc Dcccmber of 'no how many
6 occasions has somcOI1l: ba:n called to apply ant;.skid
7 material on an icy lot at DMC'.'
8 A When we changed over to ERX ..
9 Q Yc:ah, ERX.
10 A When we changed over to ERX. it was like money
II was no object as far as snow removal.
12 Q When DMC changed to ERX. do you know whether
13 that was an entirely new company? I mean as far as n
14 A I Ix:lieve we just changed our name, I'm not
I S sure how that went.
16 Q Did the personnel change at all betwa:n the two
17 companies?
18 A Yes.
19 Q What personnel changes were there?
20 A Safety department, the head of the safety
21 depurtl11t.'nt, transportation department, people that were in
22 charge" they got their own tractor-trailers now, person
23 in charge of lhem. Sc:eurity chant!",
24 Q Now, Curt Clifton was the president of DMC.
2S right'!
Page 35
I A That wa Chuck Kline.
2 Q Chuck Kline, ('m sorry. Who is the president
3 of ERX7
4 A ('m not sure. I Ix:lieve Chuck Kline.
S Q Is Chuck Kline with ERXI
6 A Yes.
7 Q Now, I'm going to show you a set of questions
8 and answers that have ba:n provided to me by DMC's
9 attorney, and these are questions that I proposed to DMC
10 to Ix: answered. Number 23 says: State the name, age,
II address, occupation and placc of employment of every
12 person known to you .. that is, to DMC - your
13 attorneys.. their attorr.eys .. agents. servants and
14 employees who have knowledge of any relevant fllCts
IS pertaining to this lawsuit. Lawsuit meaning Mr, Dickert's
16 lawsuit.
17 The answer was: Sex 8, 8 says: Vista Two had
18 no employees on site, It was a landlord out of
19 possession. Then they also give you Sieve Sahotehick and
20 his address. first shift supervisor. And Curtis Clifton.
21 And they say, warehouse manager, Those are the people who
22 W\.'1"C idt.."tified in No, 8.
23 No. 22 says: State the age, name. address.
24 occupation and placernL."t of employees of all persons in
2S the immediate vicinity of accident SCL"'C,
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Multi-PagclloC
BRIAN P. BAHN
NOVEMBER 6, 1996
Page 36
I Vista Two had no employees on site as it was a
2 landlord out of possession. Distrihution, Brian Bahn, 32
3 years old, lawn jockey, ERX locations, 463 Park Drive,
4 Carlisle, PA. 170ll. Reserve the right to supplement
S this re'"jlonse.
6 That's important because No. 24 then says: For
7 each of the persons named in the foregoing intcrroglllory ..
8 that's No. 23, which refers to 8 alld 22 .. please
9 summari2C the facts known to each. And it says here:
10 Bahn had a convCl'Slltion with plaintifT.. I take it that
II means Mr. Dickert .. a few days after the incident, and
12 plaintifT stated he slipped ofT the steps of his tractor.
13 Sabotchick was told this by Balm. Then reserved the right
14 to supplement this response.
1 S Now, these answers were verified, I believe ..
16 MR, PRICE: October 25. '95,
17 BY MR. JlOLKO:
18 Q By Charles Kline and a David Boston. He's with
19 Vista Two, Let me show you No, 24. That's the one that:
20 Said Bahn had a conversation with plaintiff a few days
21 after the incident, and plaintiff stated he slipped ofT
22 the steps of his tractor. Did you ever have such a
23 conversation with Pappy?
24 A It was such a long time ago. I remember
25 putting Ihat down. I remember telling Curt Clifton that,
Page 37
I too.
2 Q Telling Curt Clifton what?
3 A That Pappy fell out of his truck.
4 Q Fell out of his track?
5 A Off the ladder on the side of his truck.
6 Q Did he fall out of his truck or did he fall
7 from the ladder on the side of his truck?
8 A Cab-over you got to get out and crawl down a
9 Iaddcr to get out of it.
10 Q So you told him he fell out of the truck and
11 fell off the ladder?
12 A The steps. The steps on the side.
13 Q This says fell off the step of his tractor. Is
14 that what you told him?
15 A Curt?
16 Q Or did you tell him something different? Yes.
17 A That was a year and a half ago when I wrote
18 that, wasn't it?
19 Q Right. It's dated October of '95, so yeah, a
20 year ago, over a year ago.
21 Let me ask it this way: Do you have a
22 recollection today of having a convcrsation with Micl1acl
23 Dickert a few days after this incident.. that's number
24 one. Do you have a recollection that you had a
25 conversation with him a few days after this incidemt?
Page 34 - Page 37
BRIAN P. BAHN
NOVEMBER 6 1996
.-.
Multi-Page'"
,
Page 38 Page 40
I Which would have been a few days after December 281h, I Q II appears from this answer. interrogatory No,
2 1992. RighI bc:fore New Year's, around New Year's, 2 24, thai Mr, Diekert was lhe one who supplied you wilh
3 A I can'l answer that. If 1 have il down there. 3 that infonnation. falling out of Ihe truck, II appears
4 llJUCSS I did. 4 from your answer Ihat it may hnve heen ,;omehody else who
, Q Do you know where that conversation took plucc? S supplied that infonnation from you other than Mr, Dickert,
6 A The only lime ( n:nlly could talk to him was 6 Do you know who it wa.<?
7 QUI at the guard house, 7 ^ Anolhcr Builders driver maybe,
8 Q Do you remember whether it WIIS in '92, or 8 Q Anolher Builders driver"
9 beginning of '93? 9 ^ Could have been, I'm trying 10 Ihink.
10 A No, I don't. 10 Q Whal other Builders drivers do you know"
II Q Do you remember whether UlCre was anyone II A One's dead, Paul Zacher, he's still employed
11 pl'C3CllI other than you and Mr, Dickert? 12 with us,
13 A I used 10 go OUI In the guard house 10 gel 13 Q Paul Zacher"
14 W1II1Il. The only penon .. if II haPP','ncd oulthere .. 14 A lie came from Builders Transport to work for us,
" would bave been Tex. IS Q What docs he do for you?
16 Q Do you know whelher Mr, Dickert was standing 16 ^ Drive tractor' trailer, I a.<ked David Irving. I
17 outside the guard house, standing Inside the guard house, 17 said, how come you're not involved in any of this, 111em
18 was talking 10 you from his truck? 18 guys were tight wllh Pappy,
19 A No, I don't. 19 Q Dave ..
20 Q Do you know how long the conversation laslCd? 20 A He's dead,
21 A No. 21 Q When you say that those guys were tight with
22 Q Do you remember whal you said to Mr, Dickert? 22 Pappy, do you mean hOlh David Irving and Paul Zacher"
23 A No. 23 A Yes.
24 Q Do you remember whether Mr. Dickert said 24 Q Can you tell me now who il w.. Ihal told you
:l! anything else to you? 2S Ihat Pappy fell out of the truck or fell on the ladder or
Page 39 Page 41
1 A No, I slipped on the step'!
2 Q Do you recall any of the words !bat Mr. Dickert 2 A ('m Ihinking. 1 can't answer the question,
3 used during thaI conversation, any of the wonls or how il 3 Q Are you sure Ihat anyone said It as you sil
4 came aboat that it was even Ialking 10 you about falling? 4 bere today, thaI he fell out of Ihe truck?
, A No, I don't. That was a long time ago. S A Yes, someone did,
6 Q Do you bave a recollection today of lClIing Mr. 6 Q You just don't know who it was or when they
7 Saboll:hiek what Mr. Dickert had told you at some polnl in 7 told you it? Or could someone have suggested that he
g time? 8 probably fell oul of his lruck or off the ladder and is
9 A ThaI he said he fell on the ice? 9 blaming OMC for il?
10 Q Yes. 10 A I can' I give you an answer to thaI.
II A Pappy said be fell on the ice trying to hook up II Q You jusI don't know?
11 to a trailer or slide the tandems. 12 A (Shakes head negatively). I want to say Tex,
13 Q That's what you rccalllClIing Mr. Sabotchick? 13 but I'm nol supposed 10 give a guess.
14 A Somewhere along the line I beard he rell oul of 14 Q Y QU I re not sure.
I! his truck off the ladder. IS A No,
16 Q Do you know .- 16 Q Would you say thaI your recollection about whal
17 A Then somehow the story, he did il on the 17 was said and who said il and when il was said is basically
18 property, be slipped on the ice. 18 exhausted'!
19 Q You said somehow you heard thaI he fell out of 19 A Yes.
20 the truck? 20 Q W0uld Ihen: he anything Ihal would help refresh
21 A That was probably the first thing I heard aboul 21 your n:collection aboul what was said. who said it, whe"
22 it. 22 it was said, how It was said. why it w.. said?
23 Q Do you remember who you beard it from, because 23 ^ I don't know,
24 it appears that .- 24 MR. HOlKO: 111at'5 all the questions I have,
2S A It would have had to be Tex or Steve. 2S 11\anks.
Page 38 - Page 41
HUGHES, ALBRIGHT, FOLTZ &. NATALE
717-232-5644/393-5101
"'""
Multi-Page 110l
..r-'.
BRIAN P. BAlIN
NOVEMBER 6, 1996
Page 42
COU'HTV OF CUJoCBI!,HAtlD I
I CROSS. EXAMINATION I os
1 BY MR, PRICE: 1 COMMONWP.ALTII 01' PENNSYLVANIA:
3 Q Just a couple questions. My name's Kent Price. J I, Karen C, Albright. a Nol4ry Public,
4 I represent Wintermyer. 4 authori:red to adminisler oaths within and for the
, Did Mr. Dicken, to the best of your knowledge, , Commonwculth of Pennsylvania, do hereby certify that the
6 operalC the same tractor on a regular basis? 6 foregoing is the leStirnony of BRIAN BAliN.
7 A Yes. 7 I further certify that before the taking of
8 Q Do you know what kind it was? 8 said deposition, the witness WllS duly sworn; that the
9 A' 87, 1987 Freightliner, cab.ovcr. 9 questions and answers W<:TC taken down stenosraphically by
10 Q The step or steps that he would use to get into 10 thc said Reporter.Nol4ry Public, and aflcrwards reduced to
II and out of the cab, how many wen: there? II t)'lkoowriting under the direction of said Reporter.
11 A I would say four. 11 I further certify that said deposition was
13 Q Did they stick out from the side of the cab or 13 llIken at the time and pl= specified in the CIlption sbcct
14 were they indentations? 14 bcrcby. I Further certify that I am nota relative or
I' A They were flush. I' employee or attorney or counsel to any of the pllTllcs, or
16 Q So they were indentations'! 16 a relative or employcc of such allomcy or counsel, or
17 A There's one indentation right underneath the 17 financially interested directly or indircclly in this
18 door, The rest was an alwninwn ladder that come down 18 action,
19 behind the front wheel. 19
20 Q The steps on that ladder, are they flat or arc 20
11 they tubular? 21
21 A I drove the tractors. They were flat with 22
13 raised grips on them. 23
24 Q So they had a pallern or tread on them? 24
l' A Yes.
. ' Page 43
I Q Back in December of 1992, my understanding From
1 what you told us beFore is that there were two shiFls that
3 were involved with the warehouse or the loading docks, is
4 that correct?
, A To the best of my knowledge,
6 Q With regard to the offices, were there two
7 shiFls of personnel for the office or just one shift?
8 A There was probably one or two girls in the
9 oFfice.
10 Q At what time?
II A It was .. I don't want to say skeleton crew,
11 but that's what it was, Then: wen: more people in the
13 warehouse than then: was in the oFfice, I think two in
14 the oFfice to answer phones,
" Q You're talking now alicr 4:00 in the alicmoon'!
16 A Yes.
17 MR. PRICE: That's alii have. Thanks.
18 (The deposition was concluded at 2: 17 p.m,).
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Page 44
I Further certify that said deposition constitutes
a true record of the testimony given by the said witness.
IN WITNESS WllfREOP.1 have hereunto set my hand
this 14th day of February, 1997,
KM.BN C. ALBRIGHT, iliA
Nolnry Public
Page 42 - Page 44
~
Mulli-PagcTM
& - brought
BRIAN P. BAlIN
2:30(.1 9:11 14:20 activitIes (1) 16:12 35:13
-&- 19:6 21:24 34:3 authorized (II 44:4
8".) 1:23 address (.1 5:15 35:11 available (II 13:2
1:19 .]- 35:20 35:23
1:26 1:29 average (II 14:12
3(11 2:4 adjourn (I) 4:16 aWU'C!11 34:2
-'- 305111 I;;W administer III 44:4 away III 26:20
32(11 36:2 affect III 5:8
'87(1) 42:9 affirmatively III 11:8 -B-
'881S1 8:3 8:5 33111 6:5 afternoon III 9:11
8:15 33:17 33:21 3511) 16:JIl 21:25 43:15 B-A-H-N(l1 3:15
'89111 33:21 afterwards III 44.10 backed 1'1 13:9 26:3
'90111 JJ:21 -4- again III 33:3 backing 111 10:4
'91111 JJ:11 4PI 9:7 17:9 against (I) 3:18 14:11
'92(1'1 9:9 10:19 17:10 age 111 35:10 35:13 bad(11 32:16
11:12 11:24 12:25 40(11 14:6 bag 111 27:15 27:16
13:23 14:1 16:7 42111 agents (II 35:13 bags PI 23:8 23:10
18:12 22:13 25:13 2:5 aggregate 1'1 25:5
27:20
25:14 26:25 32:4 43111 12:17 13:19 25:18
34:5 38:8 23:9 7:22 30:19 BAHLS II) 1:23
ago (11 Bahn (101
'93111 17:1 38:9 463111 36:3 36:24 37:17 37:20 1:14 1:3
'95111 37:19 4:00111 19:5 43:15 37:20 39:5 3:8 3:13 3:16
36:16 36:2 36:10 36:1J
ahead 111 4:2 9:19 36:20 44:6
-1- -5- AI(II 22:3 balls (II 24:21
1111 23:19 28:2 5(11 16:18 Albright (ll 1:16 basis(ll 20:5 20:6
5-gallon (II 27:21 44:3 44:23 42:6
106(1) 5:17 Allen PI 17:3 17:16
12111 17:9 17:10 50(11 23:8 23:10 17:22 beC&mC(118:10
12:50111 1:18 50-pound II) 27:20 along 1'1 9:25 39:(4 becomc(1l8:12 11:10
14th (II 44:22 aluminum (II 42:18 began (II 19:5
15(JJ 16:12 19:11 -6- always III 9:16 beginning (II 38:9
19:12 6(11 1:18 9:11 Ann II) 18:25 behind (II 42:19
17055111 5:20 36:4 14:20 14:22 16:11 anSWer(111 5:9 believes (II 24:2
18th(11 5:2 5:3 16:18 16:21 14:2 17:8 27:10 bell (II 24:6
191-54-6662(11 6:3 60111 14:7 28:9 30:1 30:3 best (ll 12:3 41:5
1963(11 6:7 6:00(11 16:17 30:4 31:9 31:10 43:5
1980s (II 7:23 35:17 38:3 40:1 better (II 31:16
40:4 41:2 41:10 betwccn 131
1981 (II 6:11 -7- 43:14 3:2
1986111 7:23 7130111 1:5 answered (II 16:21 34:16
35:10 Bialkowski (ll 1:26
1987(1) 42:9 7th (I) 6:7 answering III 4:2 1:17 4:6
1988111 8:2 8:22 answers 1.1 29:(9 biglll 27:18
1990(1) 23:13 -g- 35:8 36:15 44:9 bills (I) 15:11
1992(111 3:23 9:14 8111 9:7 16:21 anti-skid 1"1 22:11 birth (II 6:6
23:11 15:6 27:24 32:7 35:17 35:17 22:18 23:4 25:4 Black III 7:24
28:8 29:15 32:24 35:12 36:8 25:17 25:20 26:4
33:5 33:20 38:2 83111 24:14 26:24 31:12 33:1J blaming (II 41:9
43:1 34:6 block (11 12:22 13:3
1993 (II 8:21 8:00(11 16:21 anti-slip (II 22:18 blocks 111 15:9
1J:1I
1996111 1:18 -9- Apartment III 6:1 body III 6:21
1997111 44:22 APPEARANCES 111 Book (II 7:14
90(1) 14:19 1:22 Boston (II 36:18
-2- 94111 1:5 applianccs (ll 11:2 bougbt(1) 27:11
11:3 23:21
20(11 14:6 -A- apply III 34:6 break (II 4:5
21111 18:6 18:22 Arbor(1) 18:25 breaks (II 15:7
22111 35:23 36:8 a.ml.1 9: II 14:20 Brian 1'1 1:14 2:3
23(l1 14:22 16:18 area ('I 11:1J 21:4 3:8 3:1J 36:2
35:10 36:8 22:15 26:7 26:10
24PI 36:6 36:19 ability III 5:8 32:17 44:6
40:2 accident (ll 4:10 areas (II 27:18 bring (JJ 10:7 10:10
25111 36:16 35:25 23:4
28th ('I accommodate (11 4:7 assumcll) 21:5 bringing 111 10:11
3:23 28:8 26:13 attorney (.1 4:6 12:7
29:25 32:24 33:5 accurately II) 35:9 44:15 44:16 broken II) 27:21
38:1 17:8
2:17(11 action 111 1:4 44:18 attorneys 1'1 35:13 brought 1'1 10:6
43:18
HUGHES, AI.BRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Index Page I
- ulesclllJ
I 21:11 3':2 3':4 3':' Curt ('I 29:17 34:1 16:2
buckets (11 21:21 cindcf(ll 2':17 34:24 36:2' 31:2 diffcrentlll 31:16
21:23 eindcrs (II 22: 11 31:1' DIRECT 111 2:2
budget [11 33:24 34:2 CIVIL (11 1:4 U Curtis III 18:3 18:12 3:10
Builders (101 11:18 clarify [I) 16:201 35:20 direction III 44: II
11:19 11:20 11:23 customers II I 10:11 directly (II
clcal(ll 4:2 16:1' 44:17
30:25 31:2 40:1 clcarly (II 5:8 discomfort (II 4:"
40:8 40:10 40:14 -D-
building ('I 13:21 Clifton 1'1 18:3 18:12 Discussion 111 12:4
15:1$ 22:12 29:2 29:17 34:1 daily (II 20:5 19:1
busy ['I 13:24 13:25 34:24 35:20 36:25 date III 1:18 5:3 discussions {II 29: 1
14:11 37:2 6:6 distribution 111 1:7
buya[11 24:20 cloSC(11 16:17 datcd(11 37:19 1:28 3:18 1:25
Club (II 7:14 DavC{11 40:19 14:13 18:20 36:2
-C- CO(II 1:10 Davidi'l 31:1 31:2 DMC 1]11 8:3 8:5
COdCll1 5:19 36:18 40:16 40:22 8:7 8:23 9:1
C(41 1:16 1:30 coming [119: 17 10:15 daylight 1'1 9:1 10:19 10:25 14:9
44:3 44:23 10:20 11:23 12:10 16:7 16:10 20:2 14:10 14:13 16:6
16:11 17:5 19:19
cab PI 42:11 42:13 20:6 29:11 29:15 32:2 19:20 22:6 22:11
cab-ovcr [11 31:8 COMMON III 1:1 days ('I 5:1 36:11 26:24 28:4 32:10
42:9 CommonwcalthPl44:2 36:20 37:23 31:25 33:9 33:12 34:7
caption 11144:13 44:5 38:1 34:12 34:24 35:9
cards [II 28:15 companics PI 11:22 dcadPI 40:11 40:20 35:12 41:9
Carlialc [II 36:4 34:17 Dcccmbef(]ll 3:23 DMC's [1135:8
Carolina ['I 6:17 company [101 6:13 9:9 10:19 11:22 dock III 12:23 26:4
6:18 6:22 6:16 22:22 22:25 12:25 13:23 13:25 docks (11 26:20 43:3
16:6 18:12 22:13
carricrs [11 9:21 24:4 24:7 25:3 25:13 25:13 28:8 doctof(11 5:6
11:14 26:18 32:11 34:13 29:25 32:4 32:24 documents [11 29:9
c&nyI'1 21:14 27:15 complcted (I) 30:9 33:5 33:20 34:' doesn't (II 33:6
27:16 concludcd [I) 43:18 38:1 43:1 doncPI 20:14 22:23
cars (11 7:6 1:1 concrete [II 28:2 dccision PI 32:11 25:11
case [I] 3:11 conditions (11 28:20 32:15 dOOr(1I1 10:23 11:12
ccrtaiD [II 26:15 28:23 Dcckcf(11 7:24 12:8 12:12 12:17
certification (II 3:4 conlumcd [I) 16:19 DEFENDANT III 1:31 12:23 23:9 23:19
certify IS) 44:5 44:7 connccted [II 12:23 dcfcndants 1'1 1:13 28:1 28:2 42:18
44:12 44:14 44:19 constitutes (I] 44:19 1:28 3:19 doors 1101 9:24 10:3
chain III 12:23 contact [II 21:18 dcfinc [II 4:1 10:4 12:2 13:6
chains 141 32:22 32:22 continue [11 4:16 dclivcred III 10:25 13:18 13:20 13:20
15:3 26:1
32:25 33:4 continuously [11 8:23 24:3 24:16 down 1111
chancc (II 3:21 dcpartment ['I 14:11 16:5
1S:5 34:20 16:17 27:1 27:21
changc ('I 8:20 34:16 contractOl(l1 33:13 34:21 34:21 29:19 36:25 37:8
34:23 conversation [111 30:14 depending [II 20:6 38:3 42:18 44:9
changed [11] 8:7 30:16 31:6 36:10 dcposition 11]1 1:14 drivc ('I 18:6 18:23
8:19 14:7 16:24 36:20 36:23 37:22 3:20 4:12 4:16 26:1 36:3 40:16
11:3 11:6 24:11 31:25 38:5 38:20 12:21 16:16 29:3 driver ('1 9:18 12:16
34:8 34:10 34:12 39:3 29:13 43:18 44:8 17:2 40:1 40:8
, 34:14 Corporation [41 1:8 44:12 44:19 drivers ('I 12:6
changes [I] Deny [II 13:6
34:19 3:19 8:1 18:21 24:13 16:25 17:1 40:10
chanocl (II 21:10 correct(11 4~:4 describe (II 13:25 drop (11 9:19 15:1
ehugc (II 1$:14 17:21 counsel Il] 3:2 designated [II 11:13 dropped ['I 10:18
11:23 17:25 18:16 44:15 44:16 dcsigned (11 23:22
18:17 34:22 34:23 10:22 11:16
County 1'1 1:2 3:18 27:18 dropping [I]
Charlcs [II 12:12
36:18 44:1 diagrams (II 29:10 drovclll 42:22
Charlotte 121 1:1 couple ['I 5:1 10:6 Dickert (111 1:1 duly (11 3:8
3:11 16:25 30:18 42:3 1:2 3:17 3:24 44:8
cheap (II 33:23 COURT [II 1:1 21:11 29:22 29:24 during [1114:11 8:25
eheck(,] 9:18 12:16 crawl II] 31:8 30:15 30:16 31:6 15:6 16:1 16:10
12:11 16:4 28:10 31:11 36:11 37:23 17:4 17:23 17:25
28:14 crew III 43:11 38:12 38:16 38:22 19:3 20:1 39:3
checking (II 15:11 CROSS III 2:2 38:24 39:2 39:7 duties III 9:22
CROSS-EXAMINA TlON 40:2 40:5 42:5 duty III 31:24
chock (41 12:22 13:2 [II 42:1 Dickert's (11 31:16
13:11 15:9 Cumberland 1'1 1:2 35:15
Chuck 1'1 18:19 35:1 l:18 44:1 dicd[11 31:3 -E-
1"""\
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\
Indcx Page 2
HUGHES,ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-510 I
Elll .
1:10 1:10 37:10 37:11 37:13 11:5 11:11 14:11
Eastlll 14:14 39:9 39:11 39:14 17:15 31:10 31:11 -I-
efficiently (II 16:11 39:19 40:15 40:15 31:1 31:3 31:8
either 141 14:15 19:13 41:4 41:8 38:7 38:13 38:17 ice (4) 31:18 39:9
30:3 31:11 fCW('1 11:11 36:1 I 38:17 39:11 39:18
ELSTON III 1:11 36:10 37:13 37:15 guards 121 19:19 31:4 lce-Mclt 1'1 23:8
employed 1'1 38:1 guCSSIIOI 9:16 10:1 I 14:20 15:19 27:8
8:23 filing (11 3:4 11:10 13:3 13:21 18:6
8:25 9:1 :9:20 fillrll 29:14 14:3 16:15 19:5 icy 121 33:11 34:7
40:11
cmployee (21 filled III 19:16 38:4 41:13 idca 121 14:12 27:23
H:IS financially II I guy I'l 17:22 17:25 idcntificd (II 35:22
44:16 44:17
cmfloyccsl'l fioclll 13:5 32:20 immediate (II 35:25
12:6
3 :14 35:18 35:24 lam ('1 15:15 15:16 guys (11 17:20 40:18 important II) 36:6
40:11
36:1 15:10 16:2 inbound ('I 9:17
cmfloytnCnt 121 7:11 firstllll 8:3 17:25 -H- 10:20 11:4 11:14
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Index Page 5
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BRIAN P. BAlIN
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yard ("I 8:11 8:12
9:18 9:19 9:23
9:2S 10:22 13:12
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
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RICHARD B. MILLER, SR.
NOVEMBER 6,1996
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I that you have a clear, fair question before answcriDll,
CROSS REDIRECT 2 Okay'!
3 A Um-hum,
-- 41 4 Q One of the thing' that you'll have to do duriDll
39 -- 5 the deposition is spc:llk words so thattbe stenographer
6 hen: can take those down. Okay?
7 A Okay,
8 Q If at any time you need a break, if you'd like
9 to sland up and walk around, there's no requirement that
10 you stay scat.cd, please feci free to do so, If there's
I I something you'd like to discuss with your attorney, Mr,
12 Bialkowski, who is sining ncxtto you today, Let us know
13 and we'll accommodate you, Okay?
14 A Okay,
IS Q Would you please tell us your full nlUl1C?
16 ^ Richard Eugene Miller, Sr..
11 Q How old arc you, sir'!
18 ^ 59,
19 Q Where do you live?
20 ^ 572 Gutshall Road in Boiling Springs,
21 Q What's the zip code there?
22 A 17007,
23 Q What is your social security number?
24 A 198-30-0726,
25 Q How long have you lived at your current
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I WITNESSES
2 NAME DIRECT
3 RICHARD E, MILLER. SR,
4 BY: MR, 1I0LKO 3
5 BY: MR. PRICE -
6
7
8
9
10
II
12
IJ
14
IS
16
17
18
19
20
21
:'"
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I STIPUlATION
2 It is hercby stipulated by and betwccn counsel
3 for the respective parties that reading, signing, scaling,
4 ccrtificutlon and filing are hereby waived; and that all
5 objc<:tion, exccptas to the fonn of the question arc
6 rcserved to the lime of trial.
7
8 RICIlAJlD E. MILLER. SR" called as a witness,
9 being duly swom, testified as follows:
10 DIRECT EXAMINATION
II BY MR. 1I0LKO:
12 Q Good morning, Mr, Miller, My nlUl1C i, Joe
13 Holko, and I'm an attorney rcprcscnting Michael and
14 ChlU'lolte Dickert in a case that's bc:n filed in
15 Cumb.:rland County against Distribution Management
16 Corporation, Vista Warehouse Two and Leon E, Wintermycr,
17 Inc" and also Elston Richards, Inc.. You have been asked
18 to be hen: today to give m~ an opportunity to ask you some
19 questions about what you know about an inci&:nt which
20 oceurred on December 28th, 1992, at th~ DMC warehouse and
21 101 on that date,as well as information that you may have
22 after that date, as well lIS before that date, I'm going
23 to be asking you a series of questions, and if at any tim~
24 you don't understand on~ of my questions, please slop me,
25 ask me to repent the question or n:phras~ the question so
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
I address?
2 A 57 years_ I beg your pardon. Yeah. It would
3 be 57. 57 years, yeah.
4 Q Since you were II child you lived in the SlUllC
5 place?
6 A I've lived there, yeah.
7 Q Arc you married, sir?
8 A Yes, sir.
9 Q What is your wife's nlll1\C?
10 A Arlene Anitll.
11 Q Arc you currently employed?
12 A Yes.
13 Q Who is your employer?
14 A ERX Logistics.
15 Q Where is it thllt you go to work?
16 A 21 RoadwllY Drive.
17 Q What is locllted at21 RoadwllY Drive?
18 A ERX warehouse.
19 Q Was the ERX warehouse known lIS the DMC
20 warehouse at some time?
21 ^ Yes, it was.
22 Q When did it change nlUl1Cs?
23 A Approximately two years IIgo.
24 Q WeI'C you employed with the DMC warehouse
25 operation?
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I A Yes, I was. I Q Were you responsible .- wu.~ Ihat .. were you
2 Q When did you start there'! 2 finished'! I'm sorry, I don't want to interrupt you,
3 A October 1st, 1990. 3 Yes'!
4 Q What were your duties and responsibilities at 4 ^ Ycs,
S that time? 5 Q Were you responsible for moving trailers or
6 A Mainly janitorial, and with some maintenance. 6 trucks around in the yard'!
7 Q Who was your supervisor or in 1990? 7 ^ No. I was not.
8 A Curtis Clifton. 8 Q Did you ever do that'!
9 Q Is Mr. Clifton still your supcrvisor? 9 ^ No. I did not.
10 A No. Tcny Beecher. 10 Q Do you know who was responsible for that in
11 Q T.E-R.R.I or Y? II December of '92, if anyone?
12 A Y. 12 A I'm not really sure back then. Possibly Brian
13 Q Is that male or female? 13 Bahn,
14 A Malc. 14 Q Is Brian Bahn still employed with ERX1
IS Q How would you spell Beecher? 15 ^ Yes. he is,
16 A B.E.E-C'H.E.R. 16 Q What's his position?
11 Q When did Mr. Beecher become your supcrvisor? 17 A A lift operator.
18 A It's been approximately four months, I believe, 18 Q How long have you known Mr. Bahn?
19 Q Is Mr. Clifton still employed by ERX1 19 A Since Octebel' 1st of 1990, I first met him.
20 A Yes, he is. 20 Q From the time you st~rted working at DMC to the
21 Q What is his position? 21 present, has your shift or hours of work stayed the same
22 A General manager. 22 or changed at all?
23 Q Was Mr. Clifton your supervisor from October of 23 A l11ey have changed.
24 1990 up until about four months ago? 24 Q Can you tell me what your shift was, say, in
2S A Yes, he was. 25 December of '92'!
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1 Q I take it he would have been your supervisor in I ^ 1 believe it would have been 12 noon unlil 8
2 December of 1992? 2 p,m..
3 A Yes. 3 Q On which days of the week did you work in
4 Q Were there any other individuals who did the 4 December of '92?
S same type of work that you did at DMC in December of 1992? 5 A Probab(y Monday through Friday,
6 A No, I WlIS probably the only one doing that. 6 Q In December of '92, did you work on weekends at
1 Q So you said it WlIS mainly janitorial but then: 1 any lime?
8 WlIS some maintenance? 8 A Occasionally,
9 A Yes, sir. 9 Q Do you know a Sleven Sabolchick'l
10 Q And did your job take you not only inside the 10 A Yes,
II warehouse but also outside the wan:house? II Q Is he still employed with ERX1
12 A Yes. 12 A Yes, he is,
13 Q You had certain responsibilities both inside 13 Q Was he working then: wbcn you started in
14 and outside the warehouse? 14 Octob<.'1' of 1990?
IS A Yes, I did 15 A He was,
16 Q What were your duties and responsibilities 16 Q Now, he told us that the wan:house was
11 outside the warehouse in December of '92'1 17 basically opened from I think 5 a,m, to 6 p,m.. Does that
18 A As best I can recall, I would pick up paper, 18 jive with your recollection?
19 Ia:ep the place clean, mow the grass, I would secure chock 19 ^ That's the basic -- yeah, that's a good basic
20 blocks and chains, 20 estimate,
21 Q What WlIS the last thing you said, secured chock 21 Q Was anyone in O<:cember of '92, doing janitorial
22 blocks? 22 maintenance S<.'l'Vices before you would come to wurk at
23 A And chains, 23 approximately noon =h day that you would work?
24 Q Chains? 24 A I lClllly don't recall, but I don't lhink so,
2S A WhIch held Ole chock blocks, 25 Q And assuming thaI the operations shut down or
(
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I the: wW'Chouse closed, the oflices closed around 6 p,m, on I Q So each truilcr that was backed up at the
2 the days it was open, who else would have been there with 2 loading dock at the DMC wan:house in December of '92 would
3 you, say, belW1:l:ll 6 and 8 p,m" just generully? 3 then have a chock block in plllCC?
~ A Probably be no one other than the s<:curity 4 A Yes,
5 pc:ople, 5 Q [n front of the tandem wheels on one side?
6 Q And who provided the security for that location 6 A Yes,
7 in December of 1992? 7 Q And it was your respon.'ubility or Ollc of your
B A I don't recall, B responsibilities to put those chock blocks in place?
9 Q Mt, Sabotchick suggested that it may have 9 A Only to ma1cc sure that they were secured to the
10 Advance Security, Docs that ring a bell? 10 dock itself by a chain, I did not put them in front of
II A At one time they did have Advance, I I the: truiler wbccls,
12 Q What's the security guard company there now'! 12 Q Did you ever do that?
13 A It's inhouse, 13 A No,
14 Q Nonnally when you were there between 6 and 8, 14 Q Whose responsibility was it to put the: chock
15 it's my understanding that then: would be: a security 15 block in front of the rear wbccls of the truiler?
16 person there, And where would that person be: locatcd? 16 A The driver,
17 A Probably be: in the guard house at lhe entrance, 17 Q Why was it that it was your job to see that the
IB Q During lhat two hour period, let's say from 6 18 chock blocks wen: secured to the -- I'm sorry, what did
19 p,m, to 8 p,m" generally speaking, did you ever have 19 you say, the dock?
20 conlact with that security guard for any reason or for any 20 A To the dock, yes, It's just a part of general
21 PW]lose? 21 maintenance to make su..-c that there is a block there for
22 A Not that I can recall. 22 the driver to use to secure his trailer,
23 Q Now, it's my understanding that after six 23 Q What an: these chocks made out of'! Or what
24 o'clock and until the next morning at 5 a,m" generally 24 were lhe chocks made out of that were at that location in
25 speaking, the:re would be trucks coming in picking up 25 December of '92?
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I trailers or dropping off trailers at that location in I A Six by six wood blocks.
2 December of '92, is that a fair statement? 2 Q When you came to work in December of '92,
3 A Yes, it is. 3 again, generally speaking, did you have to report to
4 Q Did you have any involvement, responsibility, 4 anybody?
5 duties, with respcct to the trucks coming in or trucks 5 A At fIrSt I would, to Curtis Clifton, until I
6 going out, dropping of trailers or moving of trailers? 6 had my schedule, until I leamcd my schedule.
7 A No. 7 Q Was that schedule something that was provided
8 Q You mentioned that some of your outside 8 to you on a weekly basis or monthly basis?
9 responsibilities would include securing chock blocks, 9 A No. It was just a daily routine.
10 A Yes, simply -- 10 Q Was there a written schedule for you in
II Q Is that right? II exislcncc in December of '92, whether it be posted or
12 A Yes. 12 handed to you?
13 Q Tell me what it was that you did to secure 13 A No. Anything that I would get would be verbal.
14 chock blocks and how you went about doing it. 14 Q Did you punch a clock in December of '92?
15 A Well, the chock block is fastened to a metal 15 ^ Yes.
16 protrusion on the dock by a chain. I'd simply make sure 16 Q So there would have been time cards kept for
17 that both were intact as they should be. 17 you?
IB Q I guess as I envision a trailer would be backed IB ^ Yes.
19 up into the loading dock area, is that right? 19 Q Did your duties at any time in December of '92,
20 ^ Yes. 20 require that you remain their after 8:00 at night?
21 Q And at the dock there would be two chock blocks 21 ^ No, they did nol. Simply was a routinc I had
22 that would be connected to the dock in some way'! 22 done by that time. And with the exception of a fcw
23 ^ One chock block, 23 minutes to finish this or that, and I'd be ringing out and
24 Q One chock block by a chain? 24 going home.
2S A Yes. 25 Q Now, just briefly can you tell me what the
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RICHARD E. MILLER, SR.
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I janitorial work entailed inside the building?
2 A Clean dunhllgC and dirt away from the docks.
3 clean office, bathroom, and run a noor sweeper. scrubber,
4 That was basically it.
S Q How long would that nonnally take you to
6 complete the inside janitorial work?
1 A The jllDitorial pl1rl would probably be four
8 hours,
9 Q And what would you do for the olber time that
10 you were there?
II A Run the noor scrubber,
12 Q And was ti.. noor scrubber ran every day'!
13 A Yes, This WlIS to scrub the main wan:housc
14 itself,
IS Q What was the noor made out of'?
16 A Concrete,
11 Q Were you available to do other odd jobs or
18 cho1= if Mr, Clifion or SOmeollC elsc at the warehouse
19 would have asked you to do something?
20 A Yes,
21 Q Were you aware that there WlIS salt or Quik-loe
22 or anti.skid material available at the warehouse to put
23 down if it was icy out?
24 A Yes.
2S Q Where was that kept, or what places was it kept
Page IS
I if it was more than one place?
2 A Ncar the maintenance shop and office,
3 Q Was it kept anywhere else?
4 A For a time by 43, No, 43 door,
S Q If you're looking at the loading dock of the
6 warehouse from the outside, is 43 all the way to the right
1 or to the left?
8 A To the right.
9 Q Is 43 the last door to the right?
10 A Yes, ,ir.
II Q You said for a time it was kept there, CllD you
12 tell me during what time it was kept there?
13 A No, I cannot be specific about that.
14 Q Let me show you a photograph that was marked as
IS Diclrert Deposition No, 4, Take a look at it and see
16 whether you can identify whot is d.,'picted in that
17 phOlognlph?
18 A It was taken from the outside parking lot to
19 the right corner of the building,
20 Q So that's the DMC wan:housc?
21 A Yes, it is,
22 Q I want to show you a different pictUl'C, it's
23 Deposition Exhibit No, 7, On that 01lC you can see the No,
24 42 above one of the loading docks?
2S A Yes,
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I Q I take it 43 would be the one to the right thai
2 doesn't have a number on it'!
3 ^ It is.
4 Q You said that there was .- what was it that was
5 kept there'! I called it salt, Quik'loc, anti-skid
6 material. Can you tell me what it was that was kept
7 there'!
8 ^ I believe it was calcium chloride. Ice-Melt,
9 Q You said there was a pcriod of time when it was
10 kept there,
II ^ Yes,
12 Q Can you give me some time frame as to when it
13 WIIS, whether it was before December of '92 or after
14 December of '92'!
15 ^ No, I can't be sure,
16 Q Is it kept there today'/
17 A No, it is not.
18 Q Where is it kept today'!
19 A To the rear of the conference room.
20 Q How much was kept there at the forty ..
21 A As a rule, we would have two skids. I'm not
22 sure of the number of bags,
23 Q When you say two skids, what do you mean by a
24 skid'!
25 A A skid is a pallet, must be this big square.
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I Q You're motioning with your hands, and I'm not
2 sure how big that is, Are these the types of pallelS if
3 you'd go to a garden center they'd have ..
4 A Yes, they arc,
5 Q -- pcat moss or whatnot sitting on'!
6 A Approximately four feet by four fect.
7 Q Were there bags of these things kept there on
8 those skids'!
9 ^ Yes, there were.
10 Q Do you know how those skids got there? I take
II it somebody delivered them. Is that a fair statement?
12 A Yes, it is.
13 Q Do you know where they came from?
14 A At times we bought them from Harrisburg Papcr
15 Company.
16 Q Where is Harrisburg Papcr Company?
17 A I don't know that address. It's in Harrisburg.
18 Q How do you know that you bought them from that
19 pl:u:c?
20 ^ Some times I would take the deliveries.
21 Q How were they delivered by Harrisburg Papcr
22 Company?
2J A Truck,
24 Q Would you need a forklift to unload these
25 skids'/
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I ^ Yes, you would, I ^ Yes, it WllS done that way,
2 Q WIJS that a forklift that was available at the 2 Q I take it by that answer that when Harrisburs
3 warehouse? 3 Paper Company would make that delivery, they would deliver
4 ^ Yes, 4 multiple skids of Ice-Melt, which WIJS then forklil\ to
5 Q Now, can you describe for me what was on the 5 either near 43, that door, and some to the maintenancc
6 skids" 6 shop amI office?
7 ^ Bags of Ice-Melt. I'm not sun: how high they 7 ^ Yes,
8 were, Probably four foot high, g Q Did you drive the forklil\?
9 Q Can you tell me: what the weight of anyone of 9 ^ At times I did, yes,
10 the bags of lce.Mell was, wheth<.-r it was a 20 pound bag, 10 Q Did you drive the forklift to distribute the
II 40 pound bag, a hundred pound bag" I I Ice-Melt that WIJS delivered by Harrisburg Paper Company?
12 ^ No, I can't he sun:, I helieve it was fifty, 12 ^ I would put it away, so to speak. on occasion,
13 Q An: these bags Il\lBCr than the bags that you 13 yes,
14 and I might buy to Icc:cp at home? 14 Q What WIJS done with the Ice-Melt? Again, I
15 ^ Yes, they were, 15 assume that if anything was done, it would he done during
16 Q So these aren't the type of bags that you can 16 the winter time,
17 buy at the grocery store'l 11 ^ Yes,
18 ^ No, IB Q What, if anything, did you observe being done
19 Q 1l1cy're larger than the ones that you would buy 19 with the Ice'Melt?
20 at the grocery store? 20 ^ Various people would take it to places where it
21 ^ Yes, 21 was needed. For instance, the guard house,
22 Q Did you observe these skids with the Ice-Mdt 22 Q Did you ever observe a quantity of Ice-Melt
23 on them when you first started working for DMC in October 23 kept in some fashion at the guard house to be used by the
24 of '90? 24 guard who was out there?
2S ^ Yes, I knew they was there, 25 ^ Yes, It was left then: for lhcm to use from
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I Q Wen: they then: in Dccc:mber of '90 -- '92? I time to time,
2 Were they there in December of '92'! That's the question, 2 Q Whatwaslel\tbcrc?
3 ^ Yes, they were, 3 ^ Bags of Ice-Melt,
4 Q You also said they kept some .- the Ice. Melt 4 Q How WIJS this Ice-Melt .. we're focusing now on
S near thc maintenance shop and office, When: is that in 5 the guard house. How was tbat Ice-Melt then placed on the
6 relationship to boy 43? 6 ground or on the ice?
7 ^ It's to the lel\ approximatcly in the center of 7 ^ By hand, by some .. with some kind of conll1incr
8 the building, 8 when: you could take it from thc bag and disperse it.
9 Q How is the eyes melt kept that was kept in the 9 Q like 0 cup or 0 scoop or something like that?
10 mainlt.-nance shop and office? 10 ^ Yes.
II ^ It was kept on skids near the maintenance shop II Q What other places befon: December of '92, did
12 and office, 12 you observe the eyes melt being used. other than at the
13 Q How many skids wen: then: typically near the 13 guard house?
14 maintenance shop and office of Ice-Melt? 14 ^ Front steps, No, I door ramp. And then
15 ^ Usually there were two, possibly three skids, 15 parking an:as,
16 Q And it would be the same si7.e as you described 16 Q What do you mean by the pnrkiug =?
11 before? 17 ^ Where the people would park who worked UICI'C,
18 ^ Yes, sir, I g which were in front of the building,
19 Q And tbe same type of bags? 19 Q Would it be 0 fair stlltcmentto say that
20 A Yes, 20 employees from DMC would spread Ice-Melt in areas where
21 Q And they would have bu.-n -- did you take 21 eitber they parked or they would be walking"
22 delivery of those -- or from time to time did yuu take 22 ^ Yes,
23 delivery from Harrisburg Paper Company of the Ice-Melt and 23 Q Did you ever observe before December of 1992,
24 then forklift them to the maintc-nance shop und office 24 lce'Melt in nrcns where the trailers were parked?
25 aren" 25 ^ On occasion this was done,
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I Q Who, if you know, would spread the lce-M(ll in I Q And when: was il thai you ohserved them
2 those areas" or did spread lhe Ice-Melt in those areas, 2 spreading the anli.skid malenal or aggregale on the limes
3 that is, where the trailen were par\ced? 3 you observed lhem"
.. A Various employcc~, I don't know spceilieally. 4 ^ Through the whole parking lot,
S Q Did you ever do that? 5 Q Would that include :.n:as when: the lrailers
6 A No, Not other thnn the steps and the ramp, 6 would park and were parked'!
1 Q Did anylln<' ever tell you nollo spread Ice' Melt 7 ^ Yes,
8 in and aroWld where the trailers were par\ced if it wUj 8 Q How was it thaI they gOI hetwa.'1l trailers, if
9 icy? 9 then: were more than one trailer parked in a purtieulll\'
10 A No, III spot'!
11 Q Is there any I'CllSOn why you didn't spread II ^ Wht.-n they would. come: to n:move mow, the
12 Ice-Melt in and around where the trnilers were parked'! 12 lrailers would be moved so th( .1l0W could be takc:n away,
13 This is on a general basis, 13 Q WllO would move the trailers"
14 A Usually I was doing other things and olh,:r 14 ^ I don't know purticularly, Dnvers of oun
IS people would do it, is simply the only answer [ know, 15 or .- yeah, it would be drivers of oUr.iClves,
16 Q During the deposition of Me, Sabotehiek :n this 16 Q In December of '92, was there, [gucss whal's
11 cu:, and through papers that have been provided to me 11 commonly refened to as a Yll\'d jock(y" Did you ever hear
18 after requesting certain documents, I've come to learn 18 of that l,:no"
19 that DMC had a contract with Wintcnnycr Company for snow 19 ^ Yes,
20 removal. Were you aware of that'! 21l Q Did DMC have a yard jockey in December of '92"
JI A Yes, 21 A Yes. th(y did,
22 Q Did you know whether ERX still has a contract 22 Q Who was lhat?
23 with Wintcnnycr for snow removal1 23 A I believe it was Brian Bahn,
24 A They did it last winter, 24 Q So is one of the responsibilitks of a yard
2S Q So that would have been the Winter of '95-'961 2S jockey to move trnilers around from lime to time if
Page 23 Page 25
1 A Yes, I ncccssury?
2 Q Pumlant to that contract, I believe if DMC 2 A Yes, it was,
3 wanll:d Wintcrmycr to come out and do de-icing activities 3 Q So from time to time you've observed trailers
4 or spread anti.skid materials, they would have to call 4 being moved out of their positions in front of the loading
S Wintcrmycr and have them come out? 5 dock IlI'Cll so lhat Wintcnnycr could remove snow and also
6 A I don't know that. 6 spread anti-skid material'!
1 Q Let me ask you this question: Before December 1 A Yes,
8 of 1992, had you ever observed Wintcrmycr performing 8 Q Do you have any recollection of December 28th,
9 salting, sanding, cindering, de-icing, 'prcnding anti-,kid 9 19921
10 matcrial in any locations around the DMC warehouse1 10 A Nt, I do nol.
11 A I can't be sure, I know they have taken CIl\'C II Q [ g\lCSS before ,lurting this deposition thi,
12 of it for a good number of years. 12 morning, did you discuss with anyone other than your
13 Q You say you know they have taken CIl\'C of il. 13 allorncy, the circumstances of this lawsuil and why this
14 Can you teU me what )ou mean by that? 14 lawsuit is being brought?
IS A They've taken CIl\'C of removing snow and pUlling IS A No, I didn'1.
16 down an aggregate and a skid as well as a de-icer, 16 Q Did you have any conversations with Brion Balm,
17 Q Have you observed the Wintcrmycr trucks plowing 17 Curtis Clifton, Chuck Klino, Steven Sabotchick, ahoutthis
18 snow1 Have you yourself ever observed their trucks? 18 purticulll\'=1
19 A Yes, 19 A With Curt Clifton, only when tbe notice came
20 Q Did you ever observe their trucks ."rcnding 20 Ulat I would be hen: at a deposition, I did hear it
21 onti-skid material, or aggregate as you called it? 21 discussed among employees, and I'm not sure who they were,
22 A Yes, 22 that a driver had tilcd suit against the company,
23 Q I take it that those trucks have a sprcad.:r on 23 Q Did you reviow any documents or papers or
24 the back of some sort, is that right? 24 phOlographs or plans or drawings or lranscripts or
25 A Yes, 25 testimony in pn:pllralion for lhis depositilln"
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I A No, I Q Do you know hi, full name?
2 Q Were you shown any of those items, plans, 2 A Patrick Shane,
J documents, papers? 3 Q S-H'A-N-E?
4 A No, 4 A Yes,
5 Q Do you know whether you were working on 5 Q Where is he employed?
6 Doo:mbcr 28th, 1992'1 6 A At ERX. Carlisle,
7 A No, I do not. 7 Q Was he an employee of DMC in December of 1992'1
8 Q How would we find out if you were working B A Yes, he was,
9 there? 9 Q What was he responsible for in December of '92?
10 A Through my time cards, 10 Was he also security ,upcrvisor?
II Q I knnw you were employed there, 111e question 11 A No, 'he was not supervisor then,
12 is whether you were working that day, Through your time 12 Q What was his position in '92?
13 cards, Okay, 13 A I think he WllS a gwmI,
14 Do you know what the weather conditions were on 14 Q Did DMC have their own guards as opposed to
IS Occcmbcr 28th, 1992" 15 hiring an outside independent agency to provide gwmI
16 A No, I don't recall. 16 services?
17 Q I take it that you have no n:collcction as to 17 A Through the daylight hours, I believe they did,
IB whether or not you spread lce'Melt or any anti.skid 18 Q So during t"" day they would have their own
19 mall:rial in and around the lrailers that were parked 19 guards there"
20 between No, 38 and No, 437 20 A I believe that was right.
21 A No, I don't recall. 21 Q It's your recollection that Patrick Shane, who
22 Q But I think your earlier lestimony WllS that you 22 was also referred to as Tex, would have ba:n a guard in
23 don't ever recall doing that yourself, is that right" 23 December of 1992, employed by DMC?
24 A I believe that's right. 24 A He was employed there as a guard at thattlmc,
25 Q Do you have any recollection as to whether 25 I believe, yes,
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Page 27 Page 29
I Winll:rmyer was there on Occcmbcr 28th, 1992, for any I Q Did he wear a uniform in '92, a guard uniform?
2 reason? 2 A No, I don't think so,
3 A No, I don't, 3 Q So it's your recollection that after the
4 Q Do you know Mich....l Dickcrt? 4 daylight hours then an outside agency would then provide a
~ A I recall him driving in and out. 5 guard for DMC7
6 Q I believe his nickname WllS Pappy? 6 A I believe that', how it was, yes,
7 A Yeah, that', alii knew until Notice of this 1 Q Do you recall the nll\llC9 of any of the guards
8 deposition C4ItlC up, 8 who were provided by the outside agency in and around
9 Q When was the last time you saw him? 9 December of '92?
10 A I don't recall. 10 A No, I don't rccall,
II Q Did you ever have any ",onversations with Mr, II Q Are any of those guards stillthcrc?
12 Dickert concerning what happened in (J.:ccmber of 1992, at 12 A I don't think so,
13 the DMC plant? 13 Q Other than Patrick Shane, who were the other
14 A No, I did not. 14 guards, if any, that DMC had in December of '92?
IS Q Have you had conversations with anyone at DMC 15 A Randy Trcgembo,
16 who have told you what they believe happl.'Ded in Decemlx:r 16 Q Would you spell that last name, please?
17 of 1992, with Mr, Dickert? 17 A T.R.E-G.E.M-B-O, I believe,
18 A No, 18 Q Is he still employed by ERX?
19 Q Do you recall a Sl:curity gunrd who was referred 19 A No,
20 to as Tex? 20 Q When was he last employed by ERX7
21 A Yes, 21 A I'm not sun: of the date,
22 Q Do you know who that person is? 22 Q When was the last time you saw him?
23 A Yes, 23 A I'm not certain, Possibly two years ago,
24 Q Who is it? 24 Q Do you know where he is?
25 A lie's security supervisor, 25 A No, I don't know,
HUGHES, ALBRIGHT, FOLTZ & NATALE
71'7-232-5644/393-5101
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RICHARD E. MILLER, SR.
NOVEMBER 6,1996
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Page 32
Page 30
I Q Do you know where he last lived? I of '92 or after Detember of '927
2 A No. 2 A It was probably in the first winter lhat I was
3 Q Did you as an employee of DMC know whether or 3 there, which would have been lbe Winter of 1990,
4 not drivers were going to be coming to the distribution 4 Q '91, is that right'! You started in Octob.,r of
S center and when they would be coming there? 5 '90, so it would be the Winter of '90 to '91, right'!
6 A No. 6 A Yes,
7 Q I think there was no schedule posted as to 7 Q Before December of '92, were you aware of any
8 whether there would be three trucks coming in that night B incid,:nts who:re either employees of DMC. guards from
9 or no trucks coming that night? 9 outside agc:ncies or dri vcrs who were on the DMC property
10 A I have no knowledge of that. JO had fallc:n on the ice'!
I I Q Does ERX maintain Ice-Melt at their facili)ies I I A No,
12 today? 12 Q What about since December of 1992, are you
13 A Yes, they do. 13 aware of anyone wbo may have bc:c:n in the area falling on
14 Q Where is it kept? 14 ice'!
IS A To rear of the conference room, 15 A Yes, It was about .- it was approximately a
16 Q Will the location of the Ice-Melt change as we 16 year afler this happened Ihat this story came around that
11 get into the colder winter months? Will it be moved at 17 a driver had fallc:n out of a truck, hurt himself, and was
18 all? I B suing the corporation,
19 A That will be the main location for it. 19 Q That was about a year ago'/
20 Q Docs ERX have any policy or procedures with 20 A That would probably be about two years ago,
21 regard to the spreading of that Ice-Melt, under what 21 I'm not certain,
22 circumstances, and who will do it, where they will do it? 22 Q Where did you learn that particular story'! You
23 A They do have a procedure that I'm not familiar 23 said it was a story going around?
24 with, whereas the janitor now spreads it. 24 A Listening to other people talk while we were on
2S Q Your position there now is what? 25 break one day,
Page 31
I A Maintenance worker.
2 Q Is there someone now who is the janitor?
3 A Yes,
4 Q Who is that?
S A Claud Minnich.
6 Q Is that M-I.N.N.I.C.H?
1 A I believe so,
B Q Have you observed him spread lee. Melt in and
9 around the building?
10 A Yes.
I I Q And have you observed him spread Ice-Melt in
12 and around where the trailers arc parked?
13 A No.
14 Q Have you ever observed any employee from DMC
IS spIUding Ice-Melt in and around where the trailers arc
16 parked? Ever,
17 A Yes, I have,
IB Q Who have you observed doing that?
19 A Various people. Probably no one specific -- no
20 one that would be specifically assigned to the job.
21 Q When was the first time that you ever obscrved
22 anyone from DMC spread Ice-Melt in and around the
23 trailers?
24 A I can't be certain,
2S Q Can you tell me whether it was before December
Page 30 - Page 33
'-";',,'
Page 3 3
I Q Can you identify any of the people who you were
2 on break with who you were listening to'/
3 A ('m not sure who all was there,
4 Q Did any of those individuals that you may have
5 been Iistc:ning to identify who that person was?
6 A No, they did not.
7 Q Do you know how many lawsuits there are
B currently being filed against DMC7
9 A NO,ldonot.
10 Q Do you know if there's bc:c:n any lawsuits filed
I I agrjnst ERX7
12 A No, I'm not certain of that.
13 Q In December of 1992, do you know who was
14 responsible to call Wintennyer if tbey needed Wintcnnyer
15 to come out'!
16 A No, I'm not sun:,
17 Q Was there anyone that you talked to in either
lB the Winter of 1990 or '91, or the Winter of '92, about
19 whether or not someone was going to call Wintcnnyer? Or
20 did someone say, well, we better call them out here, it's
21 getting pretty bad'!
22 A At diffcn.:nt time, I had heard the guards talk
23 about it, yeah, whc:n we'd know there was a stonn coming,
24 Q Who was it, or was there anyone in particular
25 who you would go to if you thought that Wintennyer should
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Page 34 Page 36
1 be called to perfonn some services, eilhc:r snow removal or I A Sewing machine mechanic,
2 de-icing activitie,? 2 Q Can you give me an idea how many jobs you have
3 A It was lICver len up to me to decide, 3 had?
4 Q I'm not saying it was, I'm saying if you 4 A No, I don't know,
, thought something should be done to lhc pdrking lot was S Q [s it more than ten?
6 there someone you would go to, to suggest that someone 6 A Probably,
7 should call? 7 Q I guess when you worked for lhc high school and
8 A To lhc security people probably, B also worked for Giant Foods?
9 MR, PRICE: When you say probably, do you have 9 A Giant Foods,
10 any independent recollection of that occurring or W'C you 10 Q Did pollt of your duties and responsibilities
11 just speculating? 11 include snow or ice removal?
12 A I'm only speculating, 12 A Normally, no,
13 BY MR. HaLKO: 13 Q When you say nonnally, no, I take itlhc:r~ was
14 Q Do you know of any occasion when: Winlcrmycr 14 some exceptions to that?
IS was CAlled to come out 10 lhc facilities to perfonn somc IS A 1bcrc was an exception if the penon who was
16 service when Wint<:nnycr did not come out? 16 supposed to do it wasn't there, I belped do it.
17 A No, I do not know of any incident like that, 17 Q Arc there any drains or downspouts that come
18 Q Has anyone told you that on December 28th of 18 off lhe roof of that building?
19 1992, that Wintennycr had been called and then called 19 A There W'C approximately 48,
20 again and canceled as far lIS the salt truck WllS concerned? 10 Q 48' downspouts?
21 A No, 21 A Yes,
22 Q How many employees named St<:ve were there at 22 Q When: arc they locat<:d?
23 DMC in Dctcmber of 1992, other than St<:ve Sabotchick? 23 A Inside the front and back wall.
24 A None that I can recall. 24 Q So they're all enclosed in lhc building?
2S Q Were there any employees who may have had a 25 A They're just inside lhc building, They arc not
Page 35 Page 37
I different name but people called them Steve? 1 enclosed,
2 A Not that I can recall. 2 Q Where docs any wat.cr that gocs through those
3 Q Before working at DMC. where were you employed? 3 drains end up?
4 A Cumberland Valley High School. 4 A In the outside storm system, And from there to
5 Q What did you do there? 5 a small holding pond. And then out to the - through the
6 A Janitorial. 6 culdesac to the drainDgC system.
1 Q How long bad you been at the high school? 7 Q The roof of the building appears to be a flat
8 A Approximately six months, I'm not certain, 8 roof.
9 Q And before that? 9 A No, it has a slight angle.
10 A Giant Di,tribution, 10 Q During the time that you've been there, have
II Q What did you do for them? 11 you yourself or have you ever observed anyone to go up on
12 A Janitorial. 12 the roof to remove snow or ice from the roof'l
13 Q How long wen: you with them? 13 A Yes,
14 A I'm not certain. 14 Q Have you done that yourself'l
15 Q Is it more than six months? 15 A Yes,
16 A I believe it WllS, 16 Q WlIS that the practice in '92?
17 Q Where WllS it that you were employed the 17 A I believe so,
18 longest'! IB Q That's assuming there was enough snow and ice
19 A Of those places named'l 19 to require someone to go up there and remove it.
20 Q Any olhc:r place, 20 A Yes,
21 A Probably tiDily Gannc-nt. 21 Q Whc-n you would remove the snow and ice from the
22 Q How long did you work then:? 22 roof, when: would you put it?
23 A I believe I worked then: a little over five 23 A Usually just put itllSidc on the roof,
24 years, 24 Q Push it to the sides of the roof'l
25 Q What did you do for them'! 25 A To the side on the roof,
"""'
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717-232-5644/393-5101
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RICHARD E. MILLER. SR.
NOVEMBER 6, 1996
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RICHARD E. MILLER, SR.
NOVP.MBER 6, 1996
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Page 3 8
1 Q But you would not shovel it or push it 00" the
2 roof'?
3 A Usually not.
4 Q WblIt would happen to the snow and ice that WI1S
S pushed 10 the side of the roof'?
6 A [t would melt.
7 Q Would it melt on to the outside of Ihe
8 buildin&?
9 A No, it would mell and go down the stonn droins.
10 or the drain spouting,
I I Q Is that where the droins were located, on the
12 outside portion of the roof'!
13 A No, they were on the lop,
14 Q That's whot [ meant, the outside -. what would
1 S be [ i\lCSS the perimeter of the roof'!
16 A Yes, within the perimeter,
11 Q And when that was ncccssary who would do that
18 type of work, besides yourself'!
19 A Tcx had belped me with it
20 Q [guess what I'm getting at Is ita ,ituotion
21 where if that needed 10 be done, that is, pushing the ~110W
22 from the center of the roof 10 the outside portions of the
23 roof-
24 A W. never did that.
2S Q [thoUllht we just talked aboutlhat
Page 39
1 A We talkcd about moving it from the droins, arta
1 of the drains. Which are located along the edge,
3 Q So you would go up there and move snow from the
4 drains?
S A That small area, yes,
6 Q And was that something that would take ooe
7 person or more than one person 10 do?
8 A One can do it.
9 Q Would that a1so be true, that is, one person
10 could do it, that is, spread [ee-Melt in and around when:
I I the trailers were of the lot?
12 A One person could do it.
13 MR. HOLKO: That's all the questions I have,
14 CROSS.EXAMINATION
IS BY MR. PRICE:
16 Q Mr, Miller, my name's Kent Price, [represent
17 Wintcnnycr.
18 Were the 50 pound bags 00" [ce-Melt ever broken
19 down into smaller containers so they could be located at
20 diO"erent locations throughout the facility'l
21 A Yes,
22 Q Could you give me an idea whatlypC of
23 containers they were brola."ll down into?
24 A 50-gallon plastic pail -. [ beg your pardon,
2S 511a1lon plastic pail.
Page 38 - Page 41
Pogc 40
I Q When: would Ihose 5.g.lIon pails he located
2 then?
3 A They would be in the guard house by No, I door
4 and by the c"lllrance 10 the building,
5 Q My unders:anding from what you told us before
6 is that then this eyes melt would then he spread out by
7 using just by hand. hy cup or a coO"ee can, or something
B like Ihot"
9 A Yes,
10 Q Did OMC have any kind or rotary broadcasters
II Ihat they would 'lSC In dispense Ihe snit?
12 A Not to my knowledge,
13 Q Apd the parking llI'Cll for Ihe employees of OMC.
14 i, that an area that's separate and apart from the areas
IS where the !rucks and trailers would be located?
16 A Yes, it is,
11 Q Whenever salt or [ce-Melt was sprcad in the
18 employee parking area, is that somelhing that was done 10
19 the entire area or would that be something that was just
20 done on 0 case by case basis" [n other words, [ as on
21 employee would drive in and [ would go out and spread some
22 snit in the area where I parked?
23 A No, it was done over Ihe whole area,
24 Q And again, that would just be broadcast by
25 hand?
'.,).:,"
Pagc 41
I A Yes.
2 Q [s that something that you would do?
3 A [have done it
4 Q Was there somebody who would be essentially or
5 specifically ossiancd to that particular task?
6 A No, sir,
7 Q Do you know how that task was assigned out?
B A As [ recall, 10 whoever was available,
9 MR. PRICE: That's all [have, Thank you,
10 REOIREcr EXAMINATION
11 BY MR. HOLKO:
12 Q Just. follnw up, The [ce-Melt that was kept
13 near door 43, was that inside the facility or outside the
14 facility?
15 A [t was inside,
16 Q So after 6:00, when the facility .. aftcr 6
17 p,m, when the facility basically shut down, except for you
IB doing your work there, in order for someone to get to the
19 lee-Melt inside door 43 or at the office at the
20 maintenance shop, they'd have to be able to gain access to
21 lhe building?
22 A Yes,
23 Q 1be 5-g.lIon buckets .- can you tell me how
24 many 5-gallon buckets there were that were in use in
2S December of '92"
HUGHES, ALBRIGHT, FOLTZ &. NATALE
717-232-5644/393-5101
1""\
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cl - CUll
RICHARD E. MILLER, SR.
....'.'"..
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
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c:cnter - cSSClltially
RICHARD E MILLER, SR
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HUGHES, ALBRIGHT, FOLTZ & NA1ALE
717-232-5644/393-5101
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
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RICHARD E MILLER. SR
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
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timca (II 11:14 17:20 yourself 1'1 2J:18
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
.:.,.,,:.
(
ROBERT G. GALARDINI
NOVEMBER 6,1996
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I wm;ESSES
2 NAME DIRECT CROSS
J ROIlERT G, GAL4.RDINI
4 BY, MR, BOlKO J ,.
S BY' MR, BIALKOWSKI -
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REDIRECT RECROSS
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EXHIBITS
GAL4.ROINI EXHlBrr NO,
1. PROPOSAL
PRODUCED AND MARKED
J
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1 STIPUL4.TION
2 It is hereby stipulaled by and between counsel
3 ror the n:spcctive parties that reading, signing. scaling,
4 certification and filing are hereby waived; and that all
5 obj<:ctions except as to the ronn or the qUl:stion are
6 reserved to lhe lime or lrial.
7
8 ROBERT G, GALARDIi'll, called os 0 witness, being
9 duly sworn. testified as rollows:
10 DIRECT EXAMINATION
11 BY MR, HOlKO:
12 Q My nwne is Joe Holko, and I represent Mich",,1
13 and Charlotte Dickert in this case, and I've asked you to
14 be here today so that I can ask you some qUl:stions about
15 the contract that Leon E, Winlennyer, lnc" hod with
16 Dislribution Management Company in December or 1992,
17 A Okay,
18 MR, PRICE: We have a copy here, Let me show
19 you and see ir that's the same one you're talking about.
20 (Proposal, three pages. produced and marked
21 Galardini Deposition Exhibit No, I.)
22 BY MR, BOlKO:
23 Q Mr, Galardini. lct's slarl oIT first by baving
24 you lell us your rull nome,
25 A Robert Guido" G.U-(.D.O .. Galardini --
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
1 G.A-L.A-R.D-I-N-I.
2 Q Where do you live. sir?
J A Camp Hill, Penn''Ylvania,
4 Q Could we have the address. please?
5 A 2S 1 C 2 East Crestwood Drive,
6 Q Who are you employed by?
7 A Leon E, Wintcnnyer. Incorporaled,
8 Q Are you aware that there's a Leon E, Wintennyer
9 Co" Inc,?
10 A Yes. 10m,
I I Q Are you employed. relaled. involved with that
12 company?
13 A Yes, sir,
14 Q What does that compsny do?
15 A I can't distinguisb that right now,
16 Q Now, sir. I'm showing you what's been marked as
17 Galardini 1 ror the purposes or this deposition, A
18 proposal that apparently was submitled to Curt Clinon at
19 Distribution Management, Inc" ror snow removal ror the
20 Winler or! 992-1993, Can you veriry ror us that that is
21 the -- that those three pages ore the entire written
22 ogreemcnt between Winlennyer, Inc,. and OMC1
23 A It appears to be. yes,
24 Q It appears that there is the nWDC or someone on
25 the bOltom named Michocl Modica?
PageS
J A Michael 1. Modico, yes.
2 Q M-O-D-I-C-A, Who is he?
3 A Mike Modica was in charge or snow removal at
4 that time,
5 Q Is he still employed by Wintcnnyer. Ioc,?
6 A No. he is not.
1 Q Do you know where he is?
8 A I think he's at Pennsy Supply right now,
9 Q Now, the date or this ogreemcnt appears to be
10 s.:plember 14th or 1992, And I see that on the second and
II third pages, Do you see that?
12 A Com:ct 1bot's the date it was accepted
13 Q Do you know who necessitaled this particular
14 contract with Mr, C\irton at DMC on behalf or Wintcnnyer?
15 A This would be our standard proposal and
16 contract occepled.
11 Q Was there 0 similar ngnxment between
18 Wintcnnyer and OMC for the winter scoson 1991 through
19 1992?
20 A I can't answer that.
21 Q What about the winler scoson 1990 to '91?
22 A I can't answer that.
23 Q My understanding that OMC occupied that
24 particular building on 2l Roadway Drive in 1988, Do you
25 know whet he... there was an agreement between OMC OI1d
Page 2 - Page S
NOVEMBER 6, 1996
Page 6
I Winlermycr for the winter season '88 through '89'/
2 ^ I can 'tanSWC\' that.
3 Q How long hIlS WinlCnnycr, Inc" been in
4 business?
S ^ 25 years,
6 Q And ClIII you give me an idea of the geographical
7 Icrritory for WinlCnnycr, Inc" lIS far lIS snow removal
8 during the period, say, 1988 through 1993'/ By that 1
9 1lIClIII, is it a five county area, or hUller or smaller?
10 ^ No, it's smaller, I've been with Wintennyer
I I for four years, I can'tanSWC\' that previous,
12 Q What about for the four years you've been
13 there?
14 ^ We're just local into HlIlrisbwg,and it's
IS prclly close knit.
16 Q What is your position with Winlermycr loday'/
11 ^ I'm the Director of Operations,
18 Q What was your position in 1992?
19 ^ 5uperinlendent,
20 Q Now, the rutes set forth on this contract
21 appear to be tied to the type of equipment or trucks tbat
22 ore used for snow plow removal" snow removal, correct'/
23 ^ 'That's correct.
24 Q With rtgard to the 21 Roadway Drive address for
25 CMe, did someone go out tbere to evaluate the job lIS to
Page 7
I the si:z;c of the lot, difficulty of tcnloving the snow in
2 that particular area, nwnbcr of trUCks that would be
3 required, the pcrsoRnel that would be required'/ Can you
4 tell me if someone did that?
S A Yes, standard policy,
6 Q 1Il3CllI1, I think it's different if you're
1 plowing a porldng lot for ten cars lIS opposed to plowing a
8 porldng lot for a hospital, is that right?
9 ^ Corl'Cl:t.
10 Q And I take it that plowing snow, removing ice
11 from a parking lot where there ore tractor-trnilcrs coming
12 in and oUI is yet another factor that must be considered,
13 is that right?
14 ^ Correct.
IS Q With rtgord to how much it would cost CMe 10
16 remove snow on any particular occusion would be dependent
11 upon what factors?
18 ^ lbc depth of snow, the type of snow, and the
19 equipment required,
20 Q 50 thi, is bllSically kind of a time and
21 equipment contract?
22 ^ It's time and material, yes,
23 Q With rcspcclto I guess de-icing or anti-skid
24 DUlterial services, is that somelhing that Wintennyer
25 proYidcd to its customers in December of 1992'/
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I A We offered Ibat service, yes, In the standard
2 conti.lct.
3 Q And where is Ibal found'/
4 A let mc takc a look here, Under provisions,
5 Number 3, Whc'll instructed by your designated
6 represenlalive, we will provide and spread anti-skid
7 matcrials on required pans of the public areas,
8 Nwnber 7, It will be the owner's
9 responsibility 10 notify Ihc conlractor if salt or
10 chemical substance material is needed,
II Q Then I guess on page two at the top, if any
12 anti-skid with or without salt is nceded, then there's a
13 rute for that'/
14 A That's correct,
15 Q [t appears that there arc different types of
16 materials that could be used for anli-skid purposes, Is
17 that a correcl slatemcnt'!
18 A ThaI'S eom:c!.
19 Q It appears you have there calcium chloride,
20 salt, anli-skid and anti-skid mixed with salt.
21 A Correct.
22 Q Can you give me an idea what the difference is
23 between those four different designations there other than
24 the fact that the price appears to be different?
25 A Calcium chloride nonnally is used on the
Page 9
I sidewalks, so the sidewalks don't spall for the concrete,
2 Salt is used in Ihe parking area, straighl salt. That is
3 up to the owner if he wants that sail, salt with anti-skid
4 is your standard PennDOT anti-skid material, it's SO/50
5 mix, or just straight anti-skid if there's a lot of ice or
6 the tcmp,:rature is too cold where the salt is not
7 effective,
8 Q The anti-skid, can you describe what that
9 material is? I mean, is it -- you said it's without salt,
10 but is it a gritty material, rocks?
I I A It's a limestone derivative quarry material.
12 Q And that appears 10 be the cheapest per tone,
13 anti-skid?
14 A That's correct.
IS Q I guess when your contracts arc negotiated with
16 a customer, docs someone describe the advantages or
11 disadvantages of using these materials on different
18 locations, maybe use the calcium chloride on the sidewalk
19 and use the salt scmewhcre else, if it's really cold the
20 salt's not going to work, use the anti-skid and it's len
21 bucks a ton'/
22 A Correct.
23 Q That's somelhing that would have 1>0.'11 gone over
24 with the customers on a routine basis or standard
25 operating procedure'!
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
ROBERTO.GALARDnn
NOVEMBER 6, 1996
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I A That's standard, I A Right.
2 Q The contract talks about a designated 2 Q With respect to December 28th of 1992, Iu1vc you
3 representative, Can you tell us who the designated 3 searched your records to dct.cnnine whether or not anyone
4 representativc was for DMC in December of 1992'? 4 from DMC conlllClCd your company to request anti-skid
5 A It's not on this contract. 5 sc:rvic.:s" The quc;tion is, Iu1ve you checked your records
6 Q Is that something that would be routinely 6 to dct<:nninc whether or not they called you on the 28th of
7 recorded on the contract documents itself? 7 December, 1992~
8 A Some customers put it right on the contract and 8 A We have no record of a phone call.
9 initial it. Others, as you can see here in item number 5, 9 Q let's asswnc that there hod been a phone call.
10 just inform us in writing of those numbers or emergency 10 What documents, if any, would be: CJ'ClllCd if that phone
II numbers. II call came in?
12 Q Do you know from your own pcrsonal knowledge 12 A Message log books,
13 who the designated repreSl.'lllative was for DMC in '92'? I 13 Q Do those log books.. arc they ,till in
14 can suggest some names to you. 14 existence?
15 A Let me think here, because I'll probably come 15 A From '92, I can't answer that.
16 up with it. I think it was Steve Sabotchick, because he 16 Q Is there one pcr50n or more than one person who
17 still is or has been previously_ 17 would field those types of calls?
18 Q Do you know him to see or talk to or whatever'l 18 ^ Dispatch,
19 ^ Personally, no. 19 Q Is there more than on<: dispatcher?
20 Q Have you ever had a conversation with him? 20 ^ During snow removal there would be, Possibly,
21 A Yes. 21 Q Do your records reflcct who was on duty in the
22 Q What about anybody else at DMC, or what's now 22 Wintcnnyer offices to field such calls from customcn on
23 called ERX. do you know anybody there'? 23 the 28th of December, 1992?
24 A I've spoke to Curt Clifton. 24 TIlE WITIIESS: We ,upplied time sheets, didn't
2S Q I take it back in 1992, if Curt Clifton would 25 we?
Page 11
I have called you, you know, called you directly, you would
2 have known who he was, and if he would say, hey, send some
J guys over to do X, Y and Z, if that personnel was
4 available and equipment was available, you would say,
S we'll be: riabt over"
6 A Correct_
7 Q If Steve Sabotchick mode the call, you would
8 have recognized who he was and sent whatever equipment was
9 ncccssary and available"
lOA Correct.
II Q Back in December of 1992, did Wintennyer have a
12 policy or procedure whereby whc:n there was a heavy freeze,
13 an ice stonn of some type, where th~"y would call, lllke the
14 initiative, call a customer and say, do you want us to
15 come out, it's kind of bad out there, we ean hit you
16 bt:eausc we're going to the ABC Company right down the
11 stroet from you? Was there anylhing like that that
18 happened?
19 ^ No, th~", w",m't a standard policy or procedure
20 like that.
21 Q Did that occur from time to time"
22 A That has occurred,
2J Q And did it occur back in the Winter of '92-'93'/
24 A I can't answer that.
25 Q Sp.:cincally you can't, okay,
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
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I (Discussion held off the record,)
2 TIiE WlnlESS: The dispateher on duty for the
3 28th was Rose, as shown on lhese time sheets,
4 BY MR, 1I0LKO:
5 Q What's Ro:;e's 11lSt name, do you know?
6 A 1 can't recall.
7 Q Is she still employed there?
8 A No.
9 Q Now, I guess what you're looking at an: time
10 sheets, is that com:ct?
II ^ Com.'C1.
12 Q And those an: all for Monday, the 281h of
13 December 1992, correct?
14 ^ Com:ct_
1 S MR. 1I0LKO: Each sheet.. I think we alllu1ve
16 this in our packets, This Wll., a respon'''' bl' Wintcnnycr, I
11 think, to eillx."r n:qUL'St for production or Jocumcnts thai
IB we have?
19 MR, PRICE: Right,
20 BY MR, 1I0lKO:
21 Q Is each sheet for a different employee or for a
22 dirfe,,:nt customer or hath?
23 ^ Diffen:nt employee,
24 MR, PRICE: lei's go off the record for a
25 minute,
Page 10 - Page 13
ROBERT G. OALARDINI
NOVEMBER 6, 1996
~
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I (Discussion ho:ld off the record,)
2 BY MR. HOI.KO:
3 Q So there's five employees here, Did each of
4 those five employees have tho:ir own tlUck'l
S A 1bcrc's four employees and four trucks,
6 MR. PRICE: Pages 4 and 5 an: tho: same
1 employee, It's a continuation, 5 is a continuation of 4,
8 MR. HOI.KO: I got you, Tony BIICI'"
9 MR. PRICE: Right.
10 BY MR. HOI.KO:
11 Q Started working that day at 6 a,m, and then
12 went until 7:30 Ihat day, it looks like'l
13 A Correct.
14 Q How mllDY employees did Wintennycr, Inc" havc
IS in Oecl:mbcr of '92'1 I guess for tho: snow clearing and
16 de-icing lICtivities,
11 A I would estimate a hundred, Conscrvalivcly,
18 Q These five time sheets would reflect whatthesc
19 four employees were doing in IlDd around the vicinity of
20 Carlisle, PcnnsylvllDia? No? What would these reflect?
21 Your attorney is ,haking his head no,
22 A Would reflect in around the vicinity of -.
23 HarrisbUlJl, Camp Hill, CIlD I take a look at this list
.4 here, job numbers, HarrisbUlJlllDd Camp Hill for tho: most
2S part.
Page 15
1 Q Now, if these four employees were working that
2 day and Rose we know was on lIS a di'patchcr, what were the
3 otbcr say approximately 90, 95 employees doing? Were tho:y
4 all working the day of the 28th, were they on call?
S A Depended upon the weather, If some of them
6 watl\'t working on jobs they would have just been on call
7 for snow removal.
8 Q Depending on how mllDY calls you I!Ct in through
9 your dispatcher will depend on how mllDY employees you
10 would need to call in for that day, is that a fair
11 statement?
12 A For the most part, yeah,
13 Q By looking at these time records, can you lell
14 me what custcmcrs received de-icing services by Winrcnnyer
IS on Oecl:mbcr 281h, 1992, IlDd when during that day?
16 A It's on the time sheets here, Start IlDd stop
17 limes. At the top of your time sheet you have a face:
18 code, and the face eode ties into this job numbt..,.list.
19 Q For insl8ncc, the first one says - IlDd help me
20 out on this .. is that employee Charles Fn:eby ..
21 F.R.E.E'B.Y.. would have responded on ajob number 290,
22 which is PcnnsylvllDia Nationallnsurnncc,
23 A TIlat's correct, you got it_
24 Q Where is that located" Do you know whc'l'C Penn
2S Nationallnsurancc is?
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I ^ ThaI'S in Harrisburg,
2 Q And would have been there from 7:30 to 8:00,
3 correct'? And they spread salt there,
4 ^ That's correct.
5 Q And I guess that would be the only salting
6 activity that was done by "'lr, Frccby on that day,
7 according to this sheet, correct?
8 A That's correct.
9 MR, PRICE: Off the record,
10 (Discussion held off the record,)
II BY MR, HOLKO:
12 Q Looking at Mr. Frccby's time sheet, was there
13 any other salting activity that he pcrfonncd that day?
14 A Other than I'^ National, no,
15 Q The next sheet is for an employee by the name
16 of Tammy Jacobs'?
17 A Correct.
18 Q And there's a code 300 under the face number
19 box and that would be for PSECO, What is that'1
20 A PSECU,
21 Q Okay, What is that?
22 A Pconsylvania State Education,
23 Q Where is that business located"
24 A Harrisburg_
25 Q And then what did Miss Jacobs do there?
Page 17
I A As you CllD see if you look in Ihe right'hllDd
2 box, she cindered PSECU, If you look at the time sheet
3 from 9:30 to 11:30,
4 Q Or is that 6:30 to 9:30" I'm sorry,
5 A 6:30 to 9:30 is under code 910, 910 is set up
6 snowequipmc"Ilt,
7 Q I'm sorry, you're right. From 9:30 . I 1:30,
8 two hours she Spl."Ilt cindering PSECU, When we talk ahout
9 cinders, is that on the contract as one of the materials
10 to be used for anti-skid material? Is that under
I I IlDti-,kid without JIlllt, is that what it is when it say,
12 cin<k:rs? Or cinder PSEctn Or is Ibat a fifth type of
13 anti-skid material?
14 A No, that is not a fifth type, Anli'skid would
15 be considen:d IlDti.skid,
16 Q You mean anti.skid would be considered cinders
17 and anti-skid an: interchllDgeable?
18 ^ Yes, they can be,
19 Q It also shows here that there is another job
20 nwnbt..,. 6136,7, and that shows -- that says salt, shovel,
21 plow grounds, Do you know where that took place"
22 ^ Grounds would bc1 our shop,
23 Q So that n
24 ^ Shop mainll."Ilancc,
25 Q So that Tammy lacobs would have salted the
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
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I Wintennycr facility?
2 A That's what it says, yes.
3 Q Do you have any idea how big the parking lot is
4 at Wintcnnyer headquarters, or wherever this was?
5 A That depends how mud. she did. She could have
6 done a couple acres or four acres,
7 Q Apparently it looks like she spent two hours ..
8 actually two holUS, and then two hours .. I guess she
9 spent one hour .. I'm sorry. Two hours. Strike that.
10 She spent two hours, according to the time
11 sheet.
12 From looking at the time sheet, did she do any
13 other salting activities or cindering activities that day?
14 A Repcat the question.
15 Q From looking at her time sheet, docs it reflec!
16 that she did any other salting or cindcring activities?
17 A No,
18 Q The next gentleman's time sheet is Danny"
19 A Gopcar.. G.O-P-E'A.R_
20 Q He did some cindering activities. And can you
21 tell me which job sites he went to'/
22 A You go up to the top of the time sheets, look
23 at the codes. The first one ..
24 Q It looks like the codes he has under quantity
25 nwnhcrs. right?
Page 19
I A Urn-hum, Right-hand box description dug out
2 American Rehab, CIR. Mumma Road, Wenl back 10 American
3 Rehab,
4 Q There's also Comm= Bank Colonial Park,
5 A Went to PP&L Went back to PA National.
6 Cindcn:d Meridian Bank,
7 Q I'm sorry, I don't see where he Wl.'DI back to PA
8 National.
9 A Item number 8 in the right'hand box,
10 Q So he would have bc..'D there, can you lell me
II when it was he was the",? I'm looking 01 this sheet. It
12 looks like Mr, Fn:eby was at P<'lln National between 11 :30
13 and 2 o'clock,
14 A Looks like the",'s an lllTOW drawn up from item
15 number 8 to item number 4 where the description says gel
16 another load of cinders, It looks like he swung through
17 PA National and hit it. also,
18 Q Now, when you comp= Mr, Gopcar's time record
19 with Mr, Fn:eby's time record. ilappears that bOlh of
20 them visited Pennsylvania National Insurance's facilities
2 I and Ihat Mr, Fn:eby spread salt and Mr, Gopcar spread
22 cinders,
23 A That's correct,
24 Q Can you 1.:11 whether Mr, Gopcar was Ihe",
25 before, during the same time, or aner the time Ihut Mr,
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
ROBERT G. GALARDINI
NOVEMBER 6, 1996
Page 20
1 Fnxby was there?
2 A I think if you look up at the top at the face
3 codes, Ilhink it says on the third column it's a 290,
4 You go back 10 the job number item sheet, number 290 is PA
5 Nutionullnsurunce,
6 Q The 290 is the one scratched out there,
7 underneath thut?
8 A Urn-hum, Thut matches with the description box
9 pretty good,
10 Q My copy mukes it look like 200 not 290, so
11 that's where I was confused?
12 MR. BIALKOWSKI: Yeah, I thought that was 200,
13 also,
14 BY MR.1I0LKO:
15 Q So he cindered betwa.'D 8 and 10:00, and Mr.
16 Frceby carne back and salted belWl:cn 11 :30 and 2 o'clock,
17 A If you go back to the original time sheet, we
18 wlkcd about Frecby PA Nalional and you looked at the..
19 apparently he broke a hydraulic hose and it looks like
20 Denny Gopcar was dispatched. All the salt trucks have
21 radio communication, Looks like he was dispatched to
22 replace him so we could service the customer, now that I'm
23 looking at it. It says right on there.
24 Q Both gentlemen got there that day and provided
25 some services .. one salt, one cinders?
Page 21
I A No. I didn't say that. If you look at the time
2 sheet, read the descriptions.
3 Q Right, on the salt. It says salt PA National
4 Insurance.
5 A Are you looking at Fn:eby's original time
6 sheet?
1 Q Right.
8 A If you look at time he broke a hydraulic hose,
9 it looks like to me that the other tr~ck was dispatched to
10 PA National so we could service them,
I I Q It looks like this half hour time for PA
12 National was en route and it broke down, Then down here
13 two and a half hours would have been salting PA National
14 af\er"
15 A He Wl.'Dt back,
16 Q" Gopcar had already cindered it?
11 A Right.
18 Q What would be the reason to put cinders fIrSt
19 and then salt?
20 A De(l<.'Dding whal the customer wants, Depending
21 the type of condition,
22 Q Mr, Gopcar, according to the description upper
23 right-hand comer, wcntto American Rehab, CIR, back to
24 American Rehab, to PP&L.to P<'Dnsylvania National
25 Insurance and Meridian Bunk, Are all of those business
Page 18. Page 21
ROBERT G. GALARDINI
NOVEMBER 6, 1996
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Page 22
1 located in the greater Harrisbllll! area" I I.EW office, laod developmc"111 associ ales,
2 A Yes, 2 MR, PRICE, Thai's Leon E, Winlennyer,
3 Q Arc any of those businesses Ihat we've jusI 3 OY MR, HOI.KO,
4 mentioned lcealed near 21 Roadway Drive, Carlisto, 10 the 4 Q Aod 20X is Commerce Bank, Paxtonia, And I
S DMC facility? 5 Ihink Ihose were Ihe only businesses Ihal he W<."11lto, But
6 A No, 6 I'm unclear as to what he did there, I take it if we
1 Q Which one is the closest of Ihose 10 DMCI 7 wanlcd to tind OUI whelher he salted, cindered,
8 A I can't answer that. PP.lL has four different 8 anli-skidded. you'd be able 10 check Ihose records and lei
9 sites. I don't know which sile that was hit, 9 us know what he did?
10 Q In December of '92, did Wintennyer have III ^ By Ihe piece of cquipmc"111 he had, a pickup
II customers, say, within a one mile nulius of DMC in II lruck, PT40,
12 Carlisle? Or to say it another way, was DMC your only 12 Q 49,
13 cw.'lOmCr in the Carlisle area in December of '92'1 Or how 13 ^ Under commenls, workcd on ice removal.
14 many customers did Wintennyer have in Carlisle in December 14 Q Now, whal would he have 10 do 10 have ice
IS of '92? 15 removal?
16 MR. PRICE: Which question would you like him 16 ^ I can't answer by this time sheet.
11 W answer? 17 MR, PRICE: Let me just go off the record_
18 MR. HOLKO: Anyone, 18 (Discussion held off the record,)
19 TIll! WIDlESS: Job number 250 Mayapple is a 19 BY MR_ HOlKO:
20 development in Carlisle, Residential homes and 20 Q Mr, Galardini, with respettlo the type of
21 wwnhouscs, 21 cquipmentlhat Mr, Buer was using that day, the PT49, what
22 BY MR. HOLKO: 22 types of jobs would thai pickup truck be used for,
23 Q You're describing what Mayapple is? 23 assuming that Ihere was an icy condition in this urea?
24 A Yes, 24 ^ Small parking loIS,
2S Q Residential homes and townhouses, not a 25 Q With respect to Ihe DMC lot area, has
Page 23
I diffcrcot customer,
2 A RighI.
3 Q Now, with rcsunJ to Tony Buer's time sheels,
4 and be bas two of tbcm, Can you lell me how many
S diffcrcot customers he went w that day for either
6 salting, cindering or anti -skid servicing?
7 MR. PRICE: And for Mr, Buer, be identities his
8 clients under the qUllDtity column,
9 TIlE WIDlESS: Right.
10 BY MR. HOutO:
1 J Q Let me go through them, It appears that he was
12 at 120, which is American Rehab, I'm not sun:: what he did
13 tbcrc. Do you know what he did?
14 A If you look in the description box in the right
IS it says cinder American Rehab, two ton,
16 MR. PRICE: 'That's Gopear.
11 TIlE WIDlESS: That was the question,
18 MR. PRICE: No, his question was Mr, Bacr,
19 BY MR. HOLXO:
20 Q He bas NA in description box.
21 For the record, while we're trying 10 tigure
22 that out, he was at American Rehab, which is number 120,
23 He was also .. And:s and Vaughn, lie was also at CJR,
24 office_ And at A1IM. which I don't know what that is, He
2S was also .. Commerce Bank, Colonial Park. And he was at
Page 24
Page 25
1 Winlennyer ever been called out to perfonn anti.skid
2 surfaces?
3 ^ Yes, we have,
4 Q Can you give me an idea on how many occasions
5 that has happened"
6 A No, I ean't.
7 Q lIus il bcl.."11 more Ihan one occasion?
8 ^ I would say so,
9 Q Can you tell me when the tirst occasion was?
10 ^ Four years ago'l No,
11 Q You can'tlell me when the tirst occasion was?
12 A No,
13 Q Can you tell me wen: the Wintennyers ever
14 called out before Dt.'CCI11ber of 1992, before that date?
15 A No, I can't,
16 Q Would there be records that would reflect when
17 they were called out for de-icing material?
18 ^ There would be invoices, correct.
19 Q Can you give me an estimate of what the average
20 chwge was for dc-icing the DMC lot at 21 Roadway Drive?
21 MR, PRICE: During what lime period?
22 BY MR, HOlKO,
23 Q In the winler of '92-'93 under that contract,
24 ^ (I woulu de(l<."11u whelher they requesleu sailor
25 sail and anti-skid or anti-skid,
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Page 26
I Q Give me a range, The least amount it would
2 have coslto do their lot and the most, approximate
3 estimate of the most that it would COSI, using the most
4 expensive, which would be: the salt mat<rial since that',
5 the highesl cost per ton,
6 MR, PRlCE: You're asking him, if [ undcrsfmld
7 ii, bllSCd upon the rat<s that an: shown here for
8 1992-1993,
9 MR, HOLKO: Right,
10 MR, PRlCE: Knowing the sizc and conliguration
11 for the DMC lot, knowing the typo of lruck that would have
12 10 go out there, and then using each of the thn:e types of
13 mat<rials, what he could approximate the cost to be?
)4 MR, 1I0LKO: Exactly,
1 S TIlE WITNESS: They could sp,:nd anywhere from
16 S500 to maybe 1500, Depending what they wanl.
17 BY Mil HOLKO:
18 Q Would you have invoices to DMC which would
19 reflect that approximate range over the period of time
20 that Wintennyer has bc:.:n perfonning those services for
21 DMC1
22 MR, PRICE: Objection, Don't answer the
23 question, TIle invoices will re/lect what they reflL-Cl.
24 Asking him to tell you without having seen the invoices
25 what they might show, [ don't know if he can,
Page 27
I MR, 1I0LKO: [t was probably a bad question,
2 BY MIlIIOLKO:
3 Q The idea is, you've given us an estimate of
4 somewhere approximately 5500 on the low end to as much as
5 approximately SI500 on the high end, And [guess what I'm
6 looking for is if we then WI.'Iltto your records --
7 A The records an: records, whatever it cost,
8 what<ver il cost, How moch ice was there, how much snow
9 was there,
10 Q And how much time they hod 10 sJlL'Ild doing it?
I I A Correcl.
12 Q That would also dcJlL'Ild on how many trailers
13 were in Ihe loading dock an:a and moving around the yard
14 at the time you wen: trying 10 do Ihis activity?
IS A That's com:cl.
16 Q Did Wintennyer provide Mr, Sabotchick or Mr,
17 Clifton with that type of ranse for de-icing services at
18 any time where you said, hey,lisl<.'Il, here's Ihe contrdel.
19 We're going 10 come OUI and plow your snow wrn.'Ilever it's
20 Ibm: inches of snow, Whatever il costs, it costs, This
21 is going to be the rat<, nut you know if you n...-d us for
22 de-icing, we can do it wilh cinders for this amount so you
23 have an idea, ligure in your head, or if we have to come
24 out and really do a heavy duty anli-skid joh ii's going to
2S be as much as Ihis, hut this is what you can ligun: on if
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
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ROBERT G. GALARDINI
NOVEMBER 6, 1996
Page 28
I you call us"
2 MM, PRlCE: [n your opinion relat<d to the
3 '92-'93 wint</' season'l
4 MR, 1I0LKO: Ye"
5 MR. PRlCE: Again, he was not the individual
6 who submitted the proposal.
7 BY MR, HOLKO:
8 Q I guess whether it's your policy procedure to
9 lei your customers know, give them a ballpark idea of how
JO much it would cost in thAt nIDI!\." we just discussed in
11 negotialing with entering the contract, Ilhink that was
12 the queslion,
13 A For the most part the conlllct pcr90n or person
14 in chWlle is either facililies manager or somebody who is
15 familiar with the process and they are very aware of the
16 cost,
17 Q So Ihatanyone, anyone of your customers again
18 who's familiar with your services or hod any experience
19 with your services hod a pretty good idea if they pick up
20 lhe telephone and call Winlern1yer, they know within a
21 range of dollllfS how much ii's going to costlhem?
22 A ['d say for the most part, yes, sir,
23 Q Have you hod any conlllct wilh anyone from DMC
24 or ERX with respcctto this lawsuit, whelher you had a sit
25 down, telephone conversation -.
Page 29
I A No,
2 Q Have you hod any discussions with my client,
3 Mr, Dickert, for any reason?
4 A No,
5 Q You don'l know who he is, [ take it?
6 A No,
1 Q What about at Winlern1yer, have you had
8 discussions with anyone at Wint<nnycr who mighl have l\IlY
9 infonnation or knowledge aboutlhis situation?
JO A Just 10 pull the lime sho:t and contract that
11 we had_
12 Q I believe at one lime [ lhink [ had a
13 conversation with Mr, Wintennyer who called,
14 A Okay,
15 Q And just for the record, [ think he told me-
16 this was before the laWl>'Uit was filed we had sent a lett</'
17 of representalion out, and he had told me thai snow
18 plowing was whal you conlract<d for, and if they want<d
19 anti-skid materials tb..y'd have to call. That was on an
20 as-needed basis type of thing, They'd have to call you to
21 gel you out there?
22 A Standard, TItal' s com:ct.
23 Q And Ihat's how you undcrsfmld this arrangement
24 to be with DMC as of Ihis time period?
25 A That's eom.-ct, II'S a will call agreen1<:nt.
Page 26 - Page 29
ROBERT G. GALARDINI
NOVEMBER 6, 1996
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I Q Docs Wintermyer have contnu:ts with any
2 customers whctc the customer allows you the discretion to
3 perform de-icing services'l
4 A Yes,
S Q What's the cost for that? Is it any diffen..nt
6 than being on an on call basis? Or is it less, more,
1 same?
8 A I think the cost is more because we Ill'C more
9 concerned about safety than cost at that point lx.-cause we
10 IIl'C liable for it.
11 Q Has anyone told you that WinlCl'lllyer had been
12 called for de-icing lICtivilies on the 28th of December of
13 \992, and then called again and called off, said don't
14 come now? Has anyone you know told you that?
IS A No,
16 Q If that had occum:d, would there be some
11 ItCOrd of that happening on the log or through dispatch?
18 A It's hard to say, There's phone logs for
19 displltch, I don't know if the records Ill'C still
20 available,
21 MIl. HOLKO: That's all the questions I have,
22 CROSS-EXAMINATION
23 BY MIl. BIALKOWSK.J:
24 Q Mr_ Galardini, I just have a few follow up,
2S Fim of all, on the list that was provided in response to
Page 3\
I request for production which has number codes for the
2 various Cuslomers, what does job number 5092 refer to?
3 That's right at the top,
4 A I'm sorry?
S Q Job number 5092,
6 A Snow removal code for 1992_
1 Q So that's the snow removal code for 1992,
8 A Right, that's the snow removal job number and
9 these I\l'C subnumbers for the customers,
10 Q If you go to Mr, Frecby's documents, you'll see
11 under job number 6\32,7 over dash 7, What does that code
11 indicate?
13 A That's pre-tripping atrock, where the truck is
14 checked on,
IS Q And if you go over two columns it then has
16 6131.7, What does that code indicate?
11 A That'sa shop repair number. If you go over in
18 the right.hand box it says replllCC chain and fix, replllCC
19 hydraulic hose,
20 Q The next column, there's three numbers, The
21 5029 I Imagine refers to the snow removal for 1992?
21 A Right.
13 Q The 290 i, tbe customer number, What docs 3029
24 indicate?
2S A That I can't answ.:r without thc code list.
Page 32
I Q Is there another code list besides the one
2 that's provided here that might give us this information
3 for what tbe various codes mean'!
4 A For the race codes, yes,
5 Q If you could provide a copy of thut to your
6 aUomey and he could determine if we could have a copy of
7 that, I'd appreciate that.
8 MR, PRICE: Sure,
9 MR, BIALKOWSKI: My questions on these various
10 documents were on some or those codes, ir they have those
II codes I don't have to take up your time asking what they
12 mean,
13 TIlE WIDlESS: I'm sorry, Looking at it clos<..r
14 here, next to it, it says work order,
15 MR, BIALKOWSKI: Yeah, that's in the column
16 preceding it,
17 TIlE WllNESS: Work order 3029, that's whatt:,at
18 might be, Because on the following page there's a work
19 order 3025, so that is not a code,
20 BY MR, BIALKOWSKI:
21 Q By the way, on that first sheet you l0.3ked at
22 where you saw the work order 3029?
23 A Yes,
24 Q Next to the words work order in the column Ill'C
25 the letters T - T, What did that indicate? (think you
Page 33
I answered that before, Was that a pickup trock? Do you
2 see where ('m pointing to'l
3 A Um-hum,
4 Q Or is that travel time'!
5 A That may be,
6 Q Again, without belaboring that, I would still
7 ask for that --
8 MR, PRJCE: Sure,
9 (Discussion held orf the record,)
10 BY MR, BIALKOWSK.J:
II Q Now, do I understand com:ctly that the
12 documc"ts that we've been referring to that you're looking
13 at,the one from Frccby, Jacobs, Gopcnr and Boer, they're
14 the only documents that pertain to work that was performed
15 by Leon E, Wintermyer, Inc" on December 28, 1992, is that
16 correct?
17 A For salt and cinder, yes,
18 Q If there was just plowing, would there be other
19 documc"ts that would reflect jobs that you jusl plowed on,
20 on that date?
21 A Yes,
22 MR, BIALKOWSKI: I would ask that those
23 documents be produced to your counsel so they can then be
24 submiUed to us,
25 (Discussion held off the record,)
HUGHES, ALBRIGHT, FOL1~ & NATALE
717-232-5644/393-5101
ROBERT G. GALARDINI
NOVEMBER 6, 1996
Page 36
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I BY MR, BIALKOWSKI:
2 Q Just to follow up on that, then, Mr, Galardini,
3 if work was performed - actually, for any of these
4 customers, an invoice would thC"Tl be prepared which would
~ then be sent to that customer?
6 A I would hope so,
7 Q Did you maintain separate folders or liIes -.
8 when I say you, Leon E. Wintcrmycr, Inc" maintain
9 separate folders or liIes for each customer so if a
10 cUSlOmcr came to you in February and said, could I see all
11 the invoices we had for this snow season, I can't find
12 mine, just to so: what I spent for the ycur, would Leon
13 Wintermyer have those type: of n:eords'!
14 A We'd have a record of the invoices, ycs,
15 Q Speaking directly 10 OMC. Distribution
16 Management Corporation, would you have had that type: of
17 file at least back in 1992-1993 for OMC?
18 A Correct.
19 Q Do you know if you would still have the file
20 for OMC that would have bc:t."Tl in effect for the snow season
21 1992-1993?
22 A No, [ do not know that.
23 Q Would you please chock your n:eords, if you do,
24 again referring to the 1= that this contract that we've
25 also identified at your deposition pertains to, which is
Page 35
I the 1992.1993 snow season, and if you have any records
2 reflecting any invoices for any type of work performed for
3 DMC pursuant to that contract, if you could give them to
4 your counsel.
5 In looking at the contract, paragraph 4 under
6 provisions Slates that: We agree that we will clear the
1 area in accordance with a plot plan furnished by you,
, 8 If there was a plot plan furnished, would that
9 be kept in the DMC file for that year as well as the
10 invoices, or where would that plot plan be kept if, in
II fact, one was in existence during that snow year'!
12 A That would be in that file,
13 Q And again, if you have n copy of.. if anylhing
14 was given to Leon E, Wintermycr, lne" pursuant to that
I 5 provision number 4 for that snow year -.
16 MR, PRICE: What you'n: saying, you want
17 everything in the DMC file for the snow =on '92-931
18 MR, BIALKOWSKI: Yes,
19 MR. PRICE: Okay,
20 BY MR, BtALKOWSKI:
21 Q Just to clarify, I know that a lot of
22 discussion has been asked about ice removal or salting and
23 cindering, et cetera, The contract itself in tenns of
24 snow removal, that was an automatic contract, it W3.'ffi1t a
25 will call, correct, that if it was at least three inches
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
I of snow, tht."Tl you would automatically remove it?
2 A Correct.
3 Q Whc"Tl a call would go into your -- would a
4 dispatcher be thc correct designation to you, sir?
5 A YC'S,
6 Q Would the dispatcher have a record of the call
7 coming in and then the dispatcher would assign the
8 specific job to one of your drivers?
9 A That's correct.
10 Q So in other words if'- I saw Rose's name here.
I I Would Rose be -- is that .. I have it under foreman. Is
12 Rose a dispatcher, and is that the first name or is that
13 the last name of the person?
14 A That's the first name of the person,
IS Q So Rose would n:ceive a call from a customer
16 and then Rose would designate one of the drivers to
11 deliver the necessary services?
18 A That's correct.
19 Q And do you know if Leon E, Wintermycr, Inc"
20 would have the log book that Rose or any other dispatcher
21 maintained for the incoming calls or if, in fact, they
22 were kept?
23 A I do not know if we still have that or not.
24 Q Would you check, and if there are any phone
2S logs that would be kept by the dispatcher, as opposed to
Pnge 37
I these.. what did you call these, work order sheets7
2 A TIIIlC sht:ets,
3 Q Time sht:ets, again, for the 1992-1993 .- well,
4 strike that question_
5 If there's any of these log sheets, or however
6 you would designate them, that would be kept by the
7 dispatcher for Dc'CCl\)ber 28, 1992, still in existence, if
8 they could be provided to your counsel. And in fact, also
9 include December 27, which is the day before the incident.
10 MR, PRICE: I just put down December '92.
II MR, BIALKOWSKI: I think that's alii have.
12 Thank you, Mr, Galardini.
13 REDlREcr EXAMINATION
14 BY MR, !I0LKO:
15 Q I have just a couple more. According to the
16 contl'llct there's a provision for equipmcntthat may be
17 stored on site, Was then: any equipm~"1lt stored on site at
18 DMC the winter of '92-'937
19 A I do not recall DMC requesting equipment to be
20 stored on site, but if it was, it would show on the
21 invoices,
22 Q A couple witnesses today testified that there
23 wen: skids of Ice-Melt materials in 50-pound bags stored
24 at DMC. that would have been delivered by Harrisburg paper
2~ company, An: you aware of the existence of that material
Page 34 - Page 37
, ROBERT O. GALARDINI
NOVEMBER 6, 1996
""'"
Multi-Page ""
Page 38
I on site at DMC in the '92.'93 SC:lSOn?
2 A No, I'm not.
3 Q Docs Wintennycr under any circumslance use
4 material ,upplied by your customer instead of using your
S anti-skid material?
6 A W. have not.
7 Q 1 also see here in the controct that if you an:
8 called to come out, there is a two hour mobilization
9 charBc?
10 A 'That's com:ct.
11 Q What was that charge for the '92-'93 season"
12 Is it a nat charge?
13 A Two hour mobilization for that pi= of
14 equipment.
IS Q Whatever the pi= of equipment was"
16 A Correct.
11 Q Then there was a provision for fuel surchiltges,
18 Do you know whether during the '92-'93 season then: was a
19 fuel charge surcharge?
20 A 1 do not think there was,
21 Q There was also testimony today by two employees
22 of DMC that at times !hey did see snow removal trucks -- I
23 don't know whether !hey identified them as Wintcrmycr
24 trUcks, but snow removal trucks removing snow in the yard,
2S and that a yard jockey or another trUck driver would be
Page 39
I moving trailers out of the way, Do you know whether that
2 actua1ly occurred when Wintcrmycr Wl1S called out to do
3 snow removal?
4 A At various times, yes,
S Q Is that something that would be discussed with
6 whoever the designated pcr50n was at Wintennyer, that you
7 would ncx:d to do that so you could do your job properly?
8 A We did not jockey the trUde, DMC did,
9 Depending on what !hey wanted at that time,
10 Q Basically if !hey wanted you to get in betw..:n
I I those trailers, they're going to have to move them?
12 A Right.
13 Q Did Wintcrmyer pcr50nnel come out with hand
14 shovels and whatnot and shovel W'CllS for customers?
IS A No,
16 Q So this would be just major snow plowing large
11 areas, com:ct?
18 A Com:ct_
19 Q They also testified today thatthc -- that when
20 you would do snow removal that you would also -- or that
2t the trucks that were doing the snow removal would also be
22 cindering at the same time?
23 A We have the capabilities to do that, yes,
24 Q Did you provide thatl)'pC of service free of
2S charBc for DMC? When you would go out to plow snow, did
Page 38 - Page 41
Page 40
you also sprend some einders, too, like B:l a matter of
2 COUr.iC, routine, whatcvc:r?
3 A Not unlcss we were: din:eted la, and at that
4 time Ihey'd he invoiced for it,
5 Q I'm from Alkntowo, so I'm not sun: when:
6 L.:moyne, PA. is, When: is that?
7 A Right acros.. the river,
8 Q Is that when: the Wintcrmyer facilities arc
9 where they have all the trucks and all the anti-skid
10 materials?
II A No, 11mt's when: the office building was,
12 Q Where arc the trucks, the equipment and
I) materials located? When: were lhey located in December of
14 '92'1
15 ^ Etters, Pennsylvania,
16 Q Where is that?
17 A South on 83,
18 MR, PRICE: Halfway betwa:n hen: and York,
19 BY MR, HDLKO:
20 Q How far from DMC on 21 Roadway Drive was the
21 equipment at Wintcrmycr, whether time or distance?
22 MR, PRICE, We're not talking as the crow
23 flies, we're talking the road 'ystcm,
24 BY MR, HOLKO:
25 Q How far is it? How long would it lake to
Page 41
I mobili:n: a truck? Let's assume DMC calls you 9 a,m, on
2 Dea:mber 28th, 1992, and says, hey, guys, our lot', bad_
3 Can you come out here, get something out here, just cinder
4 it. How long would it lake to mobili:re a truck from
5 Ellers, Pennsylvania, to drive to DMC? Again, assuming
6 that the weather is not so terrible that you can't get
1 through, I mean, give or tnke a range of is it an hour,
S is it two hours?
9 MR, PIUCE: Let's make a eouple assumptions,
10 You got a trUck there that doesn't have any load on, You
I I got to get the driver, you got to get the load on the
12 truck, get everything together. It's not like it's
13 sitting there ready to go,
14 BY MR, 1t0LKO:
15 Q Let's have a minimum time and maximum time,
16 This may be relevant because there's atleust one
17 statl:ment made allegedly to my e1k'llt that Winlennyer was
I B called off, And the only thing 1 can think of thai that
19 would.. the only SC<.'llario I could see it would fall into
20 is they call you in the morning and you guys don't get
21 there for a couple hours, then they say, screw it, we're
22 canceling them, I'm womk:ring what's the minimum amount
23 of time for you to get out there and maybe: the maximum
24 time you can get out then:,
25 MR, PRICE, If you can answer it.
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717-232-5644/393-5101
ROBERT G. GALARDINI
NOVEMBER 6, 1996
Page 44
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Page 42
I TIlE WTrnESS: You get on the Turnpike, you
2 could be there within an hour, I would say,
3 BY MR. 1I0LKO:
4 Q Someone who is familiar with your services
5 would know if they called you, you're not going to be out
6 there within ten minulCS or half an hour'!
7 A Correct.
8 Q Unless you are in the area, Let's say you're
9 in HarrisbUlJl at Penn National.
10 A We have customers who call the night before
II previous during the night or whatever, and say we want you
12 there at 6:00 in the morning, We're there at 6 o'clo.:k,
13 Q Right. Depending on what the weather ..
14 Q
15 A Yeah, We're there to service the customer,
16 And as you can tdl by the time sht:ets, trucks were
11 getting prepared ami gelting loaded, That was a light day
18 by these time shc:cLS, because we have the capabilities of
19 putting out eight trucks, and only four went out_
20 Q What's the distance from Etters to DMC? Can
21 you estimate?
22 A I wouldn't guess,
23 MR HOLKO: That's all the questions I have,
24 RECROSS EXAMINATION
25 BY MR. BIALKOWSKI:
. '
Page 43
I Q Just two follow ups, When you said you had the
2 capability to put out eight trucks at a time and the
3 records show you only have four out, is that a sp<:cific
4 type of truck? In other words, a truck that would do
5 salting and cindering as opposed to just the plow'! Or arc
6 you saying you only have eight trucks maximum thot would
7 be put out whether they would be distributing salt,
8 cinders, or not?
9 A We have the capability to put out eight trucks
10 to salt and cinder with,
II Q And if there was plowing, you have additional
12 trucks for that, too,
13 A Yes,
14 Q Just one other follow up, Mr, Galardini. In
15 the second paragraph of the agreement under provisions
16 states: We will provide immediate continuous plowing in
11 the event of a snow stonn, And I also see that's in the
18 contract which you yourself signed in 1994, What does
19 that mean'! What does Wintennycr take it to mean? I know
20 what immediate continuous plowing means, hut what docs
21 snow stonn mean in the context of this agl'Cl:ment?
22 A A continuing ~ow, We slar\ attJuu: inches
23 and you get a continuing snow, and if it snows for seVe'll
24 hours you request US to be there for seVe'll hours, we'll be
25 there for seven hours,
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
I Q Well, if the predictions were for, say, for a
2 foot d snow, and the snow conunences at 6:00 in the
3 morning, that's when the snow is going to star\, and you
4 satisfied yourself, Wintcnnycr satisfied itself that this
5 stonn is hitting us, the weathennan was right, and it
6 starts to snow at 6, first of all, do you wait until
1 there's three indieS on the ground befon: you would go and
8 plow, in this situation, DMC?
9 A Unless we were called and directed to do
10 otherwise,
11 Q Assuming you're not called by DMC, they don't
12 call you at all, Do you wait until there's three inehes
13 of snow, then you go out and plow there?
14 A At three inehes of snow we'd be plowing,
15 Q Then you go back when there's another three
16 inehes and just keep doing it until the stonn's over?
17 A You would do it continuously, continuously
18 unless the customer wanted oomething differenL Unless
19 they wanted to wait until later and clean it up at the
20 end,
21 Q I understand that without the customer
22 contacting you, based upon the conlrUCt, you would
23 continue to do it as it got to three inch intervals, is
24 that correct?
25 A Three inch intervals,
Page 45
1 Q It says we will provide immediate continuous
2 plowing in the event of a snow stonn, So in light of the
3 first paragraph says the snow will be cleared
4 automatically at three inches, if there's going to be a
5 foot of snowfall would you make your first clearing of the
6 .'llOW when there was three inches on the ground?
1 A That's correct.
8 Q And then you would basically judge when the
9 next three inches would be on the ground, then when it's
10 another three inches you go back and do the second
I I clearing, is that what continuous means?
12 A No, Continuous means that you would stay there
IJ on si te during that snow stonn,
14 Q So then if there was a foot of snowfall that
15 was going to come, and now there was three inches of that
16 snowfall on the ground, you would slar\ at DMC clearing?
17 A Right,
18 Q And you'd stay there throughout the durntion of
19 the snow stoon'!
20 A We have do offer that service as I said, but it
21 would be upon the direction of the designated rep, whether
22 they would want us there or not.
23 Q I'm justlrying to figure out where it says
24 that, because with res)3<.octto the ice removal or the
25 anti-skid being applied, et cetera, it talks about if you
Page 42 - Page 45
251 (I) 4:5 8:20 8:20 9:3
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matchcslll 20:8 3:24 4:24 13:S 16:10 24:17 24:18 21:24 40: IS
16:15 36:10 36:12 41:S
material (141 7:22 36:1J 36:14 30:13 33:9 33:25 41:2 41:5
7:24 8:10 9:4 named III 4:25 41:18 pCr(11 9:12 26:S
9:9 9:10 9:11 offer[11 45:20 pcrform 111
17:10 17:13 25:17 namcslll 10:14 offered 1118:1 2S:1
26:4 31:25 38:4 National 1"1 30:3
15:22 office 1>1 23:24 pcrformed (II
38:5 15:2S 16:14 19:5 24:1 16:1J
materials 1'1 8:7 19:8 19:12 19:17 40:11 33:14 34:3 H:2
8:16 9:11 17:9 19:20 20:5 20:18 offices (II 12:22 pcrfomUnKIl1 26:20
26:13 29:19 37:23 21:3 21:10 21:12 OHIO(II 1:9 pcriod (41 6:8 25:21
40:10 40:13 21:13 21:24 42:9 one (141 3:19 12:16 26:19 29:24
rnattcql) 40:1 nearlll 22:4 12:16 12:19 15:19 pcrson ['7) 12:16 12:16
maximum 1>1 41:15 necessary 1'1 11:9 11:9 18:9 18:23 28:13 28:13 36:13
41:23 43:6 36:17 46:16 20:6 20:2S 20:25 36:14 39:6
maY(ll 33:5 37:16 necessitated III 5'1J 22:7 22:1 I 22:18 pcrsonal (II 10:12
25:1 28:17 29:12
41:16 nCCd[ll 15:10 27:21 32:1 33:13 35:11 Persnnally III 10:19
Mayapple PI 22:19 39:7 36:8 36:16 41:16 pcrsonncl (l) 7:3
22:23 nccded PI 8: 10 8:12 43:14 11:3 39:13
mean 1101 6:9 7:6 negotiated III 9:15 operating III 9:25 pcrtain (II 33:14
9:9 17:16 32:3 negotiating II) 28:11 Opcrations [I I 6:17 pcrtainSll1 34:2S
32:12 41:7 43:19
43:19 43:21 next I"I 16:15 18:18 opinion III 28:2 phone 1'1 12:8 12:9
means PI 43:20 45:11 31:20 32:14 32:24 opposed PI 7:7 12:10 30:18 36:24
4S:12 45:9 36:2S 43:5 pick (II 28:19
mcntionedlll 22:4 night 111 42:10 42:1 I order(11 32:14 32:17 pickup (ll 24:10 24:22
Meridian 111 19:6 normally III 8:25 32:19 32:22 32:24 33:1
21:25 NORTH (II 1:20 31:1 piece (>1 24:10 38:13
Message [II 12:12 Notary[lll:11 47:3 original 111 20:17 38:15
47:24 21:S placc(>1 1:19 11:21
Michael (II 1:1
3:12 4:2S 5:1 notify III 8:9 otherwise [II 44:10 41:13
might III 26:25 29:8 NOVEMBERIII 1:18 own PI 10:12 14:4 PLAINTIFFS (ll 1:3
32:2 32:18 nOW(UI 4:15 4:16 owner (I I 9:3 I:IS 1:25
MikcllI 5:3 5:8 5:9 6:20 owner's [II 8:8 plan(l) 3S:7 35:8
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19:18 20:22 23:3 -p- PLEAS (111:1
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minute III 13:2S 8:5 8:8 10:9 page PI 8:11 32:18 21:19 39:2S 43:S
minutes (II 42:6 15:18 1S:21 16:18 pages III 3:20 4:21 44:8 44:13
MisS111 16:25 17:20 19:9 19:1S 5:11 14:6 plowed (1133:19
19:15 20:4 20:4
miX(11 9:5 22:19 23:22 31:1 papcqll 31:24 plowing (111 1:7
mixed II) 8:20 31:2 31:5 31:8 paragraph (41 35:5 7:1 7:10 29:18
mobilization 111 38:8 31:1 I 31: 17 31:23 43: I 5 45:3 46:1 33:18 39:16 43:11
38:13 35:15 Park PI 19:4 23:25 43:16 43:20 44:14
45:2
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41:4 10:11 14:24 18:25 7:8 1:11 9:2
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5:1 5:3 part (41 14:25 15:12 poliey [41 7:5 11:12
Monday (II 13:12 -0- 28:13 28:22 11:19 28:8
morning 1'1 41:20 o'clock [1119: 13 20:16 partieulaq'l 5:13 position PI 6:16
42: 12 44:3 42:12 5:24 7:2 1:16 6:18
most [71 14:24 15:12 oaths III 41:4 46:11 Possibly III 12:20
26:2 26:3 26:3 Objection III 26:22 parties 111 3:3 47:1S PP&Lpl 19:5 21:24
28: 13 28:22 objections III PARTNERSHIP [II 22:8 I
3:5 1:9 pre-tripping III 31:13
HUGHES, ALBRIGI . -
.
1""\
Multi-Page'"
maintenance - pre-tripping
ROBERT G GALARDINI
11, FOL1Z & NATALE
717-232-5644/393-5101
Index Page 5
preceding - act
ROBERT G GALARDINI
~
Multi-Page""
.
preceding (II 32:16 remove 111 7: 16 36:1 RPR['I 1:16 47:23
predictions (II 44:1 -R- removing PI 7:1
prepared [11 34:4 Rill 1:27 7:10 38:24 -S-
42:11 radio (II 20:21 repIII 45:21 Sabotchickpl 10:16
pretty (ll 6:JS 20:9 radius III 22:11 repair (II 31:17 11:7 21:16
28:19 26:1 26:19 Repcatlll 18:14 safety 111 30:9
previous (11 6:11 rangc I"I
27:17 28:10 28:21 replace 131 20:22 31:18 salt 1"1 8:9 8:12
42:11 41:7 31:18 8:20 8:20 9:2
previously (II 10:17 ratcl11 8:13 27:21 Reporter[ II 47: I I 9:2 9:3 9:3
price ("1 (:30 3:18 rates 111 6:20 26:7 Reporter-Notary [II 9:6 9:9 9:19
8:24 13:19 13:24 47:10 16:3 17:11 17:20
14:6 14:9 16:9 read [II 21:2 represcntlll 3:12 19:21 20:20 20:25
22:16 23:7 23:16 reading (II 3:3 21:3 21:3 21:19
23:18 24:2 24:17 ready PI 41:13 46:14 representation (II 29:17 25:24 25:25 26:4
15:21 26:6 26:10 really PI 9:19 27:24 representativc (41 8:6 33:17 43:7 43:10
26:22 28:2 28:S 10:3 10:~ 10:13 salt's (II 9:20
32:8 33:8 35:16 reason 1'1 21:18 29:3 request 1'1 12:4 13:17 salted III 17:25 20:16
35:19 37:10 40:18 receive (II 36: I 5 31:1 43:24 46:1 24:7
40:22 41:9 41:15 received III 15:14 requested (II 25:24 salting I"I 16:5 16:13
procedure 141 9:25 recognizcd [II 11:8 requesting PI 37:19 18:13 18:16 21:13
11:12 11:19 28:8 record 1'01 12:8 13:1 46:2 46:3 23:6 35:22 43:5
process (1128:JS 13:24 14:1 16:9 required [41 7:3 satisfied 111 44:4
produccd (>1 2:11 16:10 19:18 19:19 7:3 7:19 8:7 44:4
3:20 33:23 23:21 24:17 24:18 reserved [II 3:6 SAVITSKY III 1:26
production (11 13:11 29:15 30:17 33:9 Residcntial [1) 36:10
31:1 33:25 34:14 36:6 22:20 SaW(11 n:22
ProPCrlYllI ~6:16 46:22 47:20 22:25 says ["I 15:19 11:11
39:7 reeorded(1J 10:7 respcct (II 1:23 12:2 17:20 18:2 19:15
proftosal ('I 2:12 records [141 12:3 24:20 24:25 28:24 20:3 20:23 21:3
3: 0 4:18 5:15 45:24 23:15 31:18 n:14
28:6 12:5 12:21 15:13 respcctive (II 41:2 45:1 45:3
24:8 25:16 21:6 3:3
provide (71 8:. 21:1 27:7 30:19 respondcd [II 15:21 45:23
21:16 n:s 39:24 34:13 34:23 35:1 scenario (II 41:19
43:16 45:1 46:4 responsc [11 13:16
43:3 scratched II I 20:6
provided ('I 1:25 30:2S
20:24 30:25 32:2 RECROSS PI 2:2 responsibility [II 8:9 screw (11 41:21
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11:2 11:8 11:12 31:21 31:3 31:8 31:22
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29:10
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P~Oacs(11 4:17 23:3 11:2
8: 6 Rehab (1) road 111 19:2 40:23 scnt[ll 11:8 29:16
pursuant (11 19:2 19:3 Roadway ('1 5:24 34:5
35:3 21:23 21:24 23:12
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5:3 6:7 6:22
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questions 1'1 3:14 38:24 39:3 39:20 routine [11 9:24 40:2 scrvicing (II 23:6
30:21 32:9 42:23 39:21 45:24 46:4 set (11 6:20 17:5
41:9 routincly (II 10:6
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HUGHES, ALBRIGlIT, FOLTZ & NATALE
717-232-5644/393-5101
1'"""\
Multi-Page""
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seven - up
ROBERT G. GALARDINl
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show 141 3:18 26:25 spread I"I 8:6 16:3 17:25 14:S 20:20 38:22
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sites (11 18:21 22:9 stay III 45:12 45:18 thanks (II 46:18 type (IS) 6:21 1:18
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situation 111 29:9 stenographically (II THOMAS 141 1:19 27:11 29:20 34:13
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34:20 35:1 35:11 43:21 44:5 45:2 throughout PI 45:18 23:8 24:13 2S:23
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Index Page 1
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rlpre'entltlvl Ihall Inltruet u, to do otblrwll', At lucb ti.e, you Ihsll
providl In arll leee'llbll tor truck I fox thl depolitia'l of thl laov.
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You shall lnfor. UI, In vrieia'l, at an individuIl(II vho
if queetionl Ihould Irill durin'l Inov rl'1val at 11'"
A ,ufflellnt auablr of .arklrs abll to vlthltlnd I ~'Ivy Ina"ltora Inl
vl,lbl, to thl operator Ibsll ha plaeld and laintlln,4 by you. V, vl11
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othar obatael.. aot clearly urkad, I: , I
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CHARLES F. KLINE
NOVEMBER 6, 1996
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Page 2 Page 4
I along with an affidavit whieh will be atlllcbed, and we
2 would ask that you read the questions and answers to make
3 SW"C that they wen: transcribed correctly and sign the
4 lranxript and affidavit and send it back, and that
5 affidavit will then be under oath. [ would think would be
6 notarized or in some way certifying that you are telling
7 the truth, Okay?
8 A No problem,
9 Q That's just a fonnalily, Would you tell US
10 your full name, ,ir?
II A Charles F, Kline,
12 Q And how old are you'!
13 A 47,
14 Q And what is your title?
15 A President, Elston Richards, [ncorporated,
16 Q Do you hold any other positions or titles with
17 any other companies?
18 A No,
19 Q What is Elston Richards, Incorporated, what is
20 that?
21 A (t's a public warehousing and distribution
22 company,
23 Q And where is its principle office located?
24 A Corporate office is located in Grand Rapids,
25 Michigan,
WITNESSES
DtRECf CROSS
1
2 NAME
3 CHARLES KLINE
4 BY: MR, HaLKO
S BY: MR, PRICE
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
3 -
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I Q And how many employees does Elston Richards
2 have?
3 A Approximately 260, and if you need that nwnber
4 exact, ['II have to conflnD that, but that's an
5 approximau: number,
6 Q That's fine, approximation will be fine,
7 Are you aware of a company called Distribution
8 Management Corporation?
9 A Yes, sir,
10 Q And did you ever have any involvement with that
I I particular company?
12 A Yes,
13 Q What involvement or relationship did you or
14 your company have with Distribution Management
15 Corpomtion?
16 A Elston Richards, Incorporated, was a major
17 stockholder in Distribution Management Corporation, and I
18 was also an officer in Distribution Management Corporation
19 until its.. [don't know what the proper tcnn is-
20 disorganization or discontinued use or until the time of
21 its closW"C, [guess is the best way to say,
22 Q It's my understanding that the property at 21
23 Roadway Drive in Carlisle, Pennsylvania, is owned by an
24 Ohio G.:neral Partnership known as Vista Warehouse Two, [s
25 that a com:ct statem:nt?
Page 3
I STIPUL\TION
2 [t is hereby stipulated by and between counsel
3 for the respective parties that, scaling, certification
4 and filing arc hereby waived; and that all objections
5 except as to the fonn of the question are reserved to the
6 time of trial.
7
8 CHARLES KLINE. called as a witness, testified
9 as follows:
10 DIREcr EXAMINATION
I I BY MR. HOlKO:
12 Q Mr. Kline, my name is Joe Holko, and ['m the
13 attorney who represents the plaintiffs, Michael and
14 Charlotte Dickert, And I'm the guy who is responsible for
15 setting up your deposition like this, ('m going to ask
16 you a series of questions, and if you don't understand any
17 of my questions, please let me know and I'll do whatever I
18 can to ask you 11 question that is understandable and is
19 fair to you, Okay?
20 ^ Okay,
21 Q Since you an: in Michigan and we have a
22 certified court slcnographer here in PC'Tlnsylvllnia who
23 cannot put you under oath to swear or affinn 10 tcllthe
24 truth today, ,he will be preparing a transcript of our
25 question and answer session today and sending that to you,
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I A ThaI is my understanding, yes, I Q Docs fllX Logistics LLC perfonn the same or
2 Q It's also my understanding that Vista Warehouse 2 similar functions that Distribution Manugcment Corporation
3 Two leased that property to Whirlpool, Whirlpool 3 did for Whirlpool?
4 Corporation, 4 A Similar, yes,
S A That is com:cl. 5 Q Whell did flU< Logistics lllke ovcr that
6 Q And in fact, your attorney has provided me with 6 distrihution funclion for Whirlpool?
7 a copy of an ~t dall:d March 1st of 1988. belWcxn 7 ^ And you're speaking tn Carlisle'!
8 Vista Warehouse Two and Whirlpool Corporation, lIave you 8 Q Carlisle on location,
9 ever seen that document? 9 A Spccilically,
10 A I really don't know, I do know that it is my JO Q Yeah,
II understanding that Whirlpoolleasc:s the building from .. II ^ I want 10 say March of '93, 111en: again. I may
12 Q From Vista? 12 nced to be exact on that date,
13 A From Vista, 13 Q II would have ho:n some time after the incidcllt
14 Q What relationship, if any, docs Elston 14 that -. the lawsuit pertains to, that would be after
IS Richards, Ine" hove with Whirlpool? 15 Deo:mber 281h, 1992'1
16 A They are a customer of Elston Richards, 16 A Yes. to the best of my knowledge. that is
11 Q And what relationship, if any, does Elston 17 conecl.
18 Richards have with Vista Warehouse Two? 18 Q So that on December 28th. 1992. Distribution
19 A None, 19 Manuge'll1ent Corporation was handling the distribution
20 Q Now, I also have a copy of an a:!""'ll1ent daled 20 function for Whirlpool out of 21 Roadway Drivc?
21 May 2nd, 1988, between Whirlpool Corporation and 21 A Yes,
22 Distribution Manugemc:nt Corporation, Are you aware of 22 Q And under that agreement of May 2nd, 1988'1
23 that docwncnt? 23 A Yes,
24 A Yes. 24 Q Now, what involvement, if any, did Elston
2S Q So I guess to summarilJ: this, Vista Warehouse 25 Richards havc in the day to day operation of that facility
l'age 7 Page 9
I Two owns the property, leased it to Whirlpool, who the'll I at 21 Roadway Drive in Carlisle'!
2 leased it to Distribution Management Corporation, 2 A Well, they were a major stockholdcr, as I had
3 A No, 3 told you, in OMC, The corporate offices of both com panics
4 Q No? Okay, Com:ct me if I was wrong, 4 wen: in the some facility in Grand Rapids, Michigan, And
S A Vista owns the building, leased it to Whirlpool 5 at various times officers in OMC were also officers in
6 Corporation, Whirlpool Corporation, then hired 6 Elston Richards,
7 Distribution Manugemc:nt Corporation to manage the busincss 7 Q Did Elston Richards have a written agrcement or
8 that was to operate from that building, 8 agn:emCllts with any of those companies that we mentioned,
9 Q All right_ Docs Elston Richards have any 9 whether it be Vista, Whirlpool, OMC. or .. I guess those
10 relationship or did Elston Richards have any relationship JO arc the only three we mentioned,
II with Distribution Management Company? 11 A Elston Richards would not have had any
12 A Yes, 12 agn:ement relative to Carlisle with Vista, nor with
13 Q Is that where you said it was a stockholder? 13 Whirlpool. [think there is, or was. when DMC was an
14 A Elston Richards was a major stockholder in 14 organized company an agrr:cment belWel.ll DMC and Elston
IS Distribution Manugemc:nt Corporation, yes, 15 Richards for certain administrative services that Elston
16 Q Arc you familiar with the company coiled EIU< 16 Richards would pcrfonn for OMC. such as processing
11 Logistics, Inc" I think it is? 17 payroll, accounting functions, these type things?
18 A I'm familiar with 0 company called ERX 18 Q What i, your" by that [ mean your personal
19 Logistics LLC. 19 relationship, if any, with ERX7
20 Q What is that? 20 A I wn president of Elston Richards. who is one
21 A ERX Logistics LLC is a limited liability 21 of the me'll1bers of the LaC. and wn designated as the person
22 company with two mcmbc'l'S, Elston Richards and Mark Vll 22 in charge to sUp<.'1'Vise and direct the day to day
23 Transportation Company, and ERX Logistics LLC provides 2J op<.TUtions of ERJ( Logistics,
24 monagcmc:nt services to Whirlpool Corporation ror their 24 Q An: you an oflicer of ER.X?
25 distribution of their appliances, 25 ^ ER.X has no ofliccrs in that it's a limited
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CHARLES F. KLINE
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1 liability company and not 0 corporation,
2 Q You W\."l'C an officer wilh OMC?
3 ^ Yes,
4 Q And were you Ihc preside."t of that company at
S any time"
6 A TowanJ till: e."d, yes,
7 Q You say towards the end ..
8 A Toward the end of OMC'S existe"'cc, I'm sorry,
9 Q Deeause the eDlployecs of ERX who we've deposed
10 so far who WCIll also eDlploytl:s of OMC have referred to you
II as the pre,idenl of OMC,
12 A Yes, I was the presidenl of OMC aOer I became
13 president also of E1,ton Richards, I did not always hold
14 thut office, but toward the IUller plll'l of OMC',
15 0l'\lani711tion, if you will, whe." I was also presidenl of
16 Elston Iliehunb, I did hold the office of pre,iili.."t of
17 OMC.
18 Q Huve you ever visited the Carlisle fueility'l
19 A Yes,
20 Q Can you give me an idcn how many times'l
21 A Oh, goodness, Since 1988'1
22 Q Yes, Whether ii's ycnrly, monthly,
23 semi-annually, whalever it may b.:, 'You don't have to give
24 me an exact account,
25 A Early on I would probably visit Carlisle ..
Page \1
~
I when \ say early on, the first two or three years of
2 existence, three to four times a ycnr, Cum:ntly I only
J visit then: once a year, no mon: than twice,
4 Q In December of 1992, who was in charge of the
5 facility there for OMC?
6 A Curl Clifton,
7 Q Do you know whether he is still e'111ployed with
8 ERX7
9 A Yes, he is,
10 Q Is he still in charge of that facility?
II A Yes, he is,
12 Q How many eDlployccs did OMC have in 1J.:ccmb.:r of
13 '92, do you know that"
14 A I can only hazard a guess,
15 Q How about an estimate?
16 A I would estimale ..
17 Q Your allomey would tell you you're not
18 supposed to guess, hl't I would tell you, you could
19 estimate,
20 A I would e,timale 35 to 40,
21 Q Two names that have come up during our
22 depo,itions, Sleven Sahotchick .. do you know him"
23 A Yes,
24 Q Also an Allen Johnson, do y~u know him?
25 A I have probably met Allen, but the face doesn't
lIUGHES, ALBRIGHT, FOLTZ & NATALE
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I come to my memory as we speak, Please don't tell him that
2 if he said I kneow him, because now I've got an employee
3 who is going to he upset with me,
4 Q I don't think he's employed with ERX any more,
5 A I can't n:cnll a face,
6 Q And this may be an area that you may not know
7 of, but thcn:'s been an issue that has arisen as to how
8 many shifts there were at OMC Carlisle during Dc:ccmbcr of
9 '92, and stnted another way, what the hours of operation
10 were, and one witness has said .. aclUlllly, two witnesses
II have said that the hours of opc:rntions were really 5 a,m.
12 to 6 p,m" and that after 6 p,m, lhere Wl\l; a janitor and a
13 sunrd on duty, 'even though trucks would come in and out,
14 drop loud., and pick up loads. Another witness has said
15 that there was actually two shifts, and the second shift
16 would go from 4 in the afternoon till midnight. Are you
17 aware of how many shifts there were or the hours of
18 operation at OMC Carlisle in Dc:ccmbcr of '92?
19 A No, I could not specifically speak to their
20 hours of operation or how many shifts,
21 Q And that would b.: .. Mr, Clifton would be the
22 person to talk to about Ihat, ( tnke it?
23 A (think Curl would probably be lhe best person
24 to talk to, and if the answer needs to be verified, we
25 could certainly check payroll records from that period as
Page 13
I to number of shifts, which may indicate if there were
2 people on a second shift,
3 Q Now, according to the ogrecmcnt between
4 Whirlpool Corporation and Distribution Management
5 Corporation, is a provision that OMC was responsible
6 for" I'm trying 10 find it here - snow and ice removal
7 from all nn:ns of pedestrian and vehicular traffic, and
8 areas of vehicular parking, loading and unloading areas,
9 including l\.'111oval of snow and ice from any railroad spur
10 tracks servicing the warehouse as necessary to ensure
I I passage and movement of railroad ears. And that is
12 parngrnph 4D, Actually 4D.1. You probably don't have
13 this in front of you, but I took that right out of the
14 ngn:cme."t, Do you have an understanding that's any
15 different than Ihat, that OMC was responsible for those
16 services?
17 A No, [donot.
18 Q It's also my understanding tbat OMC was to
19 provide un annual budget for expenses for the operations
20 of the Carlisle facility on an annual basis_
21 A That is correct,
22 Q And who was responsible .. who at OMC Carlisle
23 pn:pnn:d that budget or who was responsible for having the
24 budget prepared, even Ibough they may not have prepared
25 the entire hudget?
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CHARLES F. KLINE
NOVEMBER 6, 1996
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I A Curt Clifton would have been a part of that
2 process, They would have also worked with his supervisor
1 which is a gentleman by the name of Ron Warren, And Ihe'O
4 Ron reported directly to me,
S Q [t appears Ihat according to the agnxme-nt.
6 Whirlpool would have had some final say, an approval
7 process of that budget. [s that how you understand il?
8 A Well, we arc to submit a -. we were to submit a
9 bud&ct which met with their approval. [t had to be
10 muruolly ogrccd upon, ~ut it hat: to be one that they had
I I to approve, or there was stipulalions in the contract, and
12 I can't remember the details, but there arc stipulations
13 that dictlllC what happens if both the sides can't agn:c on
14 the bud&ct process or what the cost should be for Ihe
15 upcoming year,
16 Q Where would the budget proposuls and final
11 budget documents be kept? Who would have those?
18 A [would think they would be in Carlisle,
19 Q Do you know from your own recollcction lI.'l 10
20 wbcther or not budgel item was for, say, snow and ice
21 removal, wbcther il was that detailed, or wbcther it was
22 just general maintenance expense?
23 A To the best of my recollection, it would not
24 have been that detailed, [t would have been included
2S under facility maintenance,
Page 15
I Q Another part of the contract .- this is on page
2 5 of that May 2nd, '88 contract belWCl:ll Whirlpool and DMC,
3 It says: Whirlpool will reimburse DMC for the following
4 coats and expenses paid by DMC in performing its
S responsibilities hereunder, And No.6, Paragraph 7, No,
6 6 says: CIuugcs for janitorial service, snow and ice
1 removal, and yard care, as required by this agreement
8 provided that Whirlpool's prior approval of the rates for
9 such services has been obtained,
10 Now, do you know wbcther Whirlpool had approved
II ratca for services for snow and ice removal at the
12 Carlisle facility?
13 A I do not know if they specifically approved
14 those specific rates, I do know they approved the 1992
IS bud&ct which would have included those costs,
16 Q And there wonld have been some detail to the
11 bud&ct with n:ganI to the expenses to be incurred and
18 rates?
19 A There would have been detail 10 prep"'" that
20 budget, and usually wbcn things are qucstioncd, or if
21 things are questioned, then obviously you get into more
22 detail.
23 Q Well, we have lI.'l part of the documents produced
H in discovery the contract belWCl:ll DMC and Wintcnnyer, Leon
25 E. Wintennyer, Inc,. for snow removal, Arc you familiar
Page 16
I at all wilh Iha, particular docume-nl'!
2 A I have SCl:n il in the past,
3 Q And there were rales Ihere for vanous scrvices
4 and what would he charj!cd for the Iype of lrucks or
5 cquipme'Ollhat would bc uscd, and Itakc it that is the
6 type of dctaillhat would be availahle if anyhody
7 questioned a hulll!et item"
8 A Yes,
9 Q Now, as I read thi, agreement -- again, the May
10 2nd, '88, agrccmcnt between Whirlpool and DMC, it appears
II that as long as the rale was approved, Whirlpool would
12 reimhurse DMC for any of Ihe costs and expe'Oscs that would
13 have been incum:d specifically here for ice n:moval and
14 yard care, Is that a fair sloleme..t'!
15 ^ Yes, Ihal's the Iypc of contract we havc 10
16 have our ex(l<.'Oscs reimhursed,
11 Q So certainly you can hulll!et an item, hut you
18 plan under budget some years and over bulll!et other years,
19 You would agn:c wilh Ihat stateme'Ot?
20 ^ The customers don't usually allow you to be
2 lover budget any years,
22 Q Well, you may hove 10 expla,n any discrepancy,
23 I take it?
24 A Certainly,
25 Q Based on a fair reading of Ihis ag.a:ment, as
Page 17
I long as the rale for those services had prior approval by
2 Whirlpool, the amount of limes that Ihose services would
3 be nced<...J during a calc'Odar year are something that maybe
4 no one has any control over so that you don't know whether
5 you're going to have five ice storms in a calendar year or
6 whether you're going to have none, so lI.'llong as the ralC
7 was approved, if DMC called somebody else to dc-ice the38 parking lot, they would Ihen submit the bill for
9 reimburseme'Ot from Whirlpool, is Ihat right?
10 A Yes,
II Q Would you agree with me that then: would have
12 been.. t1mt as long as the ralC was approved, there's an
13 incentive for .. then: was an incentive for DMC to take
14 care of the yard in a reasonable fashion lI.'lsuming that
15 their expenses were going to be reimbursed?
16 MR, BIALKOWSKI: I'm going to object to Ihat
11 question, You're asking for some type of conclusion when
18 you say the'I'C's an incentive, I think the docwncnts speak
19 for themselves,
20 MR, BOlKO: Let me ll.-phrase the question,
21 BY MR, HOlKO:
22 Q Can you think of any di,incentive for DMC not
23 to incur ex(l<.'Oscs for services set forth in Ihe contract
24 wh<.'O they knew they would be reimbursed for the same?
25 MR. BIALKOWSKI: In those siluations where the
(
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I services would be ",:cessary,
2 OY MR, 1I0LKO:
3 Q 11le services would be nc'CCssary and Ihe ....Ies
4 would be approved, any reason why Ihey would not incur
5 those services'!
6 A No,
7 Q I guess on a monthly basis, Wcre Ihen: reporlS
8 of any tYJ>l' prepared and 'ubmit....d by DMC to Whirlpool
9 eon....."fl1ing those budget il.:ms?
10 A Yc.', it is stipula....d in lhe conlractlhat all
I I costs were to be: itemittd in Whirlpool's account
12 c1llSSilication. and submitted to them on a monthly hasis,
13 Q When: would those documenls be kept"
14 A I would think there would be copies in
IS Carlisle, llk.-re may be also copies in Grand Rapids in
16 stor"8e or in the vault arca,
17 Q And I take il if somclhing was .. if Ihere was
I H some il<.'I11 that WC"llI over budget Oil a punicular monlh,
19 would lhere be: some mocling or confen.'nce or discussion
20 where that pl1l'licular budget item could be justilied by
21 Ihose discussions" That was a poorly wordcd question, but
22 do you follow me"
2J A Well, the perfonnance of Ihe conlract would be
24 evaluated on a total cost and total quality perfonnancc
25 method, and Ihe conlr.u:t calls for regular and continued
Page 19
I discussions, not only to cost issues but also 10
2 perfonnance issues and quality issues,
3 Q So for instance, if there was a budgeted amount
4 for -. I'm not sun: whelher Ihis is a budget item, but in
5 many businesses it is, where they budget a certain amount
6 of over time, And let's say in any punieular period they
1 exceeded their over time budget, then someone is called on
8 the carpctto say, look, can you explain why we had so
9 much over time lust monlh, Is thai the tYJ>l' of discussion
10 that oceum:d here with DMC and Whirlpool?
II A That is a potentialtypc: of discussion that
12 could occur always in light of the Iota I perfonnance of
13 the operalion,
14 Q Right. Oecause, I mean, ynu're looking at it
15 as a whole, not breaking il down inlo scparale items?
16 A Com:ct.
17 Q Unless one particular item would tip Ihe scales
18 the wrong way, righI"
19 A Yes,
20 Q What was Elslon Richards' role in all of this,
21 if any? I mean, eithcr on a daily basis, monlhly busis,
22 or did it have any role to oversee anything, help with the
23 adminislration of expc."IlSCS, making sure Ihatthcy're
24 follnwing the eonlract provisions"
25 A Elston Richards, as I said previously, would
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CHARLES F. KLINE
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I have had a role in perfonning lheir payroll for lhem, for
2 DMC, pcrfonning accounting ..:rvices for DMC,
3 administralion of human resouro: bcnelil.'l, if you will,
4 hcultll insurance, retin:ment programs, these type of
5 things, Day to day operation would have been directed by
6 lhe officers of DMC were officers also of Elston Richards,
7 hUI it was two separate companies,
8 Q It', my undentanding Ihat Elston Richarda i..
9 IUUTlC:l! in~'UJ'Cd on one of the insurance policies and would
10 also include DMC and Vista Warehouse and Whirlpool. Do
I I you know that to be: a fuet?
12 A I do not. I can't dispute it; Ijusl don't
13 know,
14 Q At one point early on in this litigation I had
IS received a call from someone, and I can't think of it off
16 Ihe top of my head, butlhey said Ihat their insured WlIS
17 Elslon Richards, Do you know who your in~"W'lllIce company
18 is for this cluim"
19 ^ Quite honestly, no,
20 Q Who would know that?
21 ^ Well, our insurance broker would know that.
22 MR, OIALKOWSKI: We have records here '.
23 MR, 1I0LKO: This is with Home?
24 MM, OlALKOWSKI: - thnt during the period in
25 question, which is January I '92 through January I '93,
Page 21
I insurance was provided by the Home Indemnity Company and
2 the named insun:tl under that poUcy WlIS Elston Richards,
3 Inc.. Wc provided a copy of this in our responsc to
4 request for production of documents, and I'm reviewing it
S now to see where it also mentions, if at all, other
6 entities, There's a named insured endorsement which
1 changes the named insun:tlto EI,ton Richards, Inc"
8 Distribution Management Corporation, and Ihe Hubbard
9 Family Foundation, So there's where DMC is also namc:d
10 under that policy,
II OY MR, 1l0LKO:
12 Q Who is the Hubbard Family Foundation?
13 ^ The Hubiard family is the stockholders of
14 Elston Richards, Incorpornted, The foundation that's
15 spoken of U...re, one of the .. how shall I say it? The
16 patriarch of Ihe family passed away like in 1982. This
17 wus only.. I guess I shouldn't even say it, I can't
18 verify it. I'm assume that that's his family trust after
19 his passing away, The Hubbard family is the family who
20 owns Ihe majority of stock in Elston Richards,
21 Incorporated,
22 Q Now, I guess pursuant to that agm:ment betwocn
23 DMC and Whirlpool, DMC agreed to indemnify Whirlpool for
24 any pen;on.1 injury claims"
25 A Yes, I think that is part of the contract.
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CHARLES F. KLINE
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1 Q Ilbink under the agro:mc:nt betwa:n Whirlpool
2 and Vi,ta, Whirlpool was to in<k'mnify Visla"
3 ^ I can't speak to Ibat one,
4 Q I guess Distribution Ml1I'lugen1<.'llt Corporotioll,
S Vista Warehouse, and Elston Richards all have one aUomey
6 in this case, I'm just wODlk,ring whether Elslon Richards
7 has tendered their defense in Ibis ea:;o: to Distribulion
8 Man"l\Cl11Cllt Corporation,
9 MR. BIALKOWSKI: I don't know the details right
10 now lIS we sit here, but I'm going 10 object to Ibat
I I question l1I'ld direct my client not 10 answer, bt.'Causc:
12 that's getting now inlo matl<.-rs which Ilbink an: possibly
13 privileged, Suffice it to say we are representing
14 Distribution Ml1I'lngemc'llt Corporalion, Vista Warehouse Two
I S and Elston Richards, Inc" in this lawsuit. The
16 Il&oOC"lC(lls which have resulled in Ibat (can't relale at
11 this )imc, and I really don't know if they're
18 discoverable,
19 BY MR. HOLICO:
20 Q Sir, let me just change the subject here a
21 little bit, Have you had any discussions wilb any
22 employees at DMC concerning Ibe circumstances surrounding
23 Mr, Dickert's fall of December 281b, 1992?
24 ^ Yes,
15 Q Who have you lalked lo?
Page 23
I ^ CUlt Clifton.
2 Q Havc you lalked 10 anyone else?
3 ^ Not to my knowledge,
4 Q How many times have you lalked to Mr, Clifton
S about this incident?
6 ^ Oh, I don't know, Three, four times,
1 Q Can you lell me where Ibosc conversations have
8 taken plllCC?
9 ^ Over the lelcphone.
10 Q So they were all over the lelcphone?
II ^ Yes, to the best of my knowledge,
12 Q What, if anything, did Mr, Clifton relale to
13 you concerning what happened to Mr, Dickert?
14 ^ Well, most of our conversations, if nol all of
IS our convcrsations, had to do wilb the completion of
16 material that was requested .. I don't know whether in
11 discovery is the proper word, but infonnation Ibat was
18 asked of us to supply back as to what happened_ And all
19 this infonnation was sent to Mr. Clifton, and since it
20 happened in Carlisle and he is in Carlisle and was there
21 when it happened, people here in the corporate office
22 rc:a11y had no knowledge of it, we relied on him to supply
23 the infonnation for the majority of Ibo,", answers,
24 My discussions with him have not bcxn so much
2S into the delaHs of who saw what or whalever, more so inlo
Page 24
I direcling him to complele the queslions and supply us wilh
2 tht: inrormutiun thut WI.: could then n:sf1ond to what we've
3 bee'll directed to,
,
4 Q II.... Mr, Clifton lold you Ihat Ihen: wen: any
5 emplo)'CCs of DM" who witnessed what happ<-'lled'>
6 A lie h.... n:tayed to me Ihal Ihere were c'II'lployces
7 who eilher n I don't know whelher wilness is the proper
8 word, but were in lhe generul area or talked 10 Mr,
9 Dickert laler on or shortly afler the incidc'llt happ<-'lled,
10 Q II.... Mr, Clifton lold you what any of those
11 c'II'lployt...s may have saw, heard, relaled 10 him'/
12 A Oh, I'm sure he has over the course of Ihe
13 lust, you know.. I don't know how long this has he..n
14 going on, but over Ihe course of lime I'm sun: be has some
15 wbat so-and-so said, or whalever,
16 Q Arc there any eom:spondence betwa:n you and
11 Mr, Clifton concerning this lawsuit"
18 A The only com:spondcnce that ('m aware of is
19 desire of 5CIIding the infonnation, the questionnaire .. if
20 that's the right word .. the questionnaire to him and
2 I direcling him to fill out all the appropriale queslions,
22 and ( think Ihen: were questions on tben: Ihat asked for
23 description of where Ihe accidc'lll happened or wilnesses or
24 things like thaI. Our com:spondencc would have bcxn
25 directing him 10, you know, fill in Ihose answers and get
Page 25
I them back to us so we could send them in as directed,
2 Q Does Mr, Clifton provide you with monthly or
3 quarterly reports of any kind on this litigation"
4 A No,
5 Q Arc there any in)eroffice memos that go from
6 your desk to his desk or his desk to your desk or
7 circulated among other individuals in both compcnies
8 concerning this litigation?
9 A NOlto my knowledge.
JO Q Arc you aware of the typical charge for snow
II removal and/or dc-icing services at the Carlisle facility?
12 A I couldn't tell you what that amount is, no.
13 Not without going and looking it up and researching it, I
14 can't specifically speak to that one, no.
15 Q Where would you have to go to research it?
16 A If it was the car insurance, I could look at
17 their current bills. All the bills arc sent to Grand
18 Rapids to be paid, all checks arc cut at this location, I
19 could go to a file and pull out those bills and look them
20 up, but I can't tell you what they arc,
21 Q Have you or anyone on your behalf made a search
22 for bills sent to DMC for snow or ice removal services
23 during the month of December, 1992"
24 A If those had been requested, I would have to
25 say yes, that we have supplied them,
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
(
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Page 26
I Q But you don't have a specific recolketion of
2 someone requesting you look for Ilk:m'!
J ^ No, I don't recull someone !lpccilically saying,
4 Copies of tho: bills would also be in Carlisle,
S Q lJecausc then:', an issuc as to whether or not
6 Wintcnnycr, lnc" was called on tho: day in question, and
7 whctho:r or not Winlcrmycr perfonned any services thai day
8 or tho: day before or day an.:r concerning the 101 at
9 Carlisle, And according to the informal ion lllllt we've
JO been providc:d with so far, it sccms thatlhcn: was not a
I I call or then: was not a bill sent for any scrvices during
12 that period,
13 I guess that wasn't a qucstion, Are you aware
14 from an) source that Wintermyer, Inc" was caUed on
IS Dcccmber 28th of 1992, to perform any scrvices at the lot'!
16 A I mean, I don't know, I couldn't answct
17 bccnusc.. I don't know whelher he was or W""l1't. I just
I 8 have no knowledge,
19 MR, HOLKO: That's aU the questions I have,
20 sir, Attorney Price is here, who represents Wintcnnycr,
21 and he may have a few questions for you,
22 Before I hand you over, the stenographer has
23 asked mc for you for give us your address where you would
24 like this transcript sent. Can you give us the best
25 address possible'!
Page 27
l,
I A 4880 Corporate Exchange Boulevard, Grand
2 Rapids, Michigan, 49512,
3 Q Would you give us a phone number there, too,
4 ^ 616'698-2698,
5 MR. IIOLKO: Thank you,
6 CROSS-EXAMINATION
1 BY MR, PRICE:
8 Q Mr. Kline, my nwne is Kent Price, I repres.:nt
9 Leon Wintermycr, Inc" and I'U be very brief,
10 If I understand com:ctly, in the budget that
11 DMC would submit each year tlk:re would not be a specific
12 line item broken out for snow and snow removal. Is that
13 com:ct?
14 A That is corn.-ct.
15 Q It would be included within a larger cali.-gory
16 that would be more inclusive, for example, gC"Dc-ra1
11 maintenance, grass CUlling, things like that'!
18 A Yes, it would be -- I can't give you the exact
19 account nwne, but it would be something to the effect of
20 facility maintenance or gC"Deral maintenance, something
21 along thosc lines,
22 Q Insofar as Whirlpool goes, the obligation to
23 reimburse for certain eXJl<."DSCS incurred, including snow
24 n:moval.. let me: ask you lhis: If conditions were such
25 tltat snow removal had 10 be undertaken, let's say afler
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Multi-Page""
CHARLES F. KLINE
NOVEMBER 6, 1996
Page 28
I midnight, and it would be necessary to coil out one or
2 more DMC employees such as yard jockeys to move trailers
3 around such Ihat snow removal could be completed, fll1l of
4 all, would DMC incur an expense for over time to pay their
S employees in that situalion'!
6 A If that situation happened, I would think lhcy
1 would have an over time: expense. yes,
8 Q And number two, is it y~ur understanding that
9 that over time expo:ns: would or would not be included as a
10 reimbursable item from Whirlpool'!
I I A It would be a reimbursable item,
12 Q It would be?
13 A It would be. yes,
14 MR_ PRICE: Thot', aU I have, TIlank you.
IS MR, IIOLKO: I don't have anything further, sir,
16 (The deposition was concluded at 3:17 p,m,)
/..-
Page 29
I I hereby certify that the proceedings and
2 evidence are contained fully and accurately in the notes
3 taken by me on the within proceedings, and that this copy
4 is a com:ct transcript of lhe same,
5
6
1
KAREN C_ ALBRlGIIT, RPR
Nolary Public
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plan (II 16:18
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polieics [II
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
RiChaids 1"1 1:12 similar 1'1 M:2 8:4 un COlli 21:2S
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
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CHARLES F KLINE
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HUGHES, ALBRJGHT, FOLTZ & NATALE
717-232-5644/393-5101
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(e) in failing to sail, cinder or otherwise deice (he property;
(I) in failing (0 hire competent and qualified personnel to perform snow removal
and deicing ac(ivities;
(g) in failing to supervise and direct the snow removal and deicing activities;
(h) in failing to exercise reasonable care to protect the plaintiff;
(i) in failing to warn (he plaintiff of (he dangerous condition;
(j) in failing to anticipate thai harm would come to the plaintiff and take
reasonable s(eps to reduce (he risk of harm to the plaintiff;
(k) directing the plaintiff to an area which was unsafe to walk upon;
(I) creating an unnatural accumulation of ice and snow;
(m) allowing an unna(ural accumulation of ice and snow to remain in an area
utilized by business invi(ees;
(n) failing to remove unnatural accumulations of ice and snow caused by the
movement of vehicles on the property which had remained there for an unreasonable period of
time;
{oj failing to remove remelted snow and ice; and
(p) failing to plow and remove the snow in a reasonable and timely manner.
WHEREFORE, the plaintiff, Michael Dickert, requests judgment in an amount that
exceeds the jurisdictional amoun( rcquiring arbitra(ion referral by Local Rule.
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Michael Dickert and Charlotte
Dickert, husband and wife
In the Court of Common Pleas of
Cumberland County, Pennsylvania
No. 94-7130 Civil Term
Complaint in Civil Action Law and
Notice
-vs-
Distribution Management Corporation
Leon E. Wintermyer Co., Inc.
Leon E. Wintermyer Inc.
Vista Warehouse Two, Elston Richards Inc.
Timothy Reitz, Deputy Sheriff who being duly sworn according to law,
says on December 23, 1994 at 9:06 o'clock A.M.E.S.T., he served a true
copy of Complaint in Civil Action Law and Notice, in the above entitled
action upon one of the within named defendants to wit: Distribution
Menagement Corporation, by making known unto Tom Echelmeyer, Security
at Distribution Management Corporation, 21 Roadway Drive, Carlisle,
Cumberland County, Pennsylvania, its contents and at the same time
handing to him personally the said true and attested copy of the same.
Timothy Reitz, Deputy Sheriff who being duly sworn according to law,
says on December 23, 1994 at 1:05 o'clock P.M. E.S.T., he served a true
copy of Complaint in Civil Action Law and Notice, in the above entitled
action upon one of the within named defendant Leon E. Wintermyer Co., Inc.,
by making known unto Ann Miller Controller at Leon E. Wintermyer Inc.,
600 North 12th Street, Lemoyne Cumberland County, Pennsylvania, its
contents and at the same time handing to her personally the said true
and attested copy of the same.
R. Thomas Kline, Sheriff who being duly sworn according to law, says
he made diligent search and inquiry for one of the within named defendants
to wit: Leon E. Wintermyer, Inc., but was unable to locate them in his
bailiwick. he therefore deputized the Sheriff of York County to serve
the within Complaint in Civil Action Law and Notice according to law.
YORK COUNTY RETURN: December 29, 1994 at 11:25 o'clock A.M. served the
within Notice and Complaint upon Leon Wintermyer Inc. at 220 Yocum Road,
Etters, York County by handing to Larry Kauffman,person in charge a true
and attested copy of the original Notice & Complaint and made known to
him the contents thereof.
So answers: Kenneth Markel Sheriff
York County return is hereto attached.
R. Thomas Kline, Sheriff who being duly sworn according to law, says
he served the within Complaint in Civil Action Law and Notice, in the above
entitled action upon the within named defendant to wit: Vista Warehouse Two,
by mailing a certified letter return receipt requested to them on
December 22, 1994 to their last known address being Whirlpool Corporation,
200-M63, Benton Harbor, MI. The letter was received by Vista Warehouse Two on
December 28, 1994 the return receipt card signed by Grady Clay. The return
receipt card is hereot attached.
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3. After a reasonable investigation, the answering Defendant
is without knowledge or information sufficient to form a belief as
to the truth of the averments of paragraph 3 and the same are
therefore denied and proof thereof is demanded if relevant at time
of trial.
4. Admitted. By way of further answer, Leon E. Wintermyer
Co., Inc. was not in existence on the alleged date of loss and had
no relationship to this matter.
5. Admitted.
6. After a reasonable investigation, the answering Defendant
is without knowledge or information sufficient to form a belief as
to the truth of the averments of paragraph 6 and the same are
therefore denied and proof thereof is demanded if relevant at time
of trial.
7. The allegations of paragraph 7 are directed to a party
other than the answering Defendant and no response is required.
8. The allegations of paragraph 8 are directed to a party
other than the answering Defendant and no response is required.
9. Leon E. Wintermyer Co., Inc. was not in existence on the
alleged date of loss and had no relationship to this matter.
10. While Leon E. Wintermyer, Inc. had entered into a
contractual arrangement to provide snow removal services at the
listed address, it did so under the terms of a written contract, a
representative copy of which is attached hereto and marked Exhibit
"An. The written agreement did not call for Leon E. Wintermyer,
Inc. to provide services on the day in question and none were
2
provided. Further, Leon E. Wintermyer Co., Inc. was not in
existence on the alleged date of loss and had no relationship to
this matter.
11-44. The averments of paragraphs 11 through 44 are denied in
accordance with Pennsylvania Rule of Civil Procedure 1029(e).
WHEREFORE, the answering Defendant demands that the Complaint
be dismissed and judgment entered in its favor and against the
Plaintiff without cost to it but together with such costs, expenses
and attorney's fees as authorized by law and which the Court deems
necessary, just anc. appropriate under the circumstances.
NEW MATTER
45. The answering Defendant incorporates its Answer to the
Complaint as if set out in full.
46. Plaintiffs' Complaint fails to state a claim or cause of
action against the answering Defendant upon which relief can be
granted.
47. While Leon E. Wintermyer, Inc. had entered into a
contractual arrangement to provide snow removal services at the
address referenced in the Complaint, it did so under the terms of
a written document, a representative copy of which is attached
hereto and marked Exhibit "A".
4 8 . Exhibi t "A" did not by its terms require Leon E.
Wintermyer, Inc. to provide snow removal services on the day in
question.
3
EXHIBIT A
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000 North '21h SlIcol
lomovno, Ponnsv1vlnlll 11043
Tol. 11111161,6259
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HAULING SNOW ON on OFF BITE
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2. We will provide immediate cont1nuou9 plowing in the event of a snowstorm
3. When instructed by your defllgnatec] repr.e:;entl1tivp., we will provicle an
'spread anti-skid material" on requ1red parts of the pUblic areas.
4. We agree that we l/i11 clear the area in nccord"nce with a plot plll
furnished by you. Priority areas munt he dilltinctively marked on the pIc
plan. Snow will be placed 1n 1~1nd rows unt.il your des1gnated repreflcntativ
shall instruct us to do otherw1se. At such time, you shall prOVide an are
.~: "accessible for trucks for the depositing of thl! snow.
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, ,'5. ,You shall inform liS, in \~riting, of an individu.:Il (s) who \~ill bl! avallabl
:;:,""'" " , if questions should arise during snow removal at 51 te.
6. A sufficient number of markers <Ible to wlthstand a heavy nnow5torm an
, visible to the operator shall be placed and mllintnined by you. WI! will nc
'.'i;:,~;::;,;{::.:,:>,b.e:, re,sponsible for any d,'1mage to curbs, light haBes, bUildings, or othe
('~1;rJ~~~:I,>, ~,?bstacles not. Clearly mar.ked.
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. ."\...~. LEON E. WINTERMVER. INC.
TW~ PAGI mco~n p,.", 0' ^~O I~ CO~Fon'AANcr W,Itt pnOPOSAL NO
Job N,1mn
Accenled by Dalft 19
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Leon E. Wintennyer. Inc. However, Exhibit "A" refers to the 1994-1995 season. After
reasonable investigation, plaintiffs are without knowledge or infonnation sufficient to fonn a
belief as to the truth of whether or not Exhibit "A" is a representative copy of the contract
entered into by Leon E. Wintermyer, Inc., at the time of the occurrence referen.;ed in the
complaint, Moreover, there is no disclosure as to the identity of the other contracting party with
Leon E. Wintennyer, Inc,
48. Plaintiffs incorporate herein by reference their response to paragraph 47 as fully
as though the same were set forth herein again at length, Moreover, the allegations of paragraph
48 are conclusions of law and require no response. To the extent an answer is required, the
infonnation contained in Exhibit "A" is insufficient to enable plaintiffs to conclude whether or
not Leon E. Wintermyer, Inc" was required to provide snow removal services on the day in
question.
49, It is admined that the property owner was primarily responsible for snow and ice
removal on the day in question. However, under circumstances which may be developed during
discovery, defendant Leon E. Wintennyer, Inc., may have been required to provide services that
day but did not.
50, After reasonable investigation, plaintiffs are without knowledge or infonnation
sufficient fonn a belief as to the truth of this allegation which is denied and proof thereof is
demanded at the time of trial.
51, The allegations set forth in paragraph 51 set forth conclusions of law to which no
response is required. To the extent a response is required, plaintiff was not contributorily
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LAW OFFICES OF
HARRINGTON, KAUFFMAN & SHILLING
ATTORNEY: Tim J. Harrington, Jr.
SUPREME COURT I.D. NO.: 71242
3211 NORTH FRONT STREET
HARRISBURG, PA 17110
(717) 231-7209
ATTORNEY FOR:
Defendant Vista Warehouse
Two
MICHAEL DICKERT and
CHARLOTTE DICKERT,
husband and wife,
Plain tiffs
IN THE COURT OF COMM:ON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
DISTRIBUTION MANAGEMENT: DOCKET NO, 94.7130 CIVIL TERMS
CORPORATION, VISTA
WAREHOUSE TWO, and Ohio JURY TRIAL DEMANDED
general partnership, LEON E.
WINTERMYER CO., INC., LEON
E. WINTERMYER, INC., and
ELSTON RICHARDS, INC.,
Defendants
ANSWER AND NEW MATTER OF DEFENDANT
VISTA WAREHOUSE 'lWO TO PLAINTIFFS
COMPLAINT AT LAW
NOW COMES the defendant, VISTA WAREHOUSE 1WO, by and through
its attorneys, HARRINGTON, KAUFFMAN & SHILLING, and for its answer to
plaintiffs' complaint, states as follows:
1. Defendant admits that plaintiffs are adult individuals, but, after
reasonable investigation, defendant has insufficient knowledge or information upon
..
r,
~
which to form a belief as to the truth of the remaining allegations of this paragraph
and therefore neither admits nor denies the same but demands strict proof thereof.
2. After reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as tc the truth of the allegations of this
paragraph and therefore neither admits nor denies the same but demands strict
proof thereof.
3. Defendant denies that its mailing address is clo Whirlpool
Corporation, 200-M63, Benton Harbor, MI 49022, but admits the remaining
allegations of paragraph 3.
4. After reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as to the truth of the allegations of this
paragraph and therefore neither admits nor denies the same but demands strict
proof thereof.
5. After reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as to the truth of the allegations of this
paragraph and therefore neither admits nor denies the same but demands strict
proof thereof.
6, After reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as to the truth of the allegations of this
paragraph and therefore neither admits nor denies the same but demands strict
proof thereof..
.
~
7. Defendant denies the allegations contained in this paragraph oCthe
complaint, insofar as they pertain to it. As to those allegations pertaining to
defendants other than VISTA WAREHOUSE TWO, Arter reasonable investigation,
defendant has insufficient knowledge or information upon which to form a belief as
to the truth of those allegations and therefore neither admits nor denies the same
but demands strict proof thereof.
8. After reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as to the truth of the allegations of thiR
paragraph and therefore neither admits nor denies the same but demands strict
proof thereof.
9. Defendant denies the allegations of paragraph 9 insofar as they
pertain to it. Arter reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as to the truth of the remaining
allegations of this paragraph and therefore neither admits nor denies the same but
demands strict proof thereof.
10. Defendant denies the allegations of paragraph 10 insofar as they
pertain to it. Arter reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as to the truth of the remaining
allegations of this paragraph and therefore neither admits nor denies the same but
demands strict proof thereof,
11. Arter reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as to the truth of the allegations of this
.
-
paragraph and thereFore neither admits nor denies the same but demands strict
proof thereof.
12. Defendant denies the allegations of paragraph 12 insofar as they
pertain to it, Mter reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as to the truth of the remaining
allegations of this paragraph and therefore neither admits nor denies the same but
demands strict proof thereof.
13. Mter reasonable investigation, defendant has insufficient knowledge
or information upon which to form a belief as to the truth of the allegations of this
paragraph and therefore neither admits nor denies the same but demands strict
proof thereof.
14. Defendant denies the allegations contained in this paragraph of the
complaint.
15. Defendant denies the allegations contained in this paragraph of the
complaint.
16. Defendant denies the allegations contained in this paragraph of the
complaint, further denying, in the alternative, that plaintiff was injured in the
manner or to the extent alleged.
17. Defendant denies the allegations contained in this paragraph of the
complaint.
18. Defendant denies the allegations contained in this paragraph of the
complaint. further denying, in the alternative, that plaintiff was injured in the
manner or to the extent alleged.
19. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to the extent alleged.
20. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to the extent alleged.
21. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to the extent alleged.
22. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to the extent alleged.
23. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to the extent alleged.
24. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to tht! extent alleged.
25. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to the extent alleged,
26. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to the extent alleged,
27. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to the extent alleged,
28. Defendant denies the allegations contained in this paragraph of the
complaint, further denying that, if plaintiff was injured, he was injured or damaged
in the manner or to the extent alleged.
COUNT I
29.-30. Defendant makes no answer to the allegations contained in
these paragraphs of plaintiff's complaint for the reason that said allegations are
directed against a party other than this defendant and, therefore, no response is
necessary under the Pennsylvania Rules of Civil Procedure. To the extent that any
of such allegations are taken as being directed against this defendant, they are
denied.
COUNT II
31.-32, Defendant makes no answer to the allegations contained in
these paragraphs of plaintiff's complaint for the reason that said allegations are
directed against a party other than this defendant and, therefore, no response is
necessary under the Pennsylvania Rules of Civil Procedure. To the extent that any
of such allegations are taken as being directed against this defendant, they are
denied,
COUNT III
33. Defendant repeats and realleges its answers to all preceding
paragraphs ofplaintitl's complaint as its answers to this paragraph, as though the
same were fully set forth.
34. The allegations contained in this paragraph of the complaint,
subparagraphs (a) through (P), inclusive, are conclusions of law to which no
response is required under the Pennsylvania Rules of Civil Procedure. To the
extent any of such allegations are taken to be factual in nature, they are denied.
WHEREFORE, Defendant denies that plaintiffs are entitled to judgment
against this defendant in an amount which exceeds the jurisdictional limits
requiring arbitration referral by Local Rule, or to any sum of money whatsoever.
Defendant demands trial by jury.
COUNT IV
35. Defendant repeats and realleges its answers to all preceding
paragraphs ofplaintitl's complaint as its answers to this paragraph, as though the
same were fully set forth,
COUNT VII
39.-40. Defendant makes no answer to the allegations contained in
these paragraphs of plaintiffs complaint for the reason that said allegations are
directed against a party other than this defendant and, therefore, no response is
necessary under the Pennsylvania Rules of Civil Procedure. To the extent that any
of such allegations are taken as being directed against this defendant, they are
denied.
COUNT VIII
41. Defendant makes no answer to the allegations contained in these
paragraphs ofplaintift's complaint for the reason that said allegations are directed
against a party other than this defendant and, therefore, no response is necessary
under the Pennsylvania Rules of Civil Procedure. To the extent that any of such
allegations are taken as being directed against this defendant, they are denied.
WHEREFORE, Defendant denies that plaintiffs are entitled to judgment
against this defendant in an amount which exceeds the jurisdictional limits
requiring arbitration referral by Local Rule, or to any sum of money whatsoever.
Defendant demands trial by jury.
COUNT IX
42.-43. Defendant makes no answer to the allegations contained in
these paragraphs ofplaintifl's complaint for the reason that said allegations are
directed against a party other than this defendant and, therefore, no response is
necessary under the Pennsylvania Rules of Civil Procedure. To the extent that any
of such allegations are taken as being directed against this defendant. they are
denied.
WHEREFORE, Defendant denies that plaintiffs are entitled to judgment
against this defendant in an amount which exceeds the jurisdictional limits
requiring arbitration referral by Local Rule, or to any sum of money whatsoever.
Defendant demands trial by jury.
COUNT X
44. Defendant makes no answer to the allegations contained in these
paragraphs of plaintifi's complaint for the reason that said allegations are directed
against a party other than this defendant and, therefore, no response is necessary
under the Pennsylvania Rules of Civil Procedure. To the extent that any of such
allegations are taken as being directed against this defendant, they are denied,
WHEREFORE. Defendant denies that plaintiffs are entitled to judgment
against this defendant in an amount which exceeds the jurisdictional limits
requiring arbitration referral by Local Rule, or to any sum of money whatsoever.
Defendant demands trial by jury.
NEW MATTER
45. Plaintiffs' actions are barred by the applicable statute of limitations,
including, but not limited to, 42 Pa.C,S.A. ~5521 et seq, and 13 Pa.C,S.A. ~2725.
46. The damages and injuries allegedly sustained by the plaintiffs were
caused by the negligent actions or omissions of individuals or entities other tban
tbe defendant VISTA.
47. Tbe damages and injuries allegedly sustained by the plaintiffs were
not proximately caused by this defendant,
48. The premises described in the Complaint were demised and leased to
Whirlpool Corporation by virtue of a lease agreement, a copy of which is attached
hereto and incorporated herein by reference and, in consequence thereof this
defendant was not in possession or control of the premises and, as a landlord out of
possession, is not liable to plaintiffs, owed no duty to plaintiffs or, in the alternative
breached no duty owed.
49. Contributory negligence bars or reduces any recovery sought by the
plaintiffs pursuant to 42 Pa,C,S.A ~7102,
50, Defendant asserts all defenses, limitations and exclusions under the
Motor Vehicle Financial Responsibility Law, 75 Pa. C.S,A, Section 1701 et sea. and
avers that Plaintiff may not plead, prove, introduce into evidence or recover any
benefits paid or payable under th~ Motor Vehicle Financial Responsibility Law.
51. Plaintiffs are barred from recovery against this defendant because
plaintiffs assumed a known and obvious risk and/or encountered a known or open
and obvious danger.
52. Negligence or willful and \l'anton misconduct of third parties or of the
plaintiffs was the sole proximate cause of the occurrence plaintiffs complain of.
53. The complaint fails to state a claim against this defendant.
54. The damages and injuries allegedly sustained by the plaintiffs were
proximately caused by the abuse or misuse of the product by the plaintiffs or third
persons for whose action defendant is not legally responsible.
55. Defendant reserves the right to file such additional defenses,
affirmative defenses, crossclaims, counterclaims and/or third party claims as may
be appropriate upon completion of its investigation and discovery in this matter.
56. The condition complained of by the plaintiff was open, obvious and
patent, as were the dangers, if any, inherent in encounmring the same, and
therefore defendant owed no duty to the plaintiff with respect thereto.
57. Plaintiff failed to mitigate his damages.
58, Defendant reserves the right to challenge any award of delay damages
in this case,
59, Defendant demands that appropriate hearings be conducted in this
case prior to any award of delay damages.
60, Rule 238 of the Pennsylvania Rules of Civil Procedure, on its face, and
as applied is violative of the Due Process and Equal Protection clauses of the
Fourteenth amendment to the Constitution of the United States, Section 1983 of
Title 42 of the United States Code and Article I, Sections 1, 6, 11 and 26 and Article
V, Section 10(c) of the Pennsylvania Constitution and imposes a chilling effect on
the exercise by Defendant of its constitutional rights,
61. Punitive damages are violative of the Due Process and Equal
Protection clauses ofthe Fourteenth amendment to the Constitution ofthe United
States, Section 1983 of Title 42 of the United States Code and Article I, Sections 1,
6, 11 and 26 and Article V, Section 10(c) of the Pennsylvania Constitution.
62. Punitive damages constitute an unwarranted and unconstitutional
injection of principles of criminal law into this civil action without the safeguards,
intllI W, of the burden of proof beyond a reasonable doubt, freedom from double
jeopardy, a defined standard for punishment and a limit thereto, and, by reason of
the foregoing, are an uuconstitutional basis for the taking of defendant's property
without due process oflaw.
63. Defendants did not possess, control or maintain the premises
complained of.
64. Defendant had no reasonable notice of the condition complained of,
nor a reasonable opportunity to remedy the same.
WHEREFORE, Defendant demands judgment in its favor and against the
plaintiff and for its reasonable costs and attorneys fees and for such other relief as
the Court deems appropriate.
Defendant demands trial by jury,
FIRST AMENDED AND
RESTATED LEASE AGREEMENT
This First Amended and Restated Lea~e Agreemenl made as of the flISt day
of Much. 1988, tly and between VISTA WAREHOUSE TWO, an Ohio general
panneuhip ("Landlord"), consisling of Vista Development, Jnc.. an Ohio cOI'JX'rafi(ln,
David A. BIlSlon. Ro\1en j, Lanigan, Edwin M. Bergsmark, A1lon J. Ubl'l:, George W.
Haigh, David S, Morgan, White Brothers Properties, an Ohio general partnership,
Frederick W, Rudolph, Kennil C. Rudolph, Philip J. Rudolph, and Richard E. Caufman,
having Irs principal office and place of bu~iness at Webslrand BuUding, Four SeaGate. 51h
Floor, Toledo, Ohio 43604, and WHIRLPOOL CORPORATION, a Delaware corporatinn
("Tenant"), having Its principal office and place of business at 2000 M-63, Benlon Harbor,
Michigan 49022,
WIT N E SSE T II:
WHEREAS, Vi~ta Develllpmenl, Inc., an Ohio corporation, as landlord,
entered into a Lease Agreement dated December 2, 1987 with Tenant;
WHEREAS, Vi~ta Development, Inc, assigned all its righl. lide and interest
in and 10 the Lease 10 Landlord by Assignmelll of Lease daled December 30,1987; WId
WHEREAS. Landlord and Tenant now desire 10 modify cenain terms and
provisions of this Lease and restate the Lease.
NOW, THEREFORE, Lwldlord and Tenant agree as follows:
I. Definitions. TIle following tenns shall, for all purposes of this
Lease, and all agreements amending or supplementing this Lease, have lhe meanings
specified below,
(a) "Improvements" mean a cenain new warehouse facility
consi~fing of approximately 407,100 square feet of floor area bUUI in accordance with all
applicable laws and regulations and Factory Mutual require men Is now in effect for a
structure of Its type and for it~ intended use a.~ a warehouse to Slore such goods to qunlify
a~ a Faclory MUlllal "High Protection Risk", all in accordance wilh fhe plans and
specificatiuns for the BuUding arproved by Landlord and Tenanl and being mure
panicularly described on Exhibil "B atlached hereto and made a pan hereof lthe "Plans IInd
Specificalillns" ).
(b) "Land" shall mean the real propeny described in Ellhibil "A"
atlached hereto and incorporated herein by this refel'ence,
(c) "Acces~ Easemenls" mean all ellSementR for acce~s to lhe
Land including but nOllimited lu, Ihe roadway and utility access 10 be grnmed by Ruadway
Expn:~s, Inc.
(d) "Drainage Easement" means Ihe easement 10 be grlUlled tn
Landlord tly Roadway Express, Inc. fur Ihe purpuse IIf dmining ~Ionn water from the
Prelllises,
(e) "Premises" shall mean the Land together wilh the
Improvemenls, Access Easemellls. and Drainage Easement.
2, Demise of Premises, Landlord, in consideration of the rental
paymetm to be made and the covenwllS and agreements hereinafter mentioned 10 be kept
and perfomled by both panics hereto. docs hereby lease 10 Tennnt the Premises.
3. Construction,
(a) Landlord agrees, in accordnnce with the schedule set fonh
hereinbelow,to commence construction ufthe Improvements and 10 use its best effons to
complete construction of the Improvements on or before June 30, 1988, subject to weather
and other delays beyond Ihe reasonable confrol of the Landlord, in which case August I,
1988 will be the Substwnial Complerion Date, It is understood and agreed that the tenns
and conditions herein arc based on preliminary construclion documents as approved by the
Tenalll ami described on Exhihit B. Landlord may proceed wilh such derailed plans and
specifications, and design and construction thereunder, without funher approval from
Tenanl provided thaf no material, adverse changes arc made to the Plans and Specifications
withoul Tenant's prior wrillen cOlISen!. Lal1lUord shall provide to Tenant. fM infllmlalional
purposes. copies of detailed plan~ and specifications ami Tenanr agrees that, if it desires
any reasonable changes thereto. it will discuss same. with specificity. with Landlord within
ten (10) days of receipt by Tenant thereof. Landlord agrees to make such nonstructural
changes in the Plans and Specifications as Tenant may request provided that Tenant agrees
to pay any increased costs resulting therefrom and provided further that insofar as
construction is delayed by reason of changes in the Plans WId Specifications requesled by
Tenant. then the Substantial Completion Date l.1!..il, August I. 1988) shall be exten<led by a
period eLjual 10 Ihe number of days <lelay caused by such changes. Provided, however,
anything contllined in this Lcase to the cOnlrary notwithstanding, this Lease shall
automatically tenninate and be of no funher force or effect if the Premises are not, for any
reason, Substantially Cornpleteci on or before September 30, 1988.
(b) For purposes of this Lease, "Substantially Completed" shall
mean the date on which Landlord (i) has substanlially completed (subject only to minor
punch list items, as reasonably agreed to by Landlord and Tenant, which do not materially
affect the right of TenWIl to take possession of, move into and commence operations from,
the Premises) all work an<llmprovements required by Landlord pursuanlto the tenns and
provisions hereof (and gives Tenant notice thereoO in confonnity with the (a) applicable
laws and reg.ulations and (b) the Plans and Specifications, and slaung. the number of sLjuarc
feet within the Improvements, and (H) has received, from the Township of Middlesex,
Permsylvania, a Cenificate of Occupancy for the Improvements. Provided, however, the
issuance of a Cenificate of Occupancy shall not be required for Subsfantial Completion if
the only requirements remaining 10 be met arc the responsibility of Ten ant.
(c) The Base Rent per square foot of floor area ("Floor Area")
stipulated in paragraph S is based upon the square footage set fonh in the Plans and
Specifications. TIle s~uare footage of Floor Area is the tolal number of square feet of the
Improvements (includlJlg warehouse space and office space) measured from the exterior
faces of the exterior walls without reduction for colunUls, stairs, elevatars, escalators.
shafts and lIlher interior conslructiun. Landlord and Tenant acknowledge thaI changes in
the Plans WI\I Specifications (including changes in the Floor Area) will requiJe adjustmenls
ill the leons of the Lease, including the Ba.~e Rent and the Option Price. The adjusl1ncnts
willtuke into account increases or decreases in the cost of the Improvements, inclu<ling but
not limited 10, construction costs and flJ1ancing costs.
(d) Landlord shall, on the Commencemenl Date, assign to
Tenant all warranties covering the Premises, except warranties covel'ing Structural
.2.
Members, Landlord ~hall, on behalf of TenaJ1f, enforce any warranlies covering Ihe
Premises which are 11\11 assigned ur as~illnahle 10 Tenal1l provided Ihat Tenant pays the cost
of such enforcemenl (unless the item covered by Ihe warranty is an ilem required 10 be
mainlained by Landlord).
4. Imu,
(a) The initial teml (the "Initial Term") oflhis Lease shall be for
a period of ten (10) years commencinp: on the earlier of Ihe date on which Tenanl occupies
Ihe Premises or Ihe Substanlial Complelion Dale (hereinafler somelimes referred 10 as
"Commencement Date") and terminating on the la~1 dRY of the tenlh (lOth) "Lease Year", as
hereinafler defmed, at midnilllll (the "Tenninalion Date"), All references 10 Ihe "Ieml of
Ihis Lease" refer 10 the lerm of this Lea.se as it is renewed, extended or sooner lerminaled.
llle phrase "Leose Vear" shall have Ihe follCJwinll meaning: Ihe flrSl (151) Lease Year shall
conunence on Ihe Commencemenl Date and shllll end on the last day of the twelfth (12th)
full calendar monlh thereafler, llle flrsf (lSI) Lease Year shall include lhe fll'sl twelve (12)
full calendar mOlllhs sub~eqllenllo Ihe COlllmencement Dale and any panial calendar month
occasioned by Ihe Commencement Uale occurring on a date other than Ihe fIrSt (I ~t) day of
a calendar monlh. Each succes~lve Lea,se Year sholl commence on the anniversary dale of
Ihe firsl (IsI) day of Ihe fll'sl full calendar mOlllh during Ihe fll'sl Lease Year and conlinue
for twelve (12) full calendar mOlllhs,
fbl lInon delenninaljon of Ihe Commencement Date, Landlord
and Tenanl shall enler'inlo a co'mJnencemenl date allreement (Ihe "Conunencemenl Dale
Agreemenl") which shall specify, among nlher Ihin!!s, Ihe followinll: Iii the
Commencemenl Dale; [i1] rhe Terminatiol1 Dale; [iiil the square foolage of Floor Area; (ivl
the amoulll of lhe lolal payments of Base Renf to fhe LamUllrd for each Lease Year and Ihe
monthly paymellls of Base Renl if differenl from lhe Base Renl sel fonh in para!!raph 5; (v)
Ihe Oplion Dales under paragraph 41; amI [vi] the Oplion Price if differelll froll\ lhe Oplion
Price sel fonh in paragraph 41.
5. &nW. Tenant, in consideralion of said demise, does coven anI and
agree with Lanellord 10 pay base renl ("Base Rent") during lhe lnilial Tenn in the amounl of
$3.04 per square fOOl for Lease Years 1-5 and $3.26 per square fool for Lease Years 6-10,
Base Rent shall be payable in advance in equal monthly installments conunencing on Ihe
Commencement Dale, and Ihereafler on Ihe fll'st day of each and every calendar monlh
during the Inilial Term. I f the Conunenccmenl Date occurs on a day olher than the flrSl day
of. calendar month, or if the Terminalion Dafe occurs on a day olher than the last day of a
calendar mOnlh, Ihen the monthly rent for such pania! monlh will be proraled on a daily
basis.
6. Addilional Renl. In addition 10 Ihe Base Renf, Tenant shall,
conunencing on the Conunencemenr Date, pay as additional relll (Ihe "Additional Renl") all
olher paymenls required 10 be made by Tenanl hereunder, including but nOllinuled 10 Ihe
~~ '
paragraph 16.
(a) The amounf of all "lues amI assessments" as set fonh in
(II) All lues and charlles on account of ils use, occupancy, or
operalion of Ihe Premises, including bul notlimiled 10. all personal propeny, invenrory.
sales and use lues, and all occupation and license fees assessed or charlled on or againsl
Ihe Premises, or Ihe COlllelllS Ihereof, or on aCCOUnl of Tenanl's use 01' occupancy Ihereof
~or the business conducled Ihereon or Iherein during the lerm of lhis Lease; provided,
- 3.
however, Tenant will nOf ~ required 10 pay any income Ilue~. or e~lale or inheritance t3Jte~
chnrj!ellble 10 the LaI1lU.,rd, or any business or privilej!e t311 based on Landlord's income ur
business.
(c) All casualty and liability insurance re'lu~red in cOlUlection
with the Premises as set fonh in paragraphs 20 and 21,
(d) All utilities in accordnnce with the provisions of paragraph
12 hereof.
(e) All Tenant repairs required pursuant to paragraph 14.
If Landlord pays taxes and assessments or other Items of Addilional Rent
directly, the Tenanf shall reinlburse Landlurd for such payments within thirty (30) days
after Landlord gives Tenant evidence of pa),nent by the Landlurd,
7, Pavment, All Base Rent or Additional Rent (collectively, the
"Rent") payable by Tenwllto Landlord under this Lease shall be paid or mailed to Lan.Uurd
al fhe address' set fonh in the introduCIOI)' paragraph, or to such other persons and at such
olher place as shall be designated in writing by Landlord,
8. Use of Premises. The Premises shall be used and occupied by
Tenwlt during the tenn of this Lease and all extensions thereof for warehousing, office.
display, sales, ~torage. training and servicing purposes, including wifhoutlimitalion. the
warehousin!!, di~play, storage, sales and servicing of household and other appliances,
cabinets and pans, Tenant agrees that during the tenn of this Lease, Tenant shall use and
keep the Premises in a careful, safe WId proper manner; not commit or suffer waste thereon;
not u~e or occupy the Premises for WlY unlawful purposes; not use or occupy the Premi~es
or permit the same to be used or occupied in v iolalion of the terms, condieiuns or
restrictions In the Access Easements, the Drainage Easement, or any other easements,
relocation agreements, or other matters of record affecting the Premises; comply with the
terms and conditions of the Access Ea~ements, the Drainage Easement, and other
easemenls and agreements of record; keep the Premises in such repair and condition as may
be required by the Board of Health, or other city, stare or federal authorities, free of all cost
to the Landlord; not permit any acts to be done which wl1l cause the cancellation,
invalidation, or suspension of any insurance policy provided for by Tenant in accordance
with paragraphs 20 a11l121; and permit Landlord and its agents, upon notice to Tenlll1t, to
enter upon the Premises at all reasonable times to examine the condition thereof,
9. Advenisin~ Disolav, Tenant, or any pany to whom Tenant assigns
or sublets, may at its own expense, place such signs in or upon the Premises as it deems
necessary, provided the consent of Landlord as to the appearance and method of installation
is first obtained, which consent shallllut be-wJH.l\$Onably withheld. Such signs shall
remain the propeny of Tenant and shall be removed by Tenant at Tenant's expense upon
termination or expiration of this Lease, and any damage caused by such removal shall be
rep,aired at Tenant's expen~e, If Tenant, or any pany to whom Tenant assillns or sublets,
fails to remove the signs within thiny (30) davs afler the lemlination or expirali(ln uf this
Lease, then the signs sholl ~ deemed t(l have,been abandllned, shall become the propcny
of the Lwldlord, and Landlord may sell or otherwi~e dispose of such ~i!!ns; provided,
however, Landlord shall have no rights in or to the trademarks or trade names used thereon.
10, ComDliance With Laws Dorim! Tenn. Tenant shall comply with aU
lawful laws, orders, regulations or ordinances of all municipal, counly, stale and other
govenunenlal authorities and insurance organizations in cOlUlection with the PJemises,
.4-
Including but nof limited to, requirements of Ihe board of fue insurance underwrirers,
Insurance servke offi~e, Fa~lury Mutual. and all zoning ami building codes, excepl such
laws, orders, regulaliuns or ordinances as shall require srruclural chan~es, additions. or
installatiuns; provided, huwever, that [il Tenant shall be responsible for Ihe cost of all
sfructural chan~es, additions, or in~tallations re4uired because of Tenant's use of the
Premises; and liil if Landlord is required 10 expcntl in excess of $250,OOU for any other
structural changes. addifions, or instaUatiuns, TenwlI shall pay the Landlord the amount of
such excess in equal mOl1lhly installments amonized over the greater of the remaining tenn
of Ihis Lease or the useful life of such changes, additions, or installafions, If such
installments are based on the useful life, Tenant shall only pay such monthly InSlaUments
due during the Initial Term and the renewal term exercised by Tenant, All such changes,
additions or installations shall become pan of the Premises,
II , TenwlI-Made A1lerations,
(a) Tenant has the right, at its expense, from time to time,
during the tenn of this Lease, to make additions, aherations and changes in or to the
Improvements. WId to construct new improvements, on the Premises (hereinafter referred
to as "Tenant.Made Aherations") with the prillr wrinen con~ent of Landlord, which consell1
shall not be unreasonahly withheld; provided, however, that no Tenant-Made Alterations
shall change the character of the structure of the Premises. Tenant shill, at the time Tenant
requests Landlord's consell1, submit detailed plwls and specificaliuns for the TenWlI-Made
Alterations. Tenant shall not do, or permit others WIder ils control to do, during the tenn of
this Lea~e, any work on the Premises related to said Tenant-Made Alterations unless TenwlI
shall have first procured and paid, or caused to be procured and paid, all requisite
municipal and other govemmenfal permits and authorizations, Landlord shall join in lhe
application for any such permil or authorization whenever reqnired, but Tenant shall
indemnify WId hllld Landlord hannless from and allainst all costs and expenses which may
be thereby incurred by Landlord, All such work shall be done in a good and workmanlike
manner, in accordance with the plans and specifications approved by Landlord, In
compliance with all applicable Factory Mutual, building, zoning and other laws,
ordinances, govenunent regulations and requirements and free and clear of all mechanic's
liens. Prior to commencing the Tenant-Made Alterations, Tenant shall, at Tenanl's
expense, obtain a builder's complefed value ri~k policy of insurance insuring against all
risks of physical loss, including collapse and transit coverage, in a non-reponing form,
covering the fotal value of the work to be perfonned, and equipment, supplies, and
maferials, insurinll initial occupancy, naming Landlord and any mongagee as additional
named Insureds of such policy, and in form WId substance reasonably satisfactory to
Landlord. Tenant shall, after completion of the Tenant-Made Alterations, increase the
replacement cost coverage on the casualty insurance required under paragrnph 20,
(b) Upon termination of this Lease or the expiration of the lerm
of this Lease, by lapse of time or otherwise, all Tenanl-Made A1lerations, as constilufed af
the time, shall be and become the propeny of Landlord without requirement of the payment
of any compensation or consideration. The fenn Tenanl-Made Alterations, however, does
not, for any purpose of this Lease, include moveable panitions and the like WId Tenwll's
machinery, e4uipmell1 or trade fllttures even though affixed or attached to Ihe Land or
Improvements in such manner as, under the laws of the Slale in whkh the Premises are
located, the same millhl be considered 10 be flltlures ami pan of Ihe real esfale, and upon
tenninalion of Ihis Lea.~e and Ihe remls herein provided for, Tenunl may, before or within a
reasonoble time after such termination, remove all such moveable panitions, machinery,
equipmell1 wlCl trade fiArures, Tenant shall, al Tenalll's expense, repair any dWlIAge Iu the
Premises occasioned by such removal. If Tenanl fails to remove the moveable panhions,
equipment, or trade fiAlures wilhin thiny (30) days &fler the expiration or terminal ion uf
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this Lease, rhen the mlIVeable pan it ions. equipmenl. or Irade fIXtures shall be deemed to be
abandoned, shall become the plopeny of the LanUJUld, and Landlold may sell or otherwise
dispose of such items,
12, Utililles, Tenant will pay all char(les, assessments. deposils. anel
bills for ulililies, includin(l but nol limiled 10. (las, water. sanitary sewer. Slonn sewer,
elecfricifY, felephone service, and flash colleclion consumed by Tenant on the Premises
during the tenn of this Lease. as Ihe same shall become due; provided, however, LanUJonl
shall furnish, at ilS expense, separate meters evidencing the amount of such gas, waler and
electricity consumed on the Premises by Tenant. Landlord will not be liable for damages to
person or property or for Injury '0 or intemJplion of business for discontinuance of utiliries
nor shall Tenanl be released from Its obligations under tllls Lease during such Interruption
or dlsconlinuance,
13, Janilorial Services. Tenant a(lrees, allts expense, to provide the
necessary janilorial services to maimain the Premises In a good orderly manner al all times
dwing Ihe lenn of this Lease.
, 14. Reoairs and Maintenance, Landlord a(lrees, al its expense, III keep
in good order allll repair the foundation, eXlerior walls, roof, guners, and structural floors
(hereinafter n:ferred 10 as "Struclural Members") of the lrnprovemellls. Landlord funher
agrees to pay one-half (112) of all labor charges which are nllt covered under warranty
work and which exceed Five Hundred Dollars ($;'i(XI.OO) for each individual repair of Ihe
healin(l, air condirioninll, and blowing systems durinll the first five years of this Lease.
Landlord a(lrees that, to the extent possible, all repairs and maintenance perfonned under
this Paragraph 14 will not interfere with ~nant's use and-..Qi6i\Ipancy of the Premises, In
the event Landlon! fails to commence making such repairs within twellly-four (24) hllUrs
after receipt of nOlice frolll Tenant that such repairs are necessary, Tenant may make such
repairs, or cause such repairs to be made, and deduct the cost Ihereof from subsequent
rental payments due Landlord hereunder, Except for the Structural Members, Tenalll
agrees thai it will, at its expense, during the lenn of this Lea.,e, keep the Premises In good
condition and repair, including but 1ll11lilllited to. parking areas, sidewalks, utiliry lines amI
connections (including urillty lines and connections in the Access Easements). heating, air
conditioning, vemilation. boilers. and other mechanical systems. Tenant shall mow all
lawns and maintain all drives (including drives In the Access Easements), sidewalks,
parking areas in a clean and orderly condition free of debris and snow. Landlord
represents and warranls that all drives and parking area., Installed by LW1UJord will be free
from structural defects for a period of two (2) years from the Conuncncement Date. Tenant
funher agrees that at the expiration or termination hereof, Tenant will yield and deliver up
the Premises to LanlUorel as nearly as possible in the same condition as when taken,
reasonable use and wear thereof and damage by the e1emellls excepted.
IS, Lkm,. Nothinll herein contained shall be construed as authorizing
Tenant to incur any mechanic's lien or liens against the Premises for any material or labor,
If any lien shall be filed allainst fhe Interests of Landlord or of Tenant in fhe Premises or
assened againsf any Rent payable hereunder by reason of material or lahor supplied or
claimed 10 have been supplied on or to the Premises at the request of, or wilh the
pennission of, Tenalll. or anyone c1aimlnll under Tenant, Tenant shall, within thirty (30)
days after notice of the filinllthereof, or the assenion thereof allninst such rents. cause the
same to be discharged uf record or effectively prevellt the enforcemellt or foreclllsure
thereof agninstlhe Premises Ilr such rellt by contest, paymelll, deposil, bund. order of
Coun or othelwise.
-6-
16, Iw1, Tenant agrees to pay before any fane, penalty, inleresf or
cost is incurred. a1lllUes and assessments le\'ied againslthe Premises. TIle tenll "1I1"es and
ASsessmenls" means. collectively, Ii) !lues (including withoullimhation, all ad valorem,
sales Iml use, business 01' occupalion, single business, gross receiplS. transaction
privilege, renl or similar lues); Iii) assessments (including whhoUI Iimhation. all
ASsessments for public improvements or benefilS, whether or nol commenced or completed
prior to the Conunencelllenl Date and whether or nollO be compleled withinlhe lenn of this
Lease); Iiiil ~ruund renlS, waler, sewer, or olher rents and charges, excise. tlllt levies, fees
(including wllhout Iimilafion, license, pennil, inspeclion, aUlhorizalion, and similar fees);
and (iv J excert for changes for environmental condhions nol caused by Tenant, all other
(lovenunenta charLles, in each case whelher L1eneral or special, ordinary or eXlraordinary,
or foreseen or unforeseen, of every characler wilh respect 10 Ihe Premises and/or Renl
(Including all interest and penalties thereon due to any failure in payment by Tenanl), which
II any lime prior 10, during or in respect of the teml of this Lease lTIay be assessed ,'r
Imposed or be a lien upon the Premises or lhe Rent payable under this Lease, TenanlshaIJ,
upon requesl from Lamllllrd, promptly fumlsh 10 Landlord copies of official recelpls or
olher sallsfaclory proof evidencinLl such paymenls, Tenant shall pay ils prorata share of lhe
laxes and a.,sessmeIllS for lhe 18J\ period during which the tenn conunences and e"pires or
lenninales anI! such obligalion shall survive Ihe temunalion of this Lease,
If. by law, any taxes and assessmenlS may, atlhe oplion of the fllltpayer, be
paid in inslaIJmenls (whelher or nOl inleresl accllles or lhe unpaid balance of such tllltCS and
assessmelllS), Tenant may e"erdse Ihe option to pay the Illltes and assessmenlS (and any
accrued Inleresl on the unpaid balance of such laxes) in inMallmenls and in such evellf
Tenant will pay such install men IS when due during Ihe tenn of lhis Lease as lhe same
become due and before any fine, penalty, or cosl may be added thereto.
17, Access. Landlord shall have lhe righl to enter upon lhe Premises al
all reasonable hours for the purpose of inspecling lhe swne; provided, lhal LaOlUnrd has
given Tenant reasonable notice of Landlord's inlentto enler, and funher provided that any
such entry shall be underTaken in such a maruler as to nol inlerfere with Ihe conduct of
Tenant's business,
18. Ootion 10 Extend. Provided thai Tenant Is not In default under any
of the tenns, covenanfS, or condilions of this Lease, Tenant Is hereby granled three (3)
options of five (5) years each (each exercisable upon one hundred eighty (180) day~' prior
wriuen notice) 10 renew this Lease and extend the lenn 50 that, if such options are fully
exercised, the Tenant will enjoy fifteen (15) years in the Premises in addhlon to the Initial
Tenn. Renewal shall be upon the same temu and conditions as those set fonh in this
Lease, but during each renewaltenn, Base Rent shall be adjusted in the manner outlined
below,
The Base Rent during the fust renewaltenn will be 1bree and 59/100
Dollars ($3,59) per square foot per year. The Base Rent during the second and third
tenewaltenns shall be detennined by adjusting the Base Rent, based upon any increases in
the Consumer Price Inde". in accordance willt the foUowing procedure:
(a) The index to be used for this adjuslmelll shall be Ihe
Consumer Price Index (CPI "U", U.S. Cily Average, All Urban Consumers, All Items,
1967 equalinll a base of 100, from the U.S, DepaJ1melll of Labor, Bureau of Labor
Stalistics, Washington, D.C,).
(b I The Consumer Price Index for lhe lhird month prior to the
fltSt day of the current renewaltenn shall be the "Base Period Conswner Price Index". The
.7.
Consumer Price Index for the third month prior to the first day of rhe month of
commencement of the renewal term for which an adjusllnent is being detennined shall be
the "Adjusrmenl Period Consumer Price Index",
(c) The Base Rent to be paid durin~ rhe renewalrerm shall be
determined in accordance with the following formula: The Adjusunent Period Consumer
Price Index shall be divided by the Base Period Consumer Price Index and Ihe quotient
derived thereby shall Ihen be muhiplied by the Base Rent or Adjusted Base Rent (as
hereinafter defined), respectively, The resuJfing product shall be the 'Adjusfed Base Renl"
for the renewal term for which an Adjusted Base Rent b being computed; provided,
however that in no event shall the Adjusted Base Rent: (i) for the second renewal term be
more th~ 120% of the Base Rent for the fll'st renewal termj and (ii) for the third renewal
term be more than 120'10 of the Base Rent for the second renewal term,
(d) If the Consumer Price Index is, at any time during the inilial
or any renewalrenn of Ihis Lease, discontinued by the Govemmelll, then the mOSf nearly
comparable index shall be substituted for the purpose of the aforesaid calculafions. If the
method of computing the Consumer Price Index is, at any time during fhe initial or any
renewallerm 'of this Lease, changed by the Govenunent, then the Base Period Consumer
Price Index and Adjusunent Period Consumer Price Index will be modified to incorporate
such change,
19. Fire and Other Casually,
(a) In the event fhat the Premises are damaged or destroyed by
fll'e, windstorm or any other casualty to such an extent that, in the reasonable opinion of
Landlord, il is unlikely under rhe existing condilions that such damage could be repaired
within one hundred twenty (120) days from the happening of such event, then Tenant shall
have the privilege of terminating this Lease as of the date of such event (notwithstanding
any provisions in the Lease to the contrary) by fumishlng wrinen notice to Landlord to that
effect not more than thiny (30) days after such event; and upon such election by Tenanf, the
rental hereunder shall be prorated and paid OT refunded, as the case may be, as of the date
the damage occurred, Landlord shall, not later than fifteen (IS) days after the casualty,
give Tenant notice of whether such damage can be repaired within one hundred twenty
(120) days.
(b) If, however, the nature of such damage is such that the
Premises could reasonably be repaired or reconstructed substantially to its former condifion
within one hundred twenty (120) days from the happening of such event, or if Tenant did
not exercise its aforemenlioned privilege to tenmnafe this Lease, then in either or such
events, Tenant shall nOf be entitled to surrender this Lease, but Landlord shall repair and
restore the Premises to the extent of the available insurance proceeds, with all reasonable
dispatch, to a condition at least equivalent to that prevailing immediately prior to the
happening ofsuch casualty, and in any event, in the absence of unavoidable delay, wilhin
sBld one hundred twenty (120) days. If, during the period of such repair or restoration,
Tenant is deprived of occupancy of all or any pan of the Premises for Tenant's accustomed
use thereof, then Tenant shall receive a proponiollBte reduction in Base Rent corresponding
to the time during which, and the proponlon of said Premises from which, Tenant shall
have been so deprived,
(c) Notwilhstanding the foregoing provisions of fhis Paragraph
19, if, as a resuh of such casualty, the Improvements shall be damaged or destroyed to
such an extent as to require substantially the rebuilding of at least forty percent (40'10)
thereof, then, in such event, Landlord shall have the privilege of tenninating this Lease as
of the date of such casualty by fumishing wrinen notice to Tenant to that effect nOf more
than thiny (30) days after the OC'WTence .oUoch casualty, in which event the rental
.8-
hereunder ~hall be prorated Ilnd paid, or refunded, llS the CllSe may be, llS o( the dafe the
CllSUalt)' occurred,
20. Casualtv Insurance. Tenant shall, at Tenanc's expense, keep the
Improvements insured againslthe (ollowing risks: [iJ loss or damage by fire, vandalism.
and malicious mischief. sprinkler leakage, and all other physical loss pel ils commonly
covered by "all rl~k" insurance in an amuunt nOlless than one hundred percenf (I W%) o(
the (ull replacement COSf (withoul Bny reduclions or deductions), including an agreed
amount or similar endorsemenf and endorsements (or cOlllinllenlliability (or operarions o(
building laws, demolition cost, and increllSed cost o( construction; liiJ if appUcable,loss or
damage hy explosion o( steam boilers, pressure vessels, or similar apparatus, now or
hereinafter insralled on the Premises, in commercially rellSonable amounts acceptable 10
Landlord; [iiiJ if the Premis:s is located in whole or in pan within a desi~aled flood plain
area, loss or damage caused by nood in commercially reasonable amounls acceptable to
Landlord; and (iv] loss or damage by earthquake in commercially reasonable amounts
acceptable to LandJord.
21, Public L1abilitv Insurance o( Tenant. Tenant Bllrees to carry, during
the term o( this Lease, broad (ann comprehensive general liability insurance in the
minimum amoulII of $1 ,UUU,OUU against liability (or injury to or death o( one person,
$I,ooO,ooU allainst liabilily (or injuries or deaths arising out o( anyone accident or
occurrence, and $3(}O.OOO againstliahility for dWllalle 10 propeny, The insurance required
by this Paragraph 2 I may be effected WIder umbrella policies.
22, Public Liabilitv Insurance of Landlord. Landlord shall carry, during
,the temter this Lea~e,liahility insurwlce, Le~sur's risk only. with linuls of $1,000,000 per
occurrence and $2,000.000 aggregate against liability for injury or death. LandJord shall
deliver to Tenant a certificate evidencing such insurance.
23, InSurWlce Reauirements. The following provisions shall apply fa all
insurance coverages required hereunder: [iJ the carrien; shall be authorized fa do business
in the Commonwealth of PeMsylvania; [iiJ Tenanl shall be the "nwned insured", Landlord
shall be an "additiunal insured". any mortgagee of the Premises shall be an additional
insured on any liability coverages and shall be the loss payee under a standard
noncontributing mortgalle clause for the property coverage; [ili) the policies may not be
amended. modified, or cancelled witlmut at least thirty (30) days prior wrinen notice 10
Landlord or any mortgagee: [iv) the liahility policies shall contain a cross-liability
endorsement, and the property policies shall provide that acts or omissions of Tenant and
Landlord will not invalidate the mortgagee's coverage; [v) Tenant shall deliver to Landlord
a certificale of insurance, and any renewals thereof; and [vi) Tenant shall not, wifhoutthe
prior wrinen conselll and approval of Landlonl, oblain any separate insurance or additional
policies COnCIIITent in fonn or contributing in the event of loss with the insurance coverages
required hereunder, Tenant may insure the Premises under a blanket policy provided that
the Premises is separately scheduled in the pulicy WId replacement cost coverage is
provided.
24. Waiver of Subro~ation, Each party hereto hereby waives any and
every claim which arises or mny arisc in ils favor and against the lither pany herelo during
the tenn or any extensiun 01 rencwal. fllr any and all loss of. l1r damage tu. an)' of its
propeny located within or upon. or cunstituting a pall of. the Premises, which loss or
damalle is covered by valid and collectible insurance policies, Said mutual waiver shalll:le
in addition to, and not in limitation or derollation of. any olher waiver or release contained
ill this Lease with respeCllo any (oss or danlage tu propeny of the panies herelu. Inasmuch
as the said waivers will preclude the assignment of any aforesaid claim by way of
.9-
subrol!alfon (or olherwise) 10 an insurance company (or any olher person), each pany
herelo agree~ iJ1lmediulely 10 l!ive each imurance cornpnny which ha.~ issued 10 ill'olfcie~ of
insurance, wrillen nOlice of the lenns of said mutual waivers. ami to have such insurance
policies properly endorsed, if necessary, 10 prevenl Ihe invalidalion of said insurance
coverage by rell50n of said waivers,
2~. Indemnificalion bv Tenant. Tenant, its succes~ors and lI5signs,
al!rees 10 indemnify and hold hamlless Landlord from any Iiabiliry for injury 10 or dealh of
any person or damdge It) personal propeny of every k.ind amI nalure arising from or in
conneclion whh the use and occupancy of the Premises caused by the acts or omissions 10
act ofTenanl, or Tenanl's servants and agenlS.
26, Indemnificalion bv Landlord. Landlord. Irs heirs, execulors,
adminislrators, successols and assi!ln~, a!lrees 10 indemnify and hold harmless Tenanl
from any Iiallilily for injury 10 or death of any person or damage 10 personal propeny of
every kind and nalure caused by Ihe aCI~ or omissions 10 act of Landlord, or Landlord's
servanls and agenls, or by failure of Lalllllord, or Landlord's servants and agents, 10 fulfill
Landlord's obligalions hereunder.
.
27. Condemnation.
(a) If the whole of the Premises shall be faken hy ri!lht of
eminent domain by any governmental authorily or olher body having the right of
condemnalion, lhis Lease shall fenninale on the dale of vesting of fide pursuant to such
proceedings, In the evenl of such lel111ination. Ihe condemnation proceeds (olher Ihan
damages awarded 10 Tenalll for moving costs) shall be shared hy Landlord and Tenanl, in
proponlon 10 the relative value of Iheir respective inleresls as Landlord and Tenanl,
compuled for this purpose lI5 Ihou!lh Ihe Lell5e were 'not tenninaled, All Renr shall be
adjusled to the dale of such tenninalion.
(b) If a sufficient pan of the Premises shall be faken under the
ri!lht of eminent domain so Ihalthe remainder cannOI, in the reasollable opinion of Tenalll,
be used for the same purpose as before: said condenmalion or tnkintl, or so lI5 to make the
use of Ihe remainder of Ihe Premises lly Tenanl physically or economically impracticable,
or the said condemnalion or taking will prevent the use of the remainder of the Premises for
the purposes conlemplaled by Ihis Lell5e, or in the event of a restriction of any kind or
nalure, such lI5 the taking of pun of all of a slreet, alley or other means now available for
ingress to or egress from dIe Premises which would prevelll or substanlially interlere with
Tenant's use of rhe Premises. then Tenant shall have the oplion of lenninaling this Lease.
Said tenninalion shall be effeCled lly nolice in wriling delivered 10 Landlord wlrhin sixty
(60) days from the date of such taking or reslriclion, such tenninafion to be effecfive as of
the dale of such restriction or taking, In the event of such lennination, the condemnation
proceeds (other than damages awarded to Tenant for moving costs) shall be shared by
Landlord and Tenant in proponion 10 the relative value of their respective inferests as
Landlord and Tenant, computed for Ihis purpose as fhough the Lell5e were lIollennlnated.
If Tenant shall nuf exercise ils aforeswd ri!lhl 10 lenninate rhe Lell5e. said Lease shall
conrinue and the BlI5e Rem shull be reduced 10 such a ligure lI5 may be just and equilable.
(c) If any part of the Premises shalll~ laken alld Tennnl dlles
not hnve an eleclion 10 cancellhe Lease as aforesaid, or, having such eleclion dues nlll
exercise iI, Ihis Lease shall conlinue in full force allLl effeclll5 tulhal part of Ihe Premises
which has not been so laken; and Landlord ~hnll, 10 Ihe eXlelll of the proceeds from the
condenulalion award payable 10 Landlord, make such repairs and resloralion and dll such
other work lI5 may be necessary to restore fully the remaining ponion of Premises to a
- 10-
complete and sound archilecrural and slructural unif; and upon paymehf of an award or
clllllpen~olilln ari~iJ111 frolll such condellulalion, afler first I'oyinlllherefrollllhe reasonahle
cost t~l Landlord of ~uch resloralion, there shall be such dlvisilln of the remainder of such
proceeds belween Landlord and Tenant and such equilable adjusunenl of renl and such
Of her adjuslmenls as may be jusl and equitable, In addilionto the forellou,g, and withoul
Iimitalionthereof, Ihe panies agree Ihatlo Ihe extent, and for the period of lime, thaI the
remainu,g pun ion of the Premises are rendered untenanlable because of the aforesaid work,
repairs, and resloralion, a reasonable reduction shall be made in Base Rent.
28. Title and Peaceful Possession. Landlord is the owner of the
Premises and has Ihe power III enler into litis Lease. Tenanl acknowledges thBI Tenanf has
reviewed Title Commitmenl No, SCA.IOI82 daled Augusl 24, 1987 i~sued by South
Central Agency.lnc, (the "Commilmenl") for the Premises, Tenant ~ leasing the Premises
subject to a1llitle maners known 10 Tenant and existing as of Ihe eltCculion date of fhis
Lease, including bUI nOllimiled 10, the rights of Mobil Pipe Lu,e Company and Laurel Pipe
Line Company. Tenanl funher acknowledges Ihalthe Premises is or will be subjecI to Ii]
the reservalion of an access easemelll in favor of Jack Sonday pursuanl 10 General
Warranly Deed daled December 30, 1987 recorded in Book C33, Page 106S of
Cumberland County, PelUlsylvania Records; [ill ulility easemenlS for lelephone and other
ulilities; [iii] a relocalion agreement wilh the Mobil Pipe Line Company and easemenls
granled pursuanl fherelo; and [iv] the tenns and conditions of the Access Easemenl and
Drau,al!e Easelllenl, Subjecl fO Ihese prior easemenlS, prior agreements and prior
restrictions of record and any mongages on the Premises, Tenant shall be entilled to the
exclusive use, peaceful possession, and quiet enjoymenl of Ihe Premises for and during Ihe
Initial Terl1l. and any renewal ten"s. so long as Tenanl perfonns all the terms and
conditions of tlus Lease applicable 10 Tenant,
29. Tenant Defaults and Landlord's Remedies.
(a) If Tenant fails 10 make any payment of any such sum due
under this Lease for fifteen (is) days after receipt of notice from Landlllrd or fails 10 take
action to cure a breach of any other tenn, covenant, or condilion hereof for Iwenly (20)
days afler receipt of notice from Landlord, or if Tenant's inlerest herein, or any part
thereof, is assigned ur transferred, either voluntarily or by operation of law (except as
Cltcressly pemlined by other prov~jons of this Lease), including without limitation, the
ftI ng of a petition by or again~l Tenant under any ulsolvency or bankruptcy laws, or if
Tenant makes a general or any assignmenl for the benefil of its creditors or Tenant
abandons the Premises (which events are hereinafter collectively referred to as "Tenant
Defaults"), then Landlord shall have the right, al its option, in addition to and not exclusive
of any other remedy Landlord may have hy operation IIflaw, wilhout any further demand
or notice, to re-el1ler the Premises and eject all persons therefrom, osing all necessary force
to do so and to:
(I) Declare this Lease at an end, in which event Tenant
shall Immediately pay to Landlord a sum of money equal to the amounf, if any, by which
the then cash value of Ihe Rem reserved hereunder for the balance of the initial or renewal
ten", as the case may be, of Ihis Lease exceeds the Ihen reasonable cash renlal value of Ihe
Prelluses for the balance of saidleln1.
(2) Without lennulaling this Lease, relelthe Premises, or
any part Ihereof, for the balance of Ihe initial or rellewallenn, as Ihe case may be, as Ihe
agel\l and for lhe accoul1l (If Tenant upon reasonable tenns and conditions, Ul which event
the rents received on such relelling shall be applied first to the expense of such releuing and
collection. includulg necessary renovation and alterations of the Premises, reasonable
. 11 -
Inomeys' (ees. Iny real estlte commissions paid. ROlltherea(ter foward payment of all
sums due or III become due hereunder, amI if a sufficient SUIll is not thus realized to pay
such sums Iml Olher charges, Tenanl shall pay Landlord any deficiency monthly,
nOlwi!hstanding Landlord may have received renl in excess of Ihe rent stipulaled in Ihis
leAse in previous or ~uhSeljuenl momhs, and Landlord may bring an action therefor as
such monthly deficiency shall arise.
(b) Any su~'h re-entry shall be allowed by Tenanl withoullel or
hindrance, and Landlord shall not be liable in dwnages for any such re-entry, or guihy of
trespass or forcible enuy,
(c) No re-entry and laking o( possession of Ihe Premises by
Landlord shall be conslrued as an election on Landlord s pan 10 lenninale !his Lease,
regardless of lhe eXlenl (If renovalions w1d alteration hy Landlord unless a wriuen nOllce of
ftuch inlellli(.n is given 10 TenwlI by Landlord. NOlwithslanding an)' releulng withoUI
lenninalion, Landlord may al any lime !hereafter lenninale tillS Lease (or such previous
breach.
. (d) Landlord may perfonn any obligation of the Tenanl which
Tenanl hns failed 10 perfonn wilhin twemy (20) days (excepl in the case uf W1 emergency)
after !he Landlord has sent a wrinen notice to Ihe Tenant informing it of its specific failure,
Tenant shall reimburse. as Additional Rem. LanlUord on demand (or W1Y expendirures thus
incurred by Landlord and shall pay inlerest Ihereon al the Overdue Rale (as hereinaCler
defined),
(e) Tenant acknowledges lhal Landlord represents that any
de(ault in the paymenf o( any installment of Rent payable hereunder will result in loss and
addilional expense 10 LalldlClrd in servicing W1Y indebledness of Lw1d1ord (or !he Premises,
handling soch delinljuenl paymellls, and meeling ils olher fmancial obligations, and to Ihe
extent such Joss and addiuonal expense is extremely difficult and impractical to ascenain,
Tenant therefore agrees that in the event any Renl payable to Landlord hereunder is nol paid
within fifleen (IS) days aCler the due date, Tenant shall pay a lale charge of one percenl
(1 %) of Ihe wnounl of Ihe overdue paymenl as a reasonable estin1ale o( such Joss and
expenses, unless applicable law requires a lesser charge. in which eventlhe mllXlmum rale
penniued by such law may be charged by Landlord. The fifteen (IS) day grace period set
fonh in this paragraph shall nuf extend the lime (or payment of Rent or the period (or
curing any default or constitute a waiver of soch default.
(0 Any payment nof made by Tenant within thiny (30) days
after doe shalltherea(ter bear illlerest atlhe rate (the "Overdoe Rale") of fhe lesser of Ii]
eighteen percenf (18%) per alUlom; or [HI one percent (1 'k) per annum above Ihe Local
Prevailing Prime Rate and such inlerest shall be deemed payable by Tenant as Additional
Renl under Ihis Lea.~e. "Local Prevailing Prime Rate" means the highest rate of inlerest
delermined as of the fmf day of each monlh charged by any o( Ihe nalional banks having a
principal office localed in the municipality where the Premises is located or the municipality
closest to the Premises. Tenant shall nOl, however, be reljuired fO pay interesl upon any
lale paymenl fees pUl'Suanlto paragraph 29Ie).
30, Tenant's Remedies. If Landlord shnll fail to keep or perfClnn any of
its obligatil111s as provided ill this Lease in respecl of (a) paymenl of cost 10 repair w1d
maintain Ihe Premises as provided herein; (b) compliance with legal or insurance
req~ire.menlS; or Ic) in the making o( any other ,payment or perfonnance of W1Y other
obhgallon assumed by Landlord, whichever Ihe case may be, the TenaJ1lmAY, bot shall nol
be obligaled 10, upon the continuance o( such failure on the pan of Landlord for a period of
-12 -
fifleen (I~) days afler receipl of notice from Tenanl. amI wilhoul walvinp: or releuinp:
Landlnrd from any oblip:alion. as an addilional. bUlnol exclusive. remedy. make su,h
paymenl or p:rfonn such oblip:alions; amI as 10 all sums so paid by Tenanl anJ all
necessary inddenllll cosls and expenses incurred by Tenanl in perfonning such obli~alion5.
Tenant may. AI i" elecliun. either dellucl said sums from subse4uent renlal raymen,s due
hereunder from Ten3l11 nr make demand upon Lalllllord for leimbwsemenl 0 said sums. in
which event Landlord a~rees 10 make or cause such reimbursemenl 10 be maJe .....ilhin
ftfteen (I S) calendar days mer receipt of saiJ demand.
31, Cumulalive Remedies, It is agreed by the panies herelo Ihal each
and every rip:ht. remedy and benefil provided hy Ihis Lease shllll be cumulalive, and shall
not be exclusive of any olher righI, remedy and benefil, or of any right, remedy and benefil
allowed hy law,
32, Sublellin2 and Assi2nmenl. Subjecllo Ihe prior wrinen opprvval of
Landlord, which approvlll will nOI be unreasonably withheld, Tenant shllll have the right fO
assi~n Ihis Lease or 10 suhlellhe .....hole or any pan of the Premises; provided Ihal Ihe
assi~nee assumes all of Ihe obli~alions of Ten3l11 under Ihis Lease and Ihe lenns amI
condiliuns of the propose.! sublease ,'r assi~lUllenl are reasonably acceptable 10 LandlorJ.
TIle following lransa"ions shall be deemed an assignment requiring Landlord's prior
wrinen consent: [il an assip:nment by operafion of law; [ii) an impJsition (whether or not
consensual) of a lien, monga~e. or en,umbrance upon Tenant's interesl in the Premises;
and liii I WI arrangement (incluJing bur not Iimiled 10, management agreements, Ikenses,
and easements) which allows use or occupancy of all or pan of the Premises by any third
person Wid is nOI lenninable if Landlnr.! lenninales tltis Lease or elecls 10 uccupy Ihe
Premises pursuanr to Ihe temlS of this Lease. Landlord shall not be deemed to have
unreasonably withheld ils consent to an assigrunent or sublease if such refusal is based
upon lil the credit rating or fUlancilll condilion of Ihe assip:nee or subtenant; [ii) Ihe use of
the Premises; or [iii rlhe business characler of Ihe proposed assignee or subtenanl. Upon
the occurrence of any Tenanl Default, and if the Premises or any pan thereof are then
assip:ned or sublet, Landlord. in addition to any other remedies herein provided or provided
by law, may at its option collecl directly from such assip:nee or sublessee all rents becoming
due to Tenant under such assip:nmenl or sublease and apply such rent againsl any sum due
to it by Tenanl hereunder; and nn su,h collection shall be conslrUed 10 conslitute a novation
or a release of Tenant from the funher performance of ils obligations hereunder, Tenanr
shall have the rip:ht to assign or sublet the .....hole or any pan of the Premises, wilhout the
wriuen consent of Landlord, to any person, company or corporafion authorized fo
distrlbule producls of Whirlpool Corporation or to any parent, subsidiary or afftliate of
Tenant; provided Ihat Ii] Tenant shall at all times remain fully responsible and primarily
liable for the payment of Renl and the performance of otlier obligations hereunder; and [ii I
the assignee shall assume all of the obhgatiollS of Tenant hereunder. Tenant shall also have
the right 10 assi~n or sublet the whole or any pan of the Premises, withoul the wrinen
consent of Landlord as pan of a uansaction involving the mer~er or consolidation ofTenalll
wilh or inlo, or the sale of all or substantially all of Tenanr's assets to, another corporation
or corporations havinp: a net wonh not less than Tenant's net wonh. Landlord's consent to
one assignment will nor waive the requirement of its consent III any su[lse4uenl
as~ignment. An)' assiglUllent without the prior written consent of Landlord will be void at
Landlord's option.
33, Waivers, One or more waivers of any cllvenant or condit;lIn by
Landlord or Tenrull shall not be construed 05 a waiver of a funher breach of the same
cuvenant or condition. TIle acceptance by Landlord of Rent al any time when Ihe Tenalll is
in default shallnol be conslrUed as a waiver of such defau!l (except nonpaymenl of Relll),
- 13 -
34. Advenisemenl of Premises, Tenanf hereby agrees Ihal for a period
conunencing Olle hundred eighlY (180) ,Jays prior III the expiralion of the lenn of Ihis
Lease, Landlonl may show lhe Premises 10 prospeclive tenalllS or purchasers, and ninely
(90) days prior fO said upiration. may display in and abouf the Premises and in the
windows lhereof, the usual and ordinary "for renl" or "fllr sale" sillns,
35, SubordinatiC'n and Anorrunent. Tenant hereby agrees 10 subordinate
Ihis Lease to any first mongage, deed of truSl, lease, or olher lien affecting the Premises,
together wilh any renewal, consolidation, eXlension, modification, or replacemenl thereof,
hereafter made by Landlord, provided thaf simultaneously wilh the execution of such a
mongage, the mongagee and Landlord eucute an agreement in favor of Tenant in proper
fonn for recording to Ihe effect that the lenancy and other rights of Tenalll hereunder shall
not be dislurbed, so long as Tenant pays the Renl and perfomls all of the other leons and
condition~ of this Lease applicahle to Tenanf, If any holder of such mongage or other
instrumenl succeeds 10 Landlord's inlerest in Ihe Premises, Tenant will pay 10 such holder
all Rent subsequenlly payable by Tenanf. Tenant shall, at the request of anyone succeeding
to Ihe interesl of Landlord, become the tenant of WId all om to such successor, The
successor will nOI be bound by Ii] any paymelll of Rent for more than one monlh in
advance; (iiJ my amendment or modification of Ihis Lease made withoul its conselll: [iiiJ
any claim agaiJlSI Landlord arising prior to Ihe date on which Ihe successor succeeded to
Landlord's interest: and I iv] any claim or offsel against the Landlord, Upon request by
Landlord or such successor, Tenant will execule, acknowledge, and deliver an inslrument,
in recordable fonn, acknowledging this atlonunent,
36, Holdinsz Over, If Tenant remains in possession of the Premises
after the expialionof the initialtenn of lhis Lease or any extension thereof without a new
lease agreement reduced to writing and fully executed. even if Tenant shall have paid and
Landlord shall have accepted rent in respecl 10 ~uch holding over, Tenanl shall be deemed
to be occupying lhe Premises only as a ten anI from month lu month subjecI 10 all the
covenants, condilions and agreements of this Lease.
37, Broker's Fee. Neither Tenant nor Landlord has agreed to pay real
estate and sinlilar broker's fees due on account of this Lease,
38. Successors and Assilms. The covenants. conditions and agreements
made and entered infO hy the pllf1ie~ herelo are declared binding on their respective heirs,
executors, administralors, succes~ors and assigns.
39, Notices,
(s) Whenever under litis Lease a provision is made for notice of
any kind, it shall be deemed sufficient nolice and service thereof if:
(i) Such notice to Tenant is in writing and ~rsonaJly
delivered, mailed by cenified mail, retum receipf requested. postage prepaid, or senl
prepaid by privale overnight courier service, and addressed 10 Tenanl as follows:
Whirlpool Corporal ion
2000 M-63
Benton Harbor, Michigan 49022
Anention: Secretary
or as otherwise directed by nOlice, in writing, given by Tenant to Landlord from time to
time, with a carbon of such notice 10 the PRlnises. .
- 14-
(ii) Such n(llice to Landlurd is in wriling and per~onally
delivered, mailed by certified mail. relum receipt re4uesled, postage prepaid, or senl
prepaid by private ovemlght courier service, and addressed 10 Landlord as follows:
Vista Warehouse Two
WetlslTand Building
Four SeaGale, Fiflh Floor
Toledo, Ohio 43604
or as otherwl~e direcled tly nOllce, in writing, given by Landlord to Tenant from time to
time.
(h) Notice shaU be effeclive upon actual receipl or five (S) days
after mailing, by certified mail as set forth above, whichever is earlier,
(c) N(IIlces given by legal counsel for a pany, on behalf of that
pany, shall be deemed notice given by such pany.
,
40. General Provisions,
(a) This Lease conlaln~ all of the tenns, covenants, and
conditions agreed to by Landlord and Tenant and il may not be modified orally or in any
manner other fhan by an agreement in writing signed by all of Ihe panies to the Lease or
their respective succe~sors in inlerest, This Lea~e will be binding upon and inure to the
benefit of the heirs, exeCUlllrs, administrators, successors, personal representatives, and
pennined assigned of Landlord and Tenant.
(h) When Ihe context of this Lease requires, Ihe masculine
gender includes the feminine, a corporal ion, or a pannership, and the singular number
includes the plural.
(c) TIle captillnS of this Lease are for convenience only and are
not a pan of this Lease and do not in any way limit or amplify the terms and provisions of
this Lease. This Lease has been prepared jointly by Landlord and Tenant and their
professional advisors and shall not be construed in favor of or against either pany merely
because of their efforts in preparing tlus Lease.
(d) lhis Lease shall be governed by and construed in accordance
wilh Ihe laws of the Commonwealtll of Pennsylvania.
(e) Time is of the essence as to all the provisions of this Lease.
(f) Except for defaults exisling on the date of sale, if LamUord,
or any subsequent owner of the Premises (provided the successors assume the obligations
of the Landlord under Ihis Lease), sells the Premises, its liability for the perfonnance of Its
agreemenls in this Lease will end olllhe date of Ihe sale of the Premises, and Tenanl will
look solely to the purchaser for the performWlce of those agreements, For the purposes (If
this section, any holller of a mortgage or securify agreemenl which affecls the Premises at
any tinlC, and any landlord in any lease to which this Lease is subordinale al any time, will
be a subsequent owner of Ihe Premises when its succeeds 10 the interest of Landlord or any
subsequent owner of tlle Premises.
- IS-
(g) Subject to Tenant's ri~ht~ under parR((raph 8, Landlord
rese~es the right to grant casements in, on, over, under and about the Premises for any
purpose what~uever so lon~ a~ such ea~emenlS do not materially interfere with the
operations of Tenalll. This Lease shall be subordinate 10 any such easemenlS,
(h) At the reque~t of Landlord or any mortgagee or purchaser of
the Premises, Tenant shaH execute, acknowledge, ami deliver an estoppel certificate, in
recordable form, in favor of Landlord or any mongagee or purchaser of the Premises
certifying the following: [il that the Lease is urunodified and in full force and effect, or if
there has been modifications thai the same is in full force and effect as modified and stating
the modifications; [iilthe date to which Rent has been paid; [ili] that neither Tenant nor
Landlord is in defauh nor is there any fact or condilion which with notice or lapse of time,
or both, would constitute a default; [iv] Ihat Tenant has accepted and occupies the Premises;
Iv) excepl as set fonh in the certificale, Tenant has no defenses, set.offs, deductions,
credits, or counterclaims against Landlord; and Ivi) such other infonnation as may
reasonably be requested by Landlord or any mortgagee or purchaser, Any purchaser or
mortgagee may rely on tltis estoppel certificate.
(i) - Tenant shall not record this Lease. Tenant may, however,
record a memorandwn oflease approved by Landlonl.
(j) If any tenn or provision of this Lease is held or conSlrued by
any coun of competent jurisdiction to be invalid or unenforceable, such holding shall nOI
affect the remainder of Ihis Lease and the same shall remain in full force and effect, unless
such holding deprives the Tenalll of use of tile Premises or Landlord of the Rent, in which
case this Lease shalltenninate,
(k) Tenant's sole recourse a~ainst Landlord, and any successor
to the interest of Landlord in the Premises, is to the inlerest of Landlord, and any such
successor, in the Premises and any condemnation proceeds, insurance p/oceeds,
warrwuies, and rents payable to Landlord under this Lease. Tenant wiJ) not have any right
to satisfy W1Y judgmelll which it may have agaimt the LWldlord, or any such successor,
from any other assets of Landlord, or any such successor. In this paragraph, the terms
"Landlord" and "successor" include the shareholders, venturers, and partners of
"Landlord" and "successor" and the officers, directors, and employees of Ihe same. The
provisions of tllis paragraph are not illlended 10 limit Tenant's right to seck injunctive relief
or specific performance.
(I) Tenant represenlS and warrants that Ii] Tenant has the power
and aUlhority fO enter into this Lease; I ii) Tenant is qualified 10 do business In the
Conunonweahh of Pennsylvania; and [ill] the persons executing !his Lease are authorized
to do so on behalf of Tenant.
(m) If the holder of any mortgage or similar security inlerest
requests any modification of fhi~ Lease, TenalU agrees to ellecute such modification so long
as such modification docs not increase the Rent or materially inlerfere Witll Tenant's use or
occupancy of the Premises.
(n) Tenant. on it~ own or on Lamllord's behalf (or in Landlord's
name). hut at Tenant's ellpense, lIIay COnleSI. l1y appropriale legal Ploceedings conducted
in good faith wld with due dili~ence. Ihe amount or validity Ilr application, in whole or in
part, of any taxes or assessments or allY legal requirement or insurance requiremenl or any
lien. allaclunenl, levy, encumbrance, charge or clainl provided that (a) in the case of 8.11
unpaid taxes or assessments, lien, auaclunent, levy, encumbrance, charge or claim, the
- 16-
conunencement and continuation of such proceedings shall suspend the collection thereof
from Lamllurd and frum the Premises, (b) neither the Premises nor any Rent therefrom nor
any part thereof or interesl therein would be in any immediate danger of being sold,
forfeited. all ached or lust, (c) in the case of a legal requirement. Landloni would not be in
any immediate danl!er of civil or criminal liability for failure to comply therewith pending
the outcome of such proceedings, (d) in the eventlhal any such contest shall involve a sum
of money or potelllialluss in excess of Fifty Thousand ($SO,OOO,OO) Dollars, Ihe TenaJU
shall deliver 10 Landlord and its counsel an opinion of Tenanl's counsel to the effecf set
fonh in clauses (a), (b) and (c), 10 the extelll applicable, (e) in the case of a legal
requirement and/or tlUeS or assessments, lien, encumbrance or charge, Tenant shall give
such reasonable securiry a.~ may be demanded by Landlord 10 insure ultimate paymenl of
the SlIme and to prevelll any sale or forfeiture of the Premises or the Renl by reason of such
non-payment or non-compliance, (0 in the case of an insurance requirement, the coverage
requITed hereunder shall be mailllained, and (g) If such conlest be fmally resolved against
Landlord or Tenam, Tenanf shall. as Additional Rem due hereunder, promplly pay the
amount required to be paid, together with all interest and penalties accrued thereon, or
comply with the applicable lel!aJ requirement or insurance requirement. Landlord, at
Tenant's expense, shall execute and deliver to Tenant such authorizations and other
docwneJUs as I'nay reasonably be required in any such culllest. and, if reasonably requested
by Tenalll or if Lanlllord so desires, Landlord shall join as a pany therein. Tenant shall
indemnify and save Landlord hannless agalnsf any liability, cost or expense of any kind
that may be imposed upon Lnndlord in connection with any such contest and any loss
resulting therefrom,
(0) Tenant represents and warral1lS that, as of Ihe execution date of this
Lease, Tenant has obtained, reviewed, and relied upon the Envirorunenlal Site Assessment
(the "Environmental Assessment") daled September 9. 1987 prepared by Fted C. Hart
Associates, Inc. ("HaI1"), and Tenant has provided Ihe Environmentnl Assessmenl 10
Landlord, Tenant shall, at the request of Landlord, exercise its rights againsl Hart under
the Environmenlal Assessmenf in the event Landlord or Tenanl subsequently find
environmental violalions which may have existed as of the date of the Environmenlnl
Assessment, Tenanl shall nOl, during lhe lenn of this Lease, [il release or Ihreatel' the
release of Hazardous Materials, as hereinafter defmed. on, from or under the Premises,
generate. store, or dispose of Hazardous Materials on the Premises, or transpon Haz.ardous
Malerlals tu or from the Premises in violation of any federal, state, or local laws,
ordinances. or regulations relating to induslrial hygiene or envirolUnental, ecological, or
wetlands conditions on, under, or about the Premises,including but not limited to, soil and
fround water conwfions; and [iil pennil any conlaminated discharges to the stonn sewer.
, Hazardous Moterials" means any flammable explosives, radioactive materials, haz.ardous
or toxic substances and wastes, or reloled materials, including but nllt limited to,
"Hazardous Substances", "Hazardous Materials", or "Toxic Substances" as defmed in the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended ("CERCLA"), the Hazardous Materials Transponation Act, the Resource
Conservation and Recovery Act, and all laws of the State of Pennsylvania and any
regulations pursuanltu the foregoing. "Disposal", "Release", and "Threatened Release"
shall have the meaninl! set forth in CERCLA. Tenant shall defend, indenulifv. and hold
hannless Landlord, and any successor to the Landlord's ill1eleSI in this Lease, and the
officers. employees, agents. anll cnnfractors of Landlord and such successor against any
I~sses, .c1aims. damages (including consequential damages). penalties, liobililies, costs
(mcludlllg clelU1UJ1 and recovery costs), and expenses (including expenses of litigation WId
reasonallle allomeys' fees) resuhinll from any conditions which would constitute a breach
o(this covenaJl1). TenaJl1's indenmiry shall survive the lenninalion of this Lease.
.17.
41. OOlion to Pur~,
(a) Landlord grants to Tenanl an oplion 10 purchase lthe "Option
to Purchase"lthe Premises upon Ihe teons and subject to the conditions of this parallraph
41. 'Telianl may ellercise tht' Option to Purchase on tht' fifth l5th) anniversary of Ihe
Conuncncelllem Dale and on the tenth II Oth) anniver:lary of Ihe Commencement Dale llhe
"Option Vales"), provided that [i] no Tenant Default ha., occurred hereunder or no eve~~t
which, with notice or the lapse of lime, or oolh, would constirute a Tenant Default; and [II]
Tenant gives Landlord Ihe nOlices required hereunder, Tenant shall nOlify Landlord, nOI
earlier Ihan su-ty (60) days ami not later thanlhirty (30) days prior to the Option Dales, of
Tenanl's intenlion 10 ellercise the Option to Purchase. IfTenanl fails to exercise the OptiCln
to Purchase on Ihe fifth (5th) anniversary of Ihis Lease, then such option shalltenlllllale
and Tenanf will only have lhe oplion 10 purchase on the lenlh (10th) anniversary, IfTenanl
fails 10 ellerclse lhe OpticlIl 10 Purcha~e on Ihe tenlh (lOlh) anniversary, then Tenwu's
Option to Purchase shlllllenninate amI TenOn! shaU have no right WIder Ihis Lease to
purchase Ihe Premises.
(h) The purchase price ("Purchase Price") for the Premises will
be the sum or (i] the Oplion Price (as hereinafter deflJ1ed) of the Premises; [ii] plus all
closing costs, ellpcllSes, adjusullenls and pr(lration~ payable by Tenant hereunder; plus lili]
any unamonized capital ellpenditures made by Landlord; plus liv] any prepayment penalty
or fees payable in connection with Ihe early payoff of any loan now or hereafter obtained
by Landlord in COMeCfion with the Premises; plus Iv] any unamonized loan expenses in
connection with any loan now or hereafter obtained by Landlord in connection with the
Premises. Tenalll shall p,ay the Purchase Price in cash al Closing las hereinafter defined).
TIle term "Option Price' means [a] $12,650.000,00 onlhe fiflh (Slh) alUuversary; and [b]
$14,620,000.00 on the femh (10th) anniversary. The Option Price is subject to adjustment
based on changes in the Plans and Specifications in accordance with paragraph 4(b).
(c) Landlord shall deliver to Tenant, not later than twenfy.one
(21) days after the exercise of the Option to Purcha.,e, a commiunenl (Ihe "Commitment")
for owner's policy of fitle in~Ur3llCe wrillen on ALTA Form B in lhe amount of the
Purchase Price. Landlord shall convey tille by delivery of a statulory form of Limiled or
Special Warranty Deed subject only to Ii] title mailers existing as of the Conunencemelll
Date; and (ii] tille mailers subsequent 10 the Commencement Dale which are pennilled,
approved, or suffered by TenRllf. The closing ("Closing") of Ihe sale and purchase of the
Premises shall occur not later than founeen (14) days after the delivery of the Conunitmenf
to Tenant, The Closing shall occur al Ihe offices of Ihe title company at a murually
agreeable time. Tenanf shall pay all taxes and assessments due and payable prior to
Closing, TIle Rent shall be prorated up to the c!osinll dale ba.,ecl on lhe aClUaI n\lmber of
days in the month of Closing. Tenant shall pay the cost of the Commitment and the title
policy, including but not limited to, search fees, conunitment fees and insurance premiums,
and the cost of recording the deed. Tenanf shall pay the cost of the conveyance fee, The
Optiun to Purchase is not assignable. Any anempled a.,sigMlent of the Oplion to Purchase
shaU be void. The Option fa Purchase shall terminale upon the first 10 occur of the
following events: Li] the ellpiration of any Option Dale: Iii] any lennination of the Lea.~e: ur
[iii] one (1) day before lhe c.onullenCemel11 of any proceedings for RllY l~!.!, The Optioll
to Purchase shall t>e suburdmale to any groulld lea~e or underlyinglense, mUl1gage. deed
of Irust, or ulher lien against the Premises. tugether with any renewal. con~lllidntiull,
extensiun. modification or replacemenl Iht'reof. which now or al any suosequent time
affects rhe. Premises or any interest of LRlllUord in the Premises. except to the elltel11 that
any ~~ch ln,SlrUlllelll expressly provides Ihat the Option 10 Purchase is superior. Thi~
prOVISIon Will be ~elf-uperalive,:md ~o ful1her instl1lmelll or subordination will be required
In order to effect II. If the Prt'IlIISeS IS dwnaged or destroyed and Tenanl has the option 10
. 18 -
EXHIBIT A: LEGAL DESCRIPTION
ALL that cenain laml siluate in the Township of Middlesex, County of
Cumberland, Commonwealth of Penrnylvania. bounded and described as follows:
Tract I, BEGINNING al an Iron Pin set at the intersection of the nonherly line of
Consolidated Rail Corp" Cumherland VaHey Branch, and the nonherly line of fhe
PeMsylvanJa Turnpike; THENCE along Ihe nonherly line of the PeMsylvania Turnpike,
North 70 degrees 07 minutes and 00 seconds West, a dislance of 317.34 feet to an Iron
Pin; thence alon(lllands of Roadway Express, loc" North 05 degrees 43 minules and 40
seconds Wesl, a dL~tance of 396.05 feet to an Iron Pin; thence continuing along the same,
North 04 degrees 2R minutes and 00 second~ We5t, a distance of 1.267,20 feet to an Irun
Pin; thence conlinuing alon(ll the same. South 72 deBrees 36 minutes and 20 second~ Easf,
. distance of 996,ti2 feel 10 an Iron Pin; .hence ailing lands of the Appalachian National
Scenic Trail, South 15 de(llrees 51 minutes and 05 seconds East, a distance IIf 1.215,82 feet
fo an Iron I'in ill the northerly line of Consolidaled Rail Corp,. Cumberland Valley Branch;
thence along the said nOl1herly line of Consolidated Rail Corp., South 70 degree~ 36
minn'f's And'OO seconds West, a distance of 897.36 feet to an Iron Pin. the point of
BEGINNING.
CONTAINING 35.91 Acres of Land.
Tract 2. Lot No. /SA of the Final Resubdivi~ion Plan for Roadway Express, Inc.
recorded l.n March IS, 1988 in the Cumberlwld County Recorder of Deeds Office in Plan
Book 55, Page 21 and more panicularly described as follows:
BEGINNING at an Iron Pin at Ihe soulhwe51erly corner of LOf No, 6, said Pin being
located in the nunherly line of lands of Visla Warehouse, South 72 deg, 36 min. alld 20
sec. Easf. a distance of 625,10' from a Conc. Mon. set in the easterly line of Roadway
Drive; THENCE alon(ll Lot No.6, South 84 deg. 09 min. and SO sec. East, a distance of
381.51' fO II (loinl: thence along Lot No.5, South OS deg, 50 min. and 10 sec. West, a
distance of 78.12' to a (loinl; thence along other lands of Vista Warehoose, North 72 deg,
36 mln, and 20 sec, West, a distance uf 389.42' 10 an Iron Pin, the puint of BEGiNNING.
CONTAINING: 0,342 Acres of Land.
Tract 3. Lot No, 5 of the Final Resubdivlsion Plan for Roadway Express, Inc. recorded
on Much 15, 1988 in the Cumberland County Recorder of Deeds Office in Plan Book 55,
Page 21 and rnorc panicularly described as follows:
BEGINNING at an Iron Pin set in the easterly side of Roadway Drive, said Pin being
located a distance of I,U50,3' Inore or less, south of the centerline of Harrisburg Pike
(U.S. Route 11); THENCE along Lot No.4, South SO deg. 16 mln, and 39 sec. East, a
distance of 380.49' to an Iron Pin; thence continuing along Lot No, 4, South 27 deg, 45
min. and 40 sec, West, a distance of 72.49' to an Iron Pin; thence conlinuing along the
same, Soulh 33 deg. 17 min. and 15 sec. West, a distance of 473.05' to an Iron Pin;
thence along other lands of Vi5ta Warehouse, North 72 eleg. 36 m1n, and 20 5ee. West, a
distance of 18.00' to a poim; thence along the easterly side of a SO' wide Access
RoadlUtility Easement and along LOIS No. 6A and 6. North 05 deg. SO min. and 10 sec.
EII.<t, a distance of ~74,49' to an lIon Pin; Ihence continuing along the easterly side of said
SO' wiele Access Road/Utility Easement, and Lot No.6, North 17 deg. 57 min. and 07 see,
West, a distance of 132,21' to the point of BEGlNNlNG.
Defendant, Distribution Management Corporation, was a Michigan corporation authorized
to do business in the Commonwealth of Pennsylvania. It is denied that its principal place
of business is at 21 Roadway Drive, Carlisle, Cumberland County, Pennsylvania 17013, On
the contrary, the principal place of business of the Defendant, Distribution Management
Corporation, on December 28, 1992 was 4880 Corporate Exchange Blvd., Grand Rapids
49512,
3. After reasonable investigation the responding Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in paragraph 3 of the Plaintiffs' Complaint and the said allegations are, therefore,
deemed denied and placed in issue. Strict proof thereof is demanded at the trial of this
case,
4. After reasonable investigation the responding Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in paragraph 4 of the Plaintiffs' Complaint and the said allegations are, therefore,
deemed denied and placed in issue, Strict proof thereof is demanded at the trial of this
case.
5. After reasonable investigation the responding Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in paragraph 5 of the Plaintiffs' Complaint and the said allegations are, therefore,
3
deemed denied and placed in issue, Strict proof thereof is demanded at the trial of this
case,
6. Admitted and denied, It is admitted that the Defendant, Elston
Richards, Inc., is a Michigan corporation, It is admitted that its principal place of business
is located at 4880 Corporate Exchange Boulevard, Grand Rapids, Michigan 49512,
7. The allegations contained in paragraph 7 of the Plaintiffs' Complaint
contain conclusions of fact and of law to which no response is required under the
Pennsylvania Rules of Civil Procedure and they are, therefore, deemed denied and placed
in issue. Strict proof thereof is demanded at the trial of this case. By way of further answer,
after reasonable investigation the responding Defendants are without knowledge or
information sufficient to form a belief as to the truth of the allegations contained in
paragraph 7 of the Plaintiffs' Complaint and the said allegations are, therefore, deemed
denied and placed in issue. Strict proof thereof is demanded at the trial of this case,
8. The allegations contained in paragraph 8 of the Plaintiffs' Complaint
contain conclusions of fact and of law to which no response is required under the
Pennsylvania Rules of Civil Procedure and they are, therefore, deemed denied and placed
in issue. Strict proof thereof is demanded at the trial of this case. By way of further answer,
after reasonable investigation the responding Defendants are without knowledge or
information sufficient to form a belief as to the truth of the allegations contained in
paragraph 8 of the Plaintiffs' Complaint and the said allegations are, therefore, deemed
4
denied and placed in issue. Strict proof thereof is demanded at the trial of this case.
9. Denied, See answer to paragraph 10.
10. Admitted,
11-28. After reasonable investigation the responding Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in paragraphs 11 through 28 inclusive of the Plaintiffs' Complaint and the said
allegations are, therefore, deemed denied and placed in issue. Strict proof thereof is
demanded at the trial of this case. By way of further answer, the allegations contained in
paragraphs 11 through 28 inclusive of the Plaintiffs' Complaint contain conclusions of fact
and of law to which no response is required under the Pennsylvania Rules of Civil
Procedure and they are, therefore, deemed denied and placed in issue. Strict proof thereof
is demanded at the trial of this case. By way of further answer, insofar as the allegations
contained in paragraphs 11 through 28 inclusive of the Plaintiffs' Complaint aver, infer or
allege that the responding Defendants knew of any of the conditions referred to in the said
paragraphs, they are specifically denied, Strict proof thereof is denied at the trial of this
case.
COUNT I
29. In answer to paragraph 29 of the Plaintiffs' Complaint reference is made
to paragraphs 1 through 28 inclusive of this Answer which are Incorporated herein by
reference as fully as though the same were here set forth at length,
5
30. The allegations contained in paragraph 30 of the Plaintiffs' Complaint
contain conclusions of fact and of law to which no response is required under the
Pennsylvania Rules of Civil Procedure and they are, therefore, deemed denied and placed
in issue, Strict proof thereof is demanded at the trial of this case.
NEW MATTER
By way of further answer the Defendant, Distribution Management Corporation, avers
the following New Matter:
30q. If the accident occurred as alleged, the condition complained of did not
create a reasonably foreseeable risk proximate to the injuries.
30r. Plaintiff's injuries, as alleged, were caused by other persons or parties
which were intervening, superseding causes of Plaintiff's alleged injuries,
30s. The causal negligence of the Plaintiff was greater than any negligence on
the part of the responding Defendant. Therefore, 42 Pa, C.S, 97102 is a bar to Plaintiff's
recovery. In the alternative, the responding Defendant avers that any recovery arising from
this cause of action must be diminished in accordance with the Pennsylvania Comparative
Negligence Act.
30t. Plaintiff's knowing and conscious assumption of the risk led to the
resulting injuries and is a bar to recovery.
30u. The Plaintiff's claims and any rights to recover against the responding
Defendant are barred in whole or in part by the applicable Statutes of limitations, other
6
similar Statutes, contractual provisions and other fundamental principles of law including
estoppel, waiver and laches,
30v. Plaintiff's Complaint fails to state a cause of action upon which relief can
be granted.
30w. To the extent Plaintiff or any party avers or attempts to apply the
provisions of Pa, R. c.p, No, 238 against the responding Defendant, it is averred that said
rule is unconstitutional under the Federal and State Constitutions.
30x. In the event that the Plaintiff has already or in the future enters into any
settlement with, or executes any release of any present or future Defendant or Additional
Defendant or any non-party, Plaintiff's claims against the responding Defendant are reduced
by the greater of (a) the amount of consideration or payment received or to be received by
Plaintiff, or (b) the proportionate or pro-rata share of liability of the settled or released party
or non-party as determined pursuant to the applicabie comparative negligence statute.
30y. A jury trial is demanded,
WHEREFORE, the responding Defendant, Distribution Management Corporation,
demands judgment in its favor,
COUNT II
31. In answer to paragraph 31 of the Plaintiffs' Complaint reference is made
to pardgraphs 1 through 30 inclusive of this Answer which are incorporated herein by
reference as fully as though the same were here set forth at length,
7
32. After reasonable investigation the responding Defendant is without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in paragraph 32 of the Plaintiffs' Complaint and the said allegations are, therefore,
deemed denied and placed in issue. Strict proof thereof is demanded at the trial of this
case.
NEW MATTER
By way of further answer the Defendant, Distribution Management Corporation, avers
the following New Maller:
32a. If the accident occurred as alleged, the condition complained of did not
create a reasonably foreseeable risk proximate to the injuries,
32b. Plaintiff's injuries, as alleged, were caused by other persons or parties
which were intervening, superseding causes of Plaintiff's alleged injuries,
32c. The causal negligence of the Plaintiff was greater than any negligence on
the part of the responding Defendant, Therefore, 42 Pa. C.S. !i7102 is a bar to Plaintiff's
recovery. In the alternative, the responding Defendant avers that any recovery arising from
this cause of action must be diminished in accordance with the Pennsylvania Comparative
Negligence Act.
32d. Plaintiff's knowing and conscious assumption of the risk led to the
resulting injuries and is a bar to recovery.
32e. The Plaintiff's claims and any rights to recover against the responding
B
Defendant are barred in whole or in part by the applicable Statutes of Limitations, other
similar Statutes, contractual provisions and other fundamental principles of law including
estoppel, wa:ver and laches.
32f. Plaintiff's Complaint fails to state a cause of action upon which relief can
be granted.
32g. To the extent Plaintiff or any party avers or attempts to apply the
provisions of Pa. R, c.P. No, 238 against the responding Defendant, it is averred that said
rule is unconstitutional under the Federal and State Constitutions.
32g. In the event that the Plaintiff has already or in the future enters into any
settlement with, or executes any release of any present or future Defendant or Additional
Defendant or any non-party, Plaintiff's claims against the responding Defendant are reduced
by the greater of (a) the amount of consideration or payment received or to be received by
Plaintiff, or (b) the proportionate or pro-rata share of liability of the settled or released party
or non-party as determined pursuant to the applicable comparative negligence statute.
32i. A jury trial is demanded,
WHEREFORE, the responding Defendant, Distribution Management Corporation,
demands judgment in its favor,
COUNT III
33.34. No answer required as these allegations do not pertain to the
responding Defendants,
9
COUNT IV
35. No answer required as these allegations do not pertain to the
responding Defendants,
COUNT IV
36-37. No answer required as these allegations do not pertain to the
responding Defendants,
COUNT VI
38. No answer required as these allegations do not pertain to the
responding Defendants.
COUNT VII
39-40. No answer required as these allegations do not pertain to the
responding Defendants,
COUNT VIII
41. No answer required as these allegations do not pertain to the
responding Defendants.
COUNT IX
42. In answer to paragraph 42 of the Plaintiffs' Complaint reference is made
to paragraphs 1 through 28 inclusive of this Answer which are incorporated herein by
reference as fully as though the same were here set forth at length.
43. The allegations contained in paragraph 43 of the Plaintitis' Complaint
10
contain conclusions of fact and of law to which no response is required under the
Pennsylvania Rules of Civil Procedure and they are, therefore, deemed denied and placed
in issue. Strict proof thereof is demanded at the trial of this case,
NEW MATTER
By way of further answer the Defendant, Elston Richards, Inc, avers the following
New Matter:
43q. If the accident occurred as alleged, the condition complained of did not
create a reasonably foreseeable risk proximate to the injuries.
43r. Plaintiff's injuries, as alleged, were caused by other persons or parties
which were intervening, superseding causes of Plaintiff's alleged injuries,
435. The causal negligence of the Plaintiff was greater than any negligence on
the part of the responding Defendant. Therefore, 42 Pa, C.S, ~7102 is a bar to Plaintiff's
recovery. In the alternative, the responding Defendant avers that any recovery arising from
this cause of action must be diminished in accordance with the Pennsylvania Comparative
Negligence Act.
43t. Plaintiff's knowing and conscious assumption of the risk led to the
resulting injuries and is a bar to recovery,
43u. The Plaintiff'5 claims and any rights to recover against the responding
Defendant are barred in whole or in part by the applicable Statutes of Limitations, other
similar Statutes, contractual provisions and other fundamental principles of law including
11
estoppel, waiver and laches.
43v. Plaintiff's Complaint fai Is to state a cause of action upon which relief can
be granted.
43w. To the extent Plaintiff or any party avers or attempts to apply the
provisions of Pa, R. c.P. No. 238 against the responding Defendant, it is averred that said
rule is unconstitutional under the Federal and State Constitution5.
43x. In the event that the Plaintiff has already or in the future enters into any
settlement with, or executes any release of any present or future Defendant or Additional
Defendant or any non-party, Plaintiff's claims against the responding Defendant are reduced
by the greater of (a) the amount of consideration or payment received or to be received by
Plaintiff, or (b) the proportionate or pro-rata share of liability of the settled or released party
or non-party as determined pur5uant to the applicable comparative negligence statute,
43y. A jury trial is demanJed.
WHEREFORE, the responding Defendant, Elston Richards, Inc" demands judgment
in its favor.
COUNT X
44. In answer to paragraph 44 of the Plaintiffs' Complaint reference is made
to paragraphs 1 through 28 and 32 inclusive of the this Answer which are incorporated
herein by reference as fully as though the same were here set forth at length.
12
NEW MATTER
By way of further answer the Defendant, Elston Richards, Inc., avers the following
New Maller:
44a. If the accident occurred as alleged, the condition complained of did not
create a reasonably foreseeable risk proximate to the injuries.
44b. Plaintiff's injuries, as alleged, were caused by other persons or parties
which were intervening, superseding causes of Plaintiff's alleged injuries.
44c. The causal negligence of the Plaintiff was greater than any negligence on
the part of the responding Defendant. Therefore, 42 Pa. C.S. 97102 is a bar to Plaintiff's
recovery, In the alternative, the responding Defendant avers that any recovery arising from
this cause of action must be diminished in accordance with the Pennsylvania Comparative
Negligence Act.
44d. Plaintiff's knowing and conscious assumption of the risk led to the
resulting injuries and is a bar to recovery.
44e. The Plaintiff's claims and any rights to recover against the responding
Defendant are barred in whole or in part by the applicable Statutes of Limitations, other
similar Statutes, contractual provisions and other fundamental principles of law including
estoppel, waiver and laches.
44f. Plaintiff's Complaint fai!s to state a cause of action upon which relief can
be granted.
13
here set forth at length.
3. Liability on the part of the responding Defendants is specifically denied
for the reasons hereinbefore set forth.
4. If the allegations contained in the Plaintiffs' Complaint are determined
to be true, said allegations as pertain to the responding Defendant being specifically denied,
then the
injuries and damages complained of were caused solely by the Defendants, Leon E.
Wintermyer Co" Inc, and Leon E. Wintermyer, Inc..
5. The Defendants, Leon E. Wintermyer Co" Inc. and Leon E. Wintermyer,
Inc" are joined herein to protect the responding Defendants' rights of indemnity and
contribution and the responding Defendants aver that the aforesaid Defendants, Leon E.
Wintermyer Co., Jnc, and Leon E, Wintermyer, Inc" are alone liable to the Plaintiffs or, in
the alternative, are liable over to the responding Defendants or, in the alternative, are jointly
and severally liable to the Plaintiffs with the responding Defendants, the existence of any
liability on the part of the responding Defendant being, however, expressly denied.
WHEREFORE, Defendants, Distribution Management Corporation, and Elston
Richards, Inc. deny that it is liable to the Plaintiffs in any amount or manner whatsoever and
demand that the Plaintiffs' Complaint be dismissed with prejudice and that judgment be
entered in the responding Defendants' favor and against all other parties, together with all
costs and attorney fees.
15
Ii
"
I'
iI
I!
I
I
I
il
II
Ii ..
! I response IS required.
II
,I
30v. Denied, as the allegations of paragraph 30v. are conclusions of law to which no
30u.
Denied, as the allegations of paragraph 30u. are conclusions of law to which no
response is required.
I
i 30w. Denied, as the allegations of paragraph 30w. are conclusions of law to which no
I
I response is required.
I
,
I 30x. Denied, as the allegations of paragraph 30x. are conclusions of law to which no
i
I .. d
response IS reqUire .
30y. Admitted.
WHEREFORE, plaintiffs demand judgment against defendant, Distribution Management
Corporation.
COUNT II
32a. See answer to 30q. above.
32b. See answer to 30r. above.
32c. See answer to 30s. above.
32d. See answer to 30t. above.
:'\2e. See answer to 30u. above.
32f. See answer to 30v. above.
32g. See answer to 30w. above.
2
.'.;!-
I
i
I 32h. (incorrectly shown as 32g) See answer to 30x. above.
Ii
II 32i. Admitted.
,
WHE,REFORE, plaintiffs demand judgment against defendant, Distribution Management
Corporation.
COUNT IX
43q. See answer to 30q. above.
43r. See answer to 30r. above.
43s. See answer to 30s. above.
431. See answer to 30t. above.
43u. See answer to 30u. above.
43v. See answer to 30v. above.
43w. See answer to 30w. above.
43x. See answer to 30x. above.
43y. Admitted.
WHEREFORE, plaintiffs demand judgment in their favor and against defendant, Elston
Richa~ds, Inc.
COUNT X
I
I
I
I
I
,I
,I
II
I
I
i
44a. See answer to 30q. above.
3
44b. See answer tc 30r. above.
44c. See answer to 30s. above.
44d. See answer to 301. above.
44e. See answer to 30u. above.
44f. See answer to 30v. above.
44g. See answer to 30w. above.
44h. See answer to 30x. above.
44i. Admitted.
WHEREFORE, plaintiffs demand judgment in their favor and against defendant, Elston
Richards, Inc.
REPLY TO NEW MATTER PURSUANT TO RULE 2252ld)
1.-5. Inclusive. Denied, as these allegations refer to parties other than answering
plaintiffs and therefore do not require a response.
Ii
I:
I'
i
il
Respectfully submitted,
ROEGER, WALKER & BAHLS
4
sufficient to form a belief as to the truth thereof, and therefore, strict proof thereof is demanded
at the time of trial.
49. Denied, as the allegations of paragraph 49 of Defendant's New Mauer are
conclusions of law which do not require a response.
50. Denied, as the allegations of paragraph 50 of Defendant's New MaUer are
conclusions of law which do not require a response.
51. Denied, as the allegations of paragraph 51 of Defendant's New MaUer are
conclusions of law which do not require a response.
52. Denied that there was any negligence or wilful and wanton misconduct by
Plaintiff. To the contrary, Plaintiff at all times pertinent acted in a lawful, careful and prudent
manner.
53. Denied as an erroneous conclusion of law and fact.
54. Denied. By way of further answer, Plaintiffs allege that there was no "product"
involved and therefore no abuse or misuse of same. Husband Plaintiff was injured when he fell
on an icy surface at Defendant's premises on 12/28/92, as more particularly set forth in the
Complaint, and notice of the risk was given to Defendants and ignored.
55. No response required.
56. Denied as an erroneous conclusion of law and fact.
57. Denied as an erroneous conclusion of law and fact.
58. No response required.
2
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MICHAEL DIClClUtT and
CHARLOTTB DICKERT, husband
and wife
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
PLAINTII'rS
CIVIL DIVISION - LAW
va.
DISTRIBU'l'ION MANAGBNBNT
CORPORATION, VISTA WAIlBHOUSB
THO, and Ohio general
partnership, LEON B. WINTERNYBR
CO., INC., LBON B. WINTERNYBR,
INC. AND ELSTON RICHARDS, INC,
JURY TRIAL DENlUroBD
DBFBNDMnS
NOI 94 CIVIL 7130
MOTION _or _D_E!~~S. DISTRIBUTION MANAGEMENT CORP..
V!f;!~~ W~OUl;!~ TWO. AND ELSTON RICHARDS. INC..
rOR SllMMARY ,JUDGMENT
DEFENDANl'S, DISTRIBUTION MANAGEMENT CORP., VISTA WAREHOUSE
TWO, AND ELSTON RICHARDS, INC., by and through their counsel,
Bialkowski & Savitsky, P,C., hereby respectfully submit their
Motion for Summary Judgment, pursuant to pennsylvania Rule of civil
procedure 1035.2(2), and in support thereof, state as follows:
1. Pursuant to C.C.R.P. 206-2 (November, 1993), which
requires counsel to list Judges who have previously decided issues
in this matter, it is noted that the Honorable George E. Hoffer
signed the November 15, 1996 Stipulation of Counsel for Dismissals
of Defendant, Leon Wintermeyer Co., Inc..
2. The pleadings in this matter have been closed.
3. This motion is filed within such time as not to
unreasonably delay trial.
4. The record in this matter reveals that there is no
genuine issue of material fact.
5. The record reveals that the plaintiffs have failed to
produce evidence of facts essential to their cause of action which
in a jury trial would require the issue to be submitted to a jury.
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NICHABL DICKERT and
CHARLOTTB DIClClUtT, husband
and wife
I IN THB COURT or COIOIOH PLEAS
I or ctDmBRLAND COUNTY, PA
PLAINTUrS
VS.
DISTRIBU'l'ION MANAGEMENT
CORPORATION, VISTA WARBHOUSB
TWO, and Ohio general partnership,
LBOH B. WINTBRICYBR CO., INC.,
LBOH B. lfINTBRICYBR, INC. and
BLSTON RICHARDS, INC.
DBrENDANTS
I CIVIL DIVISION - LAW
I JURY '!'RIAL DElCANDBD
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I NO.9. CIVIL 7130':
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CERTIFICATE OF SERVICE
I, ZYGMUNT R. BIALKOWSKI, JR., ESQ., hereby certify that I have served a true
and correct copy of the foregoing ORDER AND MOTION or DEFENDANTS'
D1STR1BUflON MANAGEMENT CORPORATION, VISTA WAREHOUSE 1WO "
ELSTON RICHARDS, INC., via U. S. First Qass Mail, postage prepaid, at Scranton,
Pennsylvania to the following individual(s) under date of JULY 31, 1997:
Joseph A. Holko, Esq.
Attorney for Plaintiffs
ROEGER, WALKER & BAHLS
The Sovereign Building
609 Hamilton Mall
Allentown, PA 18101
C. Kent Price, Esq.
Attorney for Defendant, Wintennyer, Inc.
THOMAS, THOMAS & HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argunent CaJrt.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
MIOWL DIOIERT lIND 0lARI..0'l'fE
DIOIERT. husband and wife.
Plaintiffs
I Plaintiffs)
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DIS'l'IUWl'ION MAIIl'aMFNl'
CXlIlIalATION, VISTA WAREmllSE
Tl<<l. an Ohio general
partnership. LEON E.
WlNlm'IYEll CO., ~., LEX>N E.
WINl'I!ItlYER, INC., AND EtSroN
RIOWlOO. :m::.,
( Defendants)
No. 7130
Civil
19 94
1.
State matter to be argued (i.e.. plaintiff's ltDtion for new trial. defendant's
denurrer to c~laint. etc.): ~tiOll For SUmnary Judglrent
2.
Identify counsel who will argue case:
(a) for plaintiff: Attorney Joseph A. Holko
Address: Sovereign Executirve Offices
609 Hamilton Mall
Allentown. PA 18101
(b) for defendant: (WINl'ERMYEll. nx:. ) Atto~.i'.. C. Kent Price
Address: illItrrn.'ll.'g;rIJRt Y710ii P.O. Box 999
tor defendants. (Rm\lWw.'I~ CORPrnATION, VISTA WAREIUlSE Tl<<lllND EtSroN
. . Attorney Zygmmt R. Bialkowski. Jr.
I will notify all parties in writing wi~~~~~'~ =~s:s Awnue
been listed for argunent.
3.
4.
Argunent Court Date:
October 1, 1997
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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 fUll)
MICHAEL DICKERT AND CHARLOTTE DICKERT, husband and wife,
(Plaintiffs)
vs.
DISTRIBUTION MANAGEMENT CORPORATION, VISTA WAREHOUSB TWO, an Ohio
qeneral partnership, LEON B. WINTERMEYER CO., INC., LEON B.
WIHTERKBYER, INC., and ELSTON RICHARDS, INC.,
(Defendants) No. 7130 Civil 1994
1. State matter to be argued (i.e. plaintiff's motion for new
trial, defendant's demurrer to complaint, etc.):
Motion of Defendants, Distribution Management Corp., Vista
Warehouse Two and Elston Riohards, Ino. For summary Judgment
2. Identify counsel who will argue case:
(a) for plaintiff: Attorney Joseph A. Hollto .-,
Address: sovereign Exeoutive Offioe. c::> l.O
, c-..) -II
601l Hamil ton Mall . ,- !
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Allentown, PA 18101 II) ~ : Il~" ';0
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(b) for defendants: (For Wintermeyer, Ino. ) . ~C)
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Address: Attorney C. Kent Prioe '.., . -l-~
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305 North Front st. "- l , S.~ Sill
P.o. Box !IlIlI -' , .-!
HarriSburg, PA 17108 . ] ,:- ~q
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(For Distribution Management corp.,
Vista Warehouse Two and Elston Riohards,
Ino.)
Attorney Daniel E. Cummins
First Floor PNU Bldg.
1006 Pittston Ave.
soranton, PA 18505
3. I will notify all parties in writing within two days that
this case has been listed for argument.
4. Argument Court Date: JMlllAKY 2:8, 19~ ))lltA ,.1,- ~. I rr Y
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~/ DANIEL E. CUMMINS, ESQ.
Attorney For Distribution
Management Corp., vista Warehouse
Two and Elston RiChards, Inc.
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