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Response filed to lawsuit against estate of slain Mercersburg man

March 17, 2009|By JENNIFER FITCH

CHAMBERSBURG, Pa. -- Lawyers representing the estate of a Mercersburg, Pa., man who was beaten to death last year in a fight with his neighbor have responded to a lawsuit, saying the plaintiffs should not be permitted to testify because their claims cannot be refuted by a dead man.

Attorney John Keller, on behalf of Donald Berkebile's estate, cited Pennsylvania's so-called Dead Man's Act, a statute that says any person with interests adverse to the deceased's interests shall not be a competent witness to any matter before the death.

Berkebile, of 9399 Blue Spring Road, died during a July 2008 fight with his neighbor Bryan Kendall, who claims he acted in self-defense after being shot with birdshot. Kendall and his wife, Susan, sued Berkebile's estate in mid-February, asking for $350,000 in damages for medical expenses, lost wages, and humiliation and embarrassment.

The response filed March 5 by Keller, with co-executors David Hornbaker of Mercersburg and Bryan Yingst of Quarryville, Pa., asks that a judge preclude the Kendalls' testimony regarding the events that preceded Berkebile's death.

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Berkebile, who was 81 at the time of his death, was a widower who lived alone. His property shared a driveway with the Kendalls' property in Montgomery Township.

The Franklin County District Attorney's Office will decide whether to file charges in the case, but it continues to wait for forensics results from the Pennsylvania State Police Crime Lab, Assistant District Attorney Jeremiah Zook said.

"They told us the earliest we can expect results would be in April," he said.

A Franklin County Prothonotary's Office official said the court administrator would typically be responsible for assigning a judge for the lawsuit. However, because of the possible criminal case pending for the courts, an outside judge would be brought in for the civil suit, she said.

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