Jon Campisi Jul. 17, 2013, 6:24am


A federal judge in Philadelphia has agreed to send back to state court a personal injury

lawsuit initiated by a Pennsylvania man who claims he sustained serious injuries when a heavy mounted crane fell onto his shoulder and back while he was working.

The complaint asserts negligence claims against AMERCO, U-Haul International Inc., U-Haul Co. of Pennsylvania and Falls Manufacturing Co.

The record shows that plaintiff Eldridge Salley filed a motion with the U.S. District Court for the Eastern District of Pennsylvania to remand the case to Philadelphia’s Common Pleas Court on the grounds that complete diversity was not present between the parties.

AMERCO simultaneously moved to dismiss the claims against it for lack of personal jurisdiction while U-Haul Co. of Pennsylvania and Falls Manufacturing Co. sought to dismiss the entire complaint for failure to state a claim upon which relief can be granted, or alternatively for a more definite statement.

In his July 15 ruling, U.S. District Judge Jan E. DuBois granted the plaintiff’s motion to remand the case to Philadelphia County, although the jurist denied Salley’s petition seeking litigation fees and expenses.

Because the judge remanded the civil action, he refused to rule on the defendants’ motions to dismiss.

The lawsuit involves claims that Salley suffered spinal fractures, bone fragments, and a permanent deformity of the spine after the piece of heavy equipment fell on top of him at a location owned and operated by the defendants in Fairless Hills, Bucks County.

The plaintiff initially filed his suit in Philadelphia’s Common Pleas Court on Feb. 1, but U-Haul International subsequently filed a removal notice seeking to transfer the litigation to U.S. District Court, with U-Haul’s lawyers arguing that the matter belongs in a federal jurisdiction due to diversity in citizenship among the parties.

AMERCO and U-Haul International are based in Nevada and Arizona respectively.

U-Haul Co. of Pennsylvania, however, has its principal place of business in the Keystone State, as does Falls Manufacturing Co., a division of that company.

The two defendants argued that removal to federal court was proper because they claim they were fraudulently joined to the litigation, the record shows.

In court papers, U-Haul argued that the Pennsylvania defendants were Salley’s statutory employers under the Pennsylvania Workmen’s Compensation Act, and because of this they are liable only as outlined in the PWCA.

Therefore, U-Haul argued, the Pennsylvania defendants are immune from suit in the negligence action because Salley lacks a colorable claim against them, hence the fraudulent joinder contention.

U-Haul conceded that Salley was on paper an employee of Centrix Staffing, a temporary staffing agency, but nevertheless argued that pursuant to the “borrowed servant” doctrine that the Pennsylvania defendants were Salley’s statutory employers, the judicial memorandum shows.

In support of this claim, U-Haul submitted an affidavit by William Hawthorne, the president of Falls Manufacturing Co., which is owned by U-Haul Co. of Pennsylvania, and which stated that the company provided Salley with daily job assignments, and that U-Haul, not Centrix Staffing, controlled the welding work that was performed by Salley.

Salley, however, in his own affidavit, contended that during his employment, “nobody on the job controlled the manner in which I performed mig welding as an independent contractor.”

Salley also claims he was never given U-Haul attire and had to use his own tools at his job site.

The judge ultimately determined that given the facts of the case, it appears that the Pennsylvania defendants were not Salley’s statutory employers, and therefore could be held potentially liable in the civil action.

“Salley’s claims against the Pennsylvania defendants are not ‘wholly insubstantial and frivolous,’ and ‘there is a possibility that a state court would find that the complaint states a cause of action’ against the Pennsylvania defendants,” DuBois wrote in his memorandum. “Thus, the Court concludes that joinder of the Pennsylvania defendants was proper and that subject matter jurisdiction is lacking due to the absence of complete diversity of citizenship.”

At the same time, DuBois denied Salley’s motion for fees and expenses, writing that while the court rejected the defense’s fraudulent joinder argument, the court cannot say that U-Haul lacked an “objectively reasonable basis for removal” due to the disputed nature of the facts as alleged in the case.

Court records show that Salley is being represented by Philadelphia lawyer Justin Bieber.

Richard B. Wickersham, Jr., of the Philadelphia firm Post & Schell, P.C., appears to be representing the U-Haul defendants and Falls Manufacturing Co. in the case, while fellow Post & Schell lawyer Karyn Dobroskey Rienzi seems to be representing AMERCO, the court docket shows.

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