Nicholas Malfitano Apr. 30, 2015, 10:41am


PHILADELPHIA – The U.S. District Court for the District of Pennsylvania has dismissed a claim for punitive damages made by a New Jersey tractor-trailer driver against a Pennsylvania-based real estate developer.

Joseph McKenna, a resident of Cherry Hill, N.J., alleges he was tasked by his employer, TQM Solutions, Inc., with the delivery of a French door to a Shrewsbury, N.J., construction site operated by Toll Bros., of Horsham on Sept. 18, 2013.

As there were no workers on hand to properly receive delivery of the door, the suit says McKenna and the site foreman agreed for him to return two days later, on Sept. 20, to deliver the door again – this time with proper staff on hand to accommodate the delivery.

When McKenna returned on Sept. 20, he alleged once again no workers were present to assist with unloading the door from his truck. McKenna’s suit also claims the site’s project manager informed him that work that day was running behind schedule, and McKenna would need to unload the door himself.

According to the lawsuit, protocols were in place against such a practice and McKenna radioed his dispatcher, Bret Nader, for advice. The suit states McKenna was given the go-ahead from Nader to unload the door, as Nader allegedly indicated McKenna may not receive another opportunity to return to the Shrewsbury site for the door delivery.

The suit states McKenna and a site day-laborer named Robert Brooks proceeded to carry the door like a tabletop across mud, dirt and rocks, and through an area where a “massive trench” was located.

McKenna claimed no caution signs or warnings about this area were displayed on site, nor was he provided any safety equipment to wear, as the lawsuit claims is usual standard operating procedure at construction sites.

When Brooks exited the trench and McKenna entered it, Brooks allegedly lost control of his end of the door, which McKenna then had to catch before it hit the ground.

In the process, McKenna’s suit claims he slipped and caught the door, then felt his “entire right arm tear” followed by “excruciating pain”.

After suffering this injury, McKenna claims he informed his supervisor at TQM, Tom Kock, as to what transpired. The suit says Kock allegedly told McKenna he was required to drive two hours to make another delivery at another of Toll Bros.’ construction sites, and Toll Bros. would “lose money” and be “very displeased” if this delivery was not made. Though claiming to be in extreme pain, McKenna did complete the next delivery Kock requested.

McKenna underwent surgery in December 2013 for the injuries to his right arm, left arm, back, neck and nervous system he suffered in the accident and has been unable to work since that time. Court records show McKenna has received ongoing Workers’ Compensation funds in the amount of $800 per week.

According to the lawsuit, McKenna has suffered physical and mental pain, permanent disability and a loss of earnings and earning capacity due to the “negligence, carelessness and recklessness” of Toll Bros., Inc.

An initial filing of suit in November and amended complaint in January lists charges of negligence/negligent supervision on the part of Toll Bros. and Toll Intergrated Systems, with Brooks and 10 John Does listed as additional defendants. McKenna’s wife, Michelle McKenna, is also listed as plaintiff for charges of loss of consortium related to her husband’s injuries.

On Feb. 3, Toll Bros. motioned to dismiss the claims of recklessness and punitive damages against them. In an opinion written April 17 by Judge Michael M. Baylson, the court provided its rationale for the dismissal of recklessness and punitive damages charges.

“Although this is a diversity action, the Court need not determine whether Pennsylvania or New Jersey law applies because, under the laws of either state, Plaintiffs have failed to adequately allege that Defendant acted with actual malice, evil motive, or wanton and willful disregard as required for recklessness or punitive damages claims under Pennsylvania or New Jersey law,” Baylson opined.

Baylson pointed to the plaintiffs alleging Toll Bros. “was negligent in failing (I) to exercise due care; (II) to have sufficient staff on hand such that Mr. McKenna was required to unload the French door; (III) to provide Mr. McKenna with appropriate safety equipment; (IV) to train, supervise, or investigate the background of Mr. Brooks; and (V) to adequately alert Mr. McKenna to the presence of the trench at the construction site,” but that no allegation of malice or wanton/willful disregard for McKenna’s safety was contained in their suit.

With the punitive damages now dismissed, the plaintiffs are seeking actual and compensatory damages in excess of $75,000 in this case, in addition to court costs. The plaintiffs are represented by Matthew B. Weisberg, Esq. and David A. Berlin, Esq. of Weisberg Law P.C. in Morton.

The defendants are represented by Christopher E. Dougherty and Jane Ennis Kane of Marshall Dennehey Warner Coleman & Goggin, of Philadelphia.

United States District Court for the Eastern District of Pennsylvania case 2:14-cv-06543

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