Nicholas Malfitano Jun. 27, 2015, 1:14pm


PHILADELPHIA – A personal injury and product liability action against a major automobile manufacturer and rental service will be headed back to a state court due to untimely removal by the defendants, per an order from a federal judge.

Senior Judge Harvey Bartle III of the U.S. District Court for the Eastern District of Pennsylvania ruled June 17 that Wyndmoor resident Nisheaba Lewis’ lawsuit against Chrysler Corporation and Enterprise Car Rental, was remanded to the Philadelphia County Court of Common Pleas.

On May 29, 2011, Lewis was driving a Chrysler automobile rented from Enterprise when it collided with another vehicle at the intersection of Musgrave and Chelten Avenues, in Philadelphia. The suit said the accident occurred in such a manner that the front, driver’s side airbag should have deployed and did not, which caused Lewis to suffer injuries.

According to the lawsuit, the automobile and its parts “were expressly and impliedly warranted by the defendants to be reasonably fit, merchantable and suitable for the ordinary purposes for which they were to be used”, but in reality, the vehicle and its parts were not. The suit reiterated this failure did in fact cause Lewis's injuries, and served as a violation of Pennsylvania’s Uniform Commercial Code.

Lewis’ serious injuries included lumbosacral sprain and strain; head trauma; and orthopedic, neurological and internal injuries, all of which caused Lewis to pay large sums of out-of-pocket expenses for medical care and suffer a diminished earning capacity, she says.

The lawsuit Lewis filed was initiated in the Philadelphia County Court of Common Pleas and served to the defendants on March 19 – to which the defendants filed a notice of removal based upon diversity of citizenship. Lewis is a Pennsylvania resident, while Chrysler is based in Auburn Hills, Mich., and Enterprise is based in St. Louis.

However, Lewis and her counsel objected to the timing of the removal notice, which was filed May 19, according to court records – some 60 days after the filing and service of the lawsuit. Lewis cited federal law in stipulating removal of civil complaints must take place within 30 days of service, or the case would need to be remanded to its original court.

In contrast, the defendants and their counsel explained they were only made aware of the damages being sought in the lawsuit on April 29. According to that timeline, the removal notice was filed only three weeks later.

Bartle ruled in favor of Lewis, and provided his reasoning for doing so.

“The defendants knew from the wording of the complaint that the demand for relief was ‘in excess of $50,000.’ Pursuant to Rule 1021 of the Pennsylvania Rules of Civil Procedure, plaintiff was prohibited from being any more specific in her pleading than she was,” Bartle said. “While defendants argue that plaintiff had sought amounts below $75,000 in a separate but related lawsuit, matters beyond the pleading in this action are not relevant to the inquiry. Nor does defendants’ knowledge of plaintiffs’ strategies in other lawsuits affect the seriousness of the injuries alleged here.”

Bartle said the defendants were on notice with a substantial degree of specificity from the four corners of the complaint, that is, from the initial pleading, that plaintiff was claiming serious injuries so as to be seeking the federal threshold amount of more than $75,000, as of March 19.

“The complaint did not show to a legal certainty anything to the contrary. Thus, the removal clock began to tick when the complaint was received. Defendants did not remove the action until May 19, 2015, far outside the 30-day allowable window of that subsection. Accordingly, this action will be remanded to the Court of Common Pleas of Philadelphia County due to its untimely removal,” Bartle said.

The plaintiff is seeking a sum of damages in excess of $50,000, per the complaint.

The plaintiff is represented by Robert Land of The Curtis Center, in Philadelphia.

The defendants are represented by Keith D. Heinold of Marshall Dennehey Warner Coleman & Goggin and Christopher J. Pakuris of Margolis Edelstein, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-02811

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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