Nicholas Malfitano Apr. 1, 2016, 8:39am


PHILADELPHIA – A trio of separate motions are being considered in a lawsuit involving Allentown’s Dorney Park & Wildwater Kingdom water park and its contractors against a man whose leg was crushed and amputated in an accident.

Heather M. Eichenbaum filed a motion to transfer the suit filed by Anthony Dos Santos III of North Myrtle Beach, S.C., to the Lehigh County Court of Common Pleas on Oct. 30. Eichenbaum believed the accident taking place in Lehigh County plus logistical challenges revolving around the availability of witnesses, documents and other evidence, all necessitated the case being transferred.

Eichenbaum labeled Dos Santos’ choice of a Philadelphia court for litigation as “oppressive and vexatious” and an example of “forum shopping." The motion was also filed on behalf of fellow defense counsel Joseph S. D’Amico Jr. and Thomas F. Reilly.

Tyler Tomlinson filed a motion to consolidate on March 4 for purposes of discovery and trial, seeking to combine the instant action with a separate lawsuit filed Feb. 25 by Dos Santos against Boyle Construction II, Inc., doing business as CC Construction Services (case 160303914).

Since the newer lawsuit results from the same incident, Tomlinson seeks consolidation to avoid unnecessary costs and delays under Pennsylvania Rules of Civil Procedure (PRCP).

Finally, Jared T. Hay filed a motion for preliminary objections on March 10, connected to a Nov. 13 joinder complaint filed by Whitewater West Industries, looking to add L.R. Costanzo Construction Services of Scranton and Neuman Pools, Inc. of Beaver Dam, Wis., to the lawsuit.

Though this joinder motion was granted on Jan. 22, Hay believes Whitewater’s complaint is “deficient legally and factually” and portions of it must be stricken. Hay said the complaint does not state how Costanzo’s alleged actions were negligent, and instead contained “vague, conclusory allegations” that did not meet the standard established by PRCP, such as the phrase “being otherwise negligent”.

A hearing in these matters was set for Thursday at Philadelphia City Hall, in Court chambers.

On April 23, 2014, Dos Santos’ co-worker used a forklift to transfer a support beam across a narrow bridge at the water park, while Dos Santos guided him in doing so. Simultaneously and in the same area, Orlando Diefenderfer operated a four-wheel ATV over the same bridge, proceeding in the opposite direction from where the forklift moved, the complaint says.

In the process, the lawsuit says he ran over Dos Santos’s right foot, causing “serious, permanent and painful” personal injuries, including a crushed right foot and fractured right fibula, resulting in amputation below the right knee, the complaint says. Dos Santos alleged Cedar Fair was negligent in failing to provide a safe work site and qualified contractors.

The plaintiff is seeking a sum, jointly and severally, in excess of $50,000, plus interest and costs from all defendants in this case.

The plaintiff is represented by Tomlinson of Stark & Stark, in Yardley.

The defendants are represented by Eichenbaum of Spector Gadon & Rosen, Reilly and Virginia King of The Chartwell Law Offices and Hay of Salmon Ricchezza Singer & Turchi, all in Philadelphia, plus D’Amico Jr. and Gretchen L. Geisser of Fitzpatrick Lentz & Bubba, in Center Valley.

Philadelphia County Court of Common Pleas case 150502858

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

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