Nicholas Malfitano May 9, 2016, 4:49pm


PHILADELPHIA – Defense counsel in a car crash lawsuit are arguing for a dismissal of the complaint, or alternatively, a transfer of the case to Wayne County.

Ryan F. Michaleski filed a motion for preliminary objections on Sept. 17, seeking outright dismissal of the complaint filed by Antonio and Kimberle Silva of Cliffwood Beach, N.J., with prejudice. Michaleski argued the Indianapolis-based American Legion is a “separate, distinct entity” from its Post 311 in Hawley, and not answerable for the acts or omissions of a local post.

Alternately, Michaleski sought the matter to be transferred to the Wayne County Court of Common Pleas, for reasons of improper venue. Michaleski believed this was proper since both Post 311 and the accident itself took place within the bounds of Wayne County.

Further, Michaleski believed the complaint’s Count III for punitive damages for all allegations of outrageousness, recklessness, willfulness, wantonness and total disregard for public safety be stricken with prejudice, due to no facts being pled to support it beyond the underlying negligence tort.

On Sept. 22, E.P. Heffron filed a motion for preliminary objections seeking Post 311’s dismissal from the case with prejudice, that the case be transferred to Wayne County, and further that the Count III for punitive damages be stricken from the record along with the plaintiffs’ request for attorney’s fees. Heffron used similar rationale as presented by Michaleski in his own separate preliminary objections motion.

A hearing in this matter was set for this past Wednesday in Court chambers, at Philadelphia City Hall.

On Nov. 2, 2013, the Silvas were driving eastbound on Route 3028 in Wayne County, when Manuel Mirailh collided with their vehicle. Mirailh had been traveling westbound on Route 3028 at the time, and was driving while intoxicated. Mirailh was killed in the collision.

According to the lawsuit, Mirailh had been overserved at American Legion District 15, Post 311 in Hawley and his blood alcohol concentration (BAC) was measured at .242, just more than three times the legal limit in Pennsylvania. As a result, the plaintiffs believe the defendants are liable for compensatory and punitive damages.

The Silvas say they suffered fractures of the spine, ribs, legs, pain and suffering, neurological injuries, mental/emotional pain and chronic physical pain.

The Silvas filed suit for negligence against the American Legion and Post 311, negligence against the Estate of Manuel Mirailh and for punitive damages against the American Legion and Post 311.

The Silvas are seeking damages in excess of $50,000 including punitive damages, exclusive of interest, costs and attorney’s fees on the negligence counts and in excess of $50,000 in compensatory and punitive damages, delay damages and costs of suit.

The plaintiffs are represented by Robert J. Mongeluzzi, Andrew R. Duffy and Jeffrey P. Goodman of Saltz Mongeluzzi Barrett & Bendesky, in Philadelphia.

The defendant is represented by Michaleski of Deasey Mahoney & Valentini, also in Philadelphia, and Heffron of Chartwell Law Offices in Scranton.

Philadelphia County Court of Common Pleas case 150802441

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

More News