Defense lawyers in Wal-Mart workplace injury case petition federal court to handle litigation

By Jon Campisi | Apr 15, 2013

Defendants in a workplace injury case initiated by a tractor-trailer driver have moved

to transfer the litigation out of Philadelphia’s Common Pleas Court and into the U.S. District Court for the Eastern District of Pennsylvania.

Daniel Torres, who resides in Philadelphia, and was employed by Black Horse Carriers Inc., filed suit in state court early last month against Philadelphia-based The TJX Companies Inc. and The Marmaxx Group, as well as Warminster, Pa. resident Rick Goroshko and Douglassville, Pa. resident Glen Hansford, over claims that he was seriously injured on April 5, 2011, while making a delivery to a Marshall’s store in Oceanside, N.Y.

Torres, who had picked up a haul at the defendants’ Philadelphia distribution center, was responsible for hooking up the trailer to his truck and driving the merchandise to the New York retail location.

Upon arrival, Torres and the store’s employees had difficulty in opening the trailer because its contents, during the course of travel, had migrated to the back of the trailer, the suit states.

The delivery bay where the trailer had to be backed in to was at a significantly sloped downward angle, the complaint states, making it difficult to access the merchandise.

The complaint alleges that the load was not properly secured, which was the reason that the contents of the delivery trailer shifted and lodged against the trailer door.

Torres was eventually able to open the trailer door, with the help of others, after which he was injured by falling boxes and totes, which struck the plaintiff in the head, shoulder, back and front of his body, causing a whole host of physical injuries, according to the lawsuit.

Torres ended up sustaining injuries to his head, neck, back, body, shoulders, arms and legs, the suit states, some of which required surgical repair.

The plaintiff also suffered from aggravation of degenerative arthritis, exacerbation of cervical disc disease, injuries to his nerves and bodily systems and other injuries.

As a result, the plaintiff’s workers’ compensation insurance carrier had a lien for payment of medical and wage loss benefits which, as of this February, exceeded $100,000, and is expected to increase in the future, the suit states.

As of the filing of his complaint, Torres was receiving ongoing disability benefits and regular medical treatment.

The defendants are accused of various acts of negligence.

The Marmaxx Group, The TJX Companies and Marmaxx Operating Corp. in particular were responsible for “every aspect” relating to selecting, placing, storing, securing, inspecting, installing, loading and opening merchandise on the trailer used by Torres, the complaint states.

In the defendants’ petition for removal, their attorneys wrote that while Goroshko and Hansford are citizens of Pennsylvania, “their joinder to this action is tantamount to fraudulent joinder because plaintiff has failed to state a claim of action” against the two.

The U.S. Third Circuit Court of Appeals, the attorneys stated, have determined that joinder is fraudulent if a plaintiff fails to state a claim against the non-diverse defendant or defendants.

The motion says that nowhere in the plaintiff’s complaint are Goroshko and Hansford individually named other than as defendants in the parties' section.

“The reason for this unique pleading is simple: plaintiff has no valid claim against the individual defendants, Goroshko and Hansford, because they were not involved in the loading or unloading of the subject trailer that forms the basis for plaintiff’s claims,” the removal petition reads.

The defense attorneys wrote that the plaintiff’s claims against Goroshko and Hansford, employees of the defendants, are barred under principles of Pennsylvania common law.

“Plaintiff has failed to allege how defendants, Goroshko and Hansford, owed plaintiff any direct duty or breached any duty to him by committing any independent acts or omissions of negligence,” the defense lawyers wrote. “Rather, the only employees of the corporate defendants that owed plaintiff a duty, if any, were those who in fact loaded the subject trailer and/or opened the subject trailer.”

Furthermore, the defense attorneys wrote that the litigation belonged in federal, not state, court because the amount in controversy exceeded the jurisdictional limit of a Pennsylvania court and because it is a civil action between citizens of different states.

The plaintiff is being represented by Philadelphia attorney Michael H. DiGenova.

The defendants are being represented by Philadelphia attorneys Mark A. Lockett and Kevin E. Monastra.


The state case ID number is 130301681.

The federal case number is 2:13-cv-01929-GP. 

More News

The Record Network