PENNSYLVANIA RECORD

A U.S. District Judge has remanded a wrongful death claim initiated by the widow of a

man who died during a hunting accident more than two years ago to the Bucks County Court of Common Pleas.

The high-profile case made headlines after it was discovered that Quakertown, Pa. resident Barry Groh, 52, was shot and killed, after being mistaken for a deer, by Worcester, Pa. lawyer David Manilla, nephew of former Montgomery County District Attorney Michael Marino.

Due to his status as a convicted felon, Manilla wasn’t even supposed to be in possession of any firearms on the day he shot and killed Groh on Manilla’s property at 1155 California Road in Bucks County, where Groh had permission to deer hunt at the time, which was the opening day of deer season.

The Nov. 29, 2010, incident also drew headlines due to the fact that Marino, a former county prosecutor, was a part of the hunting party at the time, and allegedly didn’t act quickly enough to try and get help for the dying Groh.

Marino was never charged with any crime.

The record shows that Theresa Lynn Groh, Barry Groh’s widow, filed a wrongful death suit against Manilla in Bucks County Court on Jan. 10, 2011, alleging that the attorney had acted carelessly and recklessly in failing to regard the safety of her husband, failing to take reasonable precautions to avoid shooting her husband, riding around on an ATV with a loaded firearm, and failing to notify law enforcement of the accident until a half-hour after discovering Groh had been shot.

During the subsequent months, Theresa Groh initiated other civil actions in state court, including a complaint in trespass against Marino, a complaint for declaratory judgment against Allstate Insurance Co., Allstate Property and Casualty Insurance Co., and David and Vivian Manilla, and a complaint in trespass against Barbara Fletcher, identified as Manilla’s paramour.

A Bucks County Common Pleas Court judge ultimately consolidated the various civil actions against the defendants for the purposes of pre-trial discovery.

Theresa Groh then subsequently initiated litigation against Robert Monestero, who was the third member of the hunting party on the day of her husband’s death.

On Feb. 8 of this year, the plaintiff requested that Monestero appear for a deposition in the consolidated actions against Manilla, Marino and Fletcher, but Monestero’s lawyer objected, saying his client would not appear until the defendant was made aware of the specific claim against him.

Theresa Groh eventually filed an actual complaint against Monestero outlining claims against the man, and Monestero’s counsel moved to transfer the case to the federal court in Philadelphia on March 6.

In seeking remand to state court, Theresa Groh argued that if she sought to join the defendants from the consolidated Bucks County action against Manilla, Marino and Fletcher, citizenship diversity would be destroyed, thus defeating the federal court’s subject matter jurisdiction to hear the case.

“Because all of the defendants in the Bucks County Action are Pennsylvania residents, their joinder would destroy diversity,” the plaintiff’s lawyers had written. “Thus, the Court of Common Pleas of Bucks County, Pennsylvania, is the only forum where the cases can be tried together.”

The plaintiff argued that if the cases were allowed to proceed separately, one in federal court and the other in state court, the result would be duplicative discovery, depositions and a waste of court resources.

Theresa Groh also used as her justification for remand the fact that Bucks County Judge Robert Mellon is also far along with the other consolidated cases, having conducted numerous conferences and issued various orders.

In arguing against remand, Monestero’s lawyers asserted that the plaintiff’s claims against Monestero do not involve the same common questions of law or fact as those against the other defendants.

Monestero’s attorneys also argued against remand on the basis that it would reward the plaintiff for creating an unfair litigation posture against their client in state court.

The lawyers noted that Theresa Groh waited until March of this year to file suit against Monestero, while discovery in the other case had been ongoing since January 2011.

In his April 29 memorandum and order, U.S. District Judge Michael Baylson, of the Eastern District of Pennsylvania, wrote that there is no evidence of record suggesting that the plaintiff’s motive is solely to defeat federal jurisdiction, but rather Theresa Groh’s “guiding objective” seems to merely be to pursue a single action against all parties potentially responsible for her husband’s death in one forum.

Baylson also agreed with the plaintiff that she would be injured if remand to state court were denied.

“Without remand, Plaintiff will be forced to pursue two lawsuits in two separate court systems, even though they both center on the same set of facts and circumstances – the hunting accident of November 29, 2010,” Baylson wrote.

The judge went on to write that while the court recognizes Monestero’s argument that he may be prejudiced by the “ripe nature of the action with which his suit would be consolidated in Bucks County,” the extension of discovery to Aug. 1 would remove any prejudice.

Baylson ordered the case remanded to Bucks County.

Manilla, the man who shot Barry Groh, had previously been sent to prison for 10 to 25 years after pleading guilty to involuntary manslaughter.

Manilla’s lawyers appealed the sentence, but it was ultimately upheld by the Pennsylvania Superior Court.

In March, the Pennsylvania Record reported that Manilla pleaded guilty in federal court to being a felon in possession of firearms.

He could receive up to 10 years in federal prison for that crime alone, which would be in addition to his state prison time.

Manilla is scheduled to be sentenced before U.S. District Judge Jan E. DuBois in late June.