Pennsylvania Record

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Suit by gravely injured cyclist against trucking co. remanded to Phila. Common Pleas Court

By The Penn Record | Feb 26, 2014

A federal judge has sent back to state court a personal injury complaint

against a New Jersey trucking company being sued by a cyclist who says he sustained “catastrophic, disabling, life-altering and permanent” injuries after being struck by a big rig in Philadelphia.

Thomas McMillan filed suit against Wilkie Trucking Inc. in late September of last year in Philadelphia’s Court of Common Pleas over the injuries he says he sustained following a May 16, 2013 incident in which a tractor trailer owned by the defendant ran over the plaintiff at the corner of Second and Callowhill Streets.

The defendant’s driver made a right turn and struck McMillan, who had been riding his bicycle parallel to the big rig at the time.

McMillan ended up suffering injuries to his skin, bones, muscles, nerves, tissues and ligaments, and had to spend more than two weeks recovering at Hahnemann Hospital in downtown Philadelphia, according to his complaint.

Records show that he also had to spend time at a rehabilitation facility from late May until mid-June of last year.

The defendant removed the case from Common Pleas Court to the U.S. District Court for the Eastern District of Pennsylvania in early December 2013, well beyond the 30-day time frame permitted for removal under procedural rules.

The plaintiff subsequently filed a motion to remand, arguing that the trucking company should have filed its removal petition within 30 days of receiving the complaint.

The trucking company then counter-argued that the removal was timely because it was filed within 30 days of being first put on notice that the action was removable; it claims to have learned damages may exceed $75,000 only after receiving the plaintiff’s answer to new matter.

In a Feb. 21 memorandum and order, U.S. District Judge R. Barclay Surrick wrote that the defendants should have “reasonably and intelligently concluded from a fair reading of the damages alleged in the Complaint, particularly in consideration of the extent of the injuries, the multiple surgeries Plaintiff underwent, the time he spent in the hospital and in rehab, the injuries not yet determined, and the loss of earnings, that the damages sought would well exceed the $75,000 jurisdictional amount.

“Plaintiff’s Complaint is not one that sets damages equivocally,” the judge wrote. “Nor does the Complaint merely contain boilerplate language to describe Plaintiff’s injuries.”

Surrick, citing the detailed nature of the civil action, which included dates of surgeries and diagnoses of treatment that the plaintiff received, wrote that the defendants were clearly put on notice that damages sought would likely exceed the jurisdictional amount.

Randy Lovell, the truck driver, is named as a codefendant in the suit.

In the end, Surrick ruled that the defendants’ notice of removal was not timely filed, and he ordered the litigation remanded to the Philadelphia Court of Common Pleas.

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