Lawsuit over slip-and-fall at Mexican resort will be heard in federal court

By Nicholas Malfitano | May 22, 2015

PHILADELPHIA – A federal judge ruled a personal injury case will be heard in federal court and denied a Feasterville Trevose man’s motion to have the case remanded to the Philadelphia County Court of Common Pleas on May 18.

Bruce Huberman brought action against Interval Leisure Group, Inc. in the Philadelphia County Court of Common Pleas on Nov. 19, and it was removed to Philadelphia federal court on March 26 on the basis of diversity of citizenship.

Huberman is a Pennsylvania resident and Interval Leisure Group is based in Miami.

Huberman alleged while visiting Interval’s resort in Playa del Carmen, Mexico, he fell down a slippery flight of steps due to the absence of a handrail. Huberman claimed the fall left him with “a left hand injury, a severe gash and 2 bursts of the left leg, essentially exploding the skin away from the leg, leg and skin ulceration, and flare of blood sugar and diabetes.”

Huberman’s suit also called for a sum in excess of $50,000 in judgment from Interval on each of the following counts: negligence, negligent misrepresentation, deceit, fraud, negligent performance, respondeat superior, unfair trade practices and consumer protection violations.

Counsel for the defense counter-filed a motion claiming Huberman’s damages could not exceed $75,000 (a financial threshold for determining proper venue of state or federal court) and had the case removed to federal court.

It was the desire of Huberman to have the case remanded to the Philadelphia County Court of Common Pleas, and filed a petition to that effect, which brought the case before Judge Berle M. Schiller, of the U.S. District Court for the Eastern District of Pennsylvania.

Schiller first ruled on the contested amount of damages in question, explaining Huberman’s suit does not detail how much he spent or expects to spend on medical treatment, and does not specify the amount of his lost wages or reduction in professional earning capacity.

“The allegations of injury to Plaintiff’s left hand and left leg, while serious, do not carry any special significance that should have notified Defendants that Plaintiff’s damages exceeded $75,000. Therefore, the Court agrees with the weight of authority in this District and concludes that the Complaint was not sufficient to establish plaintiff’s damages to the degree of certainty necessary to trigger defendants’ 30-day removal deadline,” Schiller said.

While Schiller found medical records provided by Huberman to opposing counsel were worthy of analysis for determining whether or not the standard 30-day removal notice period would come into effect, he also ruled they “do not include plaintiff’s medical expenses or describe injuries that would reasonably notify defendants that the amount in controversy exceeded $75,000.”

Schiller also concluded that the defendants’ removal of the matter to federal court, both based on their answer to Huberman’s complaint and reply to the new matter of photographs detailing Huberman’s injuries, was timely and fell within the parameters necessary for a case to move to the Eastern District Court.

Finally, Schiller dissented from Huberman’s argument that inclusion of a claim for violations of the Unfair Trade Practices and Consumer Protection Law (UTPCPL) should have signaled to the defense that the amount of damages automatically exceeded $75,000.

“A court may award treble damages, attorney fees, and any additional relief it deems necessary and proper for violations of the UTPCPL. However, this claim does not change the Court’s analysis,” Schiller said.

“The Court has already concluded that Plaintiff’s complaint was too indeterminate to put defendants on notice that his damages exceeded $75,000. Adding an additional UTPCPL claim, for which the Court might award treble damages at its discretion, does not alter the fact that plaintiff’s baseline damages cannot be ascertained to a legal certainty.”

Based on this complete line of reasoning, Schiller then denied Huberman’s motion to remand the case to the Philadelphia County Court of Common Pleas.

The plaintiff is represented by Leo M. Flynn of Martins Mill Legal Center, in Cheltenham.

The defendants are represented by Joshua H. Romirosky of Gordon & Rees, in Philadelphia.

U.S. Eastern District Court of Pennsylvania case 2:15-cv-01560

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