Philadelphia Gas Works seeks collection and indemnity in SEPTA workers' injury litigation

By Nicholas Malfitano | May 7, 2019

PHILADELPHIA – Philadelphia Gas Works is seeking immunity from liability in a lawsuit filed by Southeastern Pennsylvania Transportation Authority (SEPTA) employees against it, the Pennsylvania Department of Transportation the City of Philadelphia, Exelon Corporation and PECO Energy company, for injuries they allegedly sustained in a gas leak explosion in 2016.

Philadelphia Gas Works of Philadelphia filed a cross-claim suit in the Philadelphia County Court of Common Pleas on March 26 versus Exelon of Chicago and PECO of Philadelphia.

The instant matter begins with an underlying lawsuit filed by SEPTA employees Jason Melcher and Alberto Lopez on Sept. 12, 2017 (along with a second action last year, which was later consolidated). Both men say they were injured in a Dec. 14, 2016 manhole explosion, at 49th Street and Warrington Avenue in Philadelphia.

They claim post-accident excavation revealed that the explosion was the result of SEPTA’s power cable making contact with PGW’s gas main, thus burning a hole into it, allowing natural gas to escape towards the 49th Street and Warrington Avenue intersection and igniting on Dec. 14, 2016.

“As a result, of the aforesaid leak, the Melcher-Lopez plaintiffs were injured through no fault or negligence on the part of PGW. If the SEPTA employee plaintiffs recover damages against PGW in this matter, PGW avers that Exelon and PECO are alone liable for the plaintiffs’ damages. If PGW is determined to be negligent in this matter, the same being specifically denied, it is averred that the defendants, Exelon and PECO, are jointly and severally liable with PGW and/or liable over to PGW for any recovery damages against PGW,” their filing states.

PGW seeks indemnity from paying damages to Melcher and Lopez. But, in preliminary objections from Exelon filed April 26, the latter entity argued PGW is not eligible for indemnity.

“The common law right of indemnity is not a fault sharing mechanism between one who was predominantly responsible for an accident and one whose negligence was relatively minor. Rather, it is a fault shifting mechanism, operable only when a defendant who has been liable to a plaintiff solely by operation of law, seeks to recover his loss from a defendant who was actually responsible for the accident which occasioned the loss. In order for a claim of common law indemnity to arise, one must have been compelled to pay damages for which they are legally liable,” the preliminary objections read, in part.

Exelon further alleged that PGW claim for contribution is “premature”, that service of the complaint was defective and that Exelon was not in fact served in this case.

PGW is seeking contribution and/or indemnity in its favor and against Exelon and PECO in an amount in excess of $50,000.

The plaintiff is represented by Ramon D. Townsend in Exton.

The defendants are represented by Shari F. Bernstein and Joseph A. Ricchezza of Salmon Ricchezza Singer Turchi, in Philadelphia.

Philadelphia County Court of Common Pleas case 181201447

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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Philadelphia County Court of Common Pleas Southeastern Pennsylvania Transportation Authority

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