PITTSBURGH – Uber’s attempt to dismiss litigation from a Carnegie man who said that he and his friends were nearly killed by their driver has been defeated, for now, by a federal judge’s ruling.
Phillip Pesano of Carnegie filed suit in the Allegheny County Court of Common Pleas on Nov. 2 versus Uber Technologies, Inc. of San Francisco, Calif. and Andrew Farkosh, of West Mifflin.
“On Dec. 24, 2019, plaintiff Pesano was with three other acquaintances who had wished to be transported from one section of Pittsburgh to another section of Pittsburgh. One of the plaintiff’s acquaintances requested that Uber provide vehicle transport. Pursuant to the request for Uber to provide transport in consideration for a charge, defendant Farkosh picked up the plaintiff and the three other persons,” the suit said.
“On Forbes Avenue in Oakland, defendant Farkosh stopped the Uber vehicle, got out of the vehicle and insisted that all of the passengers get out as well. The four passengers began to walk away, but shortly thereafter, Farkosh began pursuing the passengers on foot. Farkosh chased plaintiff Pesano on foot for at least 10 to 15 minutes. During the foot chase, Farkosh caught up with plaintiff Pesano in the backyard of a property located on the 3300 block of Niagara Street in Oakland.”
Pesano added that Farkosh attacked him, withdrew a firearm, aimed it at his head and pulled the trigger. Pesano said he suffered an immediate onset hearing loss in his right ear, injury to his right scalp requiring staples, scarring, headaches, dizziness, loss of balance, sleep disturbance, fatigue, anxiety and other physical and psychological injuries.
The suit was removed to the U.S. District Court for the Western District of Pennsylvania the following day, on Nov. 3.
UPDATE
As the plaintiff motioned to remand the case to state court on Nov. 22, counsel for Uber filed a motion to dismiss the case on Nov. 23 for failure to state a claim upon which relief could be granted.
“Uber states that it is not subject to vicarious liability as a matter of law because the assault committed by defendant Farkosh was committed for personal reasons and therefore not with the course and scope of any alleged employment relationship with Uber. Uber states that it is not subject to vicarious liability because plaintiff cannot establish the four prongs of a claim for vicarious liability pursuant to well-established law,” the dismissal motion read, in part.
“Uber states that plaintiff cannot establish the elements of a claim for negligent hiring, training, supervision, or retention pursuant to well-established law. Uber states that the intervening and superseding criminal actions committed by Farkosh sever any potential liability as to Uber pursuant to well-established law.”
However, U.S. District Court for the Western District of Pennsylvania Judge Robert J. Colville ruled on Nov. 24 to throw out the dismissal motion, without prejudice.
“The motion to dismiss filed by defendant Uber Technologies, Inc. is hereby dismissed without prejudice to be refiled, if appropriate, following this Court’s resolution of plaintiff’s motion to remand, which asserts that this Court lacks subject matter jurisdiction in this matter because there is not complete diversity between plaintiff and defendant Andrew Farkosh,” Colville said.
“It is hereby further ordered that defendant Uber Technologies, Inc. is hereby directed to show cause, by no later than Dec. 2, as to why this matter should not be remanded to the Court of Common Pleas of Allegheny County, given that the basis for removal was an assertion of diversity jurisdiction pursuant to 28 U.S.C.A. Section 1332(a), and given that defendant Uber Technologies Inc. acknowledges that, ‘As averred in the complaint, defendant Andrew Farkosh, is a citizen of the Commonwealth of Pennsylvania and resides in West Mifflin,” Colville said.
For multiple counts of negligence and negligent infliction of emotional distress, the plaintiff is seeking damages in excess of the local arbitration limits, plus costs, interests and a trial by jury.
The plaintiff is represented by Kenneth J. Nolan of Phil DiLucente & Associates, in Pittsburgh.
The defendant is represented by John T. Donovan and Caroline S. Vahey of Wilson Elser Moskowitz Edelman & Dicker, in Philadelphia.
U.S. District Court for the Western District of Pennsylvania 2:21-cv-01580
Allegheny County Court of Common Pleas case GD-21-013488
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com