ALLENTOWN – A federal judge has thrown out an attempt at securing summary judgment through the Pennsylvania Workers’ Compensation Act from a chemical and ingredient solutions distributor, in response to a lawsuit brought against it by a New Jersey truck driver.
Christopher Disant of Carteret, N.J. first filed suit in the Philadelphia County Court of Common Pleas on Oct. 9, 2020 versus Brenntag North America, Inc. and Brenntag Northeast, both of Reading.
(The action was later removed to the U.S. District Court for the Eastern District of Pennsylvania on Oct. 22, 2020.)
“On Dec. 11, 2018, plaintiff Christopher Disant was lawfully about the premise of the job site delivering chemicals to the defendants, utilizing a tanker trailer. Disant, while in the course and scope of his employment with Langer Transport Corporation was granted permission by defendants to access the top of his tanker trailer to close the dome lid,” the suit said.
“While plaintiff was working on the top of the tanker trailer, which has unprotected edges more than four feet from the ground, defendants negligently did not provide, mandate or ensure the plaintiff with a safe means to perform his work, mainly fall protection. While plaintiff was working on the tanker truck, his foot got caught and he fell backwards off the tanker trailer falling to the ground. The impact caused him to suffer serious and permanent injuries and damages.”
Disant alleged his injuries were caused by the negligent acts and omissions of the defendants.
“Disant sustained injuries to his head, right shoulder, back, body and limbs, his bones, cells, nerves, tissues, muscles and functions including, but not limited to acute comminuted fracture of the right coracoid scapular, Hill-Sachs deformity, anterior dislocation of right humerus, rotator cuff tear, full thickness tear of distal subscapularis tendon, derangement of posterior horn of the medial meniscus, chondromalacia of left knee, internal derangement of right knee, medial meniscal tear left knee, mild MCL sprain left knee, medial status post left knee arthroscopy, partial medial meniscectomy, partial synovectomy, status post right shoulder arthroscopy, labral debridement, rotator cuff repair, acromioplasty and bursectomy, thoracic compression fracture, L1 and L5 compression fractures, plantar fascial fibromatosis, and together with a severe shock to his nerves and nervous system,” per the suit.
Attorneys for both of the defendants filed a motion for summary judgment as to all claims on May 12, charging that the Pennsylvania Workers’ Compensation Act would immunize them from suit in this case.
“In this case, there is no dispute as to the material facts. At the time of his incident, plaintiff was in the course and scope of his employment with Langer, completing the delivery of bulk liquid chemicals at BNE’s facility by monitoring and assisting in the unloading of those chemicals from his tanker trailer. His fall occurred after closing the dome lid on top of his trailer, work he was doing in furtherance of unloading the tanker,” the summary judgment motion stated, in part.
“The evidence clearly shows that the transport of bulk liquid chemicals using tanker trucks, including loading and unloading tankers, is an integral and regular part of BNE’s business that BNE conducts on a daily basis. BNE transports bulk liquid chemicals in tanker trucks to and from its facility in Reading, PA, using its own trucks and drivers and third-party carriers, on a daily basis. BNE employees unload tankers of chemical products on a daily basis. BNE employees access the dome lid of tanker trailers while unloading products on a regular basis.”
According to the company, there is no dispute that “Disant’s work in assisting in unloading bulk liquid chemicals from a tanker was work that is the core of BNE’s business, is performed daily by BNE employees and is a regular and recurrent part of BNE’s business.”
The company argued that, under the language of the PWCA, in return for guaranteed wage loss and medical benefits, regardless of the fault of the employee or the lack of negligence of the employer, the employee gives up the right to sue the employer under the common law for damages suffered from a work-related injury.
Brenntag’s counsel believed the plaintiff’s incident is just such an injury.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Edward G. Smith denied the summary judgment motion on Jan. 31, finding there was “at a minimum, a genuine issue of material fact with respect to whether the defendant is entitled to immunity under Pennsylvania’s Workers’ Compensation Act as a statutory employer.”
“After considering the defendant’s motion for summary judgment, the plaintiff’s response opposing summary judgment, the defendant’s reply further in support of summary judgment, the plaintiff’s sur-reply further opposing summary judgment, and oral argument by counsel on July 15, 2021, it is hereby ordered the motion for summary judgment is denied,” Smith said.
Smith furthered ordered the Court will hold a telephone conference to discuss the schedule moving forward in this matter on Feb. 4.
For a lone count of negligence, the plaintiff is seeking damages, jointly and/or severally, for a sum in excess of $50,000, plus delay damages, costs, interest and all other damages permitted by law.
The plaintiff is represented by Carin A. O’Donnell and Ryan Kilmer of Stark & Stark, in Yardley.
The defendants are represented by William Lawrence Thrall III and Jeffrey Colin Schwartz of Post & Schell, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-05281
Philadelphia County Court of Common Pleas case 201000603
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com