PITTSBURGH – One company defendant has been dismissed from wrongful death litigation brought by the estate of a young man killed when an allegedly faulty gate at a landfill dropped onto his car.
Thomas Paul Kromer and Sandra Kay Morris (both individually and as Administrators of the Estate of Zachary Kromer, deceased) of East Millsboro first filed suit in the Philadelphia County Court of Common Pleas on March 4, 2021 versus Veolia Es Chestnut Valley Landfill, Inc., Veolia Es Solid Waste of PA, Inc., Chestnut Valley Landfill, LLC and Onyx Chestnut Valley Landfill, Inc. of McClellandtown, Veolia North America, LLC, of Boston, Mass. and John Does 1-10.
(The lawsuit was later removed to the U.S. District Court for the Eastern District of Pennsylvania on May 28, 2021.)
“On March 22, 2019, plaintiff-decedent suffered catastrophic injuries to his head and body and ultimately succumbed that same day, only after enduring significant conscious pain and suffering, as a result of a dangerous gate that lowered onto his personal vehicle [at the McClellandtown landfill facility],” the suit said.
“Upon information and belief, all of the defendants were on notice of the dangerous conditions of the subject gate and despite this notice, negligently, grossly negligently and recklessly failed to rectify, repair, renovate, and warn of this hazard at any time prior to the incident.”
Upon information and belief, prior to the incident on March 22, 2019, the suit stated all of the defendants inspected the subject gate but, nevertheless, negligently, grossly negligently and recklessly failed to take any reasonable responsive action.
Allegedly, they were also on actual and/or constructive notice that subject gate posed a significant safety hazard to individuals and, nevertheless, failed to take any reasonable steps to remedy the significant safety hazard.
“On March 22, 2019, plaintiff-decedent was required to work at the aforementioned premises and when he was exiting the premises in his vehicle, he was required to, and ultimately did encounter the subject gate. Unbeknownst to plaintiff-decedent, at all relevant times herein, the gate lacked adequate safety measures, and represented a significant safety hazard,” per the suit.
“Accordingly, due to the dangerous condition of the gate which resulted from the negligence, gross negligence, and recklessness of all of the party defendants, jointly and severally, the gate lowered onto plaintiff-decedent’s vehicle and plaintiff-decedent, in turn, received catastrophic injuries. After experiencing significant conscious pain and suffering, plaintiff-decedent ultimately succumbed to his injuries and passed away that same day.”
U.S. District Court for the Eastern District of Pennsylvania Judge C. Darnell Jones II ordered the case stayed on June 23, 2021 and put pending motions from the parties relating to a transfer of venue and to dismiss the case in abeyance, and granted another motion to stay the case.
The same day the stay was granted, June 23, the plaintiffs filed a motion to remand the case to state court on the basis that diversity of citizenship did not exist between the parties.
Chestnut Valley Landfill filed a response brief in opposition to the plaintiffs’ desire to remand the case, on Feb. 16.
“CVL wants to respond to plaintiffs’ strange insistence that CVL ‘remains a Pennsylvania entity’, ‘remained domesticated in Pennsylvania’ and is somehow a Pennsylvania citizen. The law for diversity jurisdiction treats CVL, a Pennsylvania limited liability company, like an unincorporated association. CVL thus takes the citizenship of its members, and its states of organization and principal place of business ‘are legally irrelevant.’ When a member of a limited liability company is another limited liability company, a court must examine multiple layers of ownership, like nesting dolls, until reaching a real person or corporation,” the plaintiff’s remand motion stated.
“At the times of filing and removal, CVL’s sole member was GFL Everglades Holdings, LLC, a Delaware limited liability company. GFL Everglades Holdings, LLC’s sole member was Waste Industries, USA, LLC, a North Carolina limited liability company. Waste Industries USA, LLC’s sole member was Wrangler Holdco Corp., a Delaware corporation with its principal place of business in North Carolina. Corporations are citizens of their states of incorporation and principal place of business. CVL is thus a North Carolina and Delaware citizen. Veolia, whose citizenship plaintiffs do not challenge, is a Delaware citizen since a Delaware-headquartered, Delaware corporation is its sole member. Because the removing defendants have established complete diversity, the Court should deny plaintiffs’ motion to remand.”
Jones granted the defendants’ motion on March 7.
“Upon consideration of defendants’ motion to transfer for improper venue or inconvenient forum and the stipulated agreement to such motion, is it hereby ordered as follows: Defendants’ motion is granted; The Clerk is directed to transfer this matter for all further proceedings to the U.S. District Court for the Western District of Pennsylvania; Defendants’ pending motion to dismiss shall remain stayed; and plaintiffs’ response to said motion shall be due within 30 days of this matter being assigned to a judge within the Western District of Pennsylvania,” Jones stated.
UPDATE
After the transfer to a federal court in Western Pennsylvania, defendant Veolia North America, LLC was dismissed from the case through mutual stipulation on May 11.
“Pursuant to Rule 41(A)(ii), the parties hereby stipulate and agree that all claims and cross claims asserted against defendant, Veolia North America, LLC, only are dismissed with each party to bear its own fees and costs,” the stipulation read.
For counts of negligence, gross negligence, recklessness, wrongful death and survival, the plaintiffs are seeking, jointly and severally, compensatory damages, wrongful death damages, survival damages, punitive damages, costs in excess of $50,000, such other relief as this Court deems just and for a trial by jury on all issues so triable, as a matter of right.
The plaintiffs are represented by Nancy J. Winkler, Daniel J. Sherry Jr. and Todd Schoenhaus of Eisenberg Rothweiler Winkler Eisenberg & Jeck, in Philadelphia.
The defendants are represented by Joseph R. Fowler and Matthew Vodzak of Fowler Hirtzel McNulty & Spaulding, in Philadelphia.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00407
Philadelphia County Court of Common Pleas case 210300489
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com