PITTSBURGH – The widow of a man who died last year after a large tree fell on him in his vehicle, has refuted the denials of liability for that event, from both an energy company and the Pennsylvania Department of Transportation.
Victoria C. Stasenko (individually and as Administratrix of the Estate of Stephen A. Stasenko Jr.) of Upper St. Clair Township first filed suit in the Allegheny County Court of Common Pleas on March 16 versus Linda L. Sutton, also of Upper St. Clair Township, the Commonwealth of Pennsylvania’s Department of Transportation of Harrisburg, Upper St. Clair Township, West Penn Power Company of Greensburg and First Energy Corporation of Akron, Ohio.
“The events herein complained of occurred on May 3, 2022 at approximately 6 p.m. near the intersection of McMurray Road and Bethel Church Road in Upper St. Clair Township, Allegheny County, Pennsylvania. At the time, date and place as aforesaid, Stephen A. Stasenko Jr. was stopped in traffic on McMurray Road near the intersection with Bethel Church Road, when a large tree from property adjacent to McMurray Road fell on top of the vehicle Stephen A. Stasenko Jr. was operating, causing severe traumatic injuries to his head and torso,” the suit said.
“Stephen A. Stasenko Jr. was rushed to the hospital but was pronounced dead later the same evening. The tree which fell resulting in the death of Stephen A. Stasenko Jr. was located on property owned by defendant Sutton, specifically, 125 Marwood Drive, Pittsburgh, PA 15241. McMurray Road is a state owned road and based upon information and belief, plaintiff avers the tree and tree limbs which fell causing the fatal injuries. Stephen A. Stasenko Jr. was within the right of way granted to defendant Department of Transportation.”
The suit added the Department of Transportation is responsible for the proper maintenance and care of trees within its right of way.
“At the time, date and place as aforesaid the tree in question was in a decaying and dangerous condition with large limbs extending over the travel lanes of McMurray Road. Defendant Upper St. Clair Township is also responsible for maintaining the streets and rights of way within its jurisdiction, including, but without limitation, McMurray Road. Based upon information and belief, plaintiff avers the defendant Upper St. Clair Township assumed responsibility for maintaining state owned roads and rights of way within the Township, pursuant to a written agreement between the Department of Transportation and defendant Upper St. Clair Township,” the suit stated.
“At the time of his death, Stephen A. Stasenko Jr. was 64 years of age and left surviving him the following persons entitled to recover damages for his death, and on whose behalf this action is filed: A) Victoria C. Stasenko, wife, 5021 Hartlin Drive, Bethel Park, PA 15102; B) Abigail M. Carlson, daughter, 206 Livingston Road, West Mifflin, PA 15122; C) Cassandra L. Stasenko, daughter, 12655 Sandstone Street, Gilbert, AZ 85296.”
On May 17, counsel for First Energy Corporation filed a stipulation of dismissal as to that defendant.
“Whereas, on March 23, 2023, Ms. Stasenko filed an action against FE Corp. and certain other defendants entitled Victoria C. Stasenko, individually and as Administratrix of the Estate of the Stephen A. Stasenko, Jr. a.k.a. Stephen A. Stasenko a.k.a. Stephen Anthony Stasenko, Jr. v. Linda L. Sutton, et al., Case No. 2023-3656, in the Allegheny County Court of Common Pleas alleging claims of negligence sounding in wrongful death and survival actions against FE Corp.,” the stipulation stated.
“Whereas, West Penn Power represents that it, and not FE Corp., is the proper party to this action and is believed to have any information and documents relevant to the allegations in the complaint in the action for the purposes of discovery in this action; and whereas, FE Corp. denies that it has any liability to Ms. Stasenko; and whereas, in consideration of the parties’ desire to avoid wasteful litigation expenses, the parties agree to defer any adjudication of the dispute between Ms. Stasenko, on the one hand, and FE Corp., on the other hand, by entering into this agreement and discontinuing without prejudice the claims Ms. Stasenko asserts against FE Corp. in this action. This discontinuance is made and entered as of May 17, 2023.”
That same day, counsel for all parties filed a mutual stipulation to dismiss allegations of recklessness from the case – with such allegations often opening the door to claims for punitive damages.
“The allegations of recklessness from Paragraph 29 of the plaintiff’s complaint are hereby stricken with prejudice,” per the stipulation.
West Penn Energy Company filed an answer with new matter and a cross-claim on July 6, denying responsibility for Stephen Stasenko’s death.
“The complaint fails to state a cause of action against West Penn Power upon which relief may be granted. Although the defenses of assumption of the risk, contributory negligence, and comparative negligence need not be plead under Rule 1030(b) of the Pennsylvania Rules of Civil Procedure, West Penn Power asserts that those defenses apply to the claims brought by plaintiff in this case. Plaintiff’s claims are barred or limited by accord and satisfaction and set-off. Plaintiff’s claims are barred by the equitable doctrines of laches, estoppel, and/or waiver. Plaintiff’s claims are barred because West Penn Power acted reasonably and in good faith at all applicable times and in accordance with governing NESC codes, statutes, and relevant regulations. The Estate’s claims against West Penn Power are barred by superseding and/or intervening events that caused Mr. Stasenko’s death, including, but not limited to, the inclement weather that caused the tree to fall and Mr. Stasenko’s own actions,” per the power company’s new matter.
“The Estate’s claims are barred and/or reduced as a result of Mr. Stasenko’s own actions and/or inactions which were the cause–in–fact and/or legal cause of the alleged injuries and/or damages. Any actions or inactions of West Penn Power were so attenuated from the purported injuries alleged in the complaint that those alleged injuries were unforeseeable and beyond the ambit of West Penn Power’s alleged liability. The alleged conduct of West Penn Power was not the legal cause of Mr. Stasenko’s death. All damages, if any, as alleged in the complaint, were solely and proximately caused by acts or omissions of others over which West Penn Power had no control and, as such, West Penn Power denies any liability. West Penn Power did not have a duty to maintain the tree that fell on Mr. Stasenko’s vehicle in a manner that assured the tree would not fall onto the adjacent roadway during inclement weather. The Estate’s claims are barred by the principles set forth in the Supreme Court of Pennsylvania’s decision in Stewart v. Motts.”
The Pennsylvania Department of Transportation followed up with its own answer, new matter and cross-claim on July 7.
“The Commonwealth defendants is immune from suit, and therefore plaintiff’s action is barred. Should liability be found on the part of the Commonwealth defendants, the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. Section 8528. All affirmative defenses under Pennsylvania Rule of Civil Procedure Section 1030 are asserted and incorporated by reference as if set forth herein at length. Plaintiff’s alleged damages and/or losses were caused by the actions or inactions of other persons or entities and accordingly, 42 Pa. C.S.A. Section 7102 is a bar to recovery against the Commonwealth defendants; or, in the alternative, the Commonwealth defendants avers that any recovery arising from this action must be diminished in accordance with the Pennsylvania Comparative Negligence Act. The Commonwealth defendants invoke any and all common law defenses available to it pursuant to 42 Pa. C.S. Section 8524. The Commonwealth defendants sets forth as a complete bar to this action any applicable statute of limitations and/or the doctrine of waiver, estoppel and/or laches,” according to the transportation entity’s answer.
“The Commonwealth defendants raises all the defenses and limitations of damages pursuant to the Pennsylvania Fair Share Act, 42 Pa.C.S.A. Section 7102. The Judicial Code at 42 Pa.C.S.A. Section 5522(a), which section is incorporated herein and pled by reference, provides that the Commonwealth defendant and the Attorney General must have received written notice of intent to sue within six months from the date the cause of action accrues. In the absence of such notice, this action is barred. The Commonwealth defendant raises all the defenses and limitations of damages pursuant to the Pennsylvania Fair Share Act. The tree described by the plaintiff’s complaint was situated outside the right of way and was not owned by the Commonwealth defendant. As such, the Commonwealth defendant has no common law duty for the tree and the tree did not derive, originate or have as its source Commonwealth realty.”
Each defendant’s cross-claims ascribed liability to their co-defendants.
UPDATE
Plaintiff counsel filed replies to the new matter presented by West Penn Power Company and the Pennsylvania Department of Transportation on July 26 and July 27, respectively.
“The averments of Paragraphs 1-13 of defendant’s new matter are conclusions of law to which no responses are required,” per the plaintiff’s reply to West Penn Power Company.
“The averments of Paragraphs 88-101 of defendant’s new matter are conclusions of law to which no further responses are required,” according to the accompanying reply to the Pennsylvania Department of Transportation.
Both replies also explained that the defense’s new matter was further denied, pursuant to Pennsylvania Rule of Civil Procedure 1029(e).
For multiple counts of survival and wrongful death, the plaintiff is seeking damages in excess of the amount requiring referral to arbitration.
The plaintiff is represented by Joseph J. Pass, Edward H. Walter and Justin T. Romano of Jubelirer Pass & Intrieri, in Pittsburgh.
The defendants are represented by Mark R. Hamilton of Summers McDonnell Hudock Guthrie & Rauch, Henry J. Salvi of the Pennsylvania Attorney General’s Office, Gerald J. Schirato Jr. and Rachel M. Good of Duane Morris, all also in Pittsburgh, plus Terrance R. Henne and Dana Weber Horton of Mintzer Sarowitz Zeris Ledva & Meyers, in Sewickley.
Allegheny County Court of Common Pleas case GD-23-003656
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com