PITTSBURGH – A state court judge has overruled preliminary objections related to venue from a mill mixer manufacturer, in litigation from a Western Pennsylvania man who claimed he was maimed by such mixer while on the job.
Gregory A. Say of Parker first filed suit in the Allegheny County Court of Common Pleas on Feb. 13 versus McLanahan Corporation, of Hollidaysburg.
“At all times relevant and material hereto, defendant designed, developed, tested, manufactured, assembled, constructed, inspected, installed, marketed, promoted, advertised, sold and/or distributed a McLanahan Blend Master Pug Mill Mixer, Serial Number 20003042. Through the actions of the defendant, the mixer entered the stream of commerce in a manner unsafe for its users. In particular, the mixer did not have any interlocked guard or other mechanism to disable the device in the event that the guards are opened to perform maintenance, observe the interior of the mixer, or for any other purpose,” the suit said.
“On or about April 13, 2021, plaintiff was working in the course and scope of his employment as a Heavy Equipment Operator with DuraEdge products, which was utilizing the mixer. On the aforementioned date, plaintiff was inside the mixer cleaning the spray nozzles that apply dye to the sand pellets. At the same time, another employee turned on the power to the mixer by utilizing the power controls, located inside a trailer approximately 30 to 50 feet away from the mixer. As there was no mechanism to prevent operation while anybody was inside the mixer, the mixer activated, trapping plaintiff inside.”
The suit added that the plaintiff suffered a long list of severe injuries and detailed them.
“As a direct and proximate result of the aforementioned incident, plaintiff sustained the following injuries, some or all of which are or may be permanent: Severe posterior torso, gluteus and left thigh tissue damage and loss requiring surgery; Left sciatic nerve injury requiring surgery; Left tibia fracture requiring surgery; Extensive open wounds to the bilateral back, buttock, right thigh, left flank, groin and right lower leg requiring wound debridement, autograft and ReCell placement; Permanent use of colostomy bag; Brace for left drop foot syndrome; Bruises, contusions and other injuries in or about nerves, muscles, bones, tendons, ligaments, tissues and vessels of the body; Unsightly large scars on his torso and bilateral lower extremities and nervousness, emotional tension, anxiety and depression,” the suit stated.
On March 23, the defendant filed preliminary objections and argued that the case should be transferred to the Blair County Court of Common Pleas.
“None of the parties are subject to service in Allegheny County. Plaintiff is not an Allegheny County resident. The only allegation as to Allegheny County relates to plaintiff’s complaint alleging McLanahan conducts business, with no other basis. The plaintiff’s complaint alleges three counts against defendant McLanahan Corporation: Strict liability (Count I), negligence (Count II) and breach of warranty (Count III). Plaintiff’s allegations against defendant are based on design, manufacture, supply, sell and/or distribute a product free of manufacturing and design defects and containing adequate warnings,” according to the brief outlining the defense’s objections.
“In addition, the allegations in plaintiff’s complaint are based upon when defendant McLanahan placed the mixer into the ‘stream of commerce.’ Again, defendant’s place of business located at 200 Wall Street, Hollidaysburg, Blair County, PA 16648. Accordingly, based upon plaintiff’s complaint, the allegations alleged would have originated and occurred within Blair County, PA. Based on the foregoing, there is no basis for venue in Allegheny County, whereas venue is proper in Blair County. Accordingly, venue is improper and the complaint must be transferred to the Blair County Court of Common Pleas.”
On April 7, the plaintiff filed a response to the objections, explaining why the case should remain in Allegheny County.
“Defendant is not a ‘small or local business’ doing all of its work ‘in just a few counties or even a single one.’ Rather, defendant is a large business spanning not only the entire nation, but is comprised of global operations. According to McLanahan’s home page on its website, it is a ‘global provider’ of process solutions. Furthermore, the website confirms defendant has dealers in Africa, Asia, Australia, Europe, South America and North America. As the Superior Court in Hangey pointed out, the percentage of sales a large company makes, like defendant, who has global-operations, will almost always be a tiny percentage of its sales. The Court must consider all of the evidence in context to determine whether the defendant's business activities in the county were regular, continuous and habitual,” the response filing said.
“The Superior Court in Hangey also deemed relevant that the defendant's sales in Philadelphia County amounted to $75,310. According to Buzzfile, an advanced company information database, defendant is estimated to generate $86.6 million in annual revenues. By affidavit, defendant admitted it conducted .29% of its revenue in Allegheny County from 2022 to 2023. Upon calculation, given this information, defendant generated $249,400 from sales revenues in Allegheny County, which is substantially more than the amount defendant generated in Philadelphia County in Hangey. Thus, there is no question that defendant meets the quantity prong of the analysis.”
Furthermore, the plaintiff argued that the defendant conducted sales in Allegheny County – and the defendant sold its product in the county, far transcending merely advertising, soliciting business, hiring personnel from the county and purchasing supplies from the county itself.
Conversely, the defendant further filed a motion to join additional defendants to the action and ascribed liability for the events in question to them, namely, G.L. McKnight, Inc., Natural Sand Company, Inc. and DuraEdge Products, Incorporated.
On May 1, Allegheny County Court of Common Pleas Judge John T. McVay Jr. ordered that the case be stayed, while the question of venue is worked out.
“A rule is issued upon the plaintiff to show cause why Allegheny County is the proper venue, the defendants shall file an answer to the petition within 20 days of service upon the respondent, the petition shall be decided under Pennsylvania Rule of Civil Procedure No. 206.7 and all discovery shall be completed within 90 days of this date,” McVay ruled.
“Argument shall be scheduled by praecipe with the General Motions Supervisor upon completion of depositions, notice of entry of this order shall be provided to all parties by the petitioner and all proceedings shall be stayed in the meanwhile.”
UPDATE
On Aug. 7, in response to a defense motion and the recognition of a confidentiality agreement between the parties, McVay opted to seal a supplemental brief from the plaintiff opposing the preliminary objections.
Furthermore, McVay also chose to overrule the defendant’s preliminary objections on venue.
“The preliminary objections raising venue are overruled, as I find venue is proper under Pennsylvania Rule of Civil Procedure 2179(a)(2). The plaintiff has shown that the defendant McLanahan Corporation has the quality and quantity of acts to show they regularly conduct business in Allegheny County. Specifically, the defendant admitted in their answers to interrogatories that they have generated, collected, produced or otherwise earned from sales $1.5 million in Allegheny County in the last five years,” McVay ordered.
For counts of negligence, strict liability and breach of warranty, the plaintiff is seeking damages in excess of the jurisdictional limits of compulsory arbitration, together with court costs, interest and such other and further relief as this Honorable Court may deem just and equitable.
The plaintiff is represented by Richard G. Talarico of Woomer & Talarico, in Pittsburgh.
The defendants are represented by Maureen E. Daley and Thomas DiStefano of Rawle & Henderson, G. Richard Murphy and Laura J. Herzog of Thomas Thomas & Hafer, plus Miles A. Kirshner of Margolis Edelstein, all also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-002038
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com