PITTSBURGH – Defendants accused of negligence in a lawsuit connected to an on-the-job forklift accident in 2021 have objected to the suit and say it was both not properly served and that its allegations are time-barred.
Karl A. Harris of Avalon first filed suit in the Allegheny County Court of Common Pleas on June 15, 2023 versus Gary Henderson of Pittsburgh and Rose Transportation, Inc. of Pitcairn.
“On July 6, 2021, plaintiff was operating a forklift for his employer in order to load supplies into a truck owned, operated, leased, and/or rented by defendant Rose Transportation, and operated by defendant Henderson. As plaintiff began to drive the forklift into the truck, defendant Henderson, who was seated in the driver seat of the waiting truck, and without giving plaintiff any prior warning or notification, pulled the truck forward, causing plaintiff's forklift to fall forward, along with plaintiff,” the suit said.
“Plaintiff and the forklift fell violently to the ground, approximately four feet, causing plaintiff to strike the front of his head against the forklift’s steering wheel. Plaintiff’s coworker then transported him to the emergency room, where he was treated for his severe injuries.”
The suit added that the plaintiff suffered a large hematoma on his forehead, neck pain that did not exist prior to the injury, numbness in the fingers of both hands, cervical strain, bruises, contusions, and other injuries about the nerves, muscles, bones, tendons, ligaments, tissues, and vessels of the body and nervousness, emotional tension, anxiety, and depression.”
“Defendant Henderson knew, or should have known, that plaintiff was in the process of loading, with a forklift, the semi-tractor trailer of which defendant Henderson had full control. Defendant Henderson, however, neglected to realize that plaintiff was partially in the semi-tractor trailer, nor did defendant Henderson inspect or observe the area behind the semi-tractor trailer to ensure that plaintiff was not back there,” the suit stated.
“Defendant Henderson, while in the course and scope of his employment, negligently and carelessly pulled the semi-tractor trailer out of the loading dock area, while plaintiff was partially in the truck’s trailer loading supplies.”
UPDATE
After nearly an ensuing year, during which service was attempted upon the defendants on multiple occasions, defense counsel entered its appearance on April 23 and filed preliminary objections on behalf of Rose Transportation, Inc. on May 13 – charging that the allegations made in the suit were time-barred and thus, ripe for dismissal.
“Defendant’s preliminary objections must be sustained because plaintiff failed to properly serve his complaint upon defendant. Like the adult family member served in Dubrey v. Izaguirre, Mr. Dennis Casarcia’s mother – the individual served by plaintiff – was not defendant’s employee or otherwise affiliated with defendant at the time the complaint was served. As the Superior Court in Dubrey held, such substituted service – upon a family member of someone who may be served on behalf of the corporate defendant – is invalid. Plaintiff’s attempt to serve the complaint at 559 Catskill Drive, Pittsburgh, PA 15239, was improper. Mr. Casarcia’s mother’s residence does not qualify as defendant’s ‘regular place of business or activity’ such that service at this location would meet the requirements for service of a corporation as set forth in Rule 424,” the objections stated.
“Mr. Casarcia’s mother is not employed by or otherwise affiliated with defendant. She is not an executive officer, partner or trustee of defendant, and is not an agent authorized to accept service on defendant’s behalf. As the Superior Court in Dubrey held, such substituted service upon an adult family member is improper. Finally, the instant preliminary objections seeking dismissal of plaintiff’s claims against defendant with prejudice should be sustained because plaintiff claims that the alleged accident occurred on July 6, 2021. Personal injury actions – such as that alleged in plaintiff’s complaint – are subject to a two-year statute of limitations. The statute of limitations on plaintiff’s claim expired on July 6, 2023. As the facts set forth above demonstrate that plaintiff’s attempt to serve defendant was improper and, as a result, he has yet to properly serve original process upon defendant, plaintiff’s claims against defendant are barred by the applicable statute of limitations such that dismissal of his claims against defendant for improper service of original process must necessarily be entered with prejudice.”
For counts of negligence and loss of consortium, the plaintiff is seeking compensatory damages in excess of the jurisdictional limits of compulsory arbitration, together with court costs, interest and all other relief permitted by this Court.
The plaintiff is represented by Brian S. Anderson of Friday & Cox, in Pittsburgh.
The defendants are represented by Andrew S. Kessler of Wood Smith Henning & Berman, in Philadelphia.
Allegheny County Court of Common Pleas case GD-23-007511
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com