Judge Goodwin: Penn Line too late to remove case

By John O'Brien | Jul 1, 2013

CHARLESTON – Two years after it was originally filed there, a wrongful death lawsuit against Penn Line Corporation is being sent back to Kanawha County Circuit Court for a second time.

On June 11, U.S. District Judge Joseph Goodwin, of the Southern District of West Virginia, remanded a lawsuit brought by the executors of the estate of Anthony Duffield against Penn Line and Joshua Jeffrey.

Duffield was electrocuted while trimming tree limbs around power lines in Ohio as part of Penn Line’s contract with First Energy Corp.

In July 2011, the defendants clamed Jeffrey, Duffield’s alleged supervisor, was fraudulently joined as a defendant in order to keep the case in state court.

The plaintiffs are West Virginia residents, as is Jeffrey. However, Penn Line is a Pennsylvania corporation and argued diversity jurisdiction existed. It also claimed Jeffrey wasn’t Duffield’s supervisor.

Goodwin, however, remanded the case to Kanawha County, ruling that the evidence established there was a “glimmer of hope” that the plaintiffs can state a claim against Jeffrey, which was all the standard required.

After the two sides underwent discovery in Kanawha County, the defendants claimed the “glimmer of hope” was gone.

Penn Line and Jeffrey argued in March that no deposition testimony states that Jeffrey was Duffield’s supervisor. In fact, they claim, evidence shows Duffield was Jeffrey’s supervisor.

“The defendants make a strong argument that there is no longer a ‘glimmer of hope’ that the plaintiffs can recover from Jeffrey under the employer intentional tort statute,” Goodwin wrote.

“Nevertheless, the defendants’ latest attempt to remove the case to federal court comes more than a year after the lawsuit was filed in state court, and the case must be remanded.”

The defendants claimed Jeffrey was added as a defendant in bad faith, which provided an exception to the one-year bar for removal. That exception, though, became effective Jan. 8, 2012 – after the lawsuit had been filed.

“After I remanded this case the first time, the defendants had six months to depose witnesses and renew their claim that a case could not be made against Jeffrey as a supervisor,” Goodwin wrote.

“The defendants missed the one-year deadline by over nine months.”

Phillip Duffield and Dayton Thomas claim Anthony Duffield had to work in extremely unsafe working conditions, which caused his death.

Penn Line required Anthony Duffield to cut and/or trim trees within two feet of energized power lines “with the intent to injure or with the knowledge that injury was substantially certain to occur,” according to the suit.

The plaintiffs claim the defendants were negligent.

The plaintiffs are seeking compensatory damages with pre- and post-judgment interest. They are being represented by William M. Tiano and Tammy Bowles Raines.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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