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Frank Argentieri and Diana Argentieri, H/W v. First Vehicle Services

February 28, 2011

FRANK ARGENTIERI AND DIANA ARGENTIERI, H/W PLAINTIFFS,
v.
FIRST VEHICLE SERVICES, INC. AND
FIRST TRANSIT, INC. DEFENDANTS.



The opinion of the court was delivered by: Buckwalter, S.J.

MEMORANDUM

Currently pending before the Court is the Motion by Defendant First Vehicle Services, Inc. for Summary Judgment. For the following reasons, the Motion is denied.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff Frank Argentieri was employed as a driver/deliverer for DHL Holdings, Inc. ("DHL"). (Compl. ¶ 6.)*fn1 According to Plaintiff, in late October 2008, the diamond plate metal covering on the floor in the back of his DHL-issued truck had separated, causing a "lip" or raised portion of the floor to form above the adjacent floor covering. (Pl.'s Resp. Mot. Summ. J., Ex. B, Dep. of Frank Argentieri, 121:7-10, Sep. 21, 2010 ("Argentieri Dep.").) At approximately 10:30 a.m. on November 5, 2008, while walking from the back to the front of his delivery truck, he tripped on the broken floor and suffered various injuries. (Id.; Compl. ¶ 6.) The case before the Court arises from these events.

A. The Fleet Maintenance Agreement

During the times relevant to this case, Defendant First Vehicle Services, Inc. ("FVS") had a Fleet Maintenance Agreement (the "Contract") with DHL for the repair and maintenance of DHL trucks. (Def.'s Mot. Summ. J., Ex. C.) Aubrey Felton, Regional Vice President of FVS, testified that this Contract was drafted by DHL and paraphrased the Federal Motor Carrier Safety Act. (Def.'s Mot. Summ. J., Ex. D, Dep. of Aubrey Felton, 16:9-23, Nov. 4, 2010 ("Felton Dep.")). According to the Contract's provisions, Defendant's obligations fell under two basic services: preventative maintenance and other repair duties.*fn2 (Id. at31:5-32:5.)

With respect to the preventative maintenance aspect, Exhibit B, section 6.1 of the Contract required Defendant to:

perform PMIs [Preventive Maintenance Inspections] according to the schedule and PMI checklist hereto attached as Exhibit C. [Defendant] shall meet or exceed the terms and conditions necessary to comply with the DHL, OEM specifications, DOT or local and/or state standards. . . . [Defendant] shall perform PMIs as specified by DHL for the type or classification of vehicle as set forth on Exhibit C. (Contract, at Ex. B, § 6.1.) None of the items on the Preventive Maintenance Checklist, attached as Exhibit C to the Contract, included inspection of the interior floor surface. (Id. at Ex. C.)

As to FVS's obligation to repair damage not covered by the preventive maintenance provisions, Exhibit B, section 7 of the Contract provided as follows:

Unscheduled Maintenance and Repairs - Repairs and services performed by the [Defendant] under this Agreement shall be provided at the Hourly Rate with the exception of PMIs and other fixed rate operations as expressly set forth in Exhibit D. [Defendant] shall perform repairs included on the daily driver write-ups, which shall be scheduled into the regular workload unless it is a safety related repair or DOT issue. Safety-related or DOT Issues shall take precedence and the appropriate DHL Manager shall be notified by the close of business each day, of any such issue. [Defendant's] technicians shall be responsible for acknowledging the daily write-ups by signing-off on the completed work order prior to filling out DHL's 425 Form [a/k/a "daily driver write-up"] in the book and scheduling for corrective action.

Copies of the 425 Form will be attached to the appropriate work orders and retained in the local fleet file. (Id. Ex. B § 7.0.) Multiple witnesses acknowledged that to trigger FVS's duty to perform such additional repair services, a daily driver write-up, or 425 Form, had to be submitted by the driver. First, Mr. Felton testified:

A. Well, in general we have to receive either what DHL refers to as a 425, which is actually a Driver's Vehicle Inspection Report which is mandated by the Federal Motor Carrier Safety Act. We have to receive that in writing to perform work if it's under $250. If we receive that it goes above $250, we have to contact the DHL Express Area fleet manager who in turn would have to issue what they call a fleet authorization number or appeal; if you will, for us to do any services.. . .

Q. According to your knowledge, where would that go?

A. Well, the 425 is actually a book. And the book is supposed to stay with the vehicle. They tear out one portion of the form and they turn it in to their supervisor or where ever DHL mandated that they put them.

(Felton Dep. 10:17-11:23.) Likewise, Paul Talarico, the DHL Shop Manager and Plaintiff's supervisor, went over the process for a driver to obtain non-routine repairs:

Q. Can you please walk me through the steps on what a driver is supposed to do with 425 booklet, what any supervisor or management is supposed to do with the actual 425 copy, where it will go and how it will get over to First Vehicle Services in the time period of November 2008?

A. What is supposed to happen is the driver is supposed to visually inspect his vehicle and note any defects that he encounters during his inspection on the 425. He's also supposed to examine for any defects that were listed to make sure they were corrected. He then signs it off prior to leaving the building. He's supposed to obtain a management signature after he signs off in the morning. The same process takes [place] at night. They return to the station, any defects they see on the vehicle during the day they would note and they would sign it off and have a manager person sign it off.

(Def.'s Mot. Summ. J., Ex. H, Dep. of Paul Talarico, 31:19-16, Sept. 23, 2010 ("Talarico Dep.").) Mr. Argentieri himself testified:

A. [T]he mechanic would always say fill out a 425 because they would get paid for fixing that.

Q. I'm still trying to get an understanding of your testimony, that they would only do the repair if the 425 was completed?

A. Yes. (Argentieri Dep. 111:2-17.) Finally, Gregory Sangmeister and Michael Ritz, both DHL drivers, stated that any time they had a repair done, they completed a 425 Form as a matter of course.

(Pls.' Resp. Mot. Summ. J., Exs. D & G, Dep. of Gregory Sangmeister, 18:15-19:11, Sep. 29, 2010 ("Sangmeister Dep.");*fn3 Def.'s Mot. Summ. J., Ex. K, Dep. of Michael Ritz, 21:11-22:22, Feb. 17, 2011 ("Ritz Dep.").)

B. Notification of Defendants Regarding the Alleged Dangerous Condition

Plaintiff testified that, during the period two to three weeks prior to his accident, he submitted a 425 Form approximately ten to fifteen times specifically noting a "crack in the floor" and requesting repair of that defect. (Argentieri Dep. 116:4-117:15, 118:15-17, 119:22-24.) He explained the process he followed in submitting his 425 Form:

Q. Is that [the 425 Form] something you would complete at the end of your shift?

A. Yes, ma'am.

Q. Did the supervisor sign that before you tore the white copy out?

A. Yes, ma'am.

Q. Okay. And once you tore the white copy out at the end of the day, if I understand you, it would include your pre-inspection with the supervisor's signature, as well as your post inspection with another supervisor's signature, could be the same man, but a second signature?

A. Yes.

Q. And you tear the top copy off, the white copy?

A. Yes, ma'am.

Q. And what did you do with the white copy?

A. It was handed in. We had a very simple box, a little cardboard box written 425 and they were handed in like that.

Q. So, there was only one place to place those 425's?

A. Yes.

Q. And where was the box located?

A. Well, they moved. One was located on our loading dock area which we referred to as dock. And there was another period of time where it was in the dispatcher's office which were the supervisor's.

Q. In October 2008 where was the 425 box located?

A. I believe it was on the loading dock. . . .

Q. There were never two places simultaneously where you could choose to drop them?

A. Right. (Id. at 112:5-114:1.) In addition to submission of the 425 Forms, Plaintiff also gave oral notice to FVS employee Tom Weaver and showed him the lip created in the floor. (Id. at 117:16-24, 120:3-15.) Weaver simply responded that he would "get to it." (Id.)

Notably, however, neither Mr. Talarico nor James McEnhill, the DHL assistant shop steward, had any clear recollection of Plaintiff's alleged request to repair a cracked floor. Mr. Talarico remarked:

Q. Would it have been unusual for a request for repair to be documented on that many occasions, 10 to 15 occasions?

A. I don't know.

Q. Do you think that somebody at DHL would have heard about it, if a driver had been documenting on that many occasions the need for a repair, yet the repair wasn't done?

A. I would imagine somebody would have heard about it, yes.

Q. Was it the practice that the drivers and the supervisors would verbally talk about the need for repairs.

A. Yes.

Q. So, when you say somebody would have heard about it, do you mean a supervisor would have heard about it?

A. Somebody probably would have heard about it. I would imagine it would be a supervisor.

Q. And in this particular instance, had you heard anything about the request for a repair to a cracked floor?

A. No. I did not. (Talarico Dep. 83:8-84:3, 84:17-20.) Likewise Mr. McEnhill stated that, as assistant shop steward, he saw all paperwork, "whether it was 425 forms, anything, [he] went through everything." (Def.'s Mot. Summ. J., Ex. J., Dep. of James McEnhill, 26:10-12, Sept. 29, 2010 ("McEnhill Dep.").) He indicated that he was uncertain as to whether Plaintiff had completed a 425 Form:

Q. Are you aware, one way or the other, if Mr. Argentieri completed a 425, documenting a cracked floor plate or some reference to a cracked floor?

A. No, I was not.

Q. Are you aware of, one way or another, whether or not the 425 which Mr. Argentieri alleges he completed, was delivered to First Vehicle Services?

A. No. (Id. at 30:8-17.)

During the course of the time between Plaintiff's first alleged reporting of the crack and the date of the accident, the condition of the floor worsened, creating a second "lip" in the floor. (Id. at 119:1-9, 120-22.) Argentieri never had the opportunity to report the second lip prior to his accident. (Id. at 120:16-121:8.) It was this second lip over which Plaintiff tripped and injured himself. (Id. at 120:21-22.)

C. Procedural Background

In April 2010, Plaintiffs Frank Argentieri and his wife Diana Argentieri initiated a lawsuit in the Philadelphia County Court of Common Pleas against Defendant FVS and First Transit, Inc., alleging negligence and loss of consortium. On May 10, 2010, Defendants removed the case to federal court on grounds of diversity jurisdiction. The following December, the parties ...


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