United States District Court, M.D. Pennsylvania
KENNETH FAHNESTOCK and LISA S. FAHNESTOCK Plaintiffs,
EASTERN ALLIANCE INSURANCE COMPANY, Petitioner,
LETTERKENNY BUSINESS PARK, LP, LETTERKENNY BUSINESS PARK, II, LP, INDUSTRIAL REALTY GROUP, LLC, STUART LICHER, UNITED STATES OF AMERICA, and U.S. ARMY CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY UNITED STATES GOVERNMENT, Defendants.
H. RAMBO United States District Judge.
diversity action, Plaintiffs allege that Defendants
negligently maintained an unsafe premises which caused
Plaintiff Kenneth Fahnestock to slip and fall, suffering
permanent injuries at an army depot in Chambersburg,
Pennsylvania. Because Mr. Fahnestock was injured during the
scope of his employment, Eastern Alliance Insurance Company,
his employer's workers' compensation carrier,
indemnified him for lost wages and paid his medical expenses.
Presently before the court is Eastern Alliance Insurance
Company's petition to intervene pursuant to Federal Rule
of Civil Procedure 24(a)(2).
September 22, 2011, Plaintiff Kenneth Fahnestock (“Mr.
Fahnestock”) was employed as a “material
handler” by Ram-Tech Support Services
(“Ram-Tech”), which is a government contractor
that provides services to the Letterkenny Army Depot (the
“Depot”) in Chambersburg, Pennsylvania. (Doc. 12,
¶¶ 24-25.) Mr. Fahnestock alleges that leaking
water accumulated in a men's bathroom at the Depot,
creating a “dangerous and hazardous condition”
that caused him to slip and fall and suffer “serious,
permanent, and disabling personal injuries.”
(Id. at ¶¶ 27-28, 40.)
September 19, 2013, Mr. Fahnestock and his wife, co-Plaintiff
Lisa S. Fahnestock (“Mrs. Fahnestock”), filed a
complaint against Letterkenny Business Park, L.P.,
Letterkenny Business Park, II, L.P., Industrial Realty Group,
LLC, Stuart Licher, the United States of America, the United
States Army Corps of Engineers, and the Department of the
Army of the United States (collectively,
“Defendants”). (See Doc. 1.) On July 21,
2014, the court granted Plaintiffs leave to file an amended
complaint (Doc. 11), which was filed the same day (Doc. 12.)
In addition to Mr. Fahnestock's negligence claim, Mrs.
Fahnestock filed a loss of consortium claim, which has
precipitated the instant petition. (See id. at
¶¶ 58-60.) Since the action was initiated,
discovery and case management deadlines have been routinely
delayed because Mr. Fahnestock has been unable to participate
in a deposition due to the injuries he sustained at the
Depot. (See Docs. 25, 27, 29, 34, 36, 38, 40, &
42.) Currently, jury selection and trial are scheduled for
July 5, 2017. (Doc. 47.)
Ram-Tech's worker's compensation insurance carrier,
Eastern Alliance Insurance Company (“Eastern”)
paid wage loss benefits to Mr. Fahnestock, as well as his
medical bills, because he was injured “within the
course and scope of his employment.” (Doc. 43, p. 2 of
4.) Eastern avers that its worker's compensation lien
totals $129, 288.47, which continues to rise. (Id.)
Eastern has petitioned to intervene to “protect its
sizeable lien” pursuant to Federal Rule of Civil
Procedure 24(a)(2). (Id.) Plaintiffs oppose
Eastern's attempt to intervene as premature, unwarranted,
and argue that Eastern's interests are adequately
represented. (Doc. 45, pp. 1-2 of 26.) The petition has been
fully briefed (Docs. 43-1 & 45) and is ripe for
may intervene as of right if it “claims an interest
relating to the property or transaction that is the subject
of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing
parties adequately represent that interest.”
Fed.R.Civ.P. 24(a)(2). A petition to intervene will be
granted if the movant can demonstrate that its petition is
timely, that it has identified “a sufficient interest
in the underlying litigation” which would be
“impaired or affected by the disposition of the
underlying action, ” and “that the existing
parties to the action do not adequately represent the
prospective intervenor's interests.” Liberty
Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 (3d
Cir. 2005) (internal citation omitted). A district court may
not grant the petition to intervene unless all factors are
satisfied. Id. (quoting Mountain Top Condo.
Ass'n v. Dave Stabbert Master Builder, Inc., 72 F.3d
361, 366 (3d Cir. 1995)).
initial matter, it is well-settled that “a federal
court must apply the substantive laws of its forum state in
diversity actions.” Lafferty v. St. Riel, 495
F.3d 72, 76 (3d Cir. 2007) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938)). Under Pennsylvania
law, Eastern could partially or fully recoup its subrogated
lien if Plaintiffs settle or win a favorable jury
verdict. However, Eastern can only recover funds
which are apportioned to compensate Mr. Fahnestock for his
physical injuries and economic damages, not funds allocated
to Mrs. Fahnestock's loss of consortium claim.
(Id. at p. 3 of 4.) Thus, Eastern argues that it
must be allowed to intervene in this action to prevent
Plaintiffs from securing a settlement or jury verdict that
inequitably allocates any monetary award to Mrs.
Fahnestock's loss of consortium claim. (See Doc.
43, p. 3 of 4.) Plaintiffs contend that intervention,
especially at this early stage of the litigation, is not only
premature, but unnecessary because their interest is aligned
with Eastern's in securing the largest monetary award
possible. (See Doc. 45, pp. 1-2 of 26.) The court
will review the relevant factors to determine if intervention
is appropriate at this time.
Is the Petition Timely?
reviews the timeliness of a petition to intervene based upon
the totality of the circumstances. Simmons v. Paran Mgmt.
Co., Civ. No. 11-cv-0415, 2011 WL 2970969, *2 (M.D. Pa.
July 20, 2011) (citing Pennsylvania v. Rizzo, 530
F.2d 501, 506 (3d Cir. 1976)). Plaintiffs filed their
complaint on September 19, 2013. (Doc. 1.) Discovery in this
case has been repeatedly postponed, and case management
deadlines have been extended, because Mr. Fahnestock has not
been available for a deposition due to his current physical
condition. (See Docs. 25, 27, 29, 34, 36, 38, 40,
& 42.) Eastern filed its motion to intervene on September
26, 2016. (Doc. 43.) Although the present action has
languished for more than three years, the court finds that
Eastern's petition is nevertheless timely. Delays in the
discovery process could not be avoided due to Plaintiff's
physical condition and extensions to the case management
deadlines have been granted upon mutual request of the
parties. Such delays cannot be held against Eastern.
Furthermore, the petition to intervene will not unnecessarily
delay the discovery process or trial.
Does Eastern Have an Interest in the Litigation That May Be
proposed intervenor's interest in the litigation
“must be a legal interest as distinguished from
interests of a general and indefinite character.”
Liberty Mut. Ins. Co., 419 F.3d at 220 (quoting
Mountain Top Condo. Ass'n, 72 F.3d at 366).
Economic interests alone do not justify intervention, and
“the mere fact that a lawsuit may impede a third
party's ability to recover in a separate suit ordinarily
does not give the third party a right to intervene.”
Id.; see also Kleissler v. U.S. Forest
Serv., 157 F.3d 964, 972 (3d Cir. 1998)
(“[I]ntervenors should have an interest that is
specific to them, is capable of definition, and will be
directly affected in a substantially concrete fashion by the
relief sought.”) Under Pennsylvania law, a worker's
compensation insurance carrier has a legally cognizable
interest in the outcome of a ...