George v. Hillman Transportation Company, Civ. A. No. 70-394.

• Decision Date: 18 May 1970
• Docket Number: Civ. A. No. 70-394.
• Citation: 313 F. Supp. 1115
• Parties: Rosella GEORGE, Plaintiff, v. HILLMAN TRANSPORTATION COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

313 F. Supp. 1115

Rosella GEORGE, Plaintiff, v. HILLMAN TRANSPORTATION COMPANY, Defendant.

Civ. A. No. 70-394.

United States District Court, W. D. Pennsylvania.

May 18, 1970.

Hymen Schlesinger, Pittsburgh, Pa., for plaintiff.

Thorp, Reed & Armstrong, Pittsburgh, Pa., for defendant.

OPINION

GOURLEY, Senior District Judge.

In this civil proceeding, in which a jury trial has been demanded, the Complaint alleges causes of action under the Jones Act for negligence and for negligent failure to provide maintenance and cure in the past, for unseaworthiness and for future maintenance and cure. The immediate matter before the Court is defendant's Motion to Dismiss, founded upon defenses of the three-year statute of limitations applicable to the Jones Act causes of action, the doctrine of laches applicable to the cause of action for future maintenance and cure, and upon an alleged defense that defendant had received no notice of a claim for maintenance and cure from the plaintiff prior to the filing of this suit. The Court has conducted a hearing upon the Motion, considered the briefs of counsel, and received in evidence and incorporated into the record herein, at the request of defendant, a deposition taken of the plaintiff by defendant on December 29, 1969 at Civil Action No. 69-1225.

Since the Court has received matters outside of the complaint in order to resolve the Motion, the Motion should properly be treated as one for summary judgment pursuant to the dictates of Rule 12(b) of the Federal Rules of Civil Procedure. However, an examination of the Complaint and the deposition indicate that the material facts relating to each of the defenses asserted in the Motion to Dismiss are in controversy. With respect to the defense of the three-year statute of limitations, neither the Complaint nor the plaintiff's deposition indicate with the clarity necessary to enter summary judgment that plaintiff knew prior to August of 1969 that she had a disability causally related to events occurring in 1963. It, therefore, cannot be found with certainty on the present state of the record that plaintiff's Jones Act causes of action accrued at any time prior to August of 1969, when the condition in her legs was diagnosed as phlebitis.

With respect to the defense of laches, it does appear that defendant has sustained a prejudice by virtue of the seven year delay in filing suit, particularly when it is realized that defendant ceased its operations on the inland waterways...