Thompson v. Harry C. Erb, Inc.

• Decision Date: 16 January 1957
• Docket Number: No. 11940.,11940.
• Citation: 240 F.2d 452
• Parties: Joseph THOMPSON and Leola Thompson, His Wife, Appellants, v. HARRY C. ERB, Inc.
• Court: U.S. Court of Appeals — Third Circuit

240 F.2d 452 (1957)

Joseph THOMPSON and Leola Thompson, His Wife, Appellants, v. HARRY C. ERB, Inc.

No. 11940.

United States Court of Appeals Third Circuit.

Argued October 5, 1956.

Decided January 16, 1957.

Samuel P. Lavine, Philadelphia, Pa. (Blanc, Steinberg, Balder & Steinbrook, Philadelphia, Pa., on the brief), for appellants.

Joseph X. Heincer, Philadelphia, Pa. (Robert C. Kitchen, Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

In 1953, defendant-appellee entered into a contract with the City of Philadelphia to repair and repave the track area of Lancaster Avenue, Philadelphia from 50th Street to 51st Street. By the contract, the defendant (party of the second part) agreed inter alia as follows:

"Party of the second part shall be alone liable and responsible for, and shall pay, any and all loss and damage sustained by any person or party either during the performance or subsequent to the completion of the work covered by this agreement by reason of injuries to person and damage to property * * * that may occur either during the performance or subsequent to the completion of the work covered by this agreement, or that may be sustained as a result or consequence thereof, irrespective of whether or not such injuries or damage be due to negligence or to the inherent nature of the work." (Emphasis supplied.)

In the course of the performance of the contract work, the defendant excavated a portion of Lancaster Avenue. On or about April 7, 1953, plaintiffs suffered personal injuries and property damage when their automobile fell into the excavation made by the defendant.

On October 19, 1955, the plaintiffs filed this diversity action in the district court. The claim for damages for personal injuries is in excess of the requisite $3,000. The claim for property damage is less than $3,000, so that federal jurisdiction is dependent on the claims for personal injuries.

The original complaint is titled as "Complaint in Assumpsit". It is divided into two causes of action. The first relies on the theory that plaintiffs are third-party beneficiaries of the contract between the defendants and the City by virtue of the above-quoted paragraph. It further alleges the following:

"* * * The said defendant thereby created a pit, excavation or depression in the said highway which constituted a danger and hazard to travel upon the said highway." (Emphasis supplied.)

The alternative cause of action alleges defendant's negligence in numerous acts and omissions surrounding the accident.

On motion, the complaint was dismissed for failure to state a claim upon which relief can be granted.¹ D.C., 138 F.Supp. 342. The court held that the action was governed by Pennsylvania law, and therefore the claims for personal injuries were barred by Section 2 of the Act of 1895, P.L. 236, 12 P.S. § 34 which reads:

"Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; * * *" (Emphasis supplied).

Accordingly, on February 15, 1956, judgment was entered dismissing the claims for personal injuries on that ground, and dismissing the property damage claim for lack of jurisdiction. It is from that judgment this appeal was taken on April 13, 1956. Thereafter, the record was transmitted to this court on May 14, 1956. On May 22, 1956, the parties stipulated that an amended complaint be substituted for the original complaint, which stipulation was approved by the order of the district judge filed May 23, 1956. The amended complaint is substantially the same as the original first cause of action except that the above quoted allegation regarding danger and hazard is deleted.

The attempted substitution of the amended complaint is ineffective. The signature of the district judge on the stipulation gives no life to the amended complaint as the taking of the appeal had divested the district court of jurisdiction of the cause of action and transferred the latter to this tribunal. Secretary of Banking of Pennsylvania v. Alker, 3 Cir., 1950, 183 F.2d 429; Walleck v. Hudspeth, 10 Cir., 1942, 128 F. 2d 343. See 7 Moore's Federal Practice, 2nd ed. 73.13.

Appellants contend the district court erred in dismissing their first cause of action because it is not "brought to recover damages wrongfully done to the person * * *" and consequently is not barred by the expiration of the two year period in the Act of 1895, but is governed by the Act of March 27, 1713, 1 Smith's laws 76, Sec. 1, 12 P.S. § 31 which provides that all actions of "debt grounded upon any * * * contract without specialty * * * shall be commenced and sued within * * * six years * * *." Great emphasis is placed on the word "wrongful" in the Act of 1895, and it is argued the injuries to the plaintiff were not "wrongful". It is conceded that if the injuries were "wrongfully done" the action is barred though in contract since the Pennsylvania Supreme Court has specifically so held in Jones v. Boggs & Buhl, Inc., 1946, 355 Pa. 242, 49 A.2d 379. See also Nightlinger v. Johnson, 1932, 18 Pa.Dist. & Co.R. 47; Ravetz v. Upjohn Company, D.C.E.D.Pa.1955, 138 F.Supp. 66.

In Keefer v. Lombardi, 1954, 376 Pa. 367, 102 A.2d 695, the Supreme Court of Pennsylvania had before it a contract with the City of Philadelphia containing precisely the same "irrespective" clause as is before us. It was held there that the contractor had an absolute liability to pay for damage which was the immediate and direct result of the work performed under the contract. Reversal was sought on the ground that plaintiffs did not allege or prove negligence. In its opinion the court treats the factual situation as a matter of contractual obligation, pointing out at page 371 of 376 Pa., at page 697 of 102 A.2d that the "law of Pennsylvania is clearly in accord with the Restatement of the Law of Contracts, Section 145, on this subject: `A promisor bound to the United States or to a state or municipality by contract to do an act or render a service to some or all of the members of the public, is subject to no duty under the contract to such members to give compensation for the injurious consequences of performing or attempting to perform it, or failing to do so, unless (a) an intention is manifested in the contract, as interpreted in the light of the circumstances surrounding its formation, that the promisor shall compensate members of the public for such injurious consequences * * *'". In illustration of the above principle, the following example, comparable to our present problem, is given: "3. A, a municipality, enters into a contract with B, by which B promises to build a subway and to pay damages directly to any person who may be injured by the work of construction. Because of the work done in the construction of the subway, C's house is injured by the settling of the land on which it stands. D suffers personal injuries from the blasting of rock during the construction. B is under a contractual duty to C and D."

Appellee argues that the instant agreement was solely intended to provide for compensation where there was common law liability. It is asserted that the reference to "negligence or the inherent nature of the work" bespeaks tort liability alone. To thus interpret the contract would read out of it the word "irrespective". With that word in the text, quite evidently the parties, having considered the conventional theories of common law tort liability, then specifically provided...