The opinion of the court was delivered by: GOURLEY
In this Federal Tort Claims proceeding the United States of America has filed the following motions:
1. To dismiss the complaint as to the United States.
2. To dismiss the complaint as to the Public Housing Administration.
3. To dismiss the complaint as to the Housing Authority of the City of Erie.
4. To make the Housing Authority of the City of Erie a third-party defendant.
5. To strike demand for jury trial.
Briefly summarized, the complaint sets forth that Fred Schetter and Ruth E. Schetter, his wife, together with their two children, Nancy and Frederick, were tenants in the Delaware Plan Housing Project, in the City of Erir, Pennsylvania. That an explosion of a hot water tank occurred with resulting destruction and fire in their apartment, which resulted in the death of the two children, Nancy and Frederick. That the units were constructed by the Public Housing Administration, a Federal Agency, that the project was operated under an agreement, designated as a lease for the Public Housing Administration by the Housing Authority of the City of Erie, and that the death of said two children was caused by the negligence of the United States through the Public Housing Administration and the Housing Authority of the City of Erie in the maintenance, operation, supervision and repair of the hot water tank in the Schetter dwelling unit.
To simplify reference to the divers parties in the action, they will be identified as follows:
Delaware Plan Housing Project -- Project
Federal Public Housing Administration -- United States
Fred Schetter, Administrator of the Estates of Nancy Schetter and Frederick Schetter, deceased, -- Schetter
Motion to Dismiss Complaint as to United States
United States contends that the terms of an instrument executed between itself and Erie is a lease. That Erie is an independent contractor and that the terms of said agreement relieve United States of any liability under any circumstances.
However, a careful reading of the legal instrument and its interpretation under Pennsylvania law requires the conclusion that the instrument is not a lease nor does Erie fall within the legal framework of an independent contractor. The terms of the instrument which require this conclusion, inter alia, are:
(a) The project shall be operated by Erie in accordance with the budget approved by the United States, and all budgets relative to the management, operation and maintenance, and administration expenses of each project shall be submitted for the ...