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January 5, 1956

Fred SCHETTER, Administrator of the Estates of Nancy Schetter and Frederick Schetter, Deceased, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: MILLER

This case in its present posture is an action against the United States for the deaths of plaintiff's decedents caused by a gas explosion occurring at decedents' home. The home was occupied pursuant to a lease wherein the Housing Authority of the City of Erie is named as landlord and the named tenants are the decedents' parents, i.e. plaintiff in his individual capacity and plaintiff's wife. Jurisdiction is based upon 28 U.S.C. § 1346(b).

The case is before the court upon defendant's motion for summary judgment. The ground alleged in support of the motion is that defendant is entitled to judgment because of a release clause in the lease signed by decedents' parents. Under the lease provision:

 '(A) The Tenant Agrees:

 '12. To release the Landlord, its representatives, agents, servants, and employees (including the management) from liability for any injury to the Tenant or the members of his household, resulting from any cause whatsoever, excepting only any such injury or damage resulting from the willful acts of such representatives, agents, and employees (including the management).'

 Plaintiff contends (1) that the defense of a release is not properly before the court, (2) that the release does not inure to the benefit of the United States, (3) that the release clause was not effective at the time of the explosion, (4) that the release clause is contrary to the public policy of the United States, and (5) that the release was not binding on the lessees' children.

 1. Plaintiff in his brief asserts that the alleged defense is not properly before this court on defendants' motion because, under Fed.R.Civ.P. 8(c), 28 U.S.C., the defense of a release is an affirmative defense. It is well settled in this circuit that affirmative defenses may be raised by motion filed prior to answering the complaint. See Hartmann v. Time, Inc., 3 Cir., 166 F.2d 127, 138, 1 A.L.R.2d 370, certiorari denied, 1948, 334 U.S. 838, 68 S. Ct. 1495, 92 L. Ed. 1763 (res judicata); Continental Collieries, Inc., v. Shober, 3 Cir., 1942, 130 F.2d 631, 635-636 (statute of frauds); Victory v. Manning, 3 Cir., 1942, 128 F.2d 415 (waiver); White v. American Barge Lines, D.C.W.D.Pa.1955, 127 F.Supp. 637 (limitations); Messelt v. Security Storage Co., D.C.D.Del.1953, 14 F.R.D. 507 (limitations); Carroll v. Pittsburgh Steel Co., D.C.W.D.Pa.1952, 103 F.Supp. 788 (limitations); 348 Bloomfield Ave. Corp. v. Montclair Mfg. Co., D.C.D.N.J.1950, 90 F.Supp. 1020 (res judicata); Park-In Theatres, Inc., v. Paramount-Richards Theatres, Inc., D.C.D.Del., 90 F.Supp. 727, affirmed per curiam, 3 Cir., 1950, 185 F.2d 407, certiorari denied, 1951, 341 U.S. 950, 71 S. Ct. 1017, 95 L. Ed. 1373 (limitations); cf. Miller v. Hoffman, D.C.D.N.J.1940, 1 F.R.D. 290 (release).

 2. Plaintiff asserts that the release does not inure to the benefit of the United States on the ground that the clause releases only the Housing Authority, an agent of defendant, and a release of an agent does not necessarily release the principal. An alternative ground asserted is that defendant and the Housing Authority are joint tortfeasors, and the release of the latter does not discharge the former, under the Uniform Contribution Among Tortfeasors Act of July 19, 1951, P.L. 1130, §§ 1-8, 12 P.S. §§ 2082-2089.

 The theories upon which plaintiff relies are not applicable here. The release in question is not a release by an injured person of an existing liability for injuries which have arisen out of a tort which has been committed. Moreover, it must be remembered that the United States is the defendant in this litigation only because plaintiff has successfully contended, in an earlier argument before another judge of this court, that the Housing Authority is, for the purposes of this suit, a 'federal agency' under 28 U.S.C. § 2671, so that employees of the Housing Authority are employees 'of the Government' under 28 U.S.C. § 1346(b). It is for that reason that the United States is subject to the landlord's liabilities in this action. The United States cannot be held to stand in the place of the landlord with respect to such liabilities without having the landlord's defenses to such liabilities.

 3. Plaintiff contends that the release clause was inoperative on December 15, 1953, the date of the accident, because the lease, dated December 7, 1951, was for one monthly term, beginning January 1, 1952. The lease appears to have been modified only once, by a writing which provided:

 'It is hereby agreed that the monthly rent for the presently leased dwelling unit is increased to $ 43.50, effective September 1, 1953.

 'Nothing contained herein shall be held to alter, vary or waive any of the agreements, conditions or declarations of this lease except as stated herein.'

 Paragraph 4 of the lease provides:

 'The lease shall be automatically renewed for successive terms of one calendar month each at the rental of $ 40.00, per month payable in advance on the first day of each month, unless terminated by either party as herein provided. The landlord may terminate this lease or any renewal thereof, upon any day during any such term by giving the Tenant not less than 15 days prior notice in writing. The Tenant may terminate this lease or any renewal thereof at the end of any such term upon not less than 15 days prior notice in writing to the landlord, or upon such shorter notice as may be acceptable to the Management.'

 Plaintiff does not dispute that he and his family, including the children for whose deaths this action is brought, continued to occupy the premises until the time of the accident, and plaintiff does not assert that the lease was ever terminated under paragraph 4 thereof. Under these circumstances plaintiff's contention that the release clause was not operative at ...

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