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, and 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."
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."
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.*fn1 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 jury was done and not afterwards; * * *."
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 than 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 ...