The opinion of the court was delivered by: WOOD
The plaintiff has moved to amend the complaint and the defendant objects, stating that it will be prejudiced if the plaintiff is permitted to amend now, after the statute of limitations has run.
It is our function to decide whether 'justice requires' allowing the amendment at this time, within the meaning of Rule 15 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
The original complaint alleges that on or about January 23, 1958, the plaintiff was injured while working on a construction job supervised by the defendant, United Engineers and Constructors, Inc. The defendant was alleged to have been negligent in failing to foresee the danger in permitting a man, known to have been intoxicated on the job, to act as foreman. The foreman, one Leonard Osterberger, allegedly ordered a certain drive hammer lowered at a time when plaintiff was in a dangerous position setting a pile. The hammer allegedly struck plaintiff and injured his left foot. The defendant's answer asserted that the defendant at the time of the alleged accident was the statutory employer of the plaintiff, and that, therefore, its liability, if any, was limited by the provisions of the Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq. On this ground, the defendant filed a motion for Summary Judgment. In his brief in opposition to the motion for Summary Judgment, the plaintiff indicated a desire to amend his complaint. We thought that the motion for Summary Judgment should be granted on the state of the record at that time. However, in the interests of justice, we allowed the plaintiff 10 days within which to make a formal motion to amend the complaint if he so desired. (See our Memorandum and Order of September 27, 1960.) Accordingly, the plaintiff filed a motion for leave to amend the complaint. The proposed amended complaint states, in addition to the facts alleged in the original complaint, that the defendant was negligent in failing to foresee the danger to plaintiff in permitting Osterberger to act as foreman when the defendant knew, or should have known, that Osterberger not only had been intoxicated on the job, but also bore personal hatred toward plaintiff. It is alleged that Osterberger ordered the hammer lowered with the intent of injuring the plaintiff.
Rule 15(a) of the Federal Rules of Civil Procedure provides in pertinent part as follows:
'A party may amend his pleading once as a matter of course at any time before a responsive pleading is served * * *. Otherwise a party may amend his pleading only by leave of court * * * and leave shall be freely given when justice so requires. * * *' (Emphasis supplied)
'The courts have shown a strong liberalty * * * in allowing amendments under Rule 15(a). Recognizing that the entire spirit of the rules is to the effect that controversies shall be decided on the merits, the courts have not been hesitant to allow amendments for the purpose of presenting the real issues of the case, where the party has not been guilty of bad faith, is not acting for purposes of delay, the opposing party will not be unduly prejudiced or the trial of the issues unduly delayed.' Moore's Federal Practice, , vol. 3, p. 828.
The defendant in the case at bar does not contend that the plaintiff is guilty of bad faith or is acting for purposes of delay. However, the defendant objects to the proposed amendments to the complaint for the following reasons: 1) The plaintiff has admitted of record that the injury was compensable under the compensation laws of Pennsylvania; 2) the plaintiff received a large amount of compensation for his injury under the Act while this suit was pending; 3) the defendant would be 'obviously' prejudiced by permitting the plaintiff to so amend after the statute of limitations has run; and 4) the plaintiff's deposition shows that plaintiff himself could not and would not say with certainty that the lowering of the beam by Osterberger was an intentional act done for the purpose of injuring plaintiff.
The 'prejudice' which the defendant claims would be occasioned it, should we allow the amendments to the complaint, lies in the fact that the amended complaint states a claim against the defendant which would not be within the provisions of the Workmen's Compensation Act,
whereas the claim as stated in the original complaint was within the provisions of the Act.
The result, of course, would be that if the amendments are allowed, the defendant's liability would not be limited by the Act. But we see no 'prejudice' to the defendant in this. A plaintiff is not precluded from amending a faulty complaint so that it states a claim upon which relief can be granted simply because by so amending, the defendant may thereby be subsequently made liable to the plaintiff. There is no rule of law which freezes the further development of the case within the limits of plaintiff's knowledge when the complaint was filed. Smith v. Piper Aircraft Corp., D.C.M.D.Pa.1955, 18 F. R.D. 169. Nor do we perceive how the fact that the plaintiff received large amounts of compensation for his injuries while this suit was pending is at all relevant to the motion to amend. This argument itself concedes that the defendant elected to pay the plaintiff compensation, knowing that it was being sued by the plaintiff. If in so doing the defendant relied upon the defects in plaintiff's original complaint, it should also have been aware that complaints are freely amended under the Federal Rules of Civil Procedure. Donnelly Garment Co. v. International Ladies' Garment Workers' Union et al., D.C.W.D.Mo.1941, 47 F.Supp. 61.
The defendant's fourth ground of objection is that the plaintiff's deposition shows that the plaintiff himself could not say with certainty that Osterberger intended to injure him. Therefore, argues defendant, allowing the amendment would be a futile gesture, since its allegations could not be proven. We think this argument can only be resolved at the trial of this case. That is to say, the question of whether the amended complaint can be sufficiently supported by evidence can only be determined after the plaintiff has had his day in Court. The plaintiff's deposition does show that the proposed amendments to the complaint have some foundation in fact, and, therefore, the amended complaint cannot be considered as a frivolous or sham pleading.
Defendant's third objection is that the amended complaint states a 'new cause of action' which is now barred because the statute of limitations has run. This contention is governed by Rule 15(c) of the Federal Rules of Civil Procedure which provides as follows:
'(c) Relation Back of Amendments.
'Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment ...