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December 28, 1961


The opinion of the court was delivered by: BIGGS



 William Flaherty, the plaintiff, a citizen of New Jersey, has sued United Engineers and Constructors, Inc., a Delaware corporation, and the Lorain Shovel Company (Thew Shovel Company *fn1" ), an Ohio corporation, for personal injuries. The suit is based on diversity and Pennsylvania law applies. Flaherty was injured on June 13, 1957. The original complaint was filed on August 14, 1958. It asserts that the defendant, United, was the general contractor engaged in building the Philadelphia Electric Company's new plant at Eddystone, Pennsylvania, and that Kolyn Contracting Company, a New Jersey business partnership was a sub-contractor; that Kolyn's foreman was Osterberger and that he was drunk while on duty at the job; that the plaintiff, Flaherty, serving as a 'monkey', *fn2" was on top of the leads of the boom of the crane to set a pile into position when Osterberger ordered the boom down despite the fact that he was 'fully aware of the position of the plaintiff atop of the leads'. The complaint goes on to say that upon receiving a signal from Osterberger, the operating engineer 'boomed down when the entire gear works did not operate property', thus severely injuring Flaherty. The complaint alleges as acts of negligence the 'improper condition' of Osterberger and his lack of control of his faculties, incompetent supervisory personnel, defective equipment and insufficient safety devices on the crane. On February 4, 1960, United filed a motion for summary judgment. An amended motion for summary judgment was filed on June 20, 1961. The issues raised by these motions are presently before us.

 Depositions have been taken; interrogatories have been filed and answered; affidavits have been filed; discovery has been had. No material fact is in dispute. *fn3" There is no doubt that Flaherty was United's statutory employee under the provisions of Section 203 of the Workmen's Compensation Act of Pennsylvania, Act of June 2, 1915, P.L. 736, Article II, as amended, 77 P.S. 52. It follows that the original complaint filed on August 14, 1958, states no cause of action cognizable against United and that that Company therefore was entitled to summary judgment at the time the original motion was filed.

 Approximately eighteen months later, on December 15, 1960, Flaherty's counsel in open court made an oral motion to amend his complaint. When informed by the court that such a motion would have to be in writing he complied by filing a written motion in proper from on December 22, 1960. The gist of the proffered amendment is contained in paragraph 5 of the motion and would amend paragraph 13 of the complaint. *fn4" Paragraph 13 of the complaint, if the amendment be allowed, will read that 'the plaintiff, while in a lawful position known in the construction business as a monkey, was atop the leads and set the pile in position, when the foreman, Leonard Osterberger, intentionally and purposely ordered the boom down, fully aware of the position of plaintiff atop the leads to cause the plaintiff herein harm and injury.' In other words, the pleading is made to conform with the ruling of the Supreme Court in the Dolan case, supra.

 At an oral argument on December 15, 1960, when Flaherty was represented by Irving Segal, Esquire, Mr. Segal was asked by the court when he had learned about the 'personal animosity of Osterberger for Flaherty'. He replied, 'I think we could tell that from the date of the complaint.', and went on to say in response to a further question from the court, 'It would be prior to that time, your Honor, in that period of time.'

 On June 5, 1961, United took Flaherty's deposition and it is obvious from that deposition that he does not think that he was injured because Osterberger had personal animosity toward him. Flaherty was asked.

 'Q. What happened to cause an injury to you? 'A. Well, everything dropped. It hit the ground and apparently I was thrown clear. 'Q. What dropped? 'A. The boom and the leads. 'Q. They all dropped? 'A. Yes, sir. When the boom came down there was nothing else to hold everything up. That is what holds everything up. As * * * (the operating engineer, who had been signaled to by Osterberger,) started to lower the boom it got away from him. 'Q. It got away from whom, the operator? 'A. The operator, he couldn't hold it. 'Q. What couldn't he hold? 'A. The boom. He couldn't stop it. 'Q. Do you know why? 'A. My business agent came down and got in touch with the manufacturers of the rig and had an inspector come down and look at it. He said the whole boom hoist was completely shot, and the rig was condemned at that point. It wasn't allowed to go back to work until it was repaired. 'Q. In other words, you feel from what you have learned that there was something wrong with the rig itself, meaning the crane? 'A. Yes, sir. 'Q. That is what caused your injury? 'A. Yes, sir.'

 But Flaherty also testified that he, like many other workmen on the job, had 'had words' with Osterberger about the latter's drinking and that usually Osterberger waited until he was clear of the boom before lowering it; that on this occasion Osterberger had lowered the boom when he, Flaherty, had one foot on the boom and other on the 'rest'. It can be argued that Osterberger by giving the signal to the operator under these circumstances demonstrated an intentional desire to injure Flaherty. Questions of fact lurk in this issue that cannot be settled properly at this stage of the proceedings.

 United also contends that because Flaherty has accepted compensation he is estopped from new claiming damages. It is true that Section 303 of the Workmen's Compensation Act, 77 P.S. § 481, provides that acceptance of compensation shall operate as a surrender by the parties of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment other than as provided in Article III of the Act. But Section 301(c), as amended, 77 P.S. § 411, included in Article III, according to the Dolan decision specifically excludes injuries resulting from personal animosity. It would follow therefore that Flaherty may be able to collect damages from United if he can prove that his injuries resulted from the personal animosity of Osterberger. He is not estopped to proceed with his suit on this ground.

 United also asserts that Flaherty is attempting to set up a new cause of action, one based on assault and battery as distinguished from one based on negligent conduct and since the 'new' cause of action is barred by the statute of limitations, 12 P.S. § 34, he is not entitled to amend his complaint to include it. To put United's position briefly, it is that the act complained of has ceased to be one of negligence and has become one of malevolence. But is this a 'new' cause of action? Rule 15(c), Fed.R.Civ.Proc., 28 U.S.C., provides that when the claim arises out of the conduct, transaction, or occurrences set forth in the original pleadings the amendment relates back to the date of the original pleadings. We think it is clear that the cause of action asserted by the amendment arises out of the conduct, transaction, or occurrences set forth in the original complaint. The motivation which causes the occurrence is different but the occurrence itself seems to be identical. We hold therefore that the provisions of Rule 15(c) are applicable and that Flaherty is entitled to amend the complaint insofar as any problem presented by the statute of limitations is concerned.

 United also alleges that Flaherty is barred to assert Osterberger's personal animosity because of laches. It is true that a period of three-and-a-half years elapsed after the accident had occurred before Flaherty asserted that Osterberger had been animated by personal animosity in ordering the boom down and that Flaherty's counsel stated that he knew of Osterberger's animosity before the original complaint was filed. It is equally correct, as pointed out by United, that the pleading had been completed and that the case had been at issue for approximately two-and-a-half years before the motion to amend the complaint was made. But it is also the case that the amendment was offered within eighteen months after a substantial change in the interpretation of the Workmen's Compensation Act of Pennsylvania was effected by the Dolan decision. It is probable that no party to the controversy considered that the alleged personal animosity of Osterberger was relevant and that all the parties were of the view that the court did not have jurisdiction to dispose of the controversy between Flaherty and United because of the statutory employer doctrine. Under the circumstances it would seem unfair to destroy Flaherty's cause of action because of a delay of eighteen months in filing a motion to amend his complaint. But quite apart from the foregoing, on reviewing the entire situation, we can perceive no substantial prejudice accruing to United if the amendment is allowed. It is of course the policy of the federal law to allow amendments freely to serve the ends of justice.

 The motion for summary judgment will be denied and the proposed amendment to the complaint will be allowed and treated as filed. The only valid issues to be tried between Flaherty and United are: Did Osterberger's personal animosity cause the injuries suffered by Flaherty, ...

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