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January 18, 1963


The opinion of the court was delivered by: WOOD

This common law trespass action was instituted by the employee of a subcontractor naming as defendant the general contractor. Plaintiff alleged in his amended complaint that the injury sustained was the result of a personal attack on him by a fellow employee and, therefore, was not precluded by the provisions of the Workmen's Compensation Act of Pennsylvania, Section 301(c), of the Act, of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411.

A jury trial was held on the question of liability alone from September 24 to September 27, 1962, after which the jury became hopelessly deadlocked and a mistrial was declared. The defendant now moves for a judgment in its favor in accordance with its prior motion for a directed verdict under Rule 50(b) of the Fed.R.Civ.P.

 Plaintiff Chamberlin was employed as a gang member at the time of the injury by Kolyn Construction Company, the subcontractor, hereinafter referred to as Kolyn. The general contractor and defendant, United Engineers and Constructors, Inc., hereinafter referred to as United, was engaged by the Philadelphia Electric Company, which, among other things, installed pilings on its property at Eddystone, Pennsylvania. During the course of the work, one Leonard Oesterberg was directing the operation of a crane to drop a beam in the area where plaintiff was working. As the beam was lowered to the ground it struck the plaintiff, causing injuries to his foot. Plaintiff contends that in ordering the beam dropped in the manner in which he did Oesterberg was motivated by personal animosity toward plaintiff and the resulting injury was caused by his deliberate act and was not accidental.

 There was uncontradicted testimony in the record that Oesterberg had been the plaintiff's foreman for three months prior to the injury, and that they drove twenty-five to fifty piles daily.

 On the date of this occurrence the terrain was extremely muddy and maneuverability was very difficult. The plaintiff and a fellow employee, A. Schurmann, were standing approximately two feet from a hole which contained a partly driven beam. Because this beam was a short one it had to be driven into the ground by using another beam, called a follower, which was attached to the crane by a cable. This follower was fifteen feet in length and weighed at least a ton. The cable connecting this beam to the crane had become fouled, restricting its operation. Schurmann and the plaintiff were engaged in freeing this cable.

 While the plaintiff and Schurmann were working at this task, Oesterberg, who was within twenty feet of them, hollered, 'Look out.', and ordered the crane operator to lower the follower which struck the plaintiff on his left foot.

 This record presents two questions: 1) Whether Leonard Oesterberg's act of ordering the crane operator to drop the beam was motivated by personal animosity toward the plaintiff, and 2) whether the defendant had any notice of this personal animosity.


 There is no dispute that the defendant is the statutory employer of the plaintiff under the Workmen's Compensation Act. *fn1" It follows that the defendant's liability is limited to workmen's compensation unless the plaintiff can show that the injury was the result of a purely personal attack by the assailant Leonard Oesterberg. *fn2"

 '* * * Here, however, it is the plaintiff who asserts he is not covered by the act and he must allege facts to show that he is not.' (Emphasis supplied)

 This Court, after consideration of all the testimony offered, viewed in the light most favorable to the plaintiff, is of the opinion that the plaintiff has not sustained his burden of proof by showing that this injury was the result of the personal animosity of the foreman, Lennie Oesterberg, toward the plaintiff. Nothing in the record convinces us that such viciousness, hatred or animosity prevailed between the parties as would trigger this alleged personal attack on the plaintiff.

 The plaintiff and Lennie Oesterberg only worked together on two jobs. One of these was three years prior to the job during which the plaintiff was injured. They had no outside personal relations. Their only contact occurred during work. Of their job relations, nothing was shown to convince us that Oesterberg had a violent dislike for the plaintiff. This is the only reasonable conclusion which can be reached, especially in light of Oesterberg's warning shout to the plaintiff just before the beam fell on his left foot.

 The Dolan case is the law followed in this Circuit when a Court is determining whether an injury is outside the Workmen's Compensation Act of Pennsylvania. Roney v. Paul Tishmain Co., Inc., 200 F.Supp. 75 (E.D.Pa.1961). The plaintiff has not ...

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