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July 16, 1971


Gourley, Senior District Judge.

The opinion of the court was delivered by: GOURLEY

This is an action under the Federal Tort Claims Act. After a full and complete trial was held and while the Court was formulating an Opinion, a most unusual course of action is being pursued by the United States.

 The Government, by presenting a Motion to Amend Its Answer, questions the jurisdiction of the Court. Generally, a question of this nature can be raised at any time but there are some exceptions. The legal question presented is based on the thesis that the rights of the injured plaintiff fall within the provisions of the Federal Employee's Compensation Act rather than the Federal Tort Claims Act.

 A disposition of the Motion is first required since if the defense is allowed, it would be necessary for the Court to stay its proceedings until the rights under the Federal Employee's Compensation Act are finally resolved. Somma v. United States, 283 F.2d 149 (3 Cir.).

 A complete statement of facts is required to best understand why the Motion for Leave to Amend the Government's Answer raising said jurisdictional question must be denied.

 The plaintiff, a postal employee, was on his way to work when a large bar of soap came from a window of the United States Courthouse and Post Office Building, and struck the plaintiff on the head. The accident occurred on one of the busy street intersections in the business district of the City of Pittsburgh, Pennsylvania, some 300 to 350 feet from where the plaintiff would have entered the Federal Building for the performance of his duties. The site of the injury was on a public sidewalk owned by the City, available for use by many thousands of persons each day. The only part of the sidewalk owned by the United States was 9 1/4 inches from the bottom of the building and it is not disputed that no person could walk on this small area.

  Unquestionably, employment is the reason or the cause for the workman's journey between his home and place of business. An employer, however, has never been held responsible for injuries to an employee, absent a contractual provision, on a portal to portal basis, or from the doorsteps of a home to the entranceway of the business enterprise. Liability for an injury on the premises of an employer is a compromise between the extreme of no coverage whatsoever and coverage for the whole journey. If such a compromise has any significance, the injured employee should, at least, be on his employer's premises for coverage to exist. Sidewalk maintenance and safe passageway requirements, which by local City Ordinance all abutting property owners have a duty to provide, do not make the sidewalk the premises of the employer. Furthermore, the law seems to be settled and it is generally taken for granted that workmen's compensation coverage was not intended to protect the employee against all perils of that journey. See 1 Larson Workmen's Compensation Law, 1968 Ed., § 15.11, p. 195. O'Keeffe v. Smith, etc., Associates, 380 U.S. 359, 85 S. Ct. 1012, 13 L. Ed. 2d 895 (1964) is not applicable here. In O'Keeffe an employee who had been transported to Korea and drowned while more than 30 miles from his job site on his off day, was found to be covered under the provisions of the Longshoreman's and Harbor Worker's Compensation Act, 33 U.S.C.A. § 901, et seq., because the conditions of his employment created a "zone of special danger." No reason or basis exists to conclude that the vicinity of Grant Street and Seventh Avenue in Pittsburgh, Pennsylvania, the area where the plaintiff was injured, constitutes a "zone of special danger." Very simply stated, the public sidewalk, under the circumstances which existed in this case, was not the premises of the employer. This is particularly true in this proceeding since there was no right to control said public thoroughfare which was for all pedestrian use.

 No sound or real basis exists to conclude or accept the thesis of the United States since there is no substantial question presented of coverage under the Federal Employee's Compensation Act.

 If the Court is in error in concluding that coverage does not exist for the reasons stated, the Motion of the Government raising the jurisdictional question must be denied for additional reasons.

 I must state my awareness that the general rule permits jurisdiction to be raised at any time in the trial and appellate courts. Norton v. Larney, 266 U.S. 511, 45 S. Ct. 145, 69 L. Ed. 413.

 However, the general rule is subject to the exception that raising a question of this nature is discretionary with the Court where the defendant has had time and opportunity on many occasions to do so and be heard.

 Where a defendant chooses to participate fully in discovery, pretrial and in the preparation and formulation of the issues for trial, said litigant has no right to amend its answer to deny jurisdiction. Indeed, for the Court to permit the amendment under the circumstances herein set forth it would be an abuse of discretion. Di Frischia v. New York Central Railroad Company, 279 F.2d 141 (3 Cir. 1960); Klee v. Pittsburgh and West Virginia Railway Company, 22 F.R.D. 252 (W.D. Pa. 1958), and Kreger v. Ryan Brothers, Inc., 308 F. Supp. 727 (W.D. Pa. 1970).

 In this proceeding the defendant participated throughout the full and complete preparation for and trial of this proceeding without giving any consideration to the Federal Employee's Compensation defense. This included pleadings, motions, pretrial conferences, discovery, arguments and trial. The action was filed on February 25, 1970, and trial commenced May 20, 1971. For a full and complete understanding of the background of this proceeding, the Court has inserted as an appendix the complete history of the action as it appears in the records in the office of the Clerk of Court. A perusal of this record readily indicates the numerous instances that the defendant could have interposed its defense, but failed to do so.

 It was only through happenstance that thoughts regarding lack of jurisdiction arose in the minds of the legal department of the United States. During the preparation of the Court's Opinion, a question developed requiring the assistance of counsel for all parties. The matter involved how the Court could require the United States to repay to the Postal Department the monies of the plaintiff that were used to pay lost wages during absence from his employment since the Post Office Department had used sick leave hours to make said payments. During a hearing that was held for this purpose alone the Court suggested, in view ...

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