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LONGO v. PENNSYLVANIA ELEC. CO.

May 3, 1985

ALFREDO LONGO and MARIA ROSARIA LONGO, Plaintiffs
v.
PENNSYLVANIA ELECTRIC COMPANY, a corporation, HERMAN BECKINGER and FRANK CARPELLOTTI, d/b/a CARP TRANSIT, Defendants



The opinion of the court was delivered by: MANSMANN

 This matter comes before the Court on Defendant Frank Carpellotti's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below Defendant's Motion is denied.

 Factual and Procedural Background

 This case involves a claim for personal injuries allegedly sustained by Alfredo Longo when an International tractor-trailer truck operated by John A. Moore tipped over onto the Plaintiff's truck on August 27, 1981. At the time of the accident, both vehicles were in the process of dumping coal at Defendant Pennsylvania Electric Company's generating station in Erie, Pennsylvania. On September 3, 1982, Plaintiff filed a complaint, citing two defendants: namely, the aforementioned Pennsylvania Electric Company and Herman Beckinger, owner of the truck and employee of the driver, John A. Moore. A Motion for Leave to Amend Complaint to set forth a new party defendant, "M. Caupellotte" of 829 Benwood Avenue, McKees Rocks, Pennsylvania 15136, was subsequently filed by Plaintiff on June 27, 1983.

 This Court signed an order permitting such amendment on November 2, 1983; and on this same day, the amended complaint was filed by Plaintiff, 1) alleging that Plaintiff's personal injuries were the direct and proximate result of both Defendants Herman Beckinger's and M. Carpellotti's, "independent, joint, and concurrent negligence" and 2) that Moore was the employee of the aforementioned defendants.

 The answer and crossclaim of M. Caupellotte represented that Frank J. Carpellotti t/d/b/a Carp Transit was the proper party defendant. M. Carpellotti *fn1" Trucking is a different company operated by Frank Carpellotti's mother and is not involved in this action.

 An "open" lease agreement existed between Frank J. Carpelletti and Beckinger whereby Carpellotti, who possessed a Pennsylvania Public Utilities Commission (hereinafter PUC) permit to operate a public haulage concern, arranged hauling jobs for Beckinger and supplied the necessary PUC authority. In this particular case, Carpellotti telephoned Beckinger and requested that Beckinger haul coal to the Pennsylvania Electric Company's Erie, Pennsylvania location.

 Regarding the instant Motion for Summary Judgment, defendant Carpellotti asserts there is no genuine issue as to any material fact and he is entitled to judgment as a matter of law. To this end, he raises the following questions for this Court's review: (1) whether Defendant Carpellotti can be held liable for any negligence of Moore and Beckinger absent a master-servant or agency relationship; (2) whether Defendant Carpellotti can be held liable based upon his lease with Beckinger since an International tractor-trailer truck and not a Mack trailer truck was involved in the accident and (3) whether Plaintiff's action is barred by the applicable statute of limitations.

 DISCUSSION

 In order to grant a motion for summary judgment, the district court, pursuant to FED.R.CIV.P. 56(c) must determine that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See also, Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984). Moreover, the district court must " 'resolve any doubts as to the existence of fact against the moving parties '" and " 'inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. '" Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982) (citations omitted). Bearing in mind the above-noted standards, the Court will determine if Defendant Carpellotti is entitled to summary judgment.

 Defendant's statute of limitations argument contends that the action against him is barred in that Pennsylvania has a two year limitations period for bringing personal injury actions, and the instant action was not timely filed. *fn2" We note that the date of the accident was August 27, 1981, and both the order granting the Motion to Amend as well as the actual amended complaint naming Carpellotti as party defendant was filed on November 2, 1983. (The applicable statute would require the joinder of additional parties defendant prior to August 27, 1983).

 We note, however, that the Motion to Amend Complaint setting forth a new party defendant was filed with the Court on June 27, 1983, thirty days prior to the expiration of the statute of limitations. The timely filing of this Motion to Amend and not the final court approval was sufficient to meet the requirement of FED.R.CIV.P. 3 that "a civil action is commenced by the filing of a complaint with the court." See Gloster v. Pa. R. Co., 214 F. Supp. 207 (W.D. Pa. 1963) (where motion to amend to add additional party defendant was filed within the time allowed for wrongful death action, statute of limitations did not bar court from granting the motion after period expired).

 Defendant next argues that absent a master-servant relationship, he cannot be held liable under the doctrine of respondeat superior for the negligence of Moore or Beckinger. He further contends that ...


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