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DIMICK v. DEPARTMENT OF ARMY

October 29, 1997

JOSEPH T. DIMICK, JR., and BARBARA DIMICK, his wife, Plaintiffs
v.
THE DEPARTMENT OF ARMY, THE UNITED STATES OF AMERICA, and A.T. INC., a Pennsylvania Corporation, Defendants v. PENNSYLVANIA POWER & LIGHT COMPANY, Third Party Defendant



The opinion of the court was delivered by: DURKIN

 Date Issued: October 29, 1997

 Date Filed: October 30, 1997

 MEMORANDUM

 Before the court *fn1" is the defendant, A.T., Inc.'s motion to dismiss the plaintiffs' complaint. (Doc. No. 7).

 Plaintiffs filed this negligence action to recover for personal injuries suffered by plaintiff Joseph Dimick Jr. sustained in a fall on August 11, 1993 at Tobyhanna Village Apartments where he resided. It is alleged that defendant Department of the Army, United States of America is the owner of the premises and that defendant A.T. Inc. leased, controlled and maintained the premises. The claim against the United States is asserted under the Federal Tort Claims Act, 28 U.S.C. § 2680. The claim against A.T. Inc. is based upon Pennsylvania law and is included in the complaint on the basis of the courts pendent or supplemental jurisdiction. (Doc. No. 1).

 On May 28, 1997, an answer was filed on behalf of the defendants, the Department of the Army and the United States of America. (Doc. No. 4). On June 3, 1997, the defendant, A.T., Inc., filed a motion to dismiss the plaintiffs' complaint. (Doc. No. 7). On June 12, 1997, a brief was filed in support of the defendant's motion. *fn2" (Doc. No. 8). On August 1, 1997, the plaintiffs filed a brief in opposition to the defendant's motion to dismiss, as well as a document entitled "Plaintiffs' Answer to Defendant's Motion to Dismiss". (Doc. Nos. 14 & 15). As of the date of this memorandum, no reply brief has been filed.

 The plaintiffs allege in their complaint that at all times relevant to this action, the defendants, the Department of the Army and the United States of America, were the owners of property known as the Tobyhanna Village Apartments. The plaintiffs further allege that the defendant, A.T., Inc., leased and/or rented from the defendants, the Department of the Army and the United States of America, the property known as the Tobyhanna Village Apartments.

 The plaintiffs allege that on August 11, 1993, they rented an apartment from the defendant, A.T., Inc., at the Tobyhanna Village Apartments. On that date, as the plaintiff, Joseph Dimick, Jr., was leaving the apartment, he slipped and fell in grass located in the front of his apartment by reason of a leaking fire hydrant causing serious and permanent injuries to his person. (Doc. No. 1, p. 3, P 9).

 The plaintiffs allege that the accident and injuries to the plaintiff, Joseph Dimick, Jr., were caused by the carelessness, recklessness and negligence of the defendants, in that the defendants failed to maintain the property in a safe condition; failed to warn of the dangerous condition on its property; failed to correct the dangerous condition when it knew, or should have known of its existence; failed to repair its fire hydrant located in front of the plaintiffs' apartment; failed to repair street lights located in front of the plaintiffs' apartment; and failed to post warning signs regarding the leak of the fire hydrant. (Doc. No. 1, p. 3, P 9).

 The plaintiff, Barbara Dimick, has a claim for loss of consortium. (Doc. No. 1, p. 6).

 Both plaintiffs are seeking damages in excess of $ 50,000.00.

 The defendant, A.T., Inc., filed the instant motion to dismiss the plaintiffs' complaint, which indicates that the plaintiffs had commenced a prior identical suit in this district on March 9, 1995. (See Civil Action No. 3:95-0335). In that action, the defendant, A.T., Inc., alleges that the parties had agreed that the plaintiffs did not exhaust their administrative remedies under the Federal Tort Claims Act, and that therefore the district court was without subject matter jurisdiction over the federal defendants. All parties also agreed that the claim against the defendant, A.T., Inc., would be dismissed, since the jurisdiction of the court over that defendant was invoked on the basis of pendent jurisdiction, and there was no longer a federal claim to support that jurisdiction. (See Doc. No. 7, Ex. B).

 On July 6, 1995, the magistrate judge dismissed the prior action and directed the clerk of ...


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