Mudlo v. United States

• Decision Date: 23 December 1976
• Docket Number: Civ. A. No. 76-1009.
• Parties: Mitchell MUDLO and Anna Mae Mudlo, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

423 F. Supp. 1373

Mitchell MUDLO and Anna Mae Mudlo, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 76-1009.

United States District Court, W. D. Pennsylvania.

December 23, 1976.

Philip A. Faix, Jr., Pittsburgh, Pa., for plaintiffs.

Judith K. Giltenboth, Asst. U. S. Atty., Pittsburgh, Pa., for defendant.

OPINION

SNYDER, District Judge.

Mitchell Mudlo and his wife, Anna Mae, brought a damage action against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 1346 and § 2671 et seq., for serious injuries suffered by the husband when struck by a moving overhead electrical crane on the premises of the Deitch Company, his employer. The Government has moved for summary judgment and the Motion must be granted.

Plaintiffs' original Complaint was dismissed without prejudice as being prematurely filed since Plaintiffs' claims in the form of their counsel's letter had not been denied by the Occupational Safety and Health Administration (OSHA) nor had six months expired since the presentation of their claim. A reading of 28 U.S.C. § 2675(a), as well as 28 C.F.R. Part 14, mandated this decision. (See Mudlo v. U. S., Civil Action 76-134, W.D.Pa.).

On August 5, 1976, Plaintiffs reinstituted the suit alleging that OSHA had failed to act on their claim within six months of December 5, 1975, and this constituted a denial within the meaning of 28 U.S.C. § 2675(a). The Government makes the following contentions:

1. That the wife, Anna Mae Mudlo, failed to present any claim to an Administrative Agency within the statutory period of limitations, and her claim must be dismissed.

2. Mitchell Mudlo failed to make a good faith effort toward the administrative adjudication of his claim and is barred from relief in the District Court.

Alternatively, the Government submits that the case should be remanded to the agency for an administrative review of the claim once the Plaintiffs file supporting documents and a statement of the extent of injuries.

THE ANNA MAE MUDLO CLAIM

Title 28 U.S.C. § 2675(a) provides:

"(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail."

Anna Mae Mudlo admits that she has never filed a claim. She takes the position that the statute does not require a person other than the one directly injured to file said claim.

Circuit Judge Rosenn speaking for our Circuit in Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971) stated as follows (at 1048-50):

"As a sovereign, the United States is immune from suit save as it consents to be sued. The terms of its consent to be sued in any court define the court's jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Although the Federal Tort Claims Act allows suits against the Government for torts committed by its employees while in the scope of their employment, it specifically requires an initial presentation of the claim to the appropriate federal agency and a final denial by that agency as a prerequisite to suit under the Act. This requirement is jurisdictional and cannot be waived. Driggers v. United States, D.C.S.C., 309 F.Supp. 1377 (1970). The head of each federal agency, or his designee for the purpose, is authorized, in accordance with regulations prescribed by the Attorney General, to process and settle claims within fixed monetary limits against the United States for injury or damage caused by any employee of the agency while acting within the scope of his employment.

Title 28 of the Code Federal Regulations, Chapter 1, Part 14 `Administering Claims under the Federal Tort Claims Act' § 14.2 provides:

`For purposes of the provisions of section 2672 of Title 28, a claim shall be deemed to have been presented when a federal agency receives from a claimant, his duly authorized agent or representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident * * *' (Emphasis added)

Unless a tort claim is submitted to the appropriate federal agency within two years after the claim accrues or unless action is begun within six months of final denial of the claim by the agency to which it was presented, it is forever barred by 28 USCA § 2401(b), as amended July 18, 1966, Pub.L. 89-506, § 7, 80 Stat. 307. Since four years have passed since Bialowas was injured, his right of action against the Government will have lapsed unless he can show that he submitted a valid claim to the Post Office Department."

* * * * * *

"We find no merit to appellant's further contention that even if an administrative claim was not presented, exceptional circumstances exist which excuse his failure to exhaust administrative remedies. It may be that appellant did in fact sustain personal injury and property damage at the hands of a Government employee. Though sovereign, the Government considerately provided him with convenient and expeditious machinery for settlement of his alleged damages and injuries. Unfortunately for him, he repeatedly disregarded written and oral instructions and eventually became the architect of his own misfortune." Footnotes omitted

By enacting the Federal Tort Claims Act, the United States defined the conditions and limitations under which suits are permitted and having seen fit to impose conditions and limitations on the right to be sued, these must be observed and exceptions thereto are not to be implied. Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967); Turtzo v. United States, 347 F.Supp. 336 (E.D.Pa.1972).

The requirement of Title 28 U.S.C. § 2675(a) that a claim under the Federal Tort Claims Act must first be submitted to the proper administrative agency is aimed at sparing the courts the burden of trying cases when an administrative agency can provide a settlement procedure without litigation. Robinson v. United States Navy, 342 F.Supp. 381 (E.D.Pa.1972).

The Defendant's Motion for Summary Judgment must therefore be granted as to Anna Mae Mudlo.

THE MITCHELL MUDLO CLAIM

Mitchell Mudlo, through his attorney, sent a letter to OSHA (a copy of which is attached hereto as Appendix A) relative to injuries resulting from an accident on March 22, 1974, making a demand for a million dollars and promising to send medical specials as they were obtained. No further communication between OSHA and Mitchell Mudlo took place. Mudlo contends the injuries were the result of being hit by an overhead crane on the premises of the Deitch Company and that prior thereto employees of OSHA conducted a series of inspections of the crane during the month of February, 1974, finding numerous violations of the Act, but then failed to order the Deitch Company to reconstruct it in accordance with their findings and powers under OSHA. As a direct and proximate result of this alleged negligence of these employees of the Government, Mitchell Mudlo claims to have suffered injuries.

The Government contends that Mitchell Mudlo has never made a good faith effort to advise the agency of his claim and is thereby prevented from administrative review of the claim; that summary judgment must be granted in its favor. The Government admits the instant case does not involve the "sum certain requirement" (Brief, p. 5) but on the contrary contends that the case sub judice involves the principle that a claim sufficient to notify the agency was never filed.

Again referring to Robinson v. United States Navy, supra, it is noted that the plaintiff there submitted his claim against the Government as property damage in the amount of "$2,135.45 plus personal injury". Further, the plaintiff there did not disclose two estimates by "reliable disinterested concerns" supporting the extent of his property damage, as required by the form, nor did the plaintiff enclose any medical documentation to support a personal injury claim as required by the form. Lastly, the plaintiff did not include information required by the form relating to his insurance coverage. The court goes on to note that even though the defendant made an effort to point out the plaintiff's error, and even though the form was returned to plaintiff's attorney with specific notation that it was incomplete, the form was resubmitted, again incomplete, and the court in an opinion by Judge Newcomer with which we are in complete accord stated as follows (at pp. 383-84):

"... The information which the plaintiff omitted form his Form 95 was necessary to allow the administrative agency to evaluate the claim. A claim which does not set out the amount of damages sought is not a claim. Driggers v. United States, 309 F.Supp. 1377 (D.S.C., 1970); Bialowas v. United States, supra; Landis v. United States, supra 335 F.Supp. 1321, D.C.Ohio. In this case, there was no definite amount claimed for personal injuries, and no medical records or bills to support such a claim or aid in estimating its size. While it is true that a definite amount of property damage was claimed, the required supporting documents were not provided. Even if they had been provided, however, this Court is of the opinion that the requirement that a definite amount be stated must be applied to the claim as a whole, and not merely to a part of it. The amount of litigation would not be cut down by administrative disposal of half a claim, and even if it might, the

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