Robinson v. United States Navy, Civ. A. No. 72-331.

• Decision Date: 25 May 1972
• Docket Number: Civ. A. No. 72-331.
• Citation: 342 F. Supp. 381
• Parties: Eugene ROBINSON v. UNITED STATES NAVY.
• Court: U.S. District Court — Eastern District of Pennsylvania

342 F. Supp. 381

Eugene ROBINSON v. UNITED STATES NAVY.

Civ. A. No. 72-331.

United States District Court, E. D. Pennsylvania.

May 25, 1972.

Louis Matkoff, Matkoff & Shengold, Philadelphia, Pa., for plaintiff.

Carl J. Melone, U. S. Atty., C. Oliver Burt, III, Asst. U. S. Atty., Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

This is a Federal Tort Claims Act case. The case is now before the Court on the Government's Motion to Dismiss. The main thrust of the Government's contention is that the plaintiff failed to comply with the requirements of 28 U. S.C. § 2675(a) and therefore is precluded from bringing a civil action on this claim. 28 U.S.C. § 2675(a) reads as follows:

"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. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, crossclaim, or counterclaim.".

The requirements of 28 U.S.C. § 2675(a) are jurisdictional and cannot be waived. Bialowas v. United States, 443 F.2d 1047 (3rd Cir., 1971); Landis v. United States, 335 F.Supp. 1321 (N.D. Ohio, 1972).

The pertinent facts of this case are as follows: On February 26, 1970 the plaintiff was involved in a collision with a U. S. Navy vehicle. Plaintiff contends that the driver of the Navy vehicle was responsible for the accident.

On March 2, 1970, the Navy sent plaintiff a Standard Form 95, which is the form the Navy provides for the purposes of making an administrative claim for damages in compliance with 28 U.S.C. § 2675(a). While it may be true that a valid administrative claim may be asserted under § 2675(a) without using any particular form supplied by any particular agency, the plaintiff in this case asserted his claim only through the use of Form 95. Thus the question now before the Court is only whether or not plaintiff's Form 95 as it was submitted to the Navy constituted a sufficiently detailed notice to the Navy of the plaintiff's assertions that the plaintiff can be said to have presented his claim to the appropriate Federal agency within the terms of § 2675(a).

On April 21, 1970, plaintiff returned his Form 95 to the Navy. It was only partially completed. As returned, plaintiff's form stated a definite amount for damages to his automobile, but listed the sum of his personal injury as "unknown", and totaled his claim against the Government as "2,135.45 plus personal injury". Thus the form failed to state damages in a definite amount. Further, plaintiff did not enclose 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, plaintiff did not include the information required by the form relating to his insurance coverage.

On May 4, 1970, the defendant wrote to the plaintiff's attorney returning the Form 95, noting that it was incomplete and requesting that it be properly filled out.

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...