Matskow v. United States

• Court: Court of Appeals for the Third Circuit
• Decided: June 16, 2004
• Docket: 03-3666
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

6-16-2004

Matskow v. USA Precedential or Non-Precedential: Precedential

Docket No. 03-3666

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Recommended Citation "Matskow v. USA" (2004). 2004 Decisions. Paper 549. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/549

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL 146 West Main Street P.O. Box 775 UNITED STATES COURT OF Somerset, PA 15501 APPEALS FOR THE THIRD CIRCUIT Counsel for Appellant ___________

No. 03-3666 Christine A. Sanner, Esq. (Argued) ___________ Bonnie R. Schlueter, Esq. Office of United States Attorney JOHN J. MATSKO, III; 700 Grant Street, Suite 400 TERESA A. M ATSKO, Pittsburgh, PA 15219 Husband and Wife, Rudy Kotor Appellants 1397 Eisenhower Boulevard, Suite 100 Richland Square III v. Johnstown, PA 15904 Counsel for Appellees UNITED STATES OF AMERICA; RUDY KOTOR ___________

___________ OPINION OF THE COURT ___________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA NYGAARD, Circuit Judge. John J. Matsko III 1 filed a lawsuit (D.C. No. 01-cv-00076) sounding in tort for injuries inflicted by District Judge: The Honorable Rudy Kotor, a federal employee, during a Joy F. Conti business visit to the offices of the Mine ___________ Safety and Health Administration (“MSHA”). Matsko’s amended complaint ARGUED MAY 11, 2004 asserted two theories under which he claimed the United States was liable for BEFORE: NYGAARD, McKEE, and his injuries. First, he argued that Kotor’s WEIS, Circuit Judges. actions can be imputed to the United (Filed: June 16, 2004) ___________ 1. Matsko’s wife Teresa A. Matsko is also a plaintiff-appellant in this case, as she Vincent J. Barbera, Esq. (Argued) asserts a derivative claim of loss of Barbera, Clapper, Beener, Rullo & Melvin consortium. States, as his employer. Second, Matsko chair from fellow inspector Kotor’s desk asserted that the United States was liable for Matsko to sit in. Once the meeting was because, despite a duty owed to him as a underway, Kotor returned to his desk. In business invitee, it failed to protect him a voice characterized by Matsko as “loud from injury by Kotor. The District Court and menacing,” Kotor told Matsko concluded that it lacked subject matter “You’re in my ----ing chair.” Then, before jurisdiction because the United States Matsko was able to give the chair back, enjoys sovereign immunity, and that and without provocation, Kotor slammed immunity had not been waived as to either Matsko’s face into a briefcase that was of Matsko’s claims. The Court thus lying on M iller’s desk. Matsko suffered a dismissed the suit in its entirety pursuant fractured vertebra and herniated disc in his to Federal Rule of Civil Procedure neck.3 12(b)(1). On his way out of the MSHA Because we agree with the District offices, Kotor’s supervisors and coworkers Court that the Federal Tort Claims Act gave Matsko the impression that they were (“FTCA”) does not waive the United not surprised by Kotor’s behavior. One of States’ immunity for intentional assaults the MSHA inspectors told Matkso “I told by government workers who are acting you don’t piss Rudy [Kotor] off.” A outside the scope of their employment, we supervisor smirked at the comment. will affirm the dismissal of Matsko’s first In accordance with the FTCA, claim. We will reverse, however, the Matsko initially filed an administrative tort dismissal of Matsko’s claim that the claim with the Department of Labor. 4 United States is liable because Kotor’s When that claim was denied, Matsko filed supervisors and coworkers did not act to suit in federal court against Kotor and the prevent the assault. If, on remand, Matsko United States, seeking $5 million in is able to prove that Kotor’s supervisors damages. Before answering Matsko’s and coworkers were negligent, then his complaint, the government filed a motion claim would be squarely within the under Federal Rule of Civil Procedure FTCA’s waiver of sovereign immunity. 12(b)(1) seeking to dismiss the complaint I. for lack of subject matter jurisdiction. In response to Matsko’s amended complaint, Matsko, the Director of Safety for PBS Coals, Inc., visited the MSHA offices for a meeting with Earl Miller, a MSHA 3. Criminal charges against Kotor resulted inspector. 2 The meeting was conducted at in his pleading guilty to recklessly Miller’s desk, with M iller “pulling up” a committing simple assault, harassment, and stalking. 2. 4. PBS Coals, Inc. is a company regulated MSHA is a division of the federal by the MSHA. Department of Labor.

2 which was filed shortly thereafter, the On appeal, Matsko attempts to government filed another 12(b)(1) motion. demonstrate that, despite the District The District Court granted the motion, and Court’s decision to the contrary, his claims this appeal followed.5 fall within the FTCA’s waiver of sovereign immunity. 6 Only if the FTCA II. waives sovereign immunity would the We have jurisdiction pursuant to 28 U.S.C. § 1291 over the District Court’s final order dismissing the case, and we exercise plenary review. Gould Elecs., 6. In addition to the issues addressed in Inc. v. United States, 220 F.3d 169, 176 this opinion, Matsko’s brief to this court (3d Cir. 2000). included arguments in the “Issues In general, the United States enjoys Presented for Review” section related to sovereign immunity from lawsuits seeking whether the United States can be held money damages. FDIC v. Meyer, 510 U.S. liable for (1) failure to properly train and 471, 475 (1994). The United States may supervise or (2) for negligent hiring. As waive sovereign immunity, however, and there is no corresponding discussion, allow itself to be sued, if it does so Matsko has waived those contentions. unequivocally in a statute. See Dep’t of See In re Trans World Airlines, Inc., 145 the Army v. Blue Fox, Inc., 525 U.S. 255, F.3d 124, 132 (3d Cir. 1998) (noting that 261 (1999). The FTCA is the statute that Federal Rule of Appellate Procedure 28 waives immunity, in part, for tort claims “is not only a technical or aesthetic against the United States. See 28 U.S.C. § provision, but also has a substantive 2674 ( “[t]he United States shall be liable function—that of providing the other [with a few exceptions], respecting the parties and the court with some provisions of this title relating to tort indication of which flaws in the appealed claims, in the same manner and to the order or decision motivate the appeal”) same extent as a private individual under (quotation omitted); Reynolds v. Wagner, like circumstances”). 128 F.3d 166, 178 (3d Cir. 1997); Southwestern Pa. Growth Alliance v. Browner, 121 F.3d 106, 122 (3d Cir. 1997) (opining that “appellate courts 5. Having dismissed the claims against the generally should not address legal issues United States, the District Court refused that the parties have not developed to exercise supplemental jurisdiction through proper briefing”). Even if the over Matsko’s claim against Kotor, theories were not waived, the claims suggesting that the claim should properly would not be within the FTCA’s be made in state court. A tort claim coverage. See 28 U.S.C. § 2680(a); see against Kotor is now pending in also Tonelli v. United States, 60 F.3d Pennsylvania state court. 492, 496 (8th Cir. 1995).

3 District Court have jurisdiction over the Restatement (Second) of Agency’s § 228 claims. See 28 U.S.C. § 1346(b). to determine whether conduct is within the scope of employment. Section 228 A. Liability for Kotor’s assault considers four prongs indicative of Matsko’s first argument is that the conduct within the scope of employment: District Court erred when it held that, (1) the conduct is of the kind the employee because of sovereign immunity, it lacked is employed to perform; (2) the conduct subject matter jurisdiction to hear the occurs within the time and space of claim that the United States is liable for employment; (3) the conduct is actuated at Kotor’s assault. Matsko refers to various serving the employer; and (4) any force FTCA sections that he asserts waive the used is foreseeable by the employer. United States’ sovereign immunity. Fitzgerald v. McCutcheon, 410 A.2d 1270, Unfortunately for Matsko, none of these 1272 (Pa. Super. Ct. 1979) (citing § 228). provisions encompasses situations like the Unless the litigant satisfies each prong, the one presented here. We will affirm, court will conclude that the act in question therefore, the District Court’s dismissal of was not within the scope of employment. Matsko’s claim that the United States is liable for Kotor’s actions. First, we must articulate what “act” The first question resolved by the we are contemplating. Matsko argues that District Court was whether Kotor was the District Court erred when it defined within his job duties when he assaulted Kotor’s assault as the “act in question.” Matsko. The Court concluded he was not. He asserts that the relevant act was Kotor’s Because the United States is only liable for retrieval of his chair, the use of which was negligent or wrongful acts of government integral to his job as a MSHA inspector. employees acting within their scope of Simply stated, Matsko characterizes the act employment, the conclusion that Kotor was incorrectly. We will not focus on the not within his job duties meant that minimally offensive conduct—retrieval of sovereign immunity precluded the suit. the chair—when it was the aggregate of See 28 U.S.C. § 2679(b)(1). Kotor’s actions that caused Matsko’s injury. The retrieval of the chair would Our task is to decide whether have been the act in question only if no Kotor’s outburst was within the scope of assault had occurred. Plainly, an assault his government employment. We assess happened. Therefore, to determine whether Kotor was acting within the scope whether Kotor was acting within the scope of his employment under the law of of his employment, the relevant “act” Pennsylvania, because that is where the began when Kotor approached Matsko and incident occurred. See 28 U.S.C. § ended when Kotor assaulted him, using 1346(b)(1); see also Aliota v. Graham, 984 excessive force. See Costa v. Roxborough F.2d 1350, 1358 (3d Cir. 1993). In Mem’l Hosp., 708 A.2d 490, 494 (Pa. P e n n s y l v a n i a, c o u r t s a p p l y t h e

4 Super. Ct. 1998) (defining the conduct in a waiver of the United States’ sovereign question to be the intentional assault). immunity to create liability for Kotor’s assault.9 That the § 228 test is applicable is uncontested, as is the fact that Kotor’s Next, Matsko asserts that his claim conduct occurred within the time and fits within the FTCA’s special treatment of space of his employment. Like the District assau lts by investigativ e or la w Court, however, we are not persuaded that enforcement officers. The United States is Matsko has satisfied, or could satisfy, the not liable for claims involving assault, other three prongs of § 228. Defying both battery, or other intentional torts by federal the first and fourth prongs, Kotor’s mine employees, unless the government actor inspector job description does not involve was an investigative or law enforcement or even contemplate violence.7 Contrary officer. 28 U.S.C. § 2680(h). to the third prong, Kotor’s act was As we are bound by our earlier motivated by personal animus, rather than precedent, we conclude that Kotor should any intent to serve the United States.8 not be treated as an “investigative or law Even reading the facts in the light enforcement officer” for purposes of most favorable to Matsko, as we are determining whether sovereign immunity required to do, we cannot conclude that attaches. While Kotor was an inspector Kotor was acting within the scope of his for the MSHA, which included authority to employment when he assaulted Matsko. inspect mines and investigate possible Thus, the District Court was correct that § violations, the FTCA did not intend to 2679(b)(1) of the FTCA does not provide bring within its scope actions by “officers” not within the bounds of an investigation. See Pooler v. United States, 787 F.2d 868, 7. The cases that Matsko cites from 872 (3d Cir. 1986) (noting that Congress Pennsylvania state courts to show that intended the investigative officer force is sometimes within the scope of exception to apply only to conduct “in the employment are distinguishable because course of a search, a seizure, or an arrest”). each involved a job description in which force was implicit. See Orr v. William J. Burns Int’l Detective Agency, 12 A.2d 25 (Pa. 1940) (guard); Pilipovich v. Pittsburgh Coal Co., 172 A. 136 (Pa. 9. 1934) (industrial policeman). Judge W eis would hold that Kotor’s conduct was within the scope of his 8. After assaulting Matsko and taking back employment. However, recovery would the chair, Kotor commented: “I be denied because the exception to the remember the last time I talked to you – waiver of sovereign immunity for you hung up on the phone on me.” App. “assault and battery” under 28 U.S.C. § at R61. 2680(h) would apply.

5 Matsko suggests that under Carlson negligent by not preventing his injuries. v. Green, 446 U.S. 14 (1980), we must The Court stated that the FTCA did not read the § 2680(h) exception more broadly waive sovereign immunity for such a claim than in Pooler to encompass all activities and “[p]laintiffs . . . failed to cite any law undertaken by investigative officers. See or precedent to support their argument that Wright v. United States, 719 F.2d 1032, this matter is encompassed in a statutory 1034 (9th Cir. 1983) (refusing to limit the provision, other than the FTCA.” App. at exception to the context of a search, R-14. We conclude that the District Court seizure, or arrest); Sami v. United States, prematurely dismissed this claim, and will 617 F.2d 755, 760 (D.C. Cir. 1979) reverse. (same). We need not determine whether The fact that a government Pooler’s narrow reading was mistaken, employee acting outside the scope of his because employees of administrative employment committed an injurious agencies, no matter what investigative assault or battery will not preclude liability conduct they are involved in, do not come against the government for negligently within the § 2680(h) exception. See, e.g., allowing the assault to occur. Sheridan v. EEOC v. First Nat’l Bank of Jackson, 614 United States, 487 U.S. 392, 401-02 F.2d 1004, 1007-08 (5th Cir. 1980) ( 1988) (con siderin g w hethe r the (refusing to apply the exception to an intentional tort exception to waiver Equal Employment Opportunity precluded a separate claim for liability Commission agent). Because Kotor is not based on the government’s negligence). covered by the FTCA’s investigative or “In a case in which the employment status law enforcement officer provision, the of the assailant has nothing to do with the District Court was correct that no waiver basis for imposing liability on the of sovereign immunity applied to Kotor’s Government, it would seem perverse to intentional tort. 28 U.S.C. § 2680(h). exonerate the Government because of the In sum, because Kotor was not happenstance that [the assailant] was on acting within the scope of his employment the federal payroll.” Id. at 402. during the intentional assault, nor does he The alleged negligence in this claim qualify as an investigative or law stems from the United States’ undertaking enforcement officer, the District Court was a duty to protect Matsko when it invited correct that the FTCA does not apply. him to a meeting at the MSHA offices. 10 Thus, we affirm the dismissal for lack of subject matter jurisdiction. B. Liability for the negligence of 10. Whether the government owed a duty Kotor’s supervisors and coworkers to Matsko must be resolved under the The District Court also dismissed law of Pennsylvania, because that is Matsko’s claim that the United States was where the incident occurred. See 28 (continued...)

6 As in Sheridan, this duty is entirely and were mere bystanders by virtue of the separate from any respondeat superior fact that the MSHA offices were an open claim for Kotor’s actions. Therefore, even floor plan. Because Matsko has if the United States cannot be held liable sufficiently alleged that the MSHA for Kotor’s actions based on its status as employees were acting within the scope of his employer, 28 U.S.C. § 2680(h), it may their employment, and it is at least be without sovereign immunity for arguable that they were negligent,11 the negligence by other MSHA employees, District Court erred by holding that the who were within the scope of their own FTCA did not waive sovereign immunity. employment, in not stopping the injurious The question of actual negligence should behavior. Sheridan, 487 U.S. at 402-03. be resolved on the merits, rather than in a jurisdictional challenge.12 See Mortensen As discussed in the prior section, it is clear that Kotor was acting outside the scope of his employment. Taking 11. One could question whether the United Matsko’s allegations as true, however, States, by and through the MSHA under § 228 the other MSHA employees officers, knew that Kotor had a were within their scope of employment at propensity for violence or whether the the time Matsko was attacked. Kotor’s MSHA officials had time to intervene to su p ervisors and cow orkers we re stop Kotor. Under the uncontested facts, performing their jobs to further the however, M atsko has sufficiently MSHA’s mission at the time of the assault, pleaded the existence of the duty, breach, and causation elements of his negligence claim. 10. (...continued) 12. U.S.C. § 1346(b)(1). In Pennsylvania, The parties disagree about whether it the Restatement (Second) of Torts § 344 was appropriate for the District Court to makes a possessor of land liable to consider factual issues before the invitees to his property for “physical government had filed an answer. harm caused by the accidental, negligent, Compare Mortensen v. First Fed. Sav. & or intentionally harmful acts of third Loan Ass’n, 549 F.2d 884, 891-92 (3d persons.” Moran v. Valley Forge Drive- Cir. 1977) (noting that a “12(b)(1) In Theater, Inc., 246 A.2d 875, 878 (Pa. factual evaluation may occur at any stage 1968). in the proceedings, from the time the Contrary to the government’s answer has been served”) (emphasis argument, Matsko’s negligence claim is added) with Berardi v. Swanson Mem’l not a subterfuge to mask an otherwise Lodge No. 48, 920 F.2d 198, 200 (3d Cir. precluded claim. Matsko’s premises 1990). We need not resolve this issue, liability theory does not stem from because on the record before us, we have negligent hiring, training, or supervision, no indication that facts pertinent to the but arises solely out of the § 344 duty. (continued...)

7 v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 892 (3d Cir. 1977) (“it is incumbent upon the trial judge to demand less in the way of jurisdictional proof than would be appropriate at a trial stage”). We hold, therefore, that the District Court erred by dismissing the claim as barred by the governmental immunity and, accordingly, will reverse and remand for proceedings consistent with this opinion. III. In sum, we will affirm in part and reverse in part. Insofar as Matsko claims that the United States is liable for the negligence of Kotor’s supervisors and coworkers, his lawsuit should not have been dismissed. In all other respects, the District Court’s order was proper. _________________________

12. (...continued) question of whether the government was negligent were contested.