Citation Codes

Equivalent Citations

citation codes

Docket Number

Civ. A. No. 84-1572.

Attorney(S)

Allan M. Horwitz, Philadelphia, Pa., for plaintiffs. Serena H. Dobson, Asst. U.S. Atty., Philadelphia, Pa., for defendant.

Judges

Norma Levy Shapiro

Acts

Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — United States As Defendant
Judiciary And Judicial Procedure — United States As Party Generally — Particular Proceedings — Time For Commencing Action Against United States
Judiciary And Judicial Procedure — Tort Claims Procedure — Particular Proceedings — Disposition By Federal Agency As Prerequisite; Evidence

See more information ...

Smart Summary

Murray v. United States — Memorandum and Order (E.D. Pa. Feb. 20, 1985)

Factual and Procedural Background

This action is brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) and § 2671 et seq. Plaintiffs Arnett and Charles Murray allege that on or about April 1, 1981 Arnett Murray slipped and fell at the entranceway to the Post Office at 441 First Avenue, Parkesburg, Pennsylvania.

Plaintiffs allege that Arnett Murray's administrative claim for personal injury, filed on Standard Form 95, was timely presented to the Postal Service and that the claim was improperly denied. The Government contends that no claim was timely received and therefore denial was appropriate. Plaintiffs appealed the administrative denial; the Government moved for summary judgment on the ground that plaintiffs' action is time-barred.

Legal Issues Presented

Whether plaintiffs presented a timely administrative claim (an executed Standard Form 95) that was received by the appropriate federal agency within the two-year statute of limitations applicable to FTCA claims (28 U.S.C. § 2401(b)).
Whether a purported hand-delivery of a copy of Form 95 to the Thirtieth Street Post Office on April 1, 1983 (as asserted by plaintiffs' counsel) constitutes adequate presentment (receipt) under the governing regulation requiring actual agency receipt (28 C.F.R. § 14.2(a)).
Whether Charles Murray may pursue an independent loss-of-consortium claim absent a separate administrative claim filed within the two-year statutory period.

Arguments of the Parties

Plaintiffs' Arguments

Plaintiffs assert that Arnett Murray's Form 95 was timely presented. Specifically, plaintiffs' counsel submitted an affidavit stating that he hand-delivered a copy of Form 95 to an unidentified postal employee at the Thirtieth Street Post Office on April 1, 1983.
Plaintiffs contend that the administrative claim requirement was satisfied and that denial by the Postal Service was improper.

Defendant's Arguments

The Government contends that no administrative claim was timely received. The original Form 95 mailed to the Parkesburg Post Office was received on April 4, 1983, which the Government notes is three days after the two-year statute of limitations expired, justifying denial as time-barred.
The Government submitted an affidavit from Joseph Ryan, Accident Investigator, stating that a copy of Form 95 was neither hand-delivered to nor subsequently received in the Accident Investigator's Office at Thirtieth Street.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)	Establishes that the FTCA's statute of limitations is a condition of the United States' waiver of sovereign immunity and is therefore jurisdictional (unwaivable).	The court relied on Kubrick to treat the two-year limitations period as jurisdictional, meaning timely presentment is a prerequisite to the court's jurisdiction over the FTCA claim.
House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir. 1978)	Referenced as supporting authority for the jurisdictional nature of the limitations/waiver framework under the FTCA.	The court cited House in conjunction with Kubrick to reinforce that the statute of limitations is a condition of the waiver of sovereign immunity.
Bailey v. United States, 642 F.2d 344 (9th Cir. 1981)	States that plaintiffs bear the burden of proving presentment of the administrative claim under the FTCA.	The court cited Bailey to emphasize that plaintiffs have the burden of showing actual presentment (receipt) and to explain the difficulty plaintiffs face in meeting that burden absent documentary proof.
Susanin v. United States, 570 F. Supp. 25 (W.D. Pa. 1983)	Affirms that a separate administrative claim is required for a loss-of-consortium claim even if related to another claimant's claim.	The court applied Susanin to conclude that Charles Murray's claim for loss of consortium is barred because he did not file a separate administrative claim within the two-year statutory period.

Court's Reasoning and Analysis

The court's analysis proceeded as follows:

Statute of Limitations and Presentment Requirement: The court reiterated that FTCA claims are governed by a two-year statute of limitations (28 U.S.C. § 2401(b)) and that presentation of an administrative claim to the appropriate federal agency is a prerequisite to suit (28 U.S.C. § 2675(a)). The court cited the Department of Justice regulation, 28 C.F.R. § 14.2(a), which deems a claim presented only when the federal agency actually receives an executed Standard Form 95.
Application to the Record: The court found it undisputed that the original Form 95 mailed to the Parkesburg Post Office was received on April 4, 1983 — three days after the two-year limitations period expired — and therefore that mailed submission was untimely and properly denied by the Postal Service.
Disputed Hand-Delivery: The court acknowledged a factual dispute regarding a copy of Form 95 that plaintiffs' counsel avers he hand-delivered to the Thirtieth Street Post Office on April 1, 1983. The Government's affidavit from the Accident Investigator stated no such delivery or receipt occurred in that office. Because this fact is contested, summary judgment on the entire case cannot be granted solely as a matter of law.
Burden of Proof and Evidentiary Assessment: The court emphasized that plaintiffs bear the burden of demonstrating presentment (citing Bailey). It observed the paucity of corroborating documentary evidence: no Postal Service record of receipt, no receipt given to plaintiffs, no identification of the individual to whom the form was allegedly handed. The court noted the existence of a formal routine for receiving and forwarding claims, and reasoned (based on the record) that it would be reasonable to infer the form was delivered to someone who was not a postal employee, undermining an effective presentment showing.
Disposition of Case and Management Decision: Given the slim likelihood that plaintiffs can carry their burden of proving timely presentment and the resulting prospect that they will remain time-barred, the court concluded it was not in the interests of the administration of justice to permit the case to proceed to a full trial. The court, however, preserved a limited procedural avenue: it will hear oral testimony on request of counsel (subject to Rule 11), but warned that if counsel intends to testify orally to substantiate his affidavit, he cannot continue to serve as plaintiffs' counsel under the Code of Professional Responsibility (D.R. 5-102).
Separate Claim for Loss of Consortium: The court addressed Charles Murray's assertion of an independent loss-of-consortium claim and concluded—based on Susanin—that such a claim requires a separate administrative filing within the two-year period; because no separate administrative claim was filed, Charles Murray's claim is barred.

Holding and Implications

Holding: The court directed that judgment be entered in favor of defendant United States on the ground that plaintiffs' claims are time-barred, subject to the limited exception described below.

Implications and Direct Effects:

Because the original mailed Form 95 was received after the two-year limitations period, that submission was untimely and properly denied by the Postal Service.
The disputed assertion of a timely hand-delivered copy prevents the court from granting summary judgment as a pure matter of law; however, the court found it unlikely plaintiffs can satisfy their burden of proving actual presentment given the lack of documentary support and the Postal Service's records and affidavits.
Accordingly, judgment will be entered for the United States unless plaintiffs request an evidentiary hearing within ten (10) days. If such a request is made, the court will hold an in limine evidentiary hearing limited to the issue of presentment.
If plaintiffs seek to offer oral testimony by their counsel to substantiate the affidavit, counsel must recognize that he cannot both testify and continue to serve as counsel (per Code of Professional Responsibility D.R. 5-102), and any such testimony is subject to Fed. R. Civ. P. 11.
Charles Murray's separate loss-of-consortium claim is barred because he did not file a separate administrative claim within the statutory two-year period.
The opinion does not announce or establish any new, broader legal precedent beyond its application of settled FTCA jurisdictional rules and the cited authorities; the immediate practical consequence is entry of judgment for the United States unless plaintiffs promptly obtain the limited evidentiary hearing described by the court.

This summary is limited to and based exclusively on the content of the provided opinion.

Show full summary ...

Arnett MURRAY and Charles Murray, Wife and Husband, v. UNITED STATES of America.

MEMORANDUM and ORDER

SHAPIRO, District Judge.

This is an action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) and § 2671 et seq. Plaintiffs allege that on or about April 1, 1981, Arnett Murray slipped and fell at the entranceway to the Post Office at 441 First Avenue, Parkesburg, Pennsylvania. Plaintiffs further allege that Arnett Murray's claim for personal injuries on the required Form 95 was timely presented to the Postal Service and improperly denied. The Government contends that no claim was timely received, so denial was appropriate. Plaintiffs appeal from this denial, and the Government has filed a motion for summary judgment on the ground that plaintiffs' action is time-barred.

The applicable statute of limitations for FTCA cases is two years; 28 U.S.C. § 2401(b). As a prerequisite to suit under the FTCA, a claim must be "presented" to the appropriate federal agency; 28 U.S.C. § 2675(a). Mailing of an administrative caim is insufficient to satisfy the presentment requirement; "a claim shall be deemed to have been presented when a federal agency receives from a claimant . . . an executed Standard Form 95. . . ." 28 C.F.R. § 14.2(a) (1983) (emphasis added). The FTCA waives the immunity of the United States; the two-year statute of limitations is a condition of that waiver and, consequently, an unwaivable jurisdictional requirement. See United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir. 1978).

It is undisputed that the original Form 95 was mailed to the Parkesburg Post Office and received on April 4, 1983, three days after the statute of limitations expired. Hence the Government rightly denied this claim as time-barred.

There is a dispute on the record as to when a copy of Form 95 was delivered to the Thirtieth Street Post Office and to whom it was delivered. Plaintiffs' attorney has stated in an affidavit that he hand-delivered, on April 1, 1983, a copy of Form 95 to an unidentified postal employee at the Thirtieth Street Post Office. Defendant has submitted an affidavit from Joseph Ryan, Accident Investigator, stating that a copy of Form 95 was neither hand delivered to nor subsequently received in the Accident Investigator's Office. This disputed fact prevents summary judgment as a matter of law.

But the court is the trier of fact in FTCA cases. Plaintiffs have the burden of showing presentment, see Bailey v. United States, 642 F.2d 344 (9th Cir. 1981), and oral testimony identical to the affidavit of record is unlikely to meet this burden in view of the lack of documentary proof. The Postal Service has no record of receipt of a copy of Form 95, though a formal routine for receiving and forwarding such claims exists, and plaintiffs also have no receipt and are unable to identify the individual to whom the claim was hand-delivered. It would be reasonable to conclude that plaintiffs' attorney must have delivered the form to someone who was not a post office employee and that no proper presentment could be established on the record.

Because it is unlikely Arnett Murray can meet her burden of presentment and will be time-barred from obtaining any relief from this court, it is not in the interests of the administration of justice to permit this case to go to trial. However, the court will hear oral testimony on a request of counsel subject to Fed.R.Civ.P. 11. But if counsel intends to offer oral testimony in substantiation of his affidavit, he cannot continue to serve as plaintiffs' counsel. Code of Professional Responsibility D.R. 5-102.

Plaintiff Charles Murray asserts that independent of his wife's action, he may pursue a claim for loss of consortium. But Charles Murray failed to file a separate administrative claim within the two-year statutory period. Such a separate claim is required, even where one is claiming loss of consortium. See Susanin v. United States, 570 F. Supp. 25 (W.D.Pa. 1983).

Judgment will be entered in favor of defendant United States of America on the ground plaintiffs claims are time-barred unless plaintiffs request an evidentiary hearing within ten (10) days, in which case the court will hear evidence on the issue of presentment in limine.

MURRAY v. UNITED STATES, (E.D.Pa. 1985)