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Bialowas v. United States

decided: June 2, 1971.

STANLEY BIALOWAS, JR., APPELLANT,
v.
UNITED STATES OF AMERICA



Seitz, Aldisert and Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge.

This is an appeal from an order of the district court dismissing appellant's suit for failure to file an administrative claim under the Federal Tort Claims Act, 28 U.S.C.A. 2675(a) as amended in 1966 by Public Law 89-506, § 2, 80 Stat. 306.

Appellant alleges that on April 19, 1967, he had stopped his car for a red light in Pittsburgh, Pennsylvania when he was struck from behind by a United States mail truck. He complains that as a result of this accident he sustained damages to his automobile in the amount of $200.00, physical injuries to his neck, head and other parts of his body, pain and suffering which may be permanent in nature, and possible permanent impairment of his earning power.

Sometime in May, 1967, appellant received from the postal authorities at Pittsburgh, Standard Form 95, "Claim for Damage or Injury." Prior to June 9, 1967, he partially completed the form and returned it unsigned and undated to the postal authorities. On the face of the form in item 8 appears the subtitle "amount of claim." Under that heading are blocks for property damage dollar claim, personal injury dollar claim, and total dollar claim. All three blocks contain dollar signs, indicating that the dollar figure for property damage*fn1 should be added to the dollar figure for personal injury and totalled.

In the personal injury block, appellant wrote the words "neck, chest and right arm" next to the dollar sign. In the block reserved for the total of the personal injury and property damage claim he wrote "Price of X-rays $35.00." He did not specify the amount of his claim. He did, however, attach the two automobile repair estimates and an X-ray bill in the sum of $35.00.

The back of the form returned by him contained a "Notice to Claimant" in bold print with directions to read the instructions and complete both sides of the form "as it will be the basis of further action upon your claim." The instructions directed that the form had to be signed, and that doctors' reports and medical bills were to be supplied along with repair bills and estimates of property damage. There were also instructions and questions regarding insurance coverage and finally a place for claimant to sign on the back of the form. None of the blocks on the back of the form, including the signature line, were completed by the appellant.

On June 7, 1967, Joseph Wink, a postal inspector, telephoned appellant and told him that the Form 95 he had returned "didn't look right." By letter dated June 9, 1967, Wink sent appellant two additional blank copies of Standard Form 95 as well as a photostatic copy of his original Form 95. Although there is a conflict of testimony between Wink and appellant as to whether Wink, at the time of the telephone call, advised the latter of what was wrong or deficient in the form he had returned, the follow-up letter enclosing the new claim forms referred to the telephone conversation between them and stated that the original Form 95 submitted "did not constitute a valid claim and that new forms would have to be submitted in specific amounts. * * *" Appellant never completed and returned the new written claim form. He testified, however, that following the letter of June 9, 1967, he had another telephone conversation with Wink at which time he told Wink that he "wanted a couple thousand dollars for suffering." His claim was given no further processing.

On April 21, 1969, appellant filed a complaint in the United States District Court under the Federal Tort Claims Act. On January 5, 1970 he moved to amend his complaint to allege that an administrative claim had been filed with the Post Office Department and that the Government failed to make a final disposition of it within six months after the filing. The Government moved to dismiss the action in the district court on the ground that the court had no jurisdiction since the plaintiff failed to file a proper administrative claim before instituting suit. After a hearing on the motion on July 15, 1970, the court, by memorandum and order entered the same day, granted the Government's motion.

On appeal, appellant's principal contentions are that he was not required to state a specific sum in writing or to sign his Form 95 in order to constitute a valid claim under the Federal Tort Claims Act as amended and its regulations.

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.*fn2 This requirement is jurisdictional and cannot be waived. Driggers v. United States, D.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.*fn3

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, ...


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