The opinion of the court was delivered by: HUYETT
Plaintiff, Morey Greenbaum, filed suit against defendant, United States of America, under the Federal Tort Claims Act (FTCA), 28 U.S.C.A. § 2671. Plaintiff seeks to recover two hundred thousand dollars ($200,000.00) for injuries suffered by him in a fall at defendant's Bustleton Post Office in Philadelphia, Pennsylvania. The case was tried before this Court on March 8 and 9, 1973. During the first day of trial the Government made a motion to dismiss the case or to hold it in abeyance on the ground that we are without subject matter jurisdiction since this accident occurred while plaintiff was in the course of his employment. Plaintiff has moved for entry of default judgment for failure of defendant to serve its answer to the amended complaint upon counsel within the proper time.
Plaintiff at the time of the accident, March 1, 1968, was an employee of the United States Post Office and worked out of the Bustleton station. The accident occurred on plaintiff's day off as he crossed the parking lot to enter the building through the rear employees' entrance. At trial it was established that one of the reasons he was going to the post office that day was to pick up his paycheck. The Federal Employees Compensation Act (FECA), 5 U.S.C.A. § 8101 et seq., provides that the United States will pay compensation for the disability of an employee resulting from personal injuries sustained while performing his duties. 5 U.S.C.A. § 8102(a). This compensation is the exclusive remedy for anyone within its coverage. 5 U.S.C.A. § 8116(c); United States v. Demko, 385 U.S. 149, 152, 87 S. Ct. 382, 17 L. Ed. 2d 258 (1966). The action of the Secretary of Labor in allowing or denying such compensation is final as to facts and law and is not reviewable by a court. 5 U.S.C.A. § 8128(b); Somma v. United States, 283 F.2d 149 (3 Cir. 1960).
The Government claims that we are without jurisdiction to decide this case at this time and that we should either dismiss the action or hold it in abeyance pending a decision by the Secretary of Labor. In Somma v. United States, supra, the Third Circuit vacated a judgment and ordered the case held in abeyance until an FECA proceeding was completed because there was a substantial question of coverage on which the Board of Employees Compensation (BEC) had not authoritatively spoken. In a recent case, Joyce v. United States, 474 F.2d 215 (3 Cir., filed Feb. 16, 1973) (per curiam), the court held that coverage under FECA is jurisdictional and that the district court has no discretion to ignore it. The Government asserts that there is a substantial question whether an employee who is injured on government property while coming to pick up his paycheck on his day off is covered by the FECA. Defendant alleges that the BEC has never ruled on the question but cites state court opinions which permit recovery in similar circumstances under state workmen's compensation laws. E.g. Griffin v. Acme Coal Co., 161 Pa. Super. 28, 54 A. 2d 69 (1947) and cases cited therein.
If this were the extent of relevant factors we would agree with defendant that the case must go to the BEC. This case, however, is complicated by the long delay of the Government in asserting that this court lacks jurisdiction over the subject matter.
The fact that defendant was merely late in raising the issue of jurisdiction, however, does not militate against its position. A defense of lack of jurisdiction is not waived because it is delayed.
"[Whenever] it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3)
In Joyce v. United States, supra, the Government did not raise the defense of lack of jurisdiction until after several days of trial. The circuit court held that the district court erred when it ruled that it had discretion to deny such a motion when the defendant had participated fully "in discovery, pretrial and in the preparation and formulation of the trial. . . ." Joyce v. United States, 329 F. Supp. 1242, 1245 (W.D. Pa. 1971), rev'd., 474 F.2d 215 (3 Cir., filed Feb. 16, 1973). The Government strongly urges that we are bound by this rule.
In Joyce, plaintiff, a postal employee, was injured in August, 1968, by a bar of soap thrown or dropped from the window of the United States Post Office and Courthouse Building in Pittsburgh, Pa., as he walked to work on the sidewalk adjacent to the building. Joyce notified the BEC of the accident within two days and averred that the injury was sustained in the performance of his postal duties. BEC subsequently approved the claim and payments of medical bills. Joyce filed suit on February 25, 1971 and the case went to trial on May 20, 1971, less than three months later, at which time the question of jurisdiction arose.
The present case is clearly distinguishable from Joyce. This action was filed nearly four years before it went to trial. The only previous claim had been filed pursuant to the FTCA, not the FECA. Plaintiff never claimed that he was injured in the performance of his duties but always asserted that he was a business invitee who was on defendant's premises at the time of the accident to purchase postage stamps.
Plaintiff relies upon DiFrischia v. New York Central Railroad, 279 F.2d 141 (3 Cir. 1960) to support his position that defendant is foreclosed from now raising this issue. In DiFrischia the defendant in its answer averred facts which would eliminate diversity of citizenship and raised lack of jurisdiction as its first defense. The parties thereafter entered into a stipulation that the court did have jurisdiction. There then followed extensive trial preparation over a period of twenty-three months during which defendant never indicated that it contested jurisdiction. Finally at the pretrial conference counsel for defendant asked plaintiff's counsel to admit that defendant was incorporated in Pennsylvania. When this request was refused defendant filed a motion to dismiss for lack of jurisdiction. The district court dismissed the action on the grounds that no exercise of discretion was proper and that plaintiff had taken no action to either admit or deny defendant's alleged incorporation.
The Third Circuit in DiFrischia ruled that the district court abused its discretion in dismissing the action. The court stated that the stipulation entered into by defendant amounted to an amendment to his answer admitting the jurisdictional facts alleged by plaintiff in his complaint. It would not permit the defendant to "play fast and loose with the judicial machinery and deceive the courts", but required it to abide by its stipulation. The thrust of DiFrischia is that while jurisdiction may not be conferred or waived by the parties, a party may be held to an admission of jurisdictional facts. A finding of jurisdiction may thereafter be made on the basis of ...