The opinion of the court was delivered by: SNYDER
Mitchell Mudlo and his wife, Anna Mae, brought a damage action against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 1346 and § 2671 et seq., for serious injuries suffered by the husband when struck by a moving overhead electrical crane on the premises of the Deitch Company, his employer. The Government has moved for summary judgment and the Motion must be granted.
Plaintiffs' original Complaint was dismissed without prejudice as being prematurely filed since Plaintiffs' claims in the form of their counsel's letter had not been denied by the Occupational Safety and Health Administration (OSHA) nor had six months expired since the presentation of their claim. A reading of 28 U.S.C. § 2675 (a), as well as 28 C.F.R. Part 14, mandated this decision. (See Mudlo v. U.S., Civil Action 76-134, W.D.Pa.).
On August 5, 1976, Plaintiffs reinstituted the suit alleging that OSHA had failed to act on their claim within six months of December 5, 1975, and this constituted a denial within the meaning of 28 U.S.C. § 2675(a). The Government makes the following contentions:
1. That the wife, Anna Mae Mudlo, failed to present any claim to an Administrative Agency within the statutory period of limitations, and her claim must be dismissed.
2. Mitchell Mudlo failed to make a good faith effort toward the administrative adjudication of his claim and is barred from relief in the District Court.
Alternatively, the Government submits that the case should be remanded to the agency for an administrative review of the claim once the Plaintiffs file supporting documents and a statement of the extent of injuries.
Title 28 U.S.C. § 2675(a) provides:
Anna Mae Mudlo admits that she has never filed a claim. She takes the position that the statute does not require a person other than the one directly injured to file said claim.
Circuit Judge Rosenn speaking for our Circuit in Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971) stated as follows (at 1048-50):
"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. This requirement is jurisdictional and cannot be waived. Driggers v. United States, 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.
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, personal injury, or death alleged to have occurred by reason of the incident * * *' (Emphasis added)
Unless a tort claim is submitted to the appropriate federal agency within two years after the claim accrues or unless action is begun within six months of final denial of the claim by the agency to which it was presented, it is forever barred by 28 USCA § 2401(b), as amended July 18, 1966, Pub.L. 89-506, § 7, 80 Stat. 307. Since four years have passed since Bialowas was injured, his right of action against the Government will have lapsed unless he can show that he submitted a valid claim to the Post Office Department."
"We find no merit to appellant's further contention that even if an administrative claim was not presented, exceptional circumstances exist which excuse his failure to exhaust administrative remedies. It may be that appellant did in fact sustain personal injury and property damage at the hands of a Government employee. Though sovereign, the Government considerately provided him with convenient and expeditious machinery for settlement of his alleged damages and injuries. Unfortunately for him, he ...