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CLAYTON v. PAZCOQUIN

December 15, 1981

Linda CLAYTON, Plaintiff,
v.
Dr. S. P. PAZCOQUIN and The Veteran's Administration Hospital of Altoona, Pa., Defendants



The opinion of the court was delivered by: MARSH

MEMORANDUM

On May 19, 1981, plaintiff filed in this court a "Complaint in Trespass" involving a tort claims procedure against a Federal agency and an employee of the agency acting within the scope of his employment. A summons was issued on June 22, 1981. It does not appear that the complaint and summons were served upon the defendants.

 The complaint alleged that the negligence of the Veteran's Administration Hospital of Altoona, Pa., and its employee surgeon, Dr. S. P. Pazcoquin, caused her damages in excess of $ 10,000.00.

 The tort claim also alleged that the "Defendant, United States of America, through its employees and through the Veteran's Administration, a federal agency, at all times hereinafter mentioned, did and now does operate a hospital ... in the Township of Logan, County of Blair, and State of Pennsylvania." A jury trial was demanded.

 Obviously, the tort claim is against the United States. *fn1"

 On August 24, 1981, the United States Attorney filed a Motion to Dismiss upon the grounds that the court lacks jurisdiction over the subject matter, and the defendants *fn2" by reason of the plaintiff's failure to file an administrative claim pursuant to the Federal Tort Claims Act prior to filing the cause of action. *fn3"

 Attached to the motion is an Affidavit of Homer D. Byrd, District Counsel, Veteran's Administration, stating: "That as of July 16, 1981, he has not, in his capacity as District Counsel, received a Standard Form 95, Claim for Damage ... or other document from (the plaintiff) that could be construed as an administrative claim against the United States Government."

 A memorandum of law accompanied the motion to dismiss. Both the memorandum and motion were served by mail on plaintiff's counsel.

 On September 3, 1981, it was ordered that the plaintiff file a brief in opposition to the motion to dismiss within 20 days from the date of the order. The order was served by certified mail upon plaintiff's counsel.

 Plaintiff's brief in opposition to the motion to dismiss was received on November 13, 1981.

 The complaint alleges that the plaintiff was operated on in the Veteran's Administration Hospital by Dr. S. P. Pazcoquin, a surgeon in the hospital, in the course of his employment. The alleged negligence of the doctor caused the plaintiff, over a three year period, considerable pain, suffering, medical expenses, and loss of earnings, until August 12, 1979, when the alleged negligence of the defendant surgeon was corrected by surgery performed in the Boca Raton Community Hospital in Florida.

 The complaint avers that the plaintiff did not discover the negligence of the defendant surgeon until August, 1979.

 In these circumstances, the court considers this action to be a direct suit against the United States and thus this court has exclusive jurisdiction thereof as a matter of law. Title 28 U.S.C.A. § 1346(b); Title 38 U.S.C.A. § 4116.

 In our opinion, the court is required to grant the motion to dismiss for lack of jurisdiction on three grounds: (1) the complaint does not allege that an administrative claim was presented to the Federal agency; (2) an administrative claim was not filed by the plaintiff within two years of August 21, 1979, when the plaintiff's cause of action accrued; and (3) personal service of the summons and complaint was not made upon the named defendants or upon the United States.

 Following the hearing on November 24, 1981, the court wrote a letter to counsel for plaintiff and counsel for defendants:

 
"Gentlemen:
 
"It does not appear in the docket entries nor in the Clerk's file that the defendants, Dr. S. P. Pazcoquin and the Veteran's Administration Hospital of Altoona, Pa., were served with the complaint and summons; nor does it appear that the United States was served with the complaint and summons. Evidently, the United States Attorney acquired knowledge of the action because he filed a Motion to Dismiss on August 24, 1981.
 
"Will you advise by Affidavits that the defendants, Dr. S. P. Pazcoquin and the Veteran's Administration Hospital of Altoona, Pa., were served with the complaint and summons, and, if so, the date they were served and by whom they were served. I also want to know why the service of the complaint and summons, if any, does not appear in the Clerk's file."

 Plaintiff's counsel did not respond to this letter. If the factual allegations in the complaint are correct, it is regrettable that the plaintiff is barred from recovering damages.

 The Assistant United States Attorney responded by filing his affidavit which stated that neither the United States nor any defendant was served with a copy of the complaint and summons, but that the same were mailed to the Veteran's Administration Hospital of Altoona, Pa., "on or about July 13, 1981," and copies were mailed to the United States Attorney on July 17, 1981.

 Although not in evidence, the court has been advised by the Assistant United States Attorney that a letter dated July 16, 1981 was sent to counsel for the plaintiff by the District Counsel, Homer D. Byrd, inter alia, quoting 28 U.S.C.A. § 2675(a) and enclosing a Standard Form 95, Claim for Damage, Injury or Death, and advised him to file an administrative claim ...


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