On Appeal from the United States District Court for the Eastern District of Pennsylvania. Hon. James T. Giles, District Judge.
Gibbons, Weis and Sloviter, Circuit Judges.
Cross Brothers Meat Packers, Inc. (Cross Brothers) appeals from an order granting the government's motion to dismiss its action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346,*fn1 2671-2680 (1976). We reverse and remand.
The plaintiff-appellant Cross Brothers sought $627,380.56 in damages from the United States for losses suffered due to the allegedly negligent meat grading by Department of Agriculture employees from 1977 through 1979. During that two year period, Cross Brothers was, as it had been for approximately sixty years, in the meat-packing business in Philadelphia, Pennsylvania. Cross Brothers contracted with the United States Department of Agriculture's Food Safety and Quality Service (the Service) to grade its beef for a fee. Two Department of Agriculture meat graders graded the meat for quality and yield on a daily basis at the plant. This involved stamping the grade on each meat carcass, thereby establishing its value.
On August 2, 1981 Cross Brothers filed a complaint alleging that the employees' negligence in improperly grading the meat, as well as the government's negligence in supervising the grading, caused loss of profits, business, customers and good will to Cross Brothers. The complaint stated that the "two graders breached their duty to the plaintiff arising out of the contractual relationship to provide proper and careful grading service" and that the grading was negligent and careless. Complaint, Para. 6, 7, 8. The government filed a motion to dismiss, which technically should have been treated as a motion for judgment on the pleadings because it was filed after the answer. Fed. R. Civ. P. 12(h)(2). The government contended that the action was barred by 28 U.S.C. § 2680(h) (1976), which precludes recovery under the FTCA for "any claim arising out of misrepresentation.. . ."
The trial court accepted the government's position and granted the motion to dismiss, reasoning that improper grading sounded in the tort of misrepresentation rather than negligence. Cross Brothers Meat Packers v. United States, 533 F. Supp. 1319, 1322 (E.D. Pa. 1982). On March 29, 1982 Cross Brothers filed a motion for reconsideration, which the district court denied. 537 F. Supp. 204 (E.D. Pa. 1982). Cross Brothers appeals.
The breadth of the misrepresentation exception is defined not by the law of the state where the tort allegedly occurred, but by the Supreme Court's interpretation of what Congress meant by the language used in section 2680(h). United States v. Neustadt, 366 U.S. 696, 706, 6 L. Ed. 2d 614, 81 S. Ct. 1294 (1961). Until recently the Neustadt case was the leading authority on the scope of the misrepresentation exception.*fn2 Neustadt was induced to purchase a home for less than fair market value because he relied on an appraisal statement furnished to the seller by the Federal Housing Authority (FHA). When structural defects materialized after he took up residence, Neustadt filed suit under the FTCA alleging that the FHA had negligently inspected and appraised the property. The Court held that the action was barred because it fell within the misrepresentation exception of section 2680(h). Id. at 711. Citing the Restatement of Torts § 552 which defines negligent misrepresentation,*fn3 the Court said that a claim alleging that the government breached its "duty to use due care in obtaining and communicating information upon which [the plaintiff] may reasonably be expected to rely" merely states the "traditional and commonly understood legal definition of the tort of 'negligent misrepresentation'. . . ." Id. at 706.
The Court refined Neustadt's definition of the tort of misrepresentation in Block v. Neal, 460 U.S. 289, 103 S. Ct. 1089, 75 L. Ed. 2d 67, 51 U.S.L.W. 4237 (1983). Justice Marshall, writing for a unanimous Court, held that a homeowner's action for damages caused by a Farmers Home Administration (FmHA) official's failure to properly inspect and supervise construction of a house was not barred by the misrepresentation exception. The Court distinguished Neustadt as an action involving no injury that the plaintiff would have suffered independently of his reliance on the erroneous FHA appraisal. "The essence of an action for misrepresentation," the Court noted, "is the communication of misinformation on which the recipient relies." Id. at 4239. In contrast, the Block tort involved the failure to use due care in carrying out the duties of inspection and supervision, and differed from Neustadt because "the Government's misstatements [were] not essential to plaintiff's negligence claim." Id.
Block v. Neal requires a reversal. Although there may be overlap between the tort of misrepresentation and the tort of negligence which makes the distinction between Block and Neustadt amorphous, see 51 U.S.L.W. at 4240, it is clear that Cross Brothers' complaint alleging negligent supervision and grading bears a stronger resemblance to the nature of the tort in Block than that in Neustadt. The meat was irrevocably devalued when the grade was placed upon it; its value was not affected by Cross' reliance on government statements. The complaint's reference to reliance in paragraph three*fn4 may be nothing more than surplusage and does not necessarily place the tort within the misrepresentation exception. Cf. Cross Brothers Meat Packers v. United States, 533 F. Supp. at 1322 (district court emphasizes plaintiff's reliance on erroneous grades). As the Court noted in Block, misrepresentation and negligence claims often have certain factual and legal questions in common, 51 U.S.L.W. at 4240; compare, e.g., Restatement (Second) of Torts § 552 (1977) (negligent misrepresentation) with Restatement (Second) of Torts § 323 (1977) (negligent rendering of service). Indeed, although a negligence claim may include an element of reliance, that element might constitute ...