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EDWARD MCCLELLAND AND MARGARET MCCLELLAND v. MARTIN DEVINE (06/24/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: June 24, 1983.

EDWARD MCCLELLAND AND MARGARET MCCLELLAND, HIS WIFE, BOTH INDIVIDUALS
v.
MARTIN DEVINE, SR. AND ELIZABETH DEVINE, HIS WIFE, AND JAMES DEVINE, ALL INDIVIDUALS, AND ANIMAL REPELLENT, INC., A CORPORATION, V. RICHARD ALLEN AND SHIRLEY ALLEN, HIS WIFE. APPEAL OF MARTIN DEVINE, SR. AND ELIZABETH DEVINE, HIS WIFE, AND JAMES DEVINE, ALL INDIVIDUALS, APPELLANTS

No. 800 Pittsburgh 1981, Appeal from the Order dated June 30, 1981, Court of Common Pleas, Civil Division, Allegheny County at No. GD. 80-28408.

COUNSEL

Richard L. Rosenzweig, Pittsburgh, for appellants.

Gary J. Gushard, Pittsburgh, for appellees.

Spaeth, Johnson and Hoffman, JJ. Spaeth, J., files a concurring statement. Hoffman, J., concurs in the result.

Author: Johnson

[ 315 Pa. Super. Page 364]

The order appealed from in this case denied appellants' petition to join as involuntary plaintiff the United States Postal Service. Appellants are the original individual defendants named in a complaint in trespass brought by plaintiffs/appellees. The complaint alleges that plaintiff Edward McClelland, a letter carrier for the U.S. Postal Service, was delivering mail at a certain address when he was attacked and bitten by the defendant Devines' dog. The Devines filed a complaint against additional defendants the Allens, alleging that it was the Allens' dog, not the Devines', that bit the plaintiff.

The defendant Devines also filed a Petition to Join the United States Postal Service as an Involuntary Plaintiff, alleging that the Postal Service had paid compensation to its employee for the injuries, that the Postal Service was claiming subrogation against the defendants, and that the

[ 315 Pa. Super. Page 365]

Postal Service was negligent. The Devines cited, as authority for their petition, Sheldon v. West Bend Equipment Corp., 502 F.Supp. 256 (W.D.Pa. 1980).*fn1 The court denied the petition on the grounds that the joinder of the Postal Service was barred by the doctrine of sovereign immunity and by section 8116(c) of the Federal Employee's Compensation Act.*fn2 It is this denial from which the Devines appeal.

The trial court ruled that the defendants were barred from pursuing a tort action against the United States Postal Service because of federal immunity. Appellees argue that the United States, through its instrumentality, the United

[ 315 Pa. Super. Page 366]

States Postal Service, is immune from suits of this type. Appellants argue that the United States Postal Service is not immune from suit. It appears that appellees and appellants are blending two distinct parties -- the United States, and the United States Postal Service. While appellants are correct that the United States Postal Service by statute has the capacity "to sue and be sued", 39 U.S.C. § 401(1), their reliance on garnishment cases, Beneficial Finance Co. of New York Inc., v. Dallas, 571 F.2d 125 (2d Cir. 1978), and Goodman's Furniture Co. v. United States Postal Service, 561 F.2d 462 (3d Cir. 1977), where the courts held that the Postal Service is not immune to state garnishment procedure, is misplaced. The Postal Service Act, at 39 U.S.C. § 409(c),*fn3 has made the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2679(a),*fn4 fully applicable to tort claims arising out of the activities of the Postal Service. The Tort Claims Act provides that suits based on torts allegedly committed

[ 315 Pa. Super. Page 367]

    by a federal agency must name the United States, not the agency, as the defendant. See Meyers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252 (2d Cir. 1975); Stewart v. United States, 503 F.Supp. 59, 61 (N.D.Ill. 1980), aff'd 655 F.2d 741 (7th Cir. 1981); Grasso v. United States Postal Service, 438 F.Supp. 1231 (Conn. 1977). See also Insurance Co. of North America v. United States Postal Service, 675 F.2d 756 (5th Cir. 1982). Thus, in a tort action against the Postal Service, the United States would be the proper party defendant.

As the Postal Service is not a proper party to this action, it may not be joined.

The trial court was correct. The order of Judge Del Sole for the Court of Common Pleas is affirmed.

SPAETH, Judge, concurring:

I join Judge JOHNSON's opinion, on the understanding, however, that it does not imply that the United States would be a proper party. While I agree that the Postal Service is not a proper party, I'm not sure, and see no need to decide, whether the United States would be.


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