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June 19, 1986

Lucille A. White, Individually and as Administratrix of the Estate of Gerald J. White, deceased, Gerald J. White, a minor, Gary J. White, a minor, and Sara White, a minor, by and through Lucille A. White, Parent and Natural Guardian, Plaintiffs,
United States of America, Department Of Interior, Defendants

Herman, District Judge.

The opinion of the court was delivered by: HERMAN

Herman, District Judge

This suit arises out of the death of Gerald White on May 21, 1982 at the site of a federal mine reclamation project in Scranton, Pennsylvania. Plaintiffs have sued the United States under the Federal Tort Claims Act, claiming that negligence of the United States in planning and supervising the filling of the Pine Brook Shaft caused this death, and that the United States should therefore respond in damages.

 This case is now before us on the defendant's motion for summary judgment. Defendant argues first that plaintiffs' claims are barred by the discretionary function exception to the general waiver of sovereign immunity found in the Federal Tort Claims Act. See 28 U.S.C. § 2680(a). Second, defendant argues that plaintiffs' claims are barred by the misrepresentation exception to the Act, see, 28 U.S.C. § 2680(h), and finally, defendant argues that plaintiffs' claims are barred because they amount to vicarious liability theories, or, in the alternative, because the United States is immune from a tort suit as Mr. White's statutory employer under Pennsylvania law. Because we hold that Plaintiffs' claims are in fact barred by the discretionary functions exception and therefore, that this court does not have subject matter jurisdiction over the case, we will not address defendant's second and third arguments.


 Because we are addressing a summary judgment motion, we must first determine the material facts that are not disputed by the parties. If a fact is in dispute, we will assume, for the purposes of this memorandum only, that the fact is as plaintiffs' affidavits, depositions, and allegations purport it to be.

 The undisputed facts as they appear to be from the affidavits, depositions, and other submissions of the parties are as follows. In 1980, the United States Bureau of Mines identified Pine Brook Shaft and a number of other mine shafts in northeastern Pennsylvania as potential hazards. Pursuant to the authority granted to the Secretary of the Interior in the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1239, the Bureau of Mines and subsequently the Office of Surface Mining, through their branch offices located in the Wilkes-Barre -- Scranton area, began planning to backfill and cap these shafts to prevent potential accidental entry and collapse or settlement of the surrounding ground.

 In drawing up the specifications for the filling projects, the Bureau of Mines considered various alternatives for correcting the hazard presented by Pine Brook Shaft. The original plan called for backfilling the shaft with mine rock ranging in size from boulders to silt particles. Subsequently, the Bureau decided to change the size of the rock material to no less than five inches and no more than twenty inches, and to specify that hardcore rock, rather than mine refuse be used. These changes were made in accordance with recommendations contained in a National Coal Board of England publication entitled, "Treatment of Disused Mine Shafts and Adits." See Exhibit E to Declaration of Richard J. Seibel: Memorandum dated October 8, 1981, to T. P. Flynn, from Arthur Borchert. In the final specifications that the Bureau supplied to the potential bidders for the filling contract, the Bureau required that the three compartments of the Pine Brook Shaft "be filled one at a time. Due to the unknown condition (strength) of the shaft's sidewalls, the backfill material shall be dumped on the surface adjacent to the opening. The material shall then be pushed by mechanical means into the void." "Backfilling Shafts: Scope of Work" Section of Contract, at 3.

 In order to prepare the shaft for filling according to the above method, the contract required that "the existing concrete wall and steel mesh cover [the birdcage] shall be removed to ground level, the concrete cap removed and the shaft filled." The contract also provided, immediately after the specification requiring the contractor to completely remove the existing cap at the Pine Brook Shaft, that,

It is the responsibility of the contractor to provide for the security of all shafts . . . from the time the contractor starts until the final project work is approved. This will include but not be limited to fences, gates, warning lights, etc. The contractor's personnel are to be informed that the stability of the caps and the sidewalls of the shafts are unknown and safety gear shall be used while work is in progress around the shafts.

 "Backfilling Shafts: Scope of Work" Section of Contract, at 4. Additionally, the contract required the successful bidder to "take proper safety and health precautions to protect the work, the workers, the public, and the property of others," and to "comply with all applicable occupational safety and health standards relating to construction prescribed in 29 C.F.R. Part 1926." "General Provisions" Section of Contract at 3 and "General Conditions" Section of Contract at 3.

 As a preliminary step to letting the above-described contract, the Office of Surface Mining, as successor to the Bureau of Mines, held a pre-bid conference on April 9, 1982, to brief potential bidders on the required work. David Simpson, Chief of the Division of Federal Demonstration Projects and head of the Office of Surface Mining's Wilkes-Barre office, and another employee conducted the meeting. In addition to explaining the filling procedures to be used and the reasons for their use, Simpson informed the contractors present, including the eventually successful contractor, that they would have access to the government's files on the proposed project for use in preparing their bids. Pre-Bid Conference Memo (Plaintiff's Trial Exhibit 90); Deposition of David G. Simpson at 31.

 A few days later the contractors assembled at Pine Brook Shaft to view the work site and condition of the cap. On this occasion, Mr. Alfred Bernabei, one of the partners in Empire Contracting Company, the eventually successful bidder, asked Art Borchert, the technical project officer for the Pine Brook project, whether just one hole could be put in the cap by removing the steel mesh birdcage and the shaft filled through that single hole. Pre-Bid Conference Memo, supra ; Deposition of Alfred Bernabei at 18. The contractor proposed to fill the shaft three-quarters of the way up before removing the entire concrete wall and cap in order to "secure the sidewalls of the shaft." Deposition of Michael J. Naples, Jr. at 37. Borchert replied that the entire cap had to be removed before the fill operation began because the Pine Brook Shaft had three separate compartments. Apparently, removing the birdcage alone would provide access to only one of the three compartments. Borchert explained that the cap had to be completely removed "so that all the shaft compartments could be filled evenly and not overload one compartment that could collapse and bridge the adjoining compartment with timbers and rock, thus leaving a void beneath." Pre-Bid Conference Memo, supra.

 The Office of Surface Mining eventually awarded the contract for filling Pine Brook Shaft and several other shafts to Empire Contracting Company. The deceased, Gerald White, worked for Empire. Work on the Pine Brook shaft began on May 20, 1982, with the contractor using a crane and a wrecking ball to break up the concrete cap. Use of the wrecking ball continued on May 21, 1982. That same day, during a break in the wrecking activity, the ground around the Pine Brook Shaft collapsed, swallowing the crane and causing the death of Gerald White.

 Plaintiffs claim that the collapse of the ground was caused by the government's insistence that the entire concrete cap and wall be removed before the filling operation began. Their theory is that the force of the wrecking ball hitting the concrete caused the side wall of the shaft to collapse, thereby allowing the alleged sandy alluvium surrounding the shaft to flow into the void.


 Plaintiffs' theories of liability fall into two categories. The first category centers around the allegations that the government failed to disclose the specific hazards of the project and that they failed to mandate and enforce effective safety measures. More specifically, they allege first that the government had specialized knowledge of the hazards of removing the cap and backfilling the shaft in the manner mandated, yet the government failed to disclose such knowledge. Second, they claim that the government failed to provide in the contract with Empire that Empire take special precautions in light of the peculiar hazards present. Finally, the plaintiffs claim that the government negligently failed to enforce the contractor's compliance with applicable safety regulations.

 The second category of theories alleges negligence in the manner in which the government planned and executed the project. Plaintiffs claim that the government knew of alternative methods of filling the shaft which would not have resulted in the tragic accident, yet they negligently refused to implement these methods. They also claim that the government retained control over the method that the contractor could use to backfill the shaft, and that the government failed to exercise that control with reasonable care.


 Before we explain our determination that all of plaintiffs' theories of liability are barred by the discretionary function exception to the Federal Tort Claims Act, we must make a brief examination of ...

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