Janet Edens, who handles the IRS account on behalf of Edens Tree Service, stated in her affidavit, consistent with the terms of the contract, that Edens could only begin work if it received a phone call from IRS. The Government has not produced an affidavit or other evidence that the call was in such a timely fashion as to negate its negligence. Thus, genuine issues of material fact remain. As a result, the Motion of the defendant United States of America for Summary Judgment as to plaintiff David Ferguson will be denied.
The United States next contends that plaintiff Joan Ferguson failed to exhaust her administrative remedies since she did not file an administrative claim prior to instituting this suit. She concedes that she has not filed such a claim. Under the Federal Tort Claims Act, an action cannot be instituted against the United States unless the claimant first presents the claim to the appropriate federal agency and the claim is denied. 28 U.S.C. § 2675.
This provision is jurisdictional and cannot be waived. Bialowas v. United States, 443 F.2d 1047, 1048-49 (3d Cir. 1971). "Each claimant must submit an independent and separate claim to the appropriate administrative agency for review and possible settlement." Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 23 (3d Cir. 1975). Plaintiff, however, argues that since her claim for loss of consortium, under applicable Pennsylvania law, is wholly derivative of her spouse's claim, she should not be required to file an administrative claim when her spouse has done so for his claim.
In Mudlo v. United States, 423 F. Supp. 1373 (W.D. Pa. 1976), the district court granted summary judgment in favor of the Government due to plaintiff-wife's failure to file an administrative claim. In so holding, the district court relied upon Bialowas for the proposition that no exceptions to the requirement of filing a claim are to be implied. See Mudlo, 423 F. Supp. at 1375. See also Collins v. General Motors Corp., 101 F.R.D. 1, 3 (W.D. Pa. 1982); Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 23 (3d Cir. 1975).
Despite the fact that Joan Ferguson's right to compensation for loss of consortium would not exist but for the injuries to David Ferguson, the law of Pennsylvania confers separate and distinct rights upon husband and wife and requires separate verdicts to be returned. Barchfeld v. Nunley, 395 Pa. Super. 517, 519, 577 A.2d 910, 912 (1990); Collins, supra at 3 citing Nunamaker, et ux. v. New Alexandria Bus Co., 371 Pa. 28, 88 A.2d 697 (1952). Under the circumstances of this case as well as compelling precedent, Joan Ferguson's failure to pursue her administrative remedies prior to commencing suit deprives this Court of jurisdiction over her claim.
The motion of the defendant United States of America to dismiss for lack of subject matter jurisdiction as to the claim of plaintiff Joan Ferguson will be granted.
AND NOW, this day of June 29th, 1992, it is hereby ORDERED that:
1. The motion of the defendant United States of America for summary judgment as to the plaintiff David Ferguson is DENIED.
2. The motion of the defendant United States of America to dismiss for lack of subject matter jurisdiction as to plaintiff Joan Ferguson is GRANTED.
BY THE COURT:
Harvey Bartle III, J.