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March 3, 1993

BONITA M. KOCH, Executrix of the Estate of Ralph E. Korn, Deceased, Plaintiff

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 March 3, 1993


 Plaintiff Bonita M. Koch filed this wrongful death action as Executrix of the Estate of Ralph E. Korn, deceased. *fn1" Korn sustained fatal injuries on May 24, 1991, while operating a pickup truck on an abandoned strip-mining road on property owned by the Pagnotti Coal Company (Pagnotti Coal) in Centralia, Columbia County, Pennsylvania. Korn was injured when the pickup truck struck a standpipe protruding from the center of the road. Plaintiff alleges that the standpipe had no markers or warning devices attached to it and was obscured from view.

  The standpipe was connected to a borehole *fn2" drilled as part of a project to monitor emissions from the Centralia underground mine fire. The Centralia Underground Mine Fire Exploratory Drilling Project (the "project") was an effort on the part of the United States Office of Surface Mining Reclamation and Enforcement (OSM) to gather data on the fire and assess the seriousness of the threat posed to area residents. (See: Record Document No. 16, exhibit "C", paras. 3-7)

 Permission to install standpipe BH-34 was granted to the federal government by the property owner, Pagnotti Coal, in an agreement dated August 23, 1979. The agreement provided, in relevant part, that Pagnotti would refrain from activities which would interfere with or disturb the government's work on the project and that OSM would restore the premises to substantially the same condition as before, when its work was completed. (Record Document No. 16, exhibit "E")

 The location and placement of the boreholes was determined by OSM employees. Actual drilling of the boreholes and installation of the attached standpipes was performed by an independent contractor retained by the government, Tully Drilling Company (Tully Drilling). The standpipe which Korn's pickup struck was installed in September, 1982 by Tully Drilling.

 OSM monitored emissions from 189 boreholes for eight months, from August, 1982 to March, 1983. At the conclusion of OSM's monitoring program, the boreholes and monitoring equipment were made available to the Pennsylvania Department of Environmental Resources (PaDER) for continued monitoring. PaDER has used the boreholes to monitor the temperature of the underground fire. Its conduct is not in question, and it is not a party to this action at this time. *fn3"

 Plaintiff asserts a claim against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, *fn4" and claims against defendants Tully Drilling and Pagnotti Coal *fn5" under state tort law. Plaintiff alleges that the OSM was negligent in positioning and installing the standpipe and in failing to inspect the premises to keep them safe after the installation.

 Before the court is a Rule 12(b)(1) motion by the United States to dismiss for lack of subject matter jurisdiction, or in the alternative, for summary judgment (Record Document No. 7). The United States argues that plaintiff's claim against it is barred by the discretionary function exception to the FTCA, codified at 28 U.S.C. § 2680(a). *fn6" Both plaintiff and Pagnotti Coal oppose the motion. The United States supplemented its motion with a statement of material facts (Record Document No. 16) in response to which the plaintiff filed a counter-statement (Record Document No. 26). The United States also supplemented its motion with an affidavit from David G. Simpson who served as Chief of the Wilkes-Barre Field Office of the United States Department of the Interior, Bureau of Mines from November 16, 1980 to March 21, 1982.

 Pagnotti Coal did not file a response to the statement of material facts filed by the United States. Nor did it join in the counter-statement of facts filed by plaintiff. It, therefore, is deemed to have admitted as undisputed the facts stated in the government's statement for purposes of ruling on the government's motion. (Local Rule 401.4)

 For the reasons discussed below, we will grant the United States' motion to dismiss for lack of subject matter jurisdiction. The United States' motion for summary judgment is denied as moot. Plaintiff's request for additional time to conduct discovery is denied on the same ground.


 Rule 12(b)(1) standard

 The basis for the United States' motion for dismissal on jurisdictional grounds is the principle that federal courts do not have jurisdiction over claims asserted against the United States if an exception to the FTCA applies such that its waiver of sovereign immunity cannot be invoked. Smith v. Johns-Manville Corp., 795 F.2d 301, 306 n. 8 (3d Cir. 1986).

 The United States' motion is a factual attack on the basis for federal jurisdiction. It relies on affidavits and documentary evidence as support for its contention that jurisdiction does not exist because the discretionary function exception to the FTCA applies. In such cases, the trial court is free to weigh the evidence and satisfy itself as to the existence of subject matter jurisdiction. International Association of Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1982).

 Although courts "enjoy substantial procedural flexibility" in ruling on jurisdictional challenges, Berardi v. Swanson Memorial Lodge No. 48, 920 F.2d 198, 200 (3d Cir. 1990), they should proceed cautiously in dismissing claims for lack of subject matter jurisdiction at an early stage if relevant facts are in dispute and pertinent discovery has not been concluded. Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 892 (3d Cir. 1977). Dismissal is appropriate only if the record establishes that plaintiff had an opportunity to present facts by affidavit or deposition or in an evidentiary hearing after the jurisdictional challenge arose and either exercised or waived that opportunity.

 Here, the plaintiff did not request an evidentiary hearing or the opportunity for additional discovery to assist her in responding to the Rule 12(b)(1) motion. Nor has the United States requested an evidentiary hearing. There being no request before the court for an evidentiary hearing, and no contention by the parties that the jurisdictional issues are not now ripe for disposition, there is no reason not to rule on the motion to dismiss at this time.

 Rule 12(b)(1) jurisdictional issues are decided by the court, even if they involve questions of fact. When the court's subject matter jurisdiction is under attack "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, supra, 549 F.2d at 891. No presumption of truthfulness attaches to the allegations in plaintiff's complaint, and the existence of disputed material facts does not preclude the court from evaluating for itself the merits of plaintiff's claim that a basis for federal jurisdiction exists. Although plaintiff bears the burden of proof on this issue, the burden is a lesser one than the one which must be met at trial. Id. at 891-92.

 When a defendant supports its attack on jurisdiction with supporting affidavits, the plaintiff has the burden of responding to the facts so stated. A conclusory response or a restatement of the allegations of the complaint is not sufficient. Machinists & Aerospace Workers, supra, 673 F.2d at 711. The plaintiff must adduce facts which

meet and controvert the facts asserted by the defendant. If the plaintiff does not meet and controvert the defendant's factual assertions by affidavits or other sworn proofs, then the district court must determine whether it has subject matter jurisdiction based upon the factual context presented by the defendant.

 Id. at 711-12.

 Here, the parties are in agreement on many, if not all, of the essential facts on which our decision turns. Allowing further time for discovery would not alter the facts on which the ...

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