                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2004

Matskow v. USA
Precedential or Non-Precedential: Precedential

Docket No. 03-3666




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Recommended Citation
"Matskow v. USA" (2004). 2004 Decisions. Paper 549.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/549


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                      PRECEDENTIAL         146 West Main Street
                                           P.O. Box 775
   UNITED STATES COURT OF                  Somerset, PA 15501
APPEALS FOR THE THIRD CIRCUIT                    Counsel for Appellant
         ___________

             No. 03-3666                   Christine A. Sanner, Esq. (Argued)
             ___________                   Bonnie R. Schlueter, Esq.
                                           Office of United States Attorney
        JOHN J. MATSKO, III;               700 Grant Street, Suite 400
        TERESA A. M ATSKO,                 Pittsburgh, PA 15219
          Husband and Wife,
                                           Rudy Kotor
                       Appellants          1397 Eisenhower Boulevard, Suite 100
                                           Richland Square III
                       v.                  Johnstown, PA 15904
                                                 Counsel for Appellees
  UNITED STATES OF AMERICA;
         RUDY KOTOR                                      ___________

             ___________                         OPINION OF THE COURT
                                                      ___________
   APPEAL FROM THE UNITED
    STATES DISTRICT COURT
 FOR THE WESTERN DISTRICT OF
       PENNSYLVANIA                        NYGAARD, Circuit Judge.
                                                   John J. Matsko III 1 filed a lawsuit
       (D.C. No. 01-cv-00076)
                                           sounding in tort for injuries inflicted by
    District Judge: The Honorable
                                           Rudy Kotor, a federal employee, during a
                    Joy F. Conti
                                           business visit to the offices of the Mine
              ___________
                                           Safety and Health Administration
                                           (“MSHA”). Matsko’s amended complaint
       ARGUED MAY 11, 2004
                                           asserted two theories under which he
                                           claimed the United States was liable for
BEFORE: NYGAARD, McKEE, and
                                           his injuries. First, he argued that Kotor’s
        WEIS, Circuit Judges.
                                           actions can be imputed to the United
         (Filed: June 16, 2004)
             ___________                   1.
                                             Matsko’s wife Teresa A. Matsko is also
                                           a plaintiff-appellant in this case, as she
Vincent J. Barbera, Esq. (Argued)          asserts a derivative claim of loss of
Barbera, Clapper, Beener, Rullo & Melvin   consortium.
States, as his employer. Second, Matsko           chair from fellow inspector Kotor’s desk
asserted that the United States was liable        for Matsko to sit in. Once the meeting was
because, despite a duty owed to him as a          underway, Kotor returned to his desk. In
business invitee, it failed to protect him        a voice characterized by Matsko as “loud
from injury by Kotor. The District Court          and menacing,” Kotor told Matsko
concluded that it lacked subject matter           “You’re in my ----ing chair.” Then, before
jurisdiction because the United States            Matsko was able to give the chair back,
enjoys sovereign immunity, and that               and without provocation, Kotor slammed
immunity had not been waived as to either         Matsko’s face into a briefcase that was
of Matsko’s claims. The Court thus                lying on M iller’s desk. Matsko suffered a
dismissed the suit in its entirety pursuant       fractured vertebra and herniated disc in his
to Federal Rule of Civil Procedure                neck.3
12(b)(1).
                                                         On his way out of the MSHA
        Because we agree with the District        offices, Kotor’s supervisors and coworkers
Court that the Federal Tort Claims Act            gave Matsko the impression that they were
(“FTCA”) does not waive the United                not surprised by Kotor’s behavior. One of
States’ immunity for intentional assaults         the MSHA inspectors told Matkso “I told
by government workers who are acting              you don’t piss Rudy [Kotor] off.” A
outside the scope of their employment, we         supervisor smirked at the comment.
will affirm the dismissal of Matsko’s first
                                                          In accordance with the FTCA,
claim. We will reverse, however, the
                                                  Matsko initially filed an administrative tort
dismissal of Matsko’s claim that the
                                                  claim with the Department of Labor. 4
United States is liable because Kotor’s
                                                  When that claim was denied, Matsko filed
supervisors and coworkers did not act to
                                                  suit in federal court against Kotor and the
prevent the assault. If, on remand, Matsko
                                                  United States, seeking $5 million in
is able to prove that Kotor’s supervisors
                                                  damages. Before answering Matsko’s
and coworkers were negligent, then his
                                                  complaint, the government filed a motion
claim would be squarely within the
                                                  under Federal Rule of Civil Procedure
FTCA’s waiver of sovereign immunity.
                                                  12(b)(1) seeking to dismiss the complaint
                    I.                            for lack of subject matter jurisdiction. In
                                                  response to Matsko’s amended complaint,
       Matsko, the Director of Safety for
PBS Coals, Inc., visited the MSHA offices
for a meeting with Earl Miller, a MSHA            3.
                                                   Criminal charges against Kotor resulted
inspector. 2 The meeting was conducted at         in his pleading guilty to recklessly
Miller’s desk, with M iller “pulling up” a        committing simple assault, harassment,
                                                  and stalking.
2.                                                4.
 PBS Coals, Inc. is a company regulated            MSHA is a division of the federal
by the MSHA.                                      Department of Labor.

                                              2
which was filed shortly thereafter, the                  On appeal, Matsko attempts to
government filed another 12(b)(1) motion.          demonstrate that, despite the District
The District Court granted the motion, and         Court’s decision to the contrary, his claims
this appeal followed.5                             fall within the FTCA’s waiver of
                                                   sovereign immunity. 6 Only if the FTCA
                    II.
                                                   waives sovereign immunity would the
        We have jurisdiction pursuant to 28
U.S.C. § 1291 over the District Court’s
final order dismissing the case, and we
exercise plenary review. Gould Elecs.,             6.
                                                     In addition to the issues addressed in
Inc. v. United States, 220 F.3d 169, 176
                                                   this opinion, Matsko’s brief to this court
(3d Cir. 2000).
                                                   included arguments in the “Issues
        In general, the United States enjoys       Presented for Review” section related to
sovereign immunity from lawsuits seeking           whether the United States can be held
money damages. FDIC v. Meyer, 510 U.S.             liable for (1) failure to properly train and
471, 475 (1994). The United States may             supervise or (2) for negligent hiring. As
waive sovereign immunity, however, and             there is no corresponding discussion,
allow itself to be sued, if it does so             Matsko has waived those contentions.
unequivocally in a statute. See Dep’t of           See In re Trans World Airlines, Inc., 145
the Army v. Blue Fox, Inc., 525 U.S. 255,          F.3d 124, 132 (3d Cir. 1998) (noting that
261 (1999). The FTCA is the statute that           Federal Rule of Appellate Procedure 28
waives immunity, in part, for tort claims          “is not only a technical or aesthetic
against the United States. See 28 U.S.C. §         provision, but also has a substantive
2674 ( “[t]he United States shall be liable        function—that of providing the other
[with a few exceptions], respecting the            parties and the court with some
provisions of this title relating to tort          indication of which flaws in the appealed
claims, in the same manner and to the              order or decision motivate the appeal”)
same extent as a private individual under          (quotation omitted); Reynolds v. Wagner,
like circumstances”).                              128 F.3d 166, 178 (3d Cir. 1997);
                                                   Southwestern Pa. Growth Alliance v.
                                                   Browner, 121 F.3d 106, 122 (3d Cir.
                                                   1997) (opining that “appellate courts
5.
 Having dismissed the claims against the           generally should not address legal issues
United States, the District Court refused          that the parties have not developed
to exercise supplemental jurisdiction              through proper briefing”). Even if the
over Matsko’s claim against Kotor,                 theories were not waived, the claims
suggesting that the claim should properly          would not be within the FTCA’s
be made in state court. A tort claim               coverage. See 28 U.S.C. § 2680(a); see
against Kotor is now pending in                    also Tonelli v. United States, 60 F.3d
Pennsylvania state court.                          492, 496 (8th Cir. 1995).

                                               3
District Court have jurisdiction over the                  Restatement (Second) of Agency’s § 228
claims. See 28 U.S.C. § 1346(b).                           to determine whether conduct is within the
                                                           scope of employment.            Section 228
A.      Liability for Kotor’s assault
                                                           considers four prongs indicative of
        Matsko’s first argument is that the                conduct within the scope of employment:
District Court erred when it held that,                    (1) the conduct is of the kind the employee
because of sovereign immunity, it lacked                   is employed to perform; (2) the conduct
subject matter jurisdiction to hear the                    occurs within the time and space of
claim that the United States is liable for                 employment; (3) the conduct is actuated at
Kotor’s assault. Matsko refers to various                  serving the employer; and (4) any force
FTCA sections that he asserts waive the                    used is foreseeable by the employer.
United States’ sovereign immunity.                         Fitzgerald v. McCutcheon, 410 A.2d 1270,
Unfortunately for Matsko, none of these                    1272 (Pa. Super. Ct. 1979) (citing § 228).
provisions encompasses situations like the                 Unless the litigant satisfies each prong, the
one presented here. We will affirm,                        court will conclude that the act in question
therefore, the District Court’s dismissal of               was not within the scope of employment.
Matsko’s claim that the United States is
liable for Kotor’s actions.
                                                                  First, we must articulate what “act”
       The first question resolved by the                  we are contemplating. Matsko argues that
District Court was whether Kotor was                       the District Court erred when it defined
within his job duties when he assaulted                    Kotor’s assault as the “act in question.”
Matsko. The Court concluded he was not.                    He asserts that the relevant act was Kotor’s
Because the United States is only liable for               retrieval of his chair, the use of which was
negligent or wrongful acts of government                   integral to his job as a MSHA inspector.
employees acting within their scope of                     Simply stated, Matsko characterizes the act
employment, the conclusion that Kotor was                  incorrectly. We will not focus on the
not within his job duties meant that                       minimally offensive conduct—retrieval of
sovereign immunity precluded the suit.                     the chair—when it was the aggregate of
See 28 U.S.C. § 2679(b)(1).                                Kotor’s actions that caused Matsko’s
                                                           injury. The retrieval of the chair would
          Our task is to decide whether
                                                           have been the act in question only if no
Kotor’s outburst was within the scope of
                                                           assault had occurred. Plainly, an assault
his government employment. We assess
                                                           happened.        Therefore, to determine
whether Kotor was acting within the scope
                                                           whether Kotor was acting within the scope
of his employment under the law of
                                                           of his employment, the relevant “act”
Pennsylvania, because that is where the
                                                           began when Kotor approached Matsko and
incident occurred.            See 28 U.S.C. §
                                                           ended when Kotor assaulted him, using
1346(b)(1); see also Aliota v. Graham, 984
                                                           excessive force. See Costa v. Roxborough
F.2d 1350, 1358 (3d Cir. 1993). In
                                                           Mem’l Hosp., 708 A.2d 490, 494 (Pa.
P e n n s y l v a n i a, c o u r t s a p p l y t h e

                                                       4
Super. Ct. 1998) (defining the conduct in          a waiver of the United States’ sovereign
question to be the intentional assault).           immunity to create liability for Kotor’s
                                                   assault.9
        That the § 228 test is applicable is
uncontested, as is the fact that Kotor’s                   Next, Matsko asserts that his claim
conduct occurred within the time and               fits within the FTCA’s special treatment of
space of his employment. Like the District         assau lts by investigativ e or la w
Court, however, we are not persuaded that          enforcement officers. The United States is
Matsko has satisfied, or could satisfy, the        not liable for claims involving assault,
other three prongs of § 228. Defying both          battery, or other intentional torts by federal
the first and fourth prongs, Kotor’s mine          employees, unless the government actor
inspector job description does not involve         was an investigative or law enforcement
or even contemplate violence.7 Contrary            officer. 28 U.S.C. § 2680(h).
to the third prong, Kotor’s act was
                                                           As we are bound by our earlier
motivated by personal animus, rather than
                                                   precedent, we conclude that Kotor should
any intent to serve the United States.8
                                                   not be treated as an “investigative or law
       Even reading the facts in the light         enforcement officer” for purposes of
most favorable to Matsko, as we are                determining whether sovereign immunity
required to do, we cannot conclude that            attaches. While Kotor was an inspector
Kotor was acting within the scope of his           for the MSHA, which included authority to
employment when he assaulted Matsko.               inspect mines and investigate possible
Thus, the District Court was correct that §        violations, the FTCA did not intend to
2679(b)(1) of the FTCA does not provide            bring within its scope actions by “officers”
                                                   not within the bounds of an investigation.
                                                   See Pooler v. United States, 787 F.2d 868,
7.
  The cases that Matsko cites from                 872 (3d Cir. 1986) (noting that Congress
Pennsylvania state courts to show that             intended the investigative officer
force is sometimes within the scope of             exception to apply only to conduct “in the
employment are distinguishable because             course of a search, a seizure, or an arrest”).
each involved a job description in which
force was implicit. See Orr v. William J.
Burns Int’l Detective Agency, 12 A.2d 25
(Pa. 1940) (guard); Pilipovich v.
Pittsburgh Coal Co., 172 A. 136 (Pa.
                                                   9.
1934) (industrial policeman).                       Judge W eis would hold that Kotor’s
                                                   conduct was within the scope of his
8.
 After assaulting Matsko and taking back           employment. However, recovery would
the chair, Kotor commented: “I                     be denied because the exception to the
remember the last time I talked to you –           waiver of sovereign immunity for
you hung up on the phone on me.” App.              “assault and battery” under 28 U.S.C. §
at R61.                                            2680(h) would apply.

                                               5
       Matsko suggests that under Carlson         negligent by not preventing his injuries.
v. Green, 446 U.S. 14 (1980), we must             The Court stated that the FTCA did not
read the § 2680(h) exception more broadly         waive sovereign immunity for such a claim
than in Pooler to encompass all activities        and “[p]laintiffs . . . failed to cite any law
undertaken by investigative officers. See         or precedent to support their argument that
Wright v. United States, 719 F.2d 1032,           this matter is encompassed in a statutory
1034 (9th Cir. 1983) (refusing to limit the       provision, other than the FTCA.” App. at
exception to the context of a search,             R-14. We conclude that the District Court
seizure, or arrest); Sami v. United States,       prematurely dismissed this claim, and will
617 F.2d 755, 760 (D.C. Cir. 1979)                reverse.
(same). We need not determine whether
                                                         The fact that a government
Pooler’s narrow reading was mistaken,
                                                  employee acting outside the scope of his
because employees of administrative
                                                  employment committed an injurious
agencies, no matter what investigative
                                                  assault or battery will not preclude liability
conduct they are involved in, do not come
                                                  against the government for negligently
within the § 2680(h) exception. See, e.g.,
                                                  allowing the assault to occur. Sheridan v.
EEOC v. First Nat’l Bank of Jackson, 614
                                                  United States, 487 U.S. 392, 401-02
F.2d 1004, 1007-08 (5th Cir. 1980)
                                                  ( 1988) (con siderin g w hethe r the
(refusing to apply the exception to an
                                                  intentional tort exception to waiver
Equal Employment Opportunity
                                                  precluded a separate claim for liability
Commission agent). Because Kotor is not
                                                  based on the government’s negligence).
covered by the FTCA’s investigative or
                                                  “In a case in which the employment status
law enforcement officer provision, the
                                                  of the assailant has nothing to do with the
District Court was correct that no waiver
                                                  basis for imposing liability on the
of sovereign immunity applied to Kotor’s
                                                  Government, it would seem perverse to
intentional tort. 28 U.S.C. § 2680(h).
                                                  exonerate the Government because of the
       In sum, because Kotor was not              happenstance that [the assailant] was on
acting within the scope of his employment         the federal payroll.” Id. at 402.
during the intentional assault, nor does he
                                                         The alleged negligence in this claim
qualify as an investigative or law
                                                  stems from the United States’ undertaking
enforcement officer, the District Court was
                                                  a duty to protect Matsko when it invited
correct that the FTCA does not apply.
                                                  him to a meeting at the MSHA offices. 10
Thus, we affirm the dismissal for lack of
subject matter jurisdiction.
B.     Liability for the negligence of            10.
                                                    Whether the government owed a duty
       Kotor’s supervisors and coworkers
                                                  to Matsko must be resolved under the
      The District Court also dismissed           law of Pennsylvania, because that is
Matsko’s claim that the United States was         where the incident occurred. See 28
                                                                              (continued...)

                                              6
As in Sheridan, this duty is entirely               and were mere bystanders by virtue of the
separate from any respondeat superior               fact that the MSHA offices were an open
claim for Kotor’s actions. Therefore, even          floor plan.       Because Matsko has
if the United States cannot be held liable          sufficiently alleged that the MSHA
for Kotor’s actions based on its status as          employees were acting within the scope of
his employer, 28 U.S.C. § 2680(h), it may           their employment, and it is at least
be without sovereign immunity for                   arguable that they were negligent,11 the
negligence by other MSHA employees,                 District Court erred by holding that the
who were within the scope of their own              FTCA did not waive sovereign immunity.
employment, in not stopping the injurious           The question of actual negligence should
behavior. Sheridan, 487 U.S. at 402-03.             be resolved on the merits, rather than in a
                                                    jurisdictional challenge.12 See Mortensen
        As discussed in the prior section, it
is clear that Kotor was acting outside the
scope of his employment.            Taking          11.
                                                      One could question whether the United
Matsko’s allegations as true, however,              States, by and through the MSHA
under § 228 the other MSHA employees                officers, knew that Kotor had a
were within their scope of employment at            propensity for violence or whether the
the time Matsko was attacked. Kotor’s               MSHA officials had time to intervene to
su p ervisors and cow orkers we re                  stop Kotor. Under the uncontested facts,
performing their jobs to further the                however, M atsko has sufficiently
MSHA’s mission at the time of the assault,          pleaded the existence of the duty, breach,
                                                    and causation elements of his negligence
                                                    claim.
10.
  (...continued)
                                                    12.
U.S.C. § 1346(b)(1). In Pennsylvania,                 The parties disagree about whether it
the Restatement (Second) of Torts § 344             was appropriate for the District Court to
makes a possessor of land liable to                 consider factual issues before the
invitees to his property for “physical              government had filed an answer.
harm caused by the accidental, negligent,           Compare Mortensen v. First Fed. Sav. &
or intentionally harmful acts of third              Loan Ass’n, 549 F.2d 884, 891-92 (3d
persons.” Moran v. Valley Forge Drive-              Cir. 1977) (noting that a “12(b)(1)
In Theater, Inc., 246 A.2d 875, 878 (Pa.            factual evaluation may occur at any stage
1968).                                              in the proceedings, from the time the
          Contrary to the government’s              answer has been served”) (emphasis
argument, Matsko’s negligence claim is              added) with Berardi v. Swanson Mem’l
not a subterfuge to mask an otherwise               Lodge No. 48, 920 F.2d 198, 200 (3d Cir.
precluded claim. Matsko’s premises                  1990). We need not resolve this issue,
liability theory does not stem from                 because on the record before us, we have
negligent hiring, training, or supervision,         no indication that facts pertinent to the
but arises solely out of the § 344 duty.                                          (continued...)

                                                7
v. First Fed. Sav. & Loan Ass’n, 549 F.2d
884, 892 (3d Cir. 1977) (“it is incumbent
upon the trial judge to demand less in the
way of jurisdictional proof than would be
appropriate at a trial stage”). We hold,
therefore, that the District Court erred by
dismissing the claim as barred by the
governmental immunity and, accordingly,
will reverse and remand for proceedings
consistent with this opinion.
                   III.
       In sum, we will affirm in part and
reverse in part. Insofar as Matsko claims
that the United States is liable for the
negligence of Kotor’s supervisors and
coworkers, his lawsuit should not have
been dismissed. In all other respects, the
District Court’s order was proper.
_________________________




12.
 (...continued)
question of whether the government was
negligent were contested.


                                              8
