Matskow v. United States

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Precedential or Non-Precedential: Precedential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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 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