author: EDWARD C. REED, Jr., District Judge.

text:
    James FERNHOFF, Plaintiff, v. TAHOE REGIONAL PLANNING AGENCY, Defendant.
    No. CV-R-83-431-ECR.
    United States District Court, D. Nevada.
    Nov. 30, 1984.

      James Fernhoff, in pro. per.
    Louis R. Doescher and Susan E. Scholley, Carson City, Nev., for defendant.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiff initiated this action by filing a Petition for Writ of Mandamus in a Nevada State court. His prayer for relief asks for a declaration that Defendant .(TRPA) has no jurisdiction over him and, therefore, is precluded from prohibiting the completion of his parcel development and roadway. Plaintiff, in the alternative, requests a writ of mandamus requiring TRPA to issue all permits necessary for the completion of the development project.

TRPA removed the case to this Court on the basis of federal question jurisdiction. It then moved to dismiss Plaintiff’s Petition for failure to state a claim upon which relief can be granted. The motion was accompanied by a large quantity of documentary exhibits and the request that it be treated as a motion for summary judgment. Plaintiff’s response in opposition to the motion also was accompanied by exhibits and a request that the motion be treated as one for summary judgment. Since both parties have presented matters outside the pleading and have asked the Court to treat the motion as being for a summary judgment, that is how it will be considered.

TRPA’s points and authorities emphasize that the parcel map and the roadway both require approval, in that they constitute separate and distinct projects. There have been three lawsuits between Plaintiff and Douglas County involving the proposed development of his parcel, which is situate in that County and very close to Lake Tahoe. The first was a criminal action in which Plaintiff was charged with eight misdemeanors arising from the bulldozing of a roadway on his parcel to give access to the four building sites he proposed thereon. The complaint was filed May 18, 1978, and alleged violations of Nevada statutes, County Code sections and TRPA ordinances which regulate grading and the felling of trees. A justice court jury convicted Plaintiff. On appeal, however, the conviction was reversed because a jury instruction that read, “All persons are presumed to intend the nature and consequences of their acts” was held to be violative of the Fourteenth Amendment.

The second lawsuit was a civil action commenced by the County against Plaintiff on May 19,1978, in a Nevada district court. It asked injunctive relief prohibiting Plaintiff from doing any further grading or tree cutting and requiring him to take steps to minimize the erosion problems and fire hazards his activities had engendered. At a hearing on the County’s request for a temporary restraining order, the parties entered into a stipulation. It provided that Plaintiff would do not further grading or tree cutting. Also, he agreed to install certain erosion control devices and to clear away dead and disturbed trees and brush at his own expense. The Court approved the stipulation and declared it to be a Court order. Subsequently the parties stipulated that said order should remain in effect until further order of the ■ Court. The Court entered an order approving the latter stipulation on May 31, 1978. Nothing further happened in the case, however. Therefore, after notice, it was ordered dismissed on January 3, 1983.

The third lawsuit was initiated by Plaintiff by the filing of a petition for a writ of mandate in a Nevada district court on January 15, 1981. Douglas County and several of its departments and commissions were named as defendants. It asked for a writ commanding the granting of all approvals and permits necessary for Plaintiff to commence construction of his development project. On June 23, 1981, the defendants’ motion to dismiss, for failure to exhaust administrative remedies, was denied. Then, on March 7, 1983, a written stipulation was filed. It reads, in pertinent part, as follows:

“COME NOW the parties above-named, by and through their respective counsel, and hereby stipulate as follows:
1. That Petitioner appeared before the Douglas County Board of Commissioners on September 9, 1982, at which time the Douglas County Board of Commissioners approved the parcel map at issue in this matter subject to the following conditions and findings:
a) That Petitioner provide improvement plans to Douglas County, Nevada;
b) That Petitioner obtain an administrative permit from the Tahoe Regional Planning Agency for environmental impacts due to the construction of the road in issue, prior to Douglas County issuing its construction permit for the road serving the individual lots;
c) That Petitioner must either complete construction of the road serving the individual lots or provide a letter of credit prior to recordation of the parcel map; and
d) That the parcel map was preliminarily approved by the Douglas County Planning Commission on December 29, 1977, subject inter alia, to subsequent review and approval by the Douglas County Board of Commissioners.
2. That this matter is dismissed with prejudice.
3. That each of the parties shall be responsible for their own costs and fees.”

The Court, by Order filed March 22, 1983, ratified and confirmed the stipulation and ordered the parties to abide by the terms thereof.

By letter dated June 28, 1983, TRPA advised Plaintiff that its Land Use Ordinance 81-5 prohibited construction of the road, therefore it could not accept and process his application for an administrative permit. Said Ordinance had been adopted in November 1982.

The instant action was commenced October 26, 1983. Plaintiff’s position is that his parcel map had been conditionally approved by Douglas County on December 29, 1977. At the time, the law was that TRPA was deemed to have approved the County’s action if it didn’t act within sixty days after submission of a report of the County’s action. No action was taken within the sixty-day period by TRPA. Plaintiff argues that he thereby acquired a vested right to complete the project, which right may not be taken away by a subsequently enacted ordinance. He contends that he attempted fully to comply with the conditions but was thwarted by his arrest for bulldozing the roadway.

TRPA points out that, even as to a permit that became final without any action by it, its Ordinance specified that it retained the right to bring judicial action to enforce the provisions of the Ordinance. Further, TRPA argues that the bi-state compact under which it was created was amended in 1980 to require its approval of roads. Also, a September 26, 1980, letter from TRPA to Plaintiff directed him to recontour and re-vegetate the road he had bulldozed so as to restore the land to its original condition. The directive was in connection with TRPA’s denial of Plaintiff’s request for a variance from land coverage restrictions that made the road impermissible.

Plaintiff’s reliance on the County’s conditional approval of his parcel map was based on his own mistake, according to TRPA. The roadway required a grading permit that was distinct from parcel map approval, it argues.

State law determines the validity of local permit issuance. California Tahoe Regional Planning Agcy. v. Jennings, 594 F.2d 181, 191 (9th Cir.1979). Plaintiff’s basic premise is that the expenditures he incurred in reliance on Douglas County’s conditional approval of his parcel map created a vested right in him to complete the whole development project. The rule in Nevada is that even the issuance of a building permit does not confer a vested right “unless zoning or use approvals áre not subject to further governmental discretionary actions affecting project commencement.” Board of County Com’rs v. CMC of Nevada, Inc., 99 Nev. 739, 670 P.2d 102, 107 (1983); see also Russian Hill Imp. Ass’n v. Board of Permit Appeals, 66 Cal.2d 34, 56 Cal.Rptr. 672, 676, 423 P.2d 824, 828 n. 11 (1967).

Even before the 1980 amendments to the bi-state compact, TRPA had the right to compel a county to vacate its approval of a parcel map where TRPA’s ordinances were violated by the proposed project. See County of Douglas v. Tahoe Regional Planning Agency, 95 Nev. 101, 590 P.2d 160 (1979). Douglas County’s approval of Plaintiff’s parcel map was conditional. The application for a permit does not create a vested right in the applicant even if the project conforms to existing zoning and use regulations. Contra Costa Theatre, Inc. v. City of Concord, 511 F.Supp. 87, 89 (N.D.Cal.1980). Even if TRPA’s failure to act within sixty days after being advised of Douglas County’s action would constitute default approval, the County’s issuance of a permit would not be immunized from judicial review. California Tahoe Regional Planning Agcy. v. Jennings, at 594 F.2d 189.

A writ in the nature of mandamus would not be appropriate here, because Plaintiff has neither a valid permit nor a vested right to complete his development project. See Board of County Com’rs v. CMC of Nevada, Inc., at 670 P.2d 108.

Plaintiff seeks to invoke equitable estoppel because the purported default approval of TRPA caused him to rely on the County’s conditional approval. The shortness of time between his bulldozing of the road and his arrest (three or four days) refutes any contention that the authorities’ inaction created a reasonable belief in Plaintiff that he was permitted to construct a road. See Ferris v. City of Las Vegas, 96 Nev. 912, 620 P.2d 864, 866 (1980). He also contends that the doctrines of res judicata, collateral estoppel and double jeopardy require that the necessary permits issue, in light of the dismissals of both the County’s criminal and civil actions against him. It is not necessary to decide if there was privity between Douglas County and TRPA, because the merits of the issues he has raised herein were not litigated and no final judgment on the merits in his favor was obtained. As to the criminal case, the successful appeal of his conviction was based on an erroneous jury instruction. The reversal did not establish that he was not in violation of the grading and tree felling statutes, code sections and ordinances. Neither double jeopardy nor res judicata will avail him in such circumstances. See United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2193, 57 L.Ed.2d 65 (1978). Nor was there a final judgment on the merits in the civil action. Therefore, neither res judicata nor collateral estoppel is applicable. Paradise Palms Community Ass’n v. Paradise Homes, 89 Nev. 27, 505 P.2d 596, 599 (1973). A consent judgment unaccompanied by any evidence demonstrating that the court actually determined the issues is not entitled to collateral estoppel effect. United States v. International Building Co., 345 U.S. 502, 506, 73 S.Ct. 807, 809, 97 L.Ed. 1182 (1953). Such was the case in the third lawsuit between Plaintiff and Douglas County.

IT IS, THEREFORE, HEREBY ORDERED that summary judgment be entered in favor of defendant Tahoe Regional Planning Agency dismissing the action against it.


source: Caselaw Access Project

author: JOHN GARRETT PENN, District Judge.

license: Public Domain

text:
    Shiraz HASSANALI, Ameena Hassanali, Ashraf Hassanali, and Mohammed Kaderali, Plaintiffs, v. ATTORNEY GENERAL, Defendant.
    No. 84-2772.
    United States District Court, District of Columbia.
    Nov. 30, 1984.

      Gordon Charles, Washington, D.C., for plaintiffs.
    Carol Galbreath, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM OPINION

JOHN GARRETT PENN, District Judge.

The plaintiffs filed this action pursuant to the Immigration and Nationality Act (Act), specifically 8 U.S.C. §§ 1101-1503, and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Plaintiffs request that the Court declare that the denial of the sixth preference visa petition for Shiraz Hassanali (Hassanali), and the efforts to deport Hassanali and his family are “contrary to the applicable laws and regulations, unsupported by reasonable, probative, and substantial evidence, and an abuse of discretion.” Plaintiffs seek to have the Court declare that Hassanali is entitled to approval of the sixth preference visa petition and for the Court to enjoin the defendant from “detaining, deporting, or requiring the departure from the United States” of Hassanali and his family. The case is now before the Court after consolidation of the hearing on the motion for a preliminary injunction with a hearing on the merits. See Fed.R.Civ.P. 65(a)(2).

I

The underlying facts are as follows: Plaintiff Kaderali is the owner of a gasoline station and desires to employ Hassanali as the manager of that station. Hassanali and his family are citizens of India.

On June 2, 1980, Kaderali submitted an application for a labor certification on behalf of Hassanali who was to be employed as a gasoline station manager. The application as submitted reflected that the employer was to be L & M Service Center at 471 2d Avenue, Troy, New York. The application was submitted as the first step to have Hassanali granted a sixth preference visa. See 8 U.S.C. § 1153(a)(6). The application was approved and a labor certification was issued by the Department of Labor (DOL) on March 2, 1981. Complaint Exhibit A. That action gave Hassanali a June 2, 1980 priority date on the waiting list for sixth preference immigrants from India.

The Immigration and Naturalization Service (INS) commenced deportation proceedings against Hassanali and his family on February 2, 1981, charging that they had been admitted to this country as visitors on or about September 1, 1979, and had overstayed their authorized period of temporary stay. Complaint Exhibit B. On March 18, 1981, Kaderali submitted to INS a visa petition seeking sixth preference classification for Hassanali on the basis of the labor certification. Complaint Exhibit C. At the final deportation hearing on March 11, 1981, the Immigration Judge granted • Hassanali and his family three months for their voluntary departure from the United States, apparently on the basis of the pending sixth preference visa petition. Counsel for Hassanali wrote the INS District Director in Buffalo, New York, calling attention to the submission of the sixth preference visa petition submitted to INS at their office in Albany, New York, and requesting an extension of the voluntary departure date. The Buffalo INS office responded, noting that it had no record of the papers submitted to the Albany INS office. Counsel responded on June 11, 1981, and advised the Buffalo INS office of the date the petition was submitted and renewed his request for an extension of time. No response was ever received from INS, however, INS did not pursue the deportation of Hassanali while the petition was under consideration by its Albany office.

INS took no action on the sixth preference visa petition for almost three years, and the plaintiffs maintain, and it is apparently undisputed, that the visa petition date became current during the months of June, July, August and September 1982, and for the entire fiscal year commencing October 1983, including the month of September 1984.

In the meantime, when Kaderali’s lease on the Troy, New York, gasoline station was about to expire, the lessor proposed to raise the rent from $1,000 to $1,800 per month. Kaderali rejected the increase as exorbitant and terminated the lease on July 30, 1982. He found a new location the following year and reopened his business on September 14, 1983, under the new trade name, MKB Getty Service Corporation, which, notwithstanding the name, was not incorporated, and which, like the previous gasoline station, was wholly owned and operated by Kaderali. The new station is located in Latham, New York, approximately 11 miles from the old station. Hassanali was employed as the manager of both stations and Kaderali continues to adhere to his offer to employ Hassanali on permanent basis as the manager of his service station.

On March 20, 1984, the District Director of INS at Buffalo denied the visa petition. Complaint Exhibit F. In his decision he cited DOL regulation 20 C.F.R. § 656.-30(c)(2) and ruled that, “[t]he record indicates that the L & M Service Station ceased to exist in July 1982, thereby terminating the validity of the labor certification obtained for the position of manager. In view of the foregoing, the position as certified no longer exists. The petition is therefore denied.” Id. The appeal to the INS Assistant Commissioner was denied. Complaint Exhibit G. In denying the appeal, the Assistant Commissioner ruled that:

There is no evidence that the petitioning entity [L & M Service Center] continues to exist. There is substantial evidence that it does not. Therefore the job offer, made by this specific entity, also no longer exists in that the employer-employee relationship detailed has ended. There is no evidence of successorship of rights and liabilities. The ostensible owners decision to establish a new, similar business enterprise in the same area is not a basis for a finding of continuity for the purposes of this petition. Pursuant to 20 CFR 656.30(c)(2) the labor certification is no longer valid. Further, a review of this matter establishes no basis for estoppel.

Thereafter, the District Director advised Hassanali that INS intended to deport him from the United States.

In seeking relief from this Court, the plaintiffs made two arguments, one which is no longer applicable. First, they argued that the attempt to deport Hassanali and his family “ignores the legislative policy expressed in the Simpson-Mazzoli Bill”. That argument is no longer valid since the Bill was not enacted by Congress. The second argument is that the defendant’s subordinates “erroneously assumed authority to invalidate a labor certification issued by [DOL], without soliciting the advice of that Department.” Plaintiffs also contend that the defendant has misread the DOL regulation in finding that the certification is no longer valid.

The defendant disagrees with the plaintiffs’ interpretation of the applicable law and regulation, and in addition, argues that the District Court lacks jurisdiction to hear this case.

II

The first issue which must be addressed is whether the District Court has jurisdiction to hear this case. The defendant argues that it does not and relies on 8 U.S.C. § 1105a in support of his contention that exclusive jurisdiction to consider this case rests in the Court of Appeals. Both sides to the present controversy rely upon the same case in support of the argument that the District Court does or does not have jurisdiction. In Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968), the narrow question presented was whether the Court of Appeals had jurisdiction to review the denial of a stay of deportation where the order being challenged had not been entered in the course of a proceeding conducted pursuant to 8 U.S.C. § 1252. There, the petitioner, who was a native and citizen of China, entered the United States as a seaman. He eventually deserted his vessel and remained unlawfully in this country. He conceded his deport-ability but sought and obtained permission to depart the United States voluntarily. He did not do so and then requested a stay of deportation pending the submission of an application for adjustment of status under 8 U.S.C. § 1153(a)(7) which allows conditional entry into this country under certain circumstances. The District Director of INS denied the stay of deportation, and the petitioner commenced the proceeding in the Court of Appeals for the Third Circuit. That Court denied the petition for want of jurisdiction, 381 F.2d 542, and the Supreme Court granted certiorari and thereafter affirmed. In short, the Supreme Court held that exclusive jurisdiction in the courts of appeal vested only when the challenged order was entered in deportation proceedings conducted under Section 1252. The Court noted that, “[w]e believe that, in combination with the terms of § 106(a) [8 U.S.C. § 1252(a)] itself, these statements [debates on the floor of the House of Representatives] lead to the inference that Congress quite deliberately restricted the application of § 106(a) to orders entered during proceedings conducted under § 242(b) [8 U.S.C. § 1252(b)], or directly challenging deportation orders themselves.” 392 U.S. at 215, 88 S.Ct. at 1975-76 (footnote omitted).

.[1] The plaintiffs contend that Cheng Fan Kwok supports the argument that the District Court does have jurisdiction over the instant proceedings. This Court agrees. The matter before the Court does not result from an order entered in a deportation proceeding; rather, it is, in effect, an appeal from the decision of the District Director denying plaintiff’s sixth preference visa petition. Moreover, the fact that the defendant is seeking to deport Hassanali and his family, does not convert this action to one brought under Section 1252.

The Court has jurisdiction to entertain the present action.

Ill

Before addressing the merits, it is necessary to briefly review the procedures followed when an alien applies for a sixth preference visa.

Most aliens who seek to enter the United States for permanent residence are subject to certain numerical limitations. See 8 U.S.C. § 1151. The sixth preference visa permits the entry of aliens “who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.” 8 U.S.C. § 1153(a)(6). An alien seeking to enter the United States for the purpose of performing skilled or unskilled labor may not do so unless the Secretary of Labor certifies (a) that there are not sufficient workers in the United States “who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (b) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.” 8 U.S.C. § 1182(a)(14) (emphasis the Court’s).

The primary purpose for the requirement for the certification by DOL is to protect American labor. H.R.Rep. No. 1365, 82d Cong. 2d Sess., reprinted in 1952 U.S.Code Cong. & Ad.News 1653, 1705. The House Report on the Immigration and Nationality Act, provided that while the Act would remove certain “contract labor clauses” from the law, “it [Section 1152(a)(14) ] provides strong safeguards for American labor.” Id. The Committee observed that “[i]t is the opinion of the committee that this provision will adequately provide for the protection of American labor against an influx of aliens entering the United States for the purposes of performing skilled or unskilled labor where the economy of individual localities is not capable of absorbing them at the time they desire to enter this country.” Id. (emphasis the Court’s.) This is a determination which lies exclusively with the Secretary of Labor. Castanda-Gonzalez v. Immigration and Naturalization Service, 183 U.S. App.D.C. 396, 403-404, 564 F.2d 417, 424-425 (1977). See also Madany v. Smith, 225 U.S.App.D.C. 53, 57, 696 F.2d 1008, 1012 (1983). The determinations by DOL “are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS’ authority.” Madany, supra, 225 U.S.App.D.C. at 57, 696 F.2d at 1012. See also 8 U.S.C. § 1154(b); 20 CFR § 656.30(c)(2).

While the above two questions have been expressly delegated to DOL, since that agency has the primary responsibility for protecting American labor, INS may still determine whether an alien, who has obtained labor certification from DOL, is qualified for the job certified. Madany, supra, 225 U.S.App.D.C. at 57, 696 F.2d at 1012. In Madany, the court observed that, “[t]he review here in question concerns the alien’s skills or qualifications and is not one of the inquiries expressly allocated to DOL by [Section 1182(a)(14)].” Id. See also K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir.1983); Stewart Infra— Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1, 3-5 (1st Cir.1981).

Thus, the function of DOL in relation to an alien’s application for sixth preference status is quite limited consistent with the agency’s role as protector of American labor. Once DOL has certified that there are not sufficient American workers able, willing, qualified and available and that the employment of the alien will not adversely affect American labor, its primary role comes to an end and INS must then rule on whether the visa should be granted. Therefore, even if DOL should certify that, for example, there are no American machinist ready and able to work and that admission of an alien machinist would not adversely affect American labor, INS may still determine in making its decision whether the alien is in fact a qualified machinist.

IV

The instant case presents five troublesome issues.

First, the plaintiffs initiated their application for a sixth preference visa on June 2, 1980. Their application was based on the fact that Hassanali was to be employed as a gasoline station manager in Troy, New York. DOL issued a labor certification on March 2, 1981. At that point, INS was required to accept the labor certification absent some indication of fraud or willful misrepresentation, which is not an issue in this case. If INS had thereafter immediately acted on the plaintiffs petition, it presumably would have granted the petition because the only reason it has denied the petition is that the job no longer exists. Therefore, it appears that the plaintiffs lost their ability to obtain a visa through no fault of their own and even though counsel had made inquiries as to the status of the petition. This raises the question whether INS is now estopped to deny the petition. The Court need not address this issue.

Second, and related to the above issue, is whether in rejecting the petition on the grounds that the job no longer exists, INS must look to the facts as they existed at the time the petition was filed or within a reasonable time thereafter, or whether the agency may look to the facts at the time it acted on the petition, notwithstanding that it delayed action for almost three years. Congress has provided that DOL must eertify whether there are “no sufficient workers ... who are able, willing, qualified, and available at the time of application for a visa The time of application for a visa was March 1981, not March 1984 when the petition was denied. . Once again the Court concludes that it need not address this issue in view of its disposition of this case.

Third, is whether the determination made by INS was in a matter which is delegated to DOL pursuant to Section 1182(a)(14). The matters delegated to DOL relate to Ihe protection of American workers not to whether the alien is qualified for the position and not to whether the job is available. While it is true that DOL must look to the nature of the job and at least, preliminarily make a determination about the nature of the employment, it does so only in connection with its responsibility to determine whether there are available American workers and whether the admission of the alien will adversely affect American labor. As this Court has observed, the role of DOL stops there. See Stewart Infra — Red, supra, 661 F.2d at 5. On the other hand, the basis of the rejection by INS is that the labor certification is no longer valid because the job is no longer in existence. The question of the validity of the labor certification rests with DOL, not with INS.

To state it differently, the Court must look to the reasons given by INS for its rejection of the petition rather than the grounds upon which INS could have rejected the petition. In his decision rejecting the petition, the District Director conceded that Hassanali had an “approved labor certification”. Complaint Exhibit F. He then went on to give his reasons for rejection, that is, that 20 C.F.R. § 656.30(c)(2) “provides that a labor certification involving a specific job offer is valid only for the particular job opportunity stated on the application for the alien employment certification.” Id. He then noted that that job ceased to exist in July 1982 “thereby terminating the validity of the labor certification obtained for the position of manager.” Id. The District Director gave as his reason for rejecting the petition that “the position as certified no longer exists.” In affirming the decision of the District Director, the Assistant Commissioner also observed that, “[pursuant to 20 C.F.R. § 656.30(c)(2) the labor certification is no longer valid.”

The question of the validity or invalidity of the labor certification is a matter which is delegated to the Secretary of Labor. While it is possible that the Secretary may agree with INS and rule that the certification is no longer valid, it is not clear that the Secretary would do so. Indeed, the DOL officer who issued the labor certification in March 1981, see Complaint Exhibit A, is the same officer who in August 1984, agreed with plaintiffs’ counsel that the labor certification was still valid. See Exhibit to Plaintiffs’ Memorandum of Law in Support of Motion for Temporary Restraining Order. The question of the continuing validity of the labor certification is one which must be submitted to DOL pursuant to Section 1182(a)(14).

Fourth, is whether the regulation, 20 C.F.R. § 656.30(c)(2), as written, is consistent with the statute, 8 U.S.C. § 1182(a)(14). The statute provides in part that the Secretary is to determine whether there are willing qualified workers at the time of application “at the place to which the alien is destined to perform such skilled or unskilled labor” (emphasis the Court’s). The regulation states that the “labor certificate involving a specific job offer is valid only for a particular job opportunity and for the area of intended employment stated.on the Application” (emphasis the Court’s). Clearly, the regulation appears to be more restrictive than the statute.

As the Court has noted, the purpose of the labor certification procedure is to protect American workers. Of course, to do so, DOL must ascertain the nature of the job being offered and any skill involved in order to determine the availability of American workers and whether the alien’s employment would adversely affect American labor. Once the job specification has been determined and the area designated and the labor certificate granted, there seems to be little reason to limit the certification to the specific job being offered. For example, if a labor certification is granted to allow an alien to work as a gasoline station manager at an Exxon station on John Street in Troy, New York, and he thereafter is offered a similar position at the Mobil station across the street, except for the need to insure that there is a valid job available for the skill certified, there seems to be no reason why the labor certification would change. This is because the fact that the alien would be employed at the Mobil rather than the Exxon station would not affect the certification since DOL is only certifying that-there are not able and qualified American workers and further that the alien’s employment would not adversely affect American labor. Given the above hypothetical, presumably, DOL would either issue a new certification or would continue the certification already granted. In this case, DOL’s response to the letter written by plaintiff’s counsel suggests that DOL would continue the certification already granted.

One last point must be made on the issue of the regulation. As stated, once the certification has been granted, INS is fully entitled to satisfy itself that the job is available, just as it is entitled to satisfy itself that the alien is qualified for the job notwithstanding DOL certification. The question raised here then is whether the regulations are in fact more restrictive than the statute. This issue should also be addressed by DOL.

Fifth, is the interpretation to be given to 20 C.F.R. § 656.30(c)(2) that, “[a] labor certification involving a specific job offer is valid only for the particular job opportunity and for the area of intended employment ” (emphasis the Court’s). The regulation was presumably written so as to be consistent with the statute, Section 1182(a)(14). Does “specific job offer” and “particular job opportunity” refer only to the job at L & M Service Center on 471 Second Avenue, Troy, New York, or does it also refer to the job offer at MKB Getty Service Corporation at 32 Purtell Avenue, Latham, New York? Is the job opportunity at the latter location the same job opportunity because it involves the same job (gasoline station manager) and the same employer (Mohammed Kaderali operating under the name of L & M Service Center and later operating under the name of MKB Getty Service Corporation, neither being a partnership or corporation)? Is Latham, New York, in the same area of intended employment as Troy, New York?

The regulations involved are DOL regulations rather than regulations promulgated by INS and accordingly, it is the former agency which should interpret the regulations, not INS. Yet, in denying the petition, INS has specifically interpreted the DOL regulation in finding that the job has ceased to exist and the labor certification is no longer valid. The questions of interpretation are properly addressed to DOL consistent with the delegation made to that agency.

V

To summarize, INS denied the petition for sixth preference visa on the grounds that the once valid labor certification was no longer valid. In reaching that determination, INS purported to interpret 20 C.F.R. § 656.30(c)(2). INS determined that the labor certification was no longer valid because the job at L & M Service Center at 471 Second Avenue, Troy, New York, no longer existed. No other grounds has been set forth for the denial. In basing its determination on those grounds, INS overstepped its bounds and purported to act in an area which lies exclusively with the Secretary of Labor. As a result, this case must now be remanded to the Attorney General and INS for further consideration. Upon remand, INS must consult with DOL. It is the responsibility of DOL to determine whether the labor certification is still valid. The third, fourth, and fifth issues, see Part IV, supra, are all properly addressed by DOL and not INS. Once DOL has responded, INS may then determine whether to grant the petition.

The Court makes no determination as to the interpretation to be given to the relevant statute or regulations or as to the action DOL should take with respect to the labor certification. Once DOL makes its determination on the question of the labor certification, INS may determine whether to issue the sixth preference visa. Nothing said in this Memorandum Opinion would preclude INS from either questioning the alien’s qualification for the job he seeks, or from questioning whether the job in fact exists.

An Order has been entered remanding the case to the defendant for action consistent with this Memorandum Opinion. Pending a determination as to whether the petition for sixth preference visa should be granted or denied, INS shall take no action to deport Hassanali or his family.

      . The case was filed on September 10, 1984, and came before the Court later that afternoon for a hearing on plaintiffs’ motion for temporary restraining order. At that hearing, counsel for the defendant advised the Court that the defendant would take no action to deport Hassanali until the hearing on plaintiffs motion for temporary restraining order. Defendants requested that the hearing on the motion for temporary restraining order be continued over. That representation was incorporated into an order entered by the Court. See Order filed September 11, 1984. The motion for temporary restraining order was heard on September 17, 1984 and the defendant once again agreed to maintain the status quo pending a hearing on plaintiffs’ motion for preliminary injunction scheduled for September 19, 1984. The Court also advised the parties that, in view of the issues raised, the court would consolidate the hearing on the motion for preliminary injunction with the hearing on the merits. See Fed.R.Civ.P. 65(a)(2). The Court heard further arguments on September 19, 1984 and the parties filed additional memoranda on October 26, 1984. Throughout this period, and pending a decision by the Court, the defendants have maintained the status quo.
      The Court expresses its appreciation to the defendant for agreeing to withhold action against the Hassanali family since this allowed the parties to present their evidence and arguments in an orderly fashion, and it permitted the Court additional time to consider the issues presented in this case.

      . It seems strange that in Troy, New York,- a city with a population of approximately 63,000, which is part of the Albany, New York, metropolitan area with a population of almost 800,000 there were no persons willing, able and qualified to work as a gasoline station manager. But, that is not an issue subject to question by INS or the Court. See e.g., the comments contained in Castaneda-Gonzalez v. Immigration & Naturalization Service, 183 U.S.App.D.C. 396, 401, 564 F.2d 417, 422 (197-7) (“despite the paucity of data, the Labor Department approved Constaneda — Gonzalez’ request for certification on March 23, 1970, only three weeks after it was received”).


author: KANE, District Judge!

text:
    Robert W. RAINES and Donna J. Raines, Plaintiffs, v. John R. BLOCK, in his official capacity as Secretary, United States Department of Agriculture, et al.
    Civ. A. No. 84-K-997.
    United States District Court, D. Colorado.
    Dec. 6, 1984.

      A. Gary Bell, Jr., Bell & Pollock, P.C., Littleton, Colo., for plaintiffs.
    Steven D. Taylor, Asst. U.S. Atty., Denver, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge!

Plaintiffs’ claims arise out of various dealings with officials of the United States Department of Agriculture. Principle among these dealings is a contract entered into on March 10, 1983, between Robert W. Raines and the Department. Under the terms of the contract plaintiffs destroyed certain acres of growing wheat, thus removing their land from agricultural production. In exchange for not producing wheat, plaintiffs were to receive a specified quantity of wheat known as “payment in kind.”

After entering the contract, there arose a dispute as to the amount that should be paid pursuant to the contract. Plaintiff’s allege that the Agricultural Stabilization and Conservation Service (ASCS) unilaterally reduced the amount of wheat plaintiffs were to receive as payment in kind under the contract. After learning of this change, plaintiffs requested reconsideration of the administrative determination reducing the payment as provided for in 7 C.F.R. §§ 780.3 and 790.

Upon final determination by the ASCS that the dispute would not be resolved in plaintiffs favor, they filed this action on May 14, 1984. The complaint alleges six separate claims for relief as follows: the first claim alleges a breach of contract; the second claim seeks relief under a theory of promissory estoppel; the third claim alleges negligence; the fifth claim, though somewhat obscure, seems to allege violations of civil rights under color of federal law; the fourth claim asserts an unconstitutional taking of property; and, finally, the sixth claim alleges administrative misconduct. Despite these six independent captions all of the plaintiffs claims are essentially grounded in the basic allegations of breach of contract.

Defendants move to transfer the case to the Court of Claims or in the alternative to dismiss the complaint for lack of subject matter jurisdiction. Defendants also move to dismiss the tort claim for lack of subject matter jurisdiction because plaintiffs have failed to comply with the jurisdictional requisites of the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80.

In response to defendants’ motion, plaintiffs argue that this court has jurisdiction pursuant to 7 U.S.C. § 1365, 5 U.S.C. § 702 and 28 U.S.C. § 1361. Both sections 1365 of the Agricultural Adjustment Act and 702 of the Administrative Procedure Act provide for equitable review of agency action. Similarly, a petition for a writ of mandamus, for which this court has jurisdiction pursuant to 28 U.S.C. § 1361, prays for an equitable order in the form of relief from agency action.

The issues raised in defendants’ motion are similar to those analyzed in S.J. Grove & Sons Co. v. United States, 495 F.Supp. 201 (D.Colo.1980). In that case I held that a complaint rooted in breach of contract against the United States which sought damages in excess of $10,000 was not cognizable in this court although nominally framed as a petition for administrative review and mandamus. Where the claimant seeks monetary relief from the United States in excess of $10,000 the Tucker Act restricts jurisdiction to the Court of Claims. 28 U.S.C. §§ 1346(a) and 1491. Under the terms of the Tucker Act,the United States has waived sovereign immunity as to certain contract suits only if those suits are filed in the Court of Claims. Id.; see also Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 823 (10th Cir.1981).

Moreover, the limitations of the Tucker Act cannot be avoided by filing suit against individual public officials. Since this suit seeks to obtain resources from the public treasury and seeks to compel the United States to act in a certain way, the action is actually against the United States. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). Thus, the protections of sovereign immunity and the Tucker Act apply to plaintiffs’ claims against officials of the Department of Agriculture.

Actions seeking to correct administrative misbehavior do not fall within the limitations of the Tucker Act. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 727-28 (2d Cir.1983). Difficulty often arises in discerning legitimate challenges to agency action from contract claims. Id. at 727, quoting Wright, Miller & Cooper, Federal Practice and procedure § 4101, at 210 (1978). Where, as here, the gravaman of the complaint is a claim for money damages arising out of breach of a contract, the controversy is not within the jurisdiction of a federal district court. The law clearly provides that the jurisdiction of the Court of Claims cannot be evaded by framing the complaint to seek mandatory or injunctive relief against governmental officials. See Amalgamated Sugar Co., 664 F.2d at 823-24; S.J Grove & Sons, 495 F.Supp. at 204-09. Thus, this court does not have jurisdiction over plaintiffs’ claims for breach of contract, promissory estoppel' or abuse of agency discretion.

In addition to the claims asserting breach of contract and abuse of administrative discretion, plaintiffs also posit allegedly independent claims of unconstitutional and tortious conduct. See, e.g., Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). This court could have jurisdiction over such independent claims pursuant to 28 U.S.C. §§ 1331 and 1346(a)(2). However, plaintiff’s attempts to allege independent claims sounding in tort and federal common law do not obviate the fact that the genesis of any wrongdoing by the United States was breach of contract. Just as framing the complaint in terms of administrative review cannot be used as a pretext to invoke the jurisdiction of this court, so to structure the claims as constitutional and common law torts cannot destroy the requirement of filing claims for monetary damages in the Court of Claims. Plaintiffs’ tort and constitutional claims arise ex contractu not ex delicto. See, e.g., Bird & Sons, Inc. v. United States, 420 F.2d 1051, 1053-54 (Ct.Cl.1970).

Because I find that each of the separate claims outlined in the complaint is grounded in a basic claim of breach of contract, this court does not have jurisdiction. I make no ruling on defendants’ second basis to dismiss, whether plaintiffs have met the jurisdictional requisites of the tort claims act.

Accordingly, the United States’ motion to transfer is granted. This case is ordered transferred to the Court of Claims.


author: PEREZ-GIMENEZ, Chief Judge.

text:
    INSURANCE COMPANY OF NORTH AMERICA, et al., Plaintiffs, v. PUERTO RICO MARINE MANAGEMENT, INC., Defendant.
    Civ. No. 83-2920(PG).
    United States District Court, D. Puerto Rico.
    Dec. 6, 1984.

      James A. Toro, Old San Juan, P.R., Robert W. Fenet, Lake Charles, La., for plaintiffs.
    Jaime Mayol, Jiménez & Fusté, J. Ramón Rivera Morales, San Juan, P.R., for defendant.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

This action was brought by Insurance Company of North America, (hereinafter referred to as INA) as representative and on behalf of various insurance companies, to recover for loss of cargo allegedly due to defendant’s breach of contract and negligence.

Defendant filed a motion for summary judgment on August 21, 1984, alleging that the complaint is time barred and that plaintiff failed to state a claim upon which relief can be granted. On September 5, 1984, plaintiff filed an opposition thereto and a cross-motion for summary judgment. Subsequently, defendant filed, on October 1, 1984, an opposition to plaintiff’s cross-motion for summary judgment and a reply to plaintiff’s opposition to defendant’s motion for summary judgment. On October 15, 1984, plaintiff filed a supplemental Memorandum in Opposition to Defendant’s Motion for Summary Judgment.

Jurisdiction of this Court is based on admiralty pursuant to 28 U.S.C. § 1333.

When all the parties have moved for summary judgment and no party has raised any genuine issue of material fact this case is appropriate for disposition by summary judgment. Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2720 (and cases therein cited at p. 25 n. 14).

Based on the pleadings, their annexed exhibits and supporting affidavits, the Court makes the following findings of facts and arrives at the following conclusions of law:

Findings of Fact

1. On December 16, 1981, Canadian Saltfish Corporation shipped a container of 800 cartons of codfish from Elizabeth, New Jersey, to Méndez & Company, Inc., in San Juan, Puerto Rico.

2. A bill of lading was issued by Puerto Rico Marine Management, Inc., (hereinafter referred to as PRMMI) covering the shipment of codfish consigned to Méndez & Company, Inc. (Exhibit A to defendant’s motion for summary judgment).

3. The container wherein the codfish was shipped arrived in Puerto Rico on January 2, 1982.

4. Upon the arrival of the goods in San Juan, PRMMI held the goods in storage at its facilities in San Juan for safekeeping and delivery to Méndez & Company, Inc.

5. On January 4, 1982, PRMMI delivered the container to someone purporting to be consignee, Méndez & Company, Inc.’s trucker, as evidenced by the Trailer Interchange Receipt and Inspection Report (Exhibit B to defendant’s motion for summary judgment).

6. On the above date, a truck driver for Méndez & Company, Inc., arrived at the facilities of PRMMI to pick up the container and was informed that the same had been picked up by someone purporting to work for Méndez & Company, Inc.

7. PRMMI released the container to an unauthorized person whose signature on the Trailer Exchange Receipt and Inspection Report is illegible.

8. Plaintiff, INA, as insurer of Méndez & Company, Inc., paid them the sum of $57,263.80 for the loss of the codfish and brings this subrogation claim in its own name for an alleged failure to deliver the cargo held in storage for Méndez & Company, Inc.

9. The complaint was filed on December 1, 1983, but summons were not served on PRMMI until March 19, 1984.

Conclusions of Law

Defendant alleges that this action arises under the U.S. Carriage of Goods by Sea Act, (COGSA) 46 U.S.C. § 1300 et seq., and is time barred pursuant to the provisions of the Bill of Lading which sets a one-year limit to initiate damage or loss suits commencing from the time of delivery of the goods or the date when the goods should have been delivered. Plaintiff opposes summary judgment contending that this is not an action arising under COGSA because (1) this was a shipment from a U.S. port to a U.S. port, and (2) the goods involved herein were delivered and thus were no longer “on board ship.” INA further alleges that PRMMI had the duties of a bailee or a warehouseman and that if the Court should find otherwise, then the Harter Act, 46 U.S.C. § 190 et seq., would prevail.

In its supplemental memorandum of law, plaintiff also alleges that because INA, as subrogee, was not a party to the contract between its insured and PRMMI and never received actual or constructive notice of the limitations provision, the COGSA statute of limitations incorporated in the short bill of lading did not apply to INA.

It is clear that the Carriage of Goods by Sea Act, (COGSA) 46 U.S.C. § 1300 et seq., does not apply ex propio vigore to goods in shipment between ports of the United States, 46 U.S.C. § 1312. It is also clear that COGSA does not apply ex propio vigore to the period before the goods are placed on board ship (“tackle to tackle”) or to the period after their discharge, 46 U.S.C. § 1301(e). Firestone Tire & Rubber v. Almacenes Miramar, Inc., 452 F.Supp. 670 (D.C.P.R.1978), affirmed, 588 F.2d 817 (1st Cir.1978). The Harter Act applies to goods in the custody of the carrier before delivery and after discharge, 46 U.S.C. § 190 et seq. However, the parties agreed that the provisions of COGSA should be incorporated into their contract, and it has been repeatedly held that COGSA can be incorporated so as to apply in situations where it otherwise would not if so expressly stated in the “bill of lading or similar document of title which is evidence of a contract for carriage of goods by sea...” 46 U.S.C. § 1312. See, Empacadora Puertorriqueña de Carnes v. Alterman Tr. Line, 303 F.Supp. 474 (D.C.P.R.1969); Fireman’s Insurance Company of Newark v. Gulf Puerto Rico Lines, Inc., 349 F.Supp. 952 (D.C.P.R.1972); Commonwealth of Puerto Rico v. Sea-Land Service, Inc., 349 F.Supp. 964 (D.C.P. R.1970); Santiago v. Sea-Land Service, Inc., 366 F.Supp. 1309 (D.C.P.R.1973); North River, Ins. Co. v. FED SEA/FED Pac Line, 647 F.2d 985 (9th Cir.1981); Firestone Tire & Rubber v. Almacenes Miramar, Inc., supra; Home Ins. v. Puerto Rico Maritime Shipping Auth., 524 F.Supp. 541 (D.C.P.R.1981).

The contract governing the transaction at issue is a short-form bill of lading (short bill). The short bill incorporates two documents: one is the long-form bill of lading (long bill) on file with the Federal Maritime Commission, the other is the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq.

The shortbill contains a clause which reads as follows:

2. During all other periods, including the time the goods are in the custody of Puerto Rico Maritime Shipping Authority and during the time the goods are loaded on board, carried or discharged from any vessel, and during the time the goods are in the custody of Puerto Rico Maritime Shipping Authority at the port of discharge, and during the time the goods are carried or transported or in the custody of Puerto Rico Maritime Shipping Authority, its agents or any independent contractors after discharge and until delivery, this carriage shall be subject to the terms and conditions of the Puerto Rico Maritime Shipping Authority’s regular long form bill of lading contract. All parties to this contract are bound by the terms, provisions, stipulations and conditions of Puerto Rico Maritime Shipping Authority’s regular long form bill of lading and published tariff which is on file with the Federal Maritime Commission, posted on board each vessel and open for shippers’ or other parties’ inspection at the company’s offices, and the same are hereby incorporated with the same force and effect for all purposes as if it were severally, fully and specifically set forth herein. Where applicable, this bill of lading is subject to Public Law 85-810, Stat. 977, approved August 28,1958. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States of America, approved April 26, 1936.

(Defendant’s Exhibit C to motion for summary judgment)

The short bill is subject to the Regular Long Form of Bill of Lading which contains the following statement regarding when the contract shall have effect:

1. COVERAGE. This Bill of Lading shall have effect while the containers, goods and packages are in the custody of the vessel or Puerto Rico Maritime Shipping Authority, its agents, its servants and its independent contractors. At all other times containers, goods and packages shall be governed by the terms and conditions of the connecting carrier’s Bill ■ of Lading (if any) and/or Uniform I.C.C. Bill of Lading. When this Bill of Lading governs, it is subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, which are incorporated herein, and nothing herein contained is a surrender by the carrier of any of its rights, immunities or limitations or an increase of any of its responsibilities or liabilities under said Act. If any term of this Bill of Lading be repugnant to said Act to any extent, such term shall be void to that extent but no further.

(Exhibit C accompanying defendant’s motion for summary judgment)

The language contained in these provisions is what makes COGSA a part of the domestic contract of carriage as evidenced by the bill of lading. The parties agreed in said clauses to apply the terms of the Act throughout the entire period when the shipper-carrier relationship existed and not merely from tackle to tackle. In Firestone Tire & Rubber Co. v. Almacenes Miramar, Inc., supra, a case directly on point, a bailee-warehouseman argument similar to the one raised by INA under a similar PRMSA Bill of Lading was specifically rejected. The case of Allstate Ins. Co. v. International Shipping Corp., 703 F.2d 497 (11th Cir.1983) cited and quoted by plaintiff in its supplemental memorandum is clearly distinguishable from the case at bar. Therein, the short bill of lading incorporated all of COGSA and the long form bill of lading on file with the Federal Maritime Commission. However, it does not appear from the case that the parties agreed in their bills of lading to apply COGSA to the period before the goods were placed on board the ship. Because the damage occurred prior to the time the goods were loaded, the Court therein applied the Harter Act. Contrariwise, the parties in the instant case specifically agreed in the short form bill of lading that the long form bill of lading should apply to the period after the goods are discharged from the ship into the custody of the carrier, and the long form bill of lading specifically provides that COGSA is applicable to the period when the goods are in the custody of the carrier.

There is a special clause included in the long bill of lading which specifically provides that suit has to be brought within one year of delivery or the date when the goods would have been delivered, and that suit was not deemed brought until the carrier has been served with process.

It is defendant’s contention that according to this provision the present suit is time barred for process was not served upon it until almost more than two years after the date when the goods should have been delivered. Plaintiff argues that since INA was not a party to the contract between its insured, Méndez & Co., Inc., and PRMMI that it never received actual or constructive notice of the limitations provision. Thus, it concludes that COGSA’s statute of limitations is not applicable.

Whatever period of limitations is applicable to the insured passes by subrogation to the insurance carrier, who by reason of such subrogation, is put in place of the party to whose right it is subrogated. Couch on Insurance 2d (Rev’d) § 75.38 p. 43. The one-year statute of limitations established in the bill of lading applies to a suit by a consignee against a carrier. Puerto Rico Marine Mgmt. v. Ken Penn Amusement, 574 F.Supp. 563, 568 (W.D. Pa.1983) relied upon by plaintiff, is distinguishable. There, the court did not apply the COGSA statute of limitations to a counterclaim filed by a consignee against the carrier because the consignee was not a party to the freight contract executed by PRMMI and National Expositions, Inc., on behalf of the consignee. In the instant case, there is no allegation that plaintiffs insured, Méndez & Co., Inc., was not a party to the contract of carriage.

Plaintiff, INA, as insurer who paid the claims of its insured and owner of the goods, could file this subrogation claim against the ocean carrier if brought within one year after delivery of said goods or the date when the goods should have been delivered. Home Ins. v. Puerto Rico Maritime Shipping Auth., supra. The suit is not deemed brought until the carrier has been served with process (see cases cited in footnote 2). Service was not obtained until March 19, 1984, more than one year after the date when the goods should have been delivered. Therefore, plaintiff’s claim against PRMMI is time barred.

In view of the above, it is hereby ORDERED that defendant’s motion for summary judgment be and is hereby GRANTED; and IT IS FURTHER ORDERED that plaintiff’s cross-motion for summary judgment be and is hereby DENIED.

The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

      . Clause number 923 of the Long Form Bill of Lading specifically provides:
      In any event, the carrier and the ship shall be discharged from all liability for any loss of, or damage to, or delay of the goods or with respect to freight, charges or expenses, or the refund thereof or any other claim of whatsoever description, unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. Suit shall not be deemed brought against the carrier or ship until jurisdiction shall have been obtained of the carrier or the ship, or both, or if brought in admiralty, unless process or written notice of the filing of a libel shall have been served or delivered to the carrier. ■

      . Section 1303(6) requires that suits under COG-SA be "brought within one year after delivery of the goods or the date when the goods should have been delivered.” 46 U.S.C. § 1303(6). Within the meaning of the statute, suit has been brought as of the time the complaint was filed even though process was not served until sometime later. 2A Benedict on Admiralty, § 163 at 16-8. However, when COGSA has been incorporated with respect to time periods outside the statutory frame the parties have been allowed to define bringing an action as obtaining jurisdiction over the defendant. Empacadora Puertorriqueña de Carnes, Inc. v. Alterman Transport Line, Inc., 303 F.Supp. 474, 479 n. 10 (D.P.R. 1969); Atlantic Companies v. Gulf Puerto Rico Lines, Inc., 355 F.Supp. 172 (D.P.R.1972); Medina v. South Atlantic & Caribbean Line, Inc., 342 F.Supp. 498 (D.P.R.1972).


author: SPIEGEL, District Judge:

text:
    Laverne CHADDOCK, et al., Plaintiffs, v. JOHNS-MANVILLE SALES CORP., et al., Defendants.
    No. C-1-82-503.
    United States District Court, S.D. Ohio, W.D.
    Dec. 6, 1984.
    See also, D.C., 577 F.Supp. 937.
    Stanley M. Chesley, Cincinnati, Ohio, for plaintiffs.
    Frederick J. McGavran, Cincinnati, Ohio, for Johns-Manville Sales Corp.
    Gordon C. Greene, Cincinnati, Ohio, for Celotex Corp.
    C.J. DeMichelis, Cincinnati, Ohio, for Ric-Wil, Inc.
   OPINION AND ORDER DENYING RIC-WIL, INC.’S MOTION FOR SUMMARY JUDGMENT

SPIEGEL, District Judge:

This matter is before the Court on defendant Ric-Wil, Inc.’s (Ric-Wil) motion for summary judgment (doe. 187) and plaintiffs’ memorandum in opposition (doc. 195), and defendant Ric-Wil’s reply (doc. 200). As developed below, we conclude that Ric-Wil’s motion for summary judgment should be denied.

Ric-Wil’s motion for summary judgment is based upon the contention that the doctrine of dual capacity has no application in this case. Specifically, Ric-Wil contends that any injury that may have been suffered by plaintiffs decedent Ronald Chad-dock during his employment at Ric-Wil was visited upon him in his status as an employee. Therefore, under Section 35 of Article II of the Ohio Constitution and Ohio Revised Code § 4123.74, of Ohio’s workers’ compensation law, plaintiffs’ remedies would be proceeding upon an intentional tort theory as contemplated by Blankenship v. Cincinnati Milacron Chemicals, 69 Ohio St.2d 608, 433 N.E.2d 572 (1982). Reduced to its essentials, Ric-Wil argues that plaintiff may not proceed against Ric-Wil on a products liability theory.

In contradiction, plaintiff asserts that Mr. Chaddock stood in relationship to Ric-Wil as a consumer of their asbestos insulation products as well as in an employee-employer relationship. Thus application of the dual capacity doctrine as recognized by the Ohio Supreme Court in Guy v. Arthur H. Thomas Co., 55 Ohio St.2d 183, 378 N.E.2d 488 (1978) and subsequent opinions of that court and Ohio Courts of Appeals, permits plaintiff to lodge a strict liability claim against Ric-Wil.

The first Ohio case discussing the dual capacity doctrine was Mercer v. Uniroyal, Inc., 49 Ohio App.2d 279, 361 N.E.2d 492 (Ottowa Cty.1976). Mercer involved a truck driver who, as a loaned servant, was Uniroyal’s employee for the purposes of workers’ compensation laws, was injured by an alleged defective Uniroyal tire on the truck he was driving. Noting that the hazard to which plaintiff was exposed was not necessarily one of employment but was one common to the public in general, the Court held that dual capacity doctrine applicable, and plaintiff’s negligence claim was allowed to proceed.

The next Ohio case of significance was Guy v. Arthur H. Thomas Co., 55 Ohio St.2d 183, 378 N.E.2d 488 (1978). There the Court held that where an employer occupies a second or dual capacity that confers upon it obligations traditionally unrelated to and independent of those imposed upon it as an employer, an employee injured as a result of a violation of the obligation springing from the employer’s dual capacity is not barred from tort recovery by either Section 35, Article II of the Ohio Constitution or Ohio Rev.Code § 4123.74. In reaching that decision, the Court noted that the determinant of dual capacity is not how separate the employer’s second function is from the first but whether the second function generates obligations unrelated to those flowing from the employer’s function as an employer. While instructive on the issue, Guy does not easily permit of direct application to the facts in the instant case. Guy involved an employee of a hospital who contracted mercury poisoning while working with hospital apparatus. The tort action was not for the contraction of the disease, but rather due to the hospital’s failure to correctly diagnose the disease when she sought treatment. As one Ohio Court of Appeals has noted, dual capacity analyses are fact sensitive analyses. Knous v. Ridge Machine Co., 64 Ohio App.2d 251, 258, 413 N.E.2d 1218, 1223 (Lucas Cty.1979). Therefore, simple application of Guy to the facts of the instant case yields no clear direction.

For reasons similar to the diminished utility of the Guy opinion, we reject any reliance on the Ohio Supreme Court’s opinion in Freese v. Consolidated Rail Corporation, 4 Ohio St.3d 5, 445 N.E.2d 1110 (1983). The Freese opinion is expressly inapplicable to the facts in the instant case.

When we limit the scope of our inquiry to those cases sufficiently analogous on their facts to be of assistance we are left with three eases, all decided by Ohio Sixth District Court of Appeals. They are: Mercer v. Uniroyal, Inc., 49 Ohio A.pp.2d 279, 361 N.E.2d 492 (Ottowa Cty.1976); Knous v. Ridge Machine Co., 64 Ohio App.2d 251, 413 N.E.2d 1218 (Lucas Cty.1979); and most recently Walker v. Mid-States Terminal, Inc., slip op. L-83-278 (Lucas Cty.Ct. App. March 9, 1984). The Mercer opinion has been discussed above and we incorporate that discussion into this segment of the opinion. The Knous case involved plaintiffs decedent who was employed as a die casting operator by the employer-defendant. While servicing his machine pursuant to his employment, the machine was accidentally activated and Mr. Knous was killed. In holding the dual capacity doctrine inapplicable, the court stressed that although the employer-defendant manufactured the machine, it did not market the machine to the general public, and for that reason recovery on a strict liability theory was not available. The court went on to distinguish Mercer by noting that it was happenstance that the plaintiff in Mercer was using a product manufactured by his employer, that the injured employee in Mercer was not in any manner involved with the manufacturing process as it related to the alleged defective product, and that the hazards to the employee did not arise out of employment but out of a hazard to the general public.

This series of cases from the Sixth District Court of Appeals culminates in the Walker opinion authored by Judge Douglas who was recently elected to the Ohio Supreme Court. In regard to the dual capacity issue, the Walker court held that an employer who manufactures for sale to the general public a class of products including the allegedly defective product will not be shielded from tort liability for injuries to employees encountering the product by the mere fact that the particular model which inflicted injury was not generally marketed to the public. In so holding, the court distinguished the Knous opinion by pointing out that in Knous the defendant-employer did not generally market the class of machines which included the particular machine that injured the plaintiff therein.

We think that synthesis of these three cases produces the following relevant considerations. First, in the Knous and Walker opinions, a primary concern of the court was whether the defendant-employer manufactured the alleged defective product for commercial marketing and sale. This concern is reflected in the Mercer opinion as well where the court emphasized that the dual capacity doctrine is applicable where the hazard is one common to the general public and not necessarily one of employment alone. Another significant concern is whether the injured employee is involved in the process of manufacturing the alleged defective product. Finally, we add to this synthesis the instruction of Guy that the decisive test of dual capacity is not how separate the employer’s second function is from his employment function, but whether that second function generates obligations unrelated to those flowing from the employer’s function.

Applying these factors to the instant case we have no hesitation in finding that the dual capacity doctrine is applicable and tort recovery against Ric-Wil on a strict liability theory is available to the plaintiffs. Plaintiffs have alleged that during his employment at Ric-Wil, Mr. Chaddock inserted asbestos insulation materials called DryPac, manufactured and sold by Ric-Wil, into pre-fabricated piping systems also manufactured and sold by Ric-Wil. Significant is plaintiffs’ allegation that Ric-Wil manufactured and commercially marketed the Dry-Pac to the general public as well as utilizing it in their own pre-fabricated piping systems. Also significant is the fact that plaintiff alleges that Ronald Chaddock had no part in the actual manufacture of the Dry-Pac asbestos insulation materials but only worked inserting it into the pre-fabricated piping systems. In this respect, plaintiffs contend that Mr. Chaddock encountered the product in much the same manner as would any other member of the general public having occasion and need to work with asbestos insulation products. In this respect the obligations of a manufacturer placing a product in the stream of commerce are imposed upon Ric-Wil and continue to exist separate and distinct from any obligations to provide a safe work place incumbent upon Ric-Wil as an employer.

In finding the doctrine of dual capacity applicable in this case, we place primary reliance on the Walker opinion. It is the most recent statement of the law of Ohio from the Court of Appeals most experienced in these issues. When that Court of Appeals’ opinion is given the proper regard to which it is entitled, Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967), we conclude that Ric-Wil stood in a dual capacity as both employer and manufacturer to plaintiff’s decedent Ronald Chaddock and therefore plaintiff can proceed against Ric-Wil on a strict liability theory.

Accordingly, it is hereby ordered that defendant Ric-Wil’s motion for summary judgment is hereby denied.

SO ORDERED.

      . The Freese court noted:
      This opinion does not address the issue of the obligation of the employer growing out of injury received by the employee due to alleged defective products manufactured by the employer and being used by the employee during the course of his employment. Such a cause was that of Mercer v. Uniroyal, (1976) 42 Ohio App.2d 279 [361 N.E.2d 492], We are not confronted with like factual issues.
      4 Ohio St.3d at 9-10 n. 3, 445 N.E.2d at 1113-14 n. 3.


author: KATZ, District Judge.

text:
    Linda PEARSALL, Admx., et al., v. EMHART INDUSTRIES, INC., et al.
    Civ. A. No. 82-3080.
    United States District Court, E.D. Pennsylvania.
    Dec. 7, 1984.

      Beasley, Hewson, Casey, Colleran, Erbstein & Thistle by James E. Colleran, and Sarah M. Thompson, Philadelphia, Pa., for plaintiffs.
    LaBrum & Doak, Perry S. Bechtle and Michael E. McGilvery, Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

KATZ, District Judge.

Post-trial motions before this Court contest a judgment of $2,926,875 based on a jury verdict finding defendants Emhart Industries and Notifier Company liable to plaintiff Linda Pearsall for $2,451,938 (to which the Court added delay damages in the amount of $474,937) as a result of a fire in her home that killed her husband and two children. The jury found that the heat and smoke detectors manufactured by the defendants’ predecessors in interest were defective and negligently manufactured, and that the defects and negligence were substantial factors in causing the deaths of plaintiff’s family members.

Defendants claim that the plaintiff failed to meet her burden of proof that the alarms failed to work properly on the evening of the fire, that the court incorrectly charged the jury on damages for the childrens’ wrongful death, that the verdict on damages in the children’s survival action should be set aside because the jury misunderstood the testimony of plaintiffs’ economist, that the court erred in submitting plaintiff’s claim for emotional distress to the jury, that the court should not have sent certain exhibits into the jury room, that the court erred in charging the jury on plaintiff’s “malfunction theory”, that the plaintiff’s counsel’s closing argument was improper, that the verdict was excessive, that delay damages are unconstitutional and improper, that the. court should not have permitted plaintiffs’ counsel to read a portion of a HUD pamphlet critical of heat detectors, that the court should not have allowed into evidence pamphlets with testing instructions, and that failure to warn could not have caused the harms to the plaintiff.

I find that the trial record amply supports plaintiff’s claims that these badly designed and dangerous alarms did not work when there was a fire. Plaintiff provided sufficient evidence for a jury to conclude that defendants’ predecessor in interest manufactured defective products, did so negligently and that the defects and negligence were substantial factors in causing the deaths of the plaintiff’s husband and children.

Defendants argue that, with regard to the instruction as to damages for the wrongful death of plaintiff’s two children, the court committed two errors. First it is alleged that the court charged the jury that it could award monetary damages for the expected pecuniary value of the children’s services and emotional support beyond the age of majority. Secondly, defendants argue that parents may not be awarded damages for the loss of emotional support of their children. Under Pennsylvania law, absent a strong factual presentation to indicate continued support beyond the age of majority, parents may recover in an action for the wrongful death of a minor child compensation for services and support only up until the age of majority. See Sinn v. Burd, 486 Pa. 146, 151-152 n. 3, 404 A.2d 672 n. 3 (1979); Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930). The Court’s charge in this case was that only support prior to the age of majority was compensable in a wrongful death action. The instruction on damages for services and emotional support immediately followed the court’s instruction that the plaintiff could be awarded sums of money that the two children would have contributed to her support up until the time of their majority.

In addition, the Court’s, instruction that the plaintiff could be awarded compensation for “the monetary value of the emotional support that she lost” was not in error. See Thomas v. Conemaugh Black Lick Railroad, 133 F.Supp. 533, 543 (W.D. Pa.1955) aff'd 234 F.2d 429 (3d Cir.1956) (care, training, advice, guidance); Gaydos v. Domabyl, 301 Pa. 523, 530, 152 A.2d 549, 552 (1930) (superintendence, attention, care, education).

Defendants next claim that the jury award on the children’s survival action should be overturned due to the likelihood that the jury was confused by the testimony of the plaintiff’s economist, Dr. Jerome Staller. At one point in his testimony, Dr. Staller testified that the two children, Paula and Laurie Pearsall, would be expected to earn $567,664 and $591,209 respectively if they finished high school but did not go bn to college. Later, on cross examination, Dr. Staller “conceded” that fringe benefits should not have been included in the above figures. The jury awarded $597,664 and $621,209 in the survival action — exactly $30,000 higher for each child than Dr. Staller’s estimate. Defendant argues that the jury must have accepted Dr. Staller’s estimates without making any deletion for the incorrectly included fringe benefits and that this decision was based upon confusion. The law, however, is well established that courts should not overturn jury verdicts absent exigent circumstances such as a case of manifest and extreme abuse of the jury’s function. See Bruce Lincoln-Mercury, Inc. v. Universal C.I.T. Credit Corp., 325 F.2d 2, 21-22 (3d Cir.1963). Moreover a court will not inquire into the purely internal workings of the jury’s decisional processes on the mere suspicion of confusion. See Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1247 (3d Cir.1971), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971); Beron v. Kramer-Trenton, 402 F.Supp. 1268, 1271 n. 5 (E.D.Pa.1975), aff'd, 538 F.2d 318 (3d Cir.1976). Since the jury was bound neither by Dr. Staller’s estimate nor his concessions, I will not upset the jury’s award in this case.

Nor do I deem the jury’s overall verdict excessive. An award of damages in a wrongful death action will be set aside only if “clearly beyond reason” or if it is the “result of a misconception of the law, or of prejudice, partiality, or sympathy.” Jenkins v. Pennsylvania Railroad Co., 220 Pa.Super. 455, 289 A.2d 166 (1972). The losses which were proved in this case fully justify the amount of the verdict.

Defendants argue that plaintiff’s claim for emotional distress should not have been submitted to the jury since the plaintiff did not witness the deaths of her husband and children from the fire. In recent years Pennsylvania has expanded the right of a bystander who “witnesses” a traumatic event to recover for emotional distress. In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) the Pennsylvania Supreme Court held that a mother who saw her own child struck and killed by a negligently operated vehicle could recover. The Court’s decision placed much emphasis on its conclusion that the injuries to the bystander were foreseeable. The Supreme Court has applied a three factor test to determine whether injuries to a bystander from witnessing a- wrongful death are foreseeable:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Yandrich v. Radic, 495 Pa. 243, 247, 433 A.2d 459, 461 (1981); Sinn v. Burd, 486 Pa. 146, 170-71; 404 A.2d 672, 684 (1979) (quoting from Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968)). In Sinn, the Court found that “[wjhere the bystander is a mother who witnessed the violent death of her small child and the emotional shock emanated directly from personal observation of the event, we hold as a matter of law that the mental distress and its effects is a foreseeable injury.” 486 Pa. at 173, 404 A.2d at 686. The Court specifically noted that it was not considering the case of a parent who was merely notified of an accident but was not present at the scene of the injury or death. 486 Pa. at 173 n. 21, 404 A.2d at 686 n. 21.

In Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981) the Pennsylvania Supreme Court addressed the issue it had expressly left open in Sinn — whether a parent who was neither a witness to the accident nor in the immediate vicinity thereof, but arrived at the scene after his son had already been taken to the hospital could maintain an action for negligent infliction of emotional distress. Applying the foreseeability standards ennunciated in Sinn the Court found that the father could not bring such an action. The Court found that the plaintiff was not located near the scene of the accident and that the shock to the plaintiff did not result from the sensory and contemporaneous observance of the accident. 495 Pa. at 247, 433 A.2d at 463.

I find that the facts of the instant case support a claim by Mrs. Pearsall for infliction of emotional distress. Upon arriving home, Mrs. Pearsall witnessed the fire-fighters bringing the blaze under control. She testified that she stood near the bodies of her husband and children at the scene of the fire. She arrived at the hospital shortly before the ambulance arrived and witnessed the bodies of her husband and daughter being carried off the ambu-, lance. She testified that she couldn’t pick up her daughter because “she [Laurie] was real hot.” Mrs. Pearsall also offered substantial evidence proving her claims of subsequent emotional distress.

That Mrs. Pearsall arrived at the scene of the fire shortly after her husband and children had actually died in no way diminishes the foreseeability of her emotional distress. Upon arriving home she witnessed the fire and had no idea whether her husband and children were alive or dead. She saw and later touched the bodies of her family as the fire that took their lives was still smoldering. Her emotional distress was not caused merely by others notifying her of the accident. Instead, plaintiff’s shock and emotional distress resulted from the direct impact upon her senses of the fire and its aftermath. I am satisfied that the emotional distress of this mother witnessing the fire and its carnage is foreseeable to a manufacturer of defective alarms and, therefore, meets the standards enunciated in Sinn v. Burd and Yandrich v. Radic. See also Bliss v. Allentown Public Library, 497 F.Supp. 487 (E.D.Pa.1980) (direct visual observation of accident unnecessary to state claim for negligent infliction of emotional distress); General Motors Corp. v. Grizzle, 642 S.W.2d 837 (Tex.App. 1982) (mother arriving upon scene moments after accident may recover for infliction of emotional distress); Nazaroff v. Superior Court, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 (1978) (same).

Defendants next argue that the Court should not have allowed certain heat alarms admitted into evidence to go to the jury during its deliberations. I exercised my discretion to allow the devices to go out with the jury because they were admitted into evidence and would be useful to the jury in its deliberations. See Wilson v. Pennsylvania Railroad Co., 421 Pa. 419, 432 n. 8, 219 A.2d 666, 673 n. 8 (1966). Defendant has failed to show persuasively that any impermissible experimentation. took place. See Lanza v. Poretti, 537 F.Supp. 777 (E.D.Pa.1982). Furthermore, the jurors had seen at least some of the heat alarms disassembled and reassembled repeatedly in open court and, therefore, could not have been misled into believing that the alarms in the jury room were necessarily in the same condition as when they left the control of defendants’ predecessor in interest.

Defendants also argue that the Court should not have allowed plaintiffs to proceed on both a strict liability theory, in part, based on an unexplained malfunction, and a negligence theory. Defendants’ reliance on Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super. 386, 473 A.2d 120 (1984) for the proposition that the two theories are incompatible is misplaced. In Thompson, the plaintiff introduced evidence to show not only that the lessor of the crane was liable due to a defect in the crane, but also that the operator of the crane was himself negligent. The Pennsylvania Superior Court held that the crane operator’s negligence may have been the cause of the accident rather than any alleged defect in the crane noting “[w]here the plaintiff’s strict liability case depends not upon the actual proof of a defect, but only upon the mere occurrence of a malfunction, it is inconsistent to permit him [the plaintiff] to proceed on the strict liability ground where he also advances a theory of human intervention which purportedly caused the harm.” 473 A.2d at 125 (emphasis added). In the instant ease, plaintiff’s strict liability theory did not rely only upon an unexplained malfunction. To the contrary, plaintiff produced significant evidence to demonstrate the existence of specific defects in the smoke and heat detectors. In addition, unlike the situation in Thompson, the same defendants were legally responsible for both the allegedly negligent act and the defect. Therefore, regardless of whether the plaintiff succeeded on the negligence theory or the product liability theory, the defendants are liable.

Defendants next allege that certain comments made by the plaintiff’s counsel in his closing arguments were so inflammatory as to require a new trial. Upon review of the record, I find that the plaintiff’s counsel’s comments were within the bounds of reason and not unduly inflammatory or prejudicial. See Smith v. Evans, 421 Pa. 247, 251, 219 A.2d 310, 312 (1966).

Defendants’ arguments that the imposition of delay damages pursuant to Pennsylvania Rule of Civil Procedure 238 violates constitutional principles are without merit. Federal and state courts have found delay damages compatible with both federal and state constitutional law. See Insurance Federation of Pennsylvania, Inc. v. Supreme Court of Pennsylvania, 669 F.2d 112 (3d Cir.1982); Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). Plaintiff’s non-constitutional arguments against imposition of delay damages are equally without merit. Defendant has failed to cite any authority to support its argument that delay damages are inappropriate for a case such as the one before this court.

Defendants also allege that the admission into evidence during the redirect examination of its expert witness of a quotation from a publication by the United States Department of Housing and Urban Development (HUD) was in error due to its irrelevancy and prejudicial impact. The portion of the publication read to the jury was critical of heat alarms. Admission of the statement critical of heat detectors followed the earlier admission into evidence over plaintiff’s objection of a statement by the same witness on cross-examination that HUD approved non-battery, plug-in smoke detectors. The contested statement was relevant to rebut the defendants’ earlier suggestion that HUD had approved of the kind of devices involved in this case. In addition, the two statements taken together were not prejudicial to the defendant.

Furthermore, defendants may be said to have “opened the door” to evidence on the subject of HUD’s views with regard to smoke and heat detectors thereby justifying the admission into evidence on redirect of the HUD excerpt. See United States v. Johnson, 502 F.2d 1373, 1376 (7th Cir. 1974), cert. denied, 420 U.S. 977, 95 S.Ct. 1402, 43 L.Ed.2d 657 (1975); United States v. Winston, 447 F.2d 1236, 1239-41 (D.C. Cir.1971); United States v. Lowe, 234 F.2d 919, 922 (3d Cir.1956), cert. denied, 352 U.S. 838, 77 S.Ct. 59, 1 L.Ed.2d 56 (1956); Cleary, McCormick’s Handbook of the Law of Evidence § 57 (2d ed. 1972); 1 Wigmore, Evidence § 15 (Tillers rev. 1983).

Defendants further object to the Court’s allowing plaintiff’s counsel to show defendants’ expert witness, Gustav Hubert, two exhibits during cross-examination. These exhibits consisted of portions of instruction manuals which accompanied heat detectors sold to consumers by defendants. Neither of the instruction booklets, however, covered the particular smoke or heat detectors purchased by the plaintiff. The two booklets were used by the plaintiffs to contradict Mr. Hubert’s testimony that the instruction manuals sent out with heat detectors sold to plaintiff contained a certain method for testing whether the detector was in working order. On direct examination, Mr. Hubert testified that although he had no instruction booklets with him he recalled that they contained instructions regarding the specific testing method. On cross-examination, he could not explain why these two manuals did not have the same information on the testing procedures alleged to be in the earlier booklets which he claimed did accompany the product sold to plaintiff. Defendants argue that neither of the instruction manuals should have been admitted since a proper foundation had not been established. In addition, defendants argue that one booklet which was issued after the sale of the heat detectors to the plaintiff should have been excluded pursuant to Rule 407 of the Federal Rules of Evidence.

Both of the instruction booklets were sufficiently authenticated. As to one of the manuals, Mr. Hubert testified that although it provided instructions for a different model than the ones purchased by the plaintiff the equipment was nonetheless similar. As to the other instruction manual a sufficient foundation was laid at a sidebar conference and through a deposition to show that it was issued by one of the defendants for similar heat alarms. Furthermore, the questioning of Mr. Hubert with regard to the presence or absence of the instructions for testing alarms in these booklets was probative as to his credibility and the reliability of his memory, especially in light of the fact that defendants had failed to produce the instruction booklets for the heat detectors purchased by the plaintiff.

Defendants’ argument that the excerpts from the instruction manuals were inadmissible under Federal Rule of Evidence 407 is without merit. Rule 407 says that evidence of subsequent remedial measures may not be used to prove negligence or culpable conduct. Neither of the two instruction manuals included evidence of subsequent remedial measures taken by the defendants or their predecessors in interest. Both manuals served the purpose of impeaching the credibility of what appeared to be a rather extraordinary claim of good memory in remembering what old instruction booklets said, even though the booklets themselves were unavailable and inconsistent with those instruction booklets which were available.

Defendants next argue that the court erred in not making a finding that the alarms were “unreasonably dangerous.” In addition, the defendants assert that the alarms were not dangerous. Under Pennsylvania law, before submitting a products liability case to a jury, a court must itself make a determination that if the facts alleged by the plaintiff were true, the imposition of strict liability against the defendant would be justified. The issue of whether the risk of loss should be placed upon a defendant is a question of law to be decided with an eye toward the “social policy” underlying Pennsylvania products liability law. See Hammond v. International Harvester Co., 691 F.2d 646, 650 (3d Cir.1982); Baker v. Outboard Marine Corp., 595 F.2d 176, 181 (3d Cir.1979); Azzarello v. Black Brothers Co., 480 Pa. 547, 558, 391 A.2d 1020, 1025 (1978). A court need not explicitly tell the jury of its finding that the facts alleged by the plaintiff, if true, show that the product was unreasonably dangerous. See Wieder v. Towmotor Corp., 568 F.Supp. 1058, 1061 (E.D.Pa. 1983), aff'd, 734 F.2d 9 (3d Cir.1984). Such a statement would only serve to confuse the jury, without contributing significantly to its deliberations. In fact, instructing the jury that the product must be found unreasonably dangerous may be reversible error under Pennsylvania law. See Baker, 595 F.2d at 176; Azzarello, 480 Pa. at 559-60, 391 A.2d at 1027. The court finds, based on the evidence introduced by the plaintiff, that the alarms were unreasonably dangerous. The purpose of a smoke or heat detector is to alert persons to life threatening danger thereby allowing them to escape. These alarms were unreasonably dangerous and defective in their design, their failure to include appropriate instructions for use and their malfunctioning in a fire. As a matter of social policy the risk of death due to defective heat and smoke detectors should be placed upon their manufacturer.

Defendants finally claim that plaintiff may not recover on a failure to warn theory since she testified that she had never received an instruction manual. Defendants allege that the plaintiff failed to offer sufficient evidence to show how additional warnings or reminders would have made a difference. I find that the plaintiff offered sufficient evidence to support a jury’s verdict that she had received insufficient instructions relating to the use and testing of her smoke and heat detectors and that this failure to warn proximately caused the deaths of her husband and children.

Having found none of defendants’ claims meritorious, defendants’ post-trial motions are denied.

      . The jury answered the following special interrogatories:
      1(a). Did defendants manufacture a defective product?
      Yes _X_ No -
      1(b). Did defendants act negligently toward plaintiff?
      Yes X No_
      If you answer question 1(a) and (b) “no” then plaintiff cannot recover and your deliberations are completed. If you answer either question 1(a) or 1(b) "yes”, go on to question 2.
      2. Was the negligence of defendants or the defect in their product a substantial factor in bringing about the harm to plaintiff?
      Yes X No_
      If you answer question 2 "no” then plaintiff cannot recover and your deliberations are completed. If you answer this question “yes," go on to question 3.
      3. If you answered questions 1(b) and 2 "yes,” was any contributory negligence on the part of the Pearsalls a substantial factor in bringing about the harm?
      Yes_ No X
      If you answer question 3 “yes,” go on to question 4.
      If you answer question 3 "no,” go on to question 5.
      4. ...
      5. If you answered question 2 "yes,” did the Pearsalls voluntarily and knowingly assume the risk in using products?
      Mrs. Pearsall:
      Yes_ No X
      Mr. Pearsall:
      Yes_ No X
      6. What damages do you award plaintiff on her direct claim for emotional damages arising from seeing her husband and children at the scene of the fire?
      $400,000.00
      7. What damages do you award plaintiff on her claim for wrongful death of the following?
      Paul Pearsall $183,065.21
      Paula Pearsall $150,000.00
      Laurie Pearsall $150,000.00
      8. What damages do you award plaintiff on her claims as survivor of the following?
      Paul Pearsall $350,000.00
      Paula Pearsall $597,664.00
      Laurie Pearsall $621,209.00

      . The relevant portion of the Court’s charge on wrongful death damages is as follows:
      Question 7 deals with damages to the plaintiff for her claim for Wrongful Death; that is, her claim that she, Mrs. Pearsall, has, herself, been injured by the deaths of her husband and children.
      These claims are separate from her claim for damages under the Survival Act, which I will explain to you when we get to Question 8.
      The damages, however, in Questions .6, 7 and 8 should not overlap or duplicate each other.
      There are several elements of damage that you may award plaintiff on her claim for Wrongful Death in answering Question 7.
      First, Mrs. Pearsall is entitled to be awarded an amount which will cover all funeral and burial expenses. Mrs. Pearsall is also entitled to be awarded in Question 7 the value of all sums that Mr. Pearsall would have contributed for her support between the time of his death, July 19, 1980, and the end of his life expectancy.
      Similarly, Mrs. Pearsall is entitled to be awarded the value of all sums that you find that the two children would have contributed to her support between the time of their deaths and the age of majority; that is, between 1980 and the time they would have turned 18.
      In addition to these contributions that the decedents would have made to her support, Mrs. Pearsall is entitled to be awarded in Question 7 an amount which will fairly and adequately compensate her in a dollar amount for the value of the services and emotional support that the decedents would have given her, had they lived. This includes the provision of physical services, such as work around the house, and the provision of emotional support.
      You should consider in awarding Mrs. Pearsall damages not only for the day-to-day activities, but also the ongoing loss of these elements that the decedents would have provided her, had they lived.
      Mrs. Pearsall is entitled to be compensated for the loss of contributions that the decedents would have made for her shelter, food, clothing, et cetera, as well as the monetary value of emotional support that she lost.

      . The article stated, “Heat detectors are also available but they sense the temperature of the fire after it has already reached the flaming stage and they will not give early enough warning. They may be cheaper, but they will not give the protection you need.”

      . Federal Rule of Evidence 407 provides in full: When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

      . Lobianco v. Property Protection, Inc., 292 Pa. Super. 346, 437 A.2d 417 (1981), cited by defendants, is inapposite. In that case, the Court held that the manufacturer of a defective burglar alarm was not liable for property losses sustained in a burglary. Lobianco, however was expressly limited to the issue of strict liability for property damage and did not address the issue of the liability of fire alarm manufacturers for personal injury or death. 292 Pa.Super. at 362, 4 A.2d at 426.

      . Among the evidence plaintiff provided to support her claim that insufficient warnings and testing instructions proximately caused the deaths of her husband and children were that she and her family did in fact test the alarms to the extent they were instructed to do so and that the children even practiced firedrills. This and other evidence supports a reasonable inference that additional warnings or instructions would have averted or mitigated the catastrophe caused by the fire. See Conti v. Ford Motor Co., 743 F.2d 195 (3d Cir.1984).