author: HAMILTON, District Judge.

text:
    John DOE, a minor, under the age of fourteen (14) years, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. No. 3:84-1133-15.
    United States District Court, D. South Carolina, Columbia Division.
    March 6, 1985.
    Francis T. Draine, Columbia, S.C., John O. McDougall, Jan L. Warner, Sumter, S.C., for plaintiff.
    R. Emery Clark, Asst. U.S. Atty., Columbia, S.C., for defendant.
   ORDER

HAMILTON, District Judge.

This matter is before the court upon the defendant United States of America’s (hereinafter “U.S.A.”) motion to dismiss or in the alternative for summary judgment pursuant to Rules 12(b) and 56(b) of the Federal Rules of Civil Procedure. Although the attorney for the defendant did not delineate in his motion the specific provision of Rule 12(b) that he was proceeding under, the court determines that the appropriate basis for this motion lies in Rule 12(b)(1) which concerns the court’s lack of subject matter jurisdiction. The defendant contends that the instant action is barred by the assault and battery exception to the Federal Tort Claims Act (hereinafter “FTCA”) found in 28 U.S.C. § 2680(h). After a thorough review of the pleadings, affidavits in support of the motion, the various depositions and the applicable law, this court concurs with the defendant’s position.

The minor plaintiff, John Doe, filed this action on May 15, 1984, pursuant to the FTCA, 28 U.S.C. § 2671, et seq., to seek redress for alleged harms arising from a single incident occurring in the “Fall of 1981” at the Shaw Air Force Base Mental Health Clinic involving one Major Thomas F. Doherty, a clinical social worker. The plaintiff asserted nine causes of action in his May 15, 1984 complaint arising from the December 16, 1981 incident: 1) breach of express and implied warranties relating to the fitness, training, experience, etc., of Major Thomas Doherty as a medical practitioner; 2) breach of implied warranty relating to the suitability and fitness of Major Doherty to perform as a clinical social worker; 3) assault or assault and battery; 4) intentional infliction of emotional distress; 5) negligence/medical malpractice; 6) outrageous conduct; 7) taking indecent liberties with the plaintiff; 8) contributing to the sexual delinquency of the plaintiff; and 9) violating the South Carolina Code of Laws prohibiting sexual conduct with a child. At the motions hearing held on March 1, 1985, the attorney for the plaintiff, Francis T. Draine, Esquire, informed the court that his client was abandoning all causes of action except the fifth for negligence and medical malpractice.

The issue, therefore, in this motion to dismiss for lack of subject matter jurisdiction is whether Major Doherty’s conduct on December 16, 1981, amounted to assault or assault and battery or to medical malpractice (i.e. negligence). Claims for assault or assault and battery against the United States are not cognizable under the Federal Tort Claims Act by virtue of the provisions of 28 U.S.C. § 2680(h). Specifically, § 2680(h) provides in pertinent part:

The provisions of this chapter and section § 1346(b) of this title shall not apply to—
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process____

In accordance with the requirements of § 2675(a) of the Act, the plaintiff submitted the following administrative claim detailing the incident with Major Doherty on December 16, 1981:

In approximately September or October 1981, claimant, who was having trouble controlling his temper at school, was taken to Major Thomas F. Doherty by the mother of the claimant, [name omitted]. Major Doherty asked claimant’s mother to leave the room as Major Doherty wanted to talk to claimant alone. After claimant’s mother left, Major Doherty asked claimant the size of claimant’s penis. Maj. Doherty told claimant to show his penis so Maj. Doherty could see if the blood was flowing all right. Claimant pulled down his pants and exposed his penis. Maj. Doherty felt the inside of claimant’s groin and penis using his fingers. Maj. Doherty was wearing rubber gloves on both hands which he had taken from his desk. Maj. Doherty had other physicians equipment in his office.

Additionally, in response to the Rule 16(b) interrogatories filed on May 15, 1984, as required by the court, the following account of the incident was given:

Interrogatory 1. State with particularity what you contend the Defendants did, or failed to do, which entitled you to obtain the relief you seek in this action.
ANSWER: Major Doherty held the position of Clinical Social Worker at Shaw Air Force Base. The plaintiffs mother took the Plaintiff to Major Doherty for an emotional problem involving a temper tantrum at the child’s school. Major Doherty conducted a physical examination, which was not authorized, quizzed the Plaintiff about sexual matters, and touched or otherwise fondled the Plaintiff’s genitals, (emphasis added).

Also, additional detail regarding the conduct complained of is found in the plaintiff’s affidavit which was provided to the Air Force Office of Special Investigations on July 23, 1982. That affidavit provides in pertinent part:

I am presently 11 years old with a birth date of 16 Jan 71. Sometime during Sept-Oct 811 went to see Dr. Doherty, at the mental health Clinic, SAFB, for a problem I was having controlling my temper at school. Dr. Doherty talked to me in the presence of my mother and told me I should not throw books in school. As it was getting close to the time for me to go Dr. Doherty asked my mother to leave the room and he wanted to talk to me alone for awhile. After my mother left he asked me how big my penis was and told me to come to his desk where he was sitting. I told him I did not know how big my penis was and moved to his desk as he had asked. He then told me to show him my penis so he could check to see if the blood was flowing alright. I pulled my pants down and exposed my penis to him. He then felt of the inside of my groin area and of my penis, using his fingers. He did this for only a few seconds and then told me to pull up my pants that it was time for me to go. At the time Dr. Doherty felt my penis he was wearing rubber gloves on both hands. Prior to signing this statement my mother read and approved of it.

In paragraph ten (10) of the complaint, the plaintiff outlines Major Doherty’s conduct only in terms of an “unauthorized and illegal physical examination” and an “unlawful touching designed to satisfy his [Doherty’s] prurient interests.” Only in response to the motion to dismiss has the plaintiff attempted to re-cast the conduct complained of in an effort to allege a “medical malpractice” claim.

Major Doherty was a clinical social worker at the Mental Health Clinic at Shaw Air Force Base (emphasis added). However, the mere subliminal associations with the health care profession that the title “health clinic” may engender cannot convert a classic instance of assault and battery into negligent medical treatment for purposes of avoiding the jurisdictional bar that Congress enacted in § 2680(h). As noted by this court in the companion case to the instant action, Mary Doe v. United States of America, 618 F.Supp. 503 (D.S.C.1984), “The fact that Major Doherty was counseling the plaintiff, does not, in and of itself, convert his intentional tort into negligent medical treatment for the purposes of § 2680(h).”

But for the different profession of the federal employee (i.e. a postal worker v. a clinical social worker) and the location where the acts complained of took place (i.e. a postal truck v. an office), this case is factually analogous to the Fourth Circuit decision of Hughes v. United States, 662 F.2d 219 (4th Cir.1981). In Hughes, a United States postal worker lured two children into his postal truck and took indecent sexual liberties with them. In affirming the district court’s dismissal of the suit under 28 U.S.C. § 2680(h), the court noted that even though the claims were framed in terms of negligence, they actually arose out of an assault and battery committed by the postal worker.

Similarly, in the recent case of Ida Turner v. United States of America, 595 F.Supp. 708 (W.D.La.1984), the District Court for the Western District of Louisiana held that a suit based upon the actions of a National Guard recruiter was barred by the assault and battery exemption of § 2680(h). In Turner, the recruiter deceived four adult women into believing that in order to join the Guard, they had to submit to complete physical examinations conducted on the spot by him, including examination of the rectum and genitals. In dismissing the suit for lack of subject matter jurisdiction, the court held:

That plaintiffs have also asked for damages for negligence on the part of the Government is of no moment. As defendant correctly contends, this is a case dealing exclusively with assault, battery, misrepresentation and/or deceit. One cannot escape these exceptions to the waiver of sovereign immunity under 28 U.S.C. § 2680(h) by merely labeling the cause of action something which it is not. United States v. Faneca, 332 F.2d 872, 875 (5th Cir.1964), cert. denied, 380 U.S. 971 [85 S.Ct. 1327, 14 L.Ed.2d 268] (1965); Goodman v. United States, 324 F.Supp. 167, 172 (M.D.Fla.1971), aff'd, 455 F.2d 607 (5th Cir.1971).
Furthermore, the United States could only be held liable for negligence if Sgt. Suddth was acting within the scope of his office or employment. 28 U.S.C. § 1346(b). Clearly, the Sergeant was acting for purely personal reasons in giving the offending physical examinations. He has no such duty under Army regulations. Dept. of the Army Documents NGR 40-501 p. 2, NGR 600-200 p. 5-18.-5. Thus we find he was acting outside the scope of his employment. See, Mays v. Pico Finance Co., 339 So.2d 382, 385 (La.App. 2nd Cir.1976).

In the instant case, the plaintiff contends (paragraph ten (10) of the complaint), and the defendant admits (paragraphs nine (9) and ten (10) of the answer), that Major Doherty, as a clinical social worker, was not authorized to conduct physical examinations. This point is supported by Air Force Regulation 160-12 and the affidavit of the hospital commander of Shaw Air Force Base Hospital, Colonel Leroy E. Weeks. Colonel Weeks’ affidavit provides in pertinent part: “In 1981 there was nothing in U.S. Air Force Regulations, or in Shaw Air Force Base Hospital procedures, which would have authorized Maj. Doherty to do more than counsel and evaluate John Doe in accord with Paragraph 35, AFR 160-12, 7 October 1977....”

South Carolina law defines the tort of battery as “the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of degree,” (emphasis added). Herring v. Lawrence Warehouse Co., 222 S.C. 226, 72 S.E.2d 453, 458 (1952). Additionally the South Carolina Supreme Court held in Herring that intent by the assaulting party is not a necessary element of civil assault in this state. There need only be the creation of reasonable fear in the mind of the assaulted party. To now attempt to convert the isolated incident of December 16, 1981, reprehensible as it may be, from an intentional assault and battery by Major Doherty to medical practice would be an act of legal socery. The facts simply do not support any claim other than one for assault and or battery.

Additionally, as in Turner, supra, and in the recent Fourth Circuit decision of Andrews v. U.S.A., 732 F.2d 366 (4th Cir.1984), the acts of the government employee herein were far beyond the scope of his employment and thus, not within the coverage of the FTCA. In this state, “An act is within the scope of a servant’s employment where reasonably necessary to accomplish the purpose of his employment and is in furtherance of the master’s business.” Lane v. Modern Music, 244 S.C. 299, 136 S.E.2d 713 (1964). The plaintiff alleged in paragraph ten (10), subsection “E.” of the complaint that “Major Doherty engaged in sexual conduct or patently offensive conduct to satisfy his prurient interests upon the Plaintiff, a minor child.” This court agrees with the plaintiff’s observation. As the court held in the Mary Doe case, supra, “[i]t is clear that Major Doherty was only furthering his own self-interest [in conducting the physical examination] and thus, was not acting within the scope of his employment as required by 28 U.S.C. § 1346(b) and § 2671 et seq. Andrews, 732 F.2d at 370.”

In addition to the foregoing, the court is also of the opinion that the plaintiffs alleged “medical malpractice” claim is jurisdictionally barred by the provisions of 28 U.S.C. § 2675(a). That section provides in pertinent part:

a) An action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate federal agency____ (emphasis added).

In order to comply with § 2675(a), a claimant must 1) give the agency written notice of his or her claim sufficient to enable the agency to investigate and 2) place a value on his or her claim. Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980). After thoroughly reviewing the plaintiffs administrative claim in the instant action (as previously quoted herein), the court finds that the claim of a sexual assault and battery could not possibly have apprised the government of the plaintiffs allegations of “medical malpractice.” The first notice of the plaintiffs specific allegations of “medical malpractice” came in a December 14, 1984 letter from the plaintiffs attorney, Mr. Draine, to the defendant’s attorney. In that letter, counsel for the plaintiff outlined four instances where it contended Major Doherty had deviated from a reasonable standard of care as follows:

A. A patient who presents an alleged issue concerning his sexual development during the pre-puberty or puberty period of his life should be handled with a great deal of care. The patient should be in structured therapy for his alleged condition. There should be no touching of the patient.
B. The Defendant’s agent should not have conducted any physical examination regardless of his motive (i.e. child abuse investigation or checking patient’s penis).
C. If the Defendant suspected child abuse, it was his duty to transfer the child to a medical doctor for examination and treatment.
D. The Defendant’s agent should never have conducted any physical examination to take a pulse in the groin.

Assertions “A.” dealing with structured therapy and “C.” dealing with the issue of suspected child abuse are clearly claims not presented in the plaintiff’s administrative filing and are thus barred by § 2675(a). See, Bush v. United States, 703 F.2d 491, 495 (11th Cir.1983); and Emch v. United States, 630 F.2d 523, 526-528 (7th Cir.1980).

For the foregoing reasons and based on the cited authority,

IT IS THEREFORE ORDERED that the complaint be, and the same hereby is, dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

      . Because the motion is proper under Rule 12(b)(1), it will be considered as a motion to dismiss and not as a motion for summary judgment; only Rule 12(b)(6) motions to dismiss for failure to state a claim are converted into Rule 56 motions under the provisions of Rule 12(b). However, the court will consider materials outside the pleadings in determining the defendant’s motion. 5 Wright and Miller, Federal Practice and Procedure §§ 1350 and 1364 (1969).

        . The complaint alleged that the “examination" in question occurred in September or October of 1981. However, the medical records of Shaw Air Force Base hospital reveal that the examination took place on December 16, 1981.

      . Having concluded that Major Doherty was not acting within the scope of his authority, the court holds, as it did in Mary Doe, supra, that the Medical Malpractice Immunity Act, 10 U.S.C. § 1089, has no application whatsoever to the instant case. For a more thorough discussion of this point see Mary Doe v. U.S.A., 618 F.Supp. 503, 506-07 (D.S.C.1984).

      . If, in fact, his negligence/medical malpractice claim is not but an attempt to re-label an assault and battery claim.

      . Plaintiffs counsel asserted in the December 14, 1984 letter that the plaintiffs expert, Dr. Diane Follingstad, would give her opinions as to issues “A."-"C.” However, a review of Dr. Follingstad’s deposition reveals: 1) that she has no expert opinion as to whether John Doe should be in structured therapy (Depo. pp. 17, 25-26); 2) that she can not state any opinion as to when any report of alleged abuse of the plaintiff was reported to Major Doherty or whether the plaintiffs alleged injuries flowed from the failure of the United States to treat John Doe for child abuse. (Depo. pp. 43, 45-46); and 3) that she has never seen or examined John Doe (Depo. pp. 18, 19-20).


source: Caselaw Access Project

author: CALEB M. WRIGHT, Senior District Judge.

license: Public Domain

text:
    Leon ROOT, Plaintiff, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services, Defendant.
    Civ. A. No. 83-882 CMW.
    United States District Court, D. Delaware.
    March 26, 1985.
    James F. Kipp, and Adele B. Blandin, Esquire of Trzuskowski, Kipp, Kelleher & Pearce, Wilmington, Del., for plaintiff.
    Joseph J. Farnan, Jr., U.S. Atty., and Sue L. Robinson, Asst. U.S. Atty., Wilmington, Del., for defendant; Beverly Dennis, III, Regional Atty., John E. Newton, Jr., Asst. Regional Atty. and J. Stratton Shartel, Legal Asst., Dept, of Health and Human Services, Philadelphia, Pa., of counsel.
   OPINION

CALEB M. WRIGHT, Senior District Judge.

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health and Human Services denying plaintiff’s claim for disability benefits under the Social Security Act. The claimant had sought and obtained a hearing before an Administrative Law Judge (hereinafter “AU”). The AU’s decision was subsequently affirmed by another administrative body and now stands as the Secretary’s final decision in this matter. Presently before the Court are the cross-motions of plaintiff and defendant for summary judgment based on the decision of and record before the AU.

This Court has noted on previous occasions that district courts are confronted by appeals from the Secretary’s decisions denying disability benefits with increasing frequency. See Allen v. Schweiker, 567 F.Supp. 1204, 1206 (D.Del.1983). The decisions are dressed up with a summary of the evidence and findings in which “the AU has decided every important issue of credibility against the claimant.” Id. The Court has found all too often that, upon review of the record, the Secretary’s decision is not supported by substantial evidence. See, e.g., id.; Timbers v. Hecker, C.A. 83-674 (D.Del., May 10, 1984); Ridgway v. Heckler, C.A. 83-334 (D.Del., March 9, 1984). This case is no exception to this disturbing pattern.

The Court has no alternative but to remand this case to the Secretary with directions to assist her deliberations in subsequent proceedings.

BACKGROUND FACTS

On November 27, 1981, the plaintiff, Leon Root, applied for disability benefits under the Social Security Act, complaining that he suffered from debilitating lower back and neck pain. (Tr. 74). He was given notice that his claim had been disapproved on March 22, 1982 (Tr. 80), and on May 26, 1982, he sought reconsideration. (Tr. 82). Upon reconsideration, the Social Security Administration upheld its previous denial of disability. (Tr. 85).

On March 3, 1983, plaintiff appeared at a hearing before an AU who considered his claim de novo. Both plaintiff and plaintiff’s vocational expert testified at the hearing and a number of medical reports of varying degrees of specificity were introduced. The AU, after considering the testimony and the evidence, issued an opinion on May 20, 1983. (Tr. 12-25). Plaintiff filed a request for review of the AU’s decision. (Tr. 11). The request was followed by the submission of additional medical evidence. On July 25, 1983, the Appeals Council denied plaintiff’s request, (Tr. 10), and subsequently reaffirmed the Secretary’s position after considering the additional evidence. (Tr. 3).

The facts as developed before the AU are as follows: The claimant was born on February 2, 1932 and was 50 years old at the time of the hearing. He completed the eighth grade. Root shows a record of employment extending back to September of 1967. (Tr. 90). Heavy lifting was a common requirement of each job he has held since then. Most recently, from July, 1973 to September 2, 1981, he was employed by W.L. Gore & Associates, Inc. as a maintenance mechanic. (Tr. 75). He performed lawn work, simple plumbing tasks, minor wood and metal repairs, and repairs to roofs. His functions also included driving tractors and trucks, refinishing floors, moving office furniture, and digging ditches. (Tr. 91).

Prior to September 2,1981, the date from which Root claims he was no longer able to work, Root had extensive but non-debilitating medical problems. These problems included an incipient arthritic condition beginning in the late 1970s (Tr. 116, 125), hypertension (Tr. 125), and diabetes melitis which was diagnosed in 1980 (Tr. 125). He had fractured his coccyx in the early 1970s from which he continues to suffer occasional pain. (Tr. 63). He had gout at one time which caused kidney problems, but the condition now appears to be controlled. (Tr. 125). Finally, the plaintiff is deaf in one ear, and has only about 70% hearing in his other ear. (Tr. 62).

These preexisting infirmities did not prevent the plaintiff from working prior to September 2, 1981, nor were they the direct cause of his alleged inability to continue working after that time. The source of plaintiff’s problems began on August 30, 1981. Plaintiff was in a relatively minor auto accident. Within three days, according to the plaintiff, the pain from his lower back and neck had become so severe that he was unable to work. (Tr. 64). Since that time, he has been unable to resume employment because of his pain.

Since his automobile accident and during the pendency of his claim before the Secretary, Root has seen at least six doctors to evaluate his symptoms of lower back and neck pain. The records and reports resulting from these consultations are of varying degrees of specificity, reflecting, in part, the particular physician’s knowledge and familiarity with the claimant’s medical history. The opinions contained in the records and reports submitted to the AU extend over a period of slightly more than two years, and to some extent, reflect revised assessments of the claimant’s condition based on the duration of his symptoms and his responses to various forms of treatment.

Among the six physicians that saw Root, there is rough consistency in their respective diagnoses. All of the physicians including the two doctors that evaluated the claimant on behalf of the Secretary concurred in a diagnosis of Root as exhibiting degenerative arthritic condition of the cervical and lumbar regions of the spine and more particularly, as suffering from degenerative disc disease. (Dr. Davis: Tr. 117; Dr. Hershey: Tr. 119; Dr. Magalong: Tr. 121; Dr. Vates: Tr. 128, 160-61; Dr. Hogan: Tr. 127; Dr. Celello: Tr. 151). Generally the doctors found no muscle weakness or motor loss, and only some limitation of motion in the spine.

Dr. Vates, Root’s treating neurologist, initially saw Root in March of 1982. He was the first, among the many doctors who saw Root, to recognize that some of Root’s pain might be caused by a diabetic neuropathy. (Tr. 124). This was subsequently corroborated in an electromyographic study performed at the end of March. (Tr. 131— 32). In late June and early July of 1982, the plaintiff was hospitalized with severe back pain, during which time Dr. Vates revised his earlier diagnosis, and concluded that the diabetic neuropathy was a more significant factor in causing Root’s pain than previously thought. (Tr. 128). Dr. Vates also conclusively rejected any diagnosis of nerve root irritation, (Tr. 124), which earlier had been suggested by one of the Disability Determinations Service’s examining physicians. (Tr. 120).

Of the six physicians who saw the claimant, only three expressed opinions about the claimant’s residual functional capacity. Dr. Davis’ evaluation was the most pessimistic of these, opining that Root was unable to work even in an entirely sedentary job. (Tr. 159). Dr. Hogan examined the claimant on behalf of an insurance company. His assessment was without benefit of Dr. Vates’ diagnosis of a diabetic neuropathy. Nevertheless, Dr. Hogan concluded that it was unlikely that Root could ever return to his former type of employment. The doctor, however, expressed hope that the claimant would improve somewhat so that he could resume some lighter form of employment. (Tr. 127).

Dr. Vates’ three-page letter, dated February 24, 1984, provides the most detailed and comprehensive evaluation of Root’s residual functional capacity. Dr. Vates noted that Root showed a marked impairment in his ability to lift or bend and that these difficulties were of a more or less permanent nature. (Tr. 161). Dr. Vates noted that while the claimant could stand for some length of time, he could walk only short distances. Id. Thus, Dr. Vates concluded that a return to the claimant’s customary form of employment was out of the question, but that less strenuous activities were a possibility. Id.

Inexplicably, neither of the doctors performing examinations for the Disability Determinations Service offered evaluations of Root’s residual functional capacity.

The AU rejected Root’s claim for disability in a decision announced May 20, 1983. Although recognizing the claimant was unable to perform heavy work or return to his former job, the AU considerably discounted the severity of Root’s claims of pain as inconsistent with the clinical evidence. (Tr. 22). Moreover, the AU found the record supported a conclusion that the claimant retained a residual capacity for “light work” as that term of art is defined at 20 C.F.R. § 404.1567. (Tr. 22). The AU briefly considered the testimony of plaintiff’s vocational expert whose testimony was found to support a classification of Root’s job skills as semi-skilled. The AU skirted the issue of whether the claimant possesses any transferable skills, noting that a finding of non-disability was compulsory, given the AU’s earlier findings of claimant’s limited education, his closely approaching advanced age, and his functional ability to carry out light work, (Tr. 23), whether or not Root’s skills were transferable under the Secretary’s medical-vocational guidelines. 20 C.F.R. § 404, subpart P, appendix 2, Rules 202.10, 202.11.

DISCUSSIONS

In reviewing the Secretary’s final decision under the Social Security Act, the district court’s function is limited to ascertaining whether the Secretary’s decision is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a responsible mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.1979). Despite the limited scope of its functions, district courts must be equally scrupulous to avoid blindly deferring to the Secretary’s decision; courts have an equally important statutory responsibility to petitioners seeking redress from unsubstantiated decisions of the Secretary. See Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983).

Thus, in applying the substantial evidence standard to those administrative decisions denying disability benefits, courts have insisted that the Secretary’s decisions be accompanied by a clear and satisfactory explanation of the bases on which they rest. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981). Pat assertions of ultimate factual conclusions are an unacceptable substitute for detailed findings of fact. See Stewart v. Secretary of Health, Education & Welfare, 714 F.2d 287, 290 (3d Cir.1983). When inconsistencies arise in the evidentiary record, the Secretary may resolve issues of credibility, but must also provide some rationale for the manner in which the inconsistencies are ultimately resolved. Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983).

The Secretary’s responsibility to determine whether or not a claimant is disabled or not within the meaning of the Social Security Act is discharged primarily by AUs. The Secretary has established rules that set forth a decision tree which every AU must use in arriving at his decision. See 20 C.F.R. § 404.1520.

First, the AU ascertains whether the applicant currently is working; if so, the claim is denied. Id. at § 404.1520(b). Second, the AU determines, solely on the basis of medical evidence, see id. at § 404.1526, whether the claimed impairment is “severe,” that is, of a magnitude sufficient to limit significantly the individual’s “physical or mental ability to do basic work activities”; if it is not, the claim is denied. Id. at § 404.1520(c). Third, the AU decides, again using only medical evidence, whether the impairment equals or exceeds in severity certain impairments described in Appendix 1 of the regulations; if it does, the claimant automatically is awarded disability benefits. Id. at § 404.1520(d). Fourth, the AU considers whether the applicant has sufficient “residual functional capacity” — defined as what an individual “can still do despite [his] limitations” — to perform his past work; if so, the claim is denied. Id. at § 404.1520(e); see id. at § 404.1545(a). Finally, the AU adjudicates, on the basis of the claimant’s age, education, work experience, and residual functional capacity, whether the applicant can perform any other gainful and substantial work within the economy. Id. at § 404.1520(f).

Santise v. Sckweiker, 676 F.2d 925, 927 (3d Cir.1982).

The AU’s findings in this case make clear that Root’s claim was denied at the fifth and final step. The Secretary carries the burden of proof in this fifth step to show that “the claimant given [his or her] age, education and work experience has the capacity to perform specific jobs that exist in the national economy.” Wallace v. Secretary of Health and Human Services, 722 F.2d 1150, 1153 (3d Cir.1983) (quoting Rossi v. Califano, 602 F.2d 55, 57 (3d Cir.1979)). The Secretary is permitted to rely on rules contained in Department promulgated medical-vocational guidelines in discharging her burden. Heckler v. Campell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The Secretary, however, is not relieved of her duty to make certain findings pertaining to the overall condition of the claimant before applying these rules. Santise v. Schweiker, 676 F.2d 925, 934 (3d Cir.1982). The purpose of this requirement is twofold: first, the findings are necessary to assume that use of the grid in the particular situation is appropriate; and secondly, the findings are required to determine which so-called grid rule should be applied to the claimant. A careful examination of the record in this matter reveals that many of the AU’s findings in anticipation of applying the medical-vocational guidelines are not supported by substantial evidence.

1. The ALJ’s Evaluation of Claimant’s Residual Functional Capacity.

The AU concluded that Root’s impairments left him with a residual functional capacity to perform light work. Plaintiff argues that he is at best capable of performing sedentary work and quite possibly is completely disabled. The AU misstated the evidentiary record in reaching his conclusion.

As discussed above, only three of the six doctors rendered any opinion about claimant’s residual functional capacity. The AU stated that Dr. Hogan had affirmed that Root could perform only light work. (Tr. 21). What, in fact, Dr. Hogan had said was that Root “hopefully will improve sufficiently that he could return to a lighter type of employment.” (Tr. 127). The AU mischaracterized Dr. Hogan’s evaluation in two respects. First, Dr. Hogan’s actual evaluation is ambivalent whether Root will ever be able to work while the AU claims that Dr. Hogan’s assertion indicated that Root was presently fit to resume working. Secondly, the AU implied that “lighter type of work” was synonymous with “light work” when Dr. Hogan could just as easily have been referring to sedentary work.

The AU’s characterization of Dr. Vates’ evaluation of the claimant’s residual functional capacity reflects a careless disregard for the actual evidence in this case. The AU noted: “The residual functional capacity evaluation of Dr. Vates in Exhibit 27 takes into account the symptoms alleged by the claimant and yet allows for a finding of light work.” (Tr. 22). Dr. Vates’ statement is at variance with this summary. Dr. Vates noted that Root suffered from “marked impairment of bending or lifting.” (Tr. 161). He went on to conclude that “activities limited to more sedentary actions, would not have the same deleterious effect on him.” (Tr. 161) (emphasis added). Thus, rather than supporting a finding that the claimant was capable of undertaking light work, Dr. Vates’ assessment unequivocally supports the claimant’s contention that he is able to perform at best sedentary work.

The AU entirely rejected Dr. Davis’ conclusion that the claimant was totally disabled, as inconsistent with the evaluations of other doctors. Although Dr. Davis disagreed with the other doctors as to the severity of Root’s impairments, it was error to entirely disregard his opinion because of this difference of opinion as to the severity of Root’s impairments. The AU is first required to attempt to reconcile any differences in opinion before rejecting one as inconsistent with the others. As such, Dr. Davis’ testimony should have at least weighed in favor of a finding of a sedentary capacity rather than the AU’s finding of light work.

The only medical evidence the AU could adduce in support of his conclusion was an enigmatic handwritten phrase in a questionnaire to which Dr. Hershey, an orthopedist, responded (Tr. 21) (citing to Exhibit 16). To the best of this Court’s abilities, Dr. Hershey’s phrase reads: “Had course of treatment [?], P.T. [physical therapy?] & exercise, when last seen was improved I advised to [?] try light duty.” (Tr. 119). This simply does not qualify as a competent or probative evaluation of the claimant’s physical exertional strength. See Rossi v. Califano, 602 F.2d 55, 58 (3d Cir.1979) (medical expert’s testimony that an individual is employable cannot constitute substantial evidence unless the testimony contains a statement of the type of work the claimant is suited to perform). Even if Dr. Hershey’s cryptic comments could be accepted as an assertion that plaintiff possessed the residual functional capacity to perform light work, both the quality of the report and its inconsistency with the detailed findings of three other physicians should have led the ALJ to discount Dr. Hershey’s remarks as against the weight of the evidence.

Finally, the ALJ’s decision states that the claimant’s testimony regarding his activities around the home offered further support for finding Root equipped to perform light work. (Tr. 22). Courts have frequently stated that sporadic or transitory activity around the home is an unreliable indicator of residual functional capacity. Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir.1981). This rule is clearly applicable to the type of reasoning employed by the AU in this case. Such an error, by itself, might be grounds for a remand. Here, however, not only has the AU made an. improper inference, but, contrary to the AU’s assertion, the claimant’s testimony simply does not provide any foundation for such an inference. Root testified that his wife does the grocery shopping, shovels the snow, and mows the yard. (Tr. 58). Root, himself, sometimes does the breakfast dishes and picks up around the house. (Tr. 57). He is unable to walk two blocks to get a paper. (Tr. 59). He also helps with the laundry, but only in moving wet clothes from the washing machine to the dryer. (Tr. 60). His wife must carry the laundry downstairs. Id. The limited activities of the claimant offer no independent grounds for concluding that he could perform light work within the meaning of 20 C.F.R. § 404.1567(b).

2. The ALJ’s Evaluation of Claimant’s Pain.

The AU erred in relying on his personal judgment and personal observation of the claimant in ascertaining the medical severity of the claimant’s pain. In his decision, the AU explained: “The clinical findings were not abnormal enough to establish that he [Root] suffers from a condition of such severity that it could be reasonably be expected to cause the pain alleged. There is no evidence as to any. consistent muscle spasm, tenderness or any significant limitations due to pain.” (Tr. 22). This explanation is unsatisfactory because it depends upon an unsubstantiated medical inference to rebut testimony of the claimant that would otherwise be entitled to great weight.

While the evidence supports the finding that the claimant did not suffer from muscle spasms, muscle tenderness or any significant limitations of the spine due to pain, at no point in the record does any doctor suggest the lack of such symptoms provides a basis for inferring that Root is not suffering from pain. Root did suffer from pain-causing disabilities such as a diabetic neuropathy as well as a neuropathy arising from his degenerative osteoarthritic condition. His treating physicians have at various times prescribed pain-killing medication. Thus, the AU’s inference reflects nothing more than his own medical judgment that must be rejected by this Court as beyond “the ambit of the AU’s expertise.” Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir.1983); Allen v. Schweiker, 567 F.Supp. 1204, 1209 (D.Del.1983).

Because the claimant suffered from at least two medical conditions that could reasonably be expected to cause pain, the claimant’s testimony as to his pain was entitled to due consideration from the AU. Green v. Schweiker, 749 F.2d 1066, 1070-71 (3d Cir.1984) (construing Third Circuit precedent in light of the Social Security Disability Reform Act of 1984, Pub.L. 98-460, § 3(a), 51 L.W. 39, 41 (approved September 28,1984)). Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir.1979). Root repeatedly testified regarding his recurring pain. (Tr. 42-43, 54). Such testimony should have been afforded substantial credibility in view of the claimant’s record of more than sixteen years of employment. Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir.1984); Taybron v. Harris, 667 F.2d 412, 415 n. 6 (3d Cir.1981) (per curiam).

The AU’s decision repeats these same errors insofar as it relied on the AU’s own observations from the hearing to the effect that the claimant neither exhibited significant discomfort nor displayed symptoms that would affect his ability to perform on a sustained basis. (Tr. 22). The AU’s opinion of claimant’s medical condition based upon his personal observation is not to be counterpoised against the uncontradicted opinions of medical experts, see Lewis v. Califano, 616 F.2d 73, 76-77 (3d Cir.1980); accord Kelly v. Railroad Retirement Board, 625 F.2d 486, 494 (3d Cir.1980), because lay observations are an inherently unreliable basis for medical conclusions. Moreover, the AU’s attempts during the hearing to elicit responses from the claimant as to why he did not show greater discomfort after sitting for an hour are ploys that have been repeatedly decried as a form of “sit and squirm” jurisprudence. Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir.1984). Such ploys have no place in the vital task of administering disability benefits and further, represent a stock in trade that AUs would do well to discard.

3. Directions on Remand.

The AU’s findings contain numerous errors that had a decisive effect on the outcome of these proceedings before the Secretary. Most notably, the AU’s erroneous finding that substantial evidence existed to support a finding that the claimant has a residual capacity for light work led to an application of rules from a less favorable table under the medical-vocational guidelines to the claimant’s case. Therefore, the matter must be remanded for further proceedings not inconsistent with the directions set forth below.

The record before the Court provides an insufficient basis with respect to the requisite elements to support an outright reversal of the Secretary’s decision denying benefits. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir.1984). Under the circumstances, it would be unreasonable to permit the AU to reconsider the issue of claimant’s residual capacity de novo. Id. at 222. The weight of the evidence before the AU supports a finding that the claimant possesses a residual capacity for sedentary work or less. On remand, the AU may determine whether the claimant is totally disabled or possesses a residual capacity for sedentary work.

In lieu of the fact that the claimant’s residual capacity will be reclassified on remand, the AU will have to undertake a more careful examination of the claimant’s work skills if it is determined he possesses a residual capacity for sedentary work. In the prior proceedings before the Secretary, the AU considered the claimant’s skills only in a cursory fashion. On remand and after hearing additional evidence, the AU is free to reconsider its finding that the claimant was semi-skilled. Specifically, the AU should determine exactly what kind of plumbing and carpentary work the claimant engaged in, the amount of supervision he had when performing these jobs, and the fraction of his job time devoted to such activities.

In the event that the claimant is found able to perform sedentary work and to possess sufficient skill to be classified as semi-skilled, the AU must determine whether these skills are transferable. See 20 C.F.R. § 404, subpart P, appendix 2, Rules 202.19, 202.11. The vocational expert in the prior proceedings expressed certain conclusions without specifically identifying the claimant’s job skills. (Tr. 70). Such testimony undermines the ability of this Court to perform its reviewing function. This deficiency is significant because of the frequent confusion of experts regarding the legal distinction between transferable skills and basic work abilities. See Podedworny v. Harris, 745 F.2d 210, 220-21 (3d Cir.1984); Wallace v. Secretary of Health and Human Services, 722 F.2d 1150, 1156 (3d Cir.1983). Moreover, any jobs identified by the vocational expert as ones to which the claimant’s skills are transferable, must themselves be skilled or semi-skilled jobs for, by definition, skills are not transferable to an unskilled job. See Podedworny v. Harris, 745 F.2d 210, 220-21 (3d Cir.1984).

Finally, the ALJ concluded that the claimant did not suffer from any debilitating non-exertional impairments. (Tr. 23). The AU’s discussion left the impression that the claimant, however, suffered from some non-exertional impairments. For example, the claimant’s loss of hearing in one ear and 70% hearing in the other might be considered a non-exertional impairment. Similarly, the cumulative effect of his medication may also constitute another non-exertional factor that the Secretary should not ignore in her decision. See Green v. Schweiker, 749 F.2d 1066, 1068 & n. 2 (3d Cir.1984).

Thus, on remand, the Secretary should determine whether the claimant suffers from any non-exertional impairments. Only after this determination has been made should the effect of these impairments on the claimant’s ability to engage in gainful working activity be considered. Of course, under most conditions, use of the medical-vocational guidelines when non-exertional impairments are present, constitutes error if the guidelines are used to deny benefits. Caffee v. Schweiker, 752 F.2d 63, 67 n. 5 (3d Cir.1985); Burnam v. Schweiker, 682 F.2d 456, 468 (3d Cir.1982). The Secretary, regardless of whether the medical-vocational guidelines can or cannot be used, retains the burden of showing that gainful work activities exist in the national economy for which the claimant has the capacity to perform, in view of his combination of impairments as a whole. See Green v. Schweiker, 749 F.2d 1066, 1068 (3d Cir.1984) (remand was necessary when AU failed to consider claimant’s combination of impairments together); Wallace v. Secretary of Health and Human Services, 722 F.2d 1150, 1155 n. 8 (3d Cir.1983) (per curiam) (ALJ’s duty to render specific findings of fact regarding the claimant’s combination of impairments is not discharged by conclusory statement that claimant’s impairments were considered in combination).

An order will issue remanding this case to the Secretary for future proceedings consistent with this Opinion.

      . All references and page numbers are to the Transcript of the proceedings of Claimant Leon Root provided by the Secretary pursuant to 42 U.S.C. § 405(g).

      . Dr. Vates’ diagnosis of a diabetic neuropathy was affirmed by the Secretary’s physician examiner in August, 1982. (Tr. 150).

      . Dr. Davis wrote another letter on behalf of the claimant after the ALJ's decision. (Tr. 6). In view of the Court’s disposition of this matter based on the record before the ALJ, the Court felt it was unnecessary to address this additional piece of evidence. The Court, however, notes that the opinion expressed therein is substantially the same as offered by Dr. Davis prior to the hearing. (Tr. 159).

      . Dr. Hogan subsequently was contacted by plaintiff's counsel to perform an examination of the plaintiff after the ALJ’s decision. Dr. Hogan sent a letter to the attorney expressing his opinion that at best plaintiff could perform “intermittent telephone solicitation from his home.” (Tr. 9). In view of the Court’s disposition of this matter based on the record before the AU, the Court felt it was unnecessary to address this additional piece of evidence. The Court, however, notes that the opinion expressed therein is entirely consistent with the decision of the Court today.

      . Residual functional capacity is defined as the type of work a claimant can still perform despite his physical, mental or other non-exertional impairments. 20 C.F.R. § 404.1545(a). The Secretary’s rules set forth five physical exertion categories: sedentary, light, medium, heavy and very heavy. 20 C.F.R. § 404.1567.

      . 20 C.F.R. § 404.1567(b) (1984) defines light work as:
      ... involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifting may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

      . 20 C.F.R. § 404.1567(a) (1984) defines sedentary work as:
      ... involving lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

      . A claimant who is unable to satisfy the minimal requirements for sedentary activity is deemed disabled.

      . The AU may not have been referring to Dr. Hogan’s conclusion at all, but rather to Dr. Hogan’s statement that the claimant had reported that Dr. Hershey had told the claimant that he could go back to work. If so, the AU’s reliance on the claimant’s statement to the ex-elusion of Dr. Hogan’s own opinion and without soliciting a confirming statement from Dr. Hershey was misplaced. First, the claimant had only an eighth grade education and may not have understood Dr. Hershey’s advice clearly. Secondly, Dr. Hogan, in conducting an examination for an insurance company, concluded the claimant was unable to work, although he was fully aware that, according to the claimant, Dr. Hershey had said that the claimant could return to work. Finally, Dr. Hershey’s response to a questionnaire sent out in December of 1981, made clear that his statement to claimant was at most advice "to try light duty.” (Tr. 119).


author: SAMUEL P. KING, Senior Judge.

text:
    CHARLEY’S TOUR AND TRANSPORTATION, INC., et al., Plaintiffs, v. INTERISLAND RESORTS, LTD, et al., Defendants.
    Civ. No. 80-0060.
    United States District Court. D. Hawaii.
    April 16, 1985.

      Eugene Crew, Daniel Furniss, Mark Lehocky, Khourie & Crew, San Francisco, Cal., Kazuhisa Abe, Honolulu, Hawaii, for plaintiffs.
    Gary G. Grimmer, Carlsmith Wichman Case Mukai and Ichiki, Honolulu, Hawaii, for Interisland Resorts, Ltd., Gray Line Hawaii, Ltd., Trade Wind Tours, Inc., and The Greyhound Corp.
    Joseph W. Burns, Sp. Counsel, Fanelli, Burns & Neville, New Rochelle, N.Y., for Trade Wind Tours, Inc.
    Loyd M. McCormick, James Hunt, Charlene Shimada, McCutchen Doyle Brown & Enerson, San Francisco, Cal., James S. Campbell, Richard J. Kowen, Cades Schutte Fleming & Wright, Honolulu, Hawaii, for AMFAC, Inc., Island Holidays, Ltd., and Hawaiian Discovery Tours.
    Vernon F.L. Char, Charles H. Hurd, Michael K. Kawahara, Damon Key Char & Bocken, Honolulu, Hawaii, for ARA Services, Inc., Educational & Recreational Services, Inc., HST, Ltd., and C. Brewer & Co., Ltd.
   ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

SAMUEL P. KING, Senior Judge.

This case came on for hearing on various defendants’ motions for summary and partial summary judgment on January 17, 1985. This order is limited to the portions of the motions pertaining to the statute of limitations. All other aspects of the motions remain under advisement.

Plaintiffs filed suit in this case on February 5, 1980. The statute of limitations applicable to this action is established by 15 U.S.C. § 15b which provides that “[a]ny action to enforce any cause of action under sections 15(a), 15(b) or 15(c) of this title must be commenced within four years after the cause of action accrued.” Plaintiffs argue that the statute was tolled by (1) pending government actions; (2) fraudulent concealment; and (3) equitable tolling.

A. Pending Government Actions.

Under § 5(i) of the Clayton Act, 15 U.S.C. § 16(i), the statute of limitations is suspended during government proceedings and for one year after their termination where the private suit is “based in whole or in part on any matter complained of in said government proceeding.”

During the 1970’s the government filed six actions against tour and hotel operators. Five of the six actions terminated more than one year before plaintiffs filed this suit. The sixth suit, United States v. Sheraton Hotels, et al. (Civil No. 76-0418, D.Hawaii) (hereinafter the Hotel Case), was not settled until November 18, 1981. The Hotel Case dealt with rate fixing in the Oahu hotel market. Only two of the defendants in this case were defendants in the Hotel Case.

The plaintiff bears the burden of showing that the two suits are based in whole or in part on the same matter. Akron Presform Mold Co. v. McNeil Corp., 496 F.2d 230, 233 (6th Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 310, 42 L.Ed.2d 270 (1974). Section 5(i) requires that there be a “real relation” between the government and private complaints. Leh v. General Petroleum Group, 382 U.S. 54, 86 S.Ct. 203, 15 L.Ed.2d 134 (1965). Whether or not a private suit is based in whole or in part on any matter complained of in a prior government suit may only be determined by comparing the two complaints on their face. Id. Chipanno v. Champion International Corp., 702 F.2d 827, 832 (9th Cir.1983). A substantial identity of actors is an important factor in determining whether a real relation exists. Leh, Supra. The real relation test is met where the conspiratorial acts of the defendants are intertwined with and fundamentally the same as those alleged in the government action. Maricopa County v. American Pipe and Construction Co., 303 F.Supp. 77 (D.Ariz.1969), aff'd, 431 F.2d 1145 (9th Cir.1970), cert. denied, 401 U.S. 937, 91 S.Ct. 923, 28 L.Ed.2d 216 (1971). The Tenth Circuit has looked for similarity of proof, means of carrying out the conspiracy, and subject matter. Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.1961), cert. dismissed, 371 U.S. 801, 83 S.Ct. 13, 9 L.Ed.2d 46 (1962).

After assessing the relationship between the Hotel Case and this case, it is evident that § 5(i) does not require tolling of the statute of limitations during the Hotel Case. Although largely the same clientele is involved, the cases involve different markets, different defendants, and different means of proof. The complaints allege wholly different actions on the part of the defendants as the basis for establishing liability. The complaint in the Hotel Case is limited to the fixing of rental rates for hotel rooms. Plaintiffs’ complaint centers around the charter bus market. Plaintiffs’ complaint is only related to the Hotel Case by an allegation that the defendants used their hotel rooms as a source of clients and funds for their bus companies. This is no more than an allegation that the defendants were charged with conspiracy in another market and that conspiracy helped fund this conspiracy. To extend § 5(i) to this situation would mean that a defendant doing business in different markets would have the statute of limitations tolled as to all of its markets. While a private suit need not “mirror” the government suit, plaintiffs’ suit does not allege even a part of the Hotel Case conspiracy.

Section 5(i) was enacted for two purposes. The first was to ensure that private litigants would have the benefit of prior Government antitrust enforcement efforts. The second was to create a more certain running of the statute of limitations. Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 333-34, 98 S.Ct. 2370, 2376-77, 57 L.Ed.2d 239 (1978). The only benefit plaintiffs could have gained from tolling the statute of limitations during the Hotel Case would have been more time to file its suit. The facts and arguments in the Hotel case are only tangentially related. Furthermore, as only two of the defendants in the Hotel Case are defendants in this case, tolling of the statute of limitations would be inequitable given the meager connection between the two cases. Finally, allowing such a tenuous relationship would frustrate the second purpose of § 5(i) by removing any certainty as to when a cause of action was barred.

B. Fraudulent Concealment.

Plaintiffs argue that the statute of limitations should be tolled because of fraudulent concealment by the defendants. The evidence presented by the defendants, particularly by Amfac, Inc., Island Holidays, Ltd., and Discovery Tours, shows that plaintiffs were aware of the acts complained of well before plaintiffs filed this suit. Indeed, plaintiffs were aware of some of the actions it complains of before it entered the bus market. Plaintiffs had actual, implied, and constructive notice of the alleged actions. Under these circumstances tolling for fraudulent concealment would be improper.

C. Equitable Tolling.

The next reason advanced by plaintiffs for tolling of the statute of limitations is on equitable grounds. The factual basis of plaintiffs’ argument is that the actions of the defendants forced it into bankruptcy which prevented plaintiffs from filing this suit within the statute of limitations. Plaintiffs’ argument is apparently a novel one as plaintiffs have not cited any cases following a similar line of reasoning.

Equitable tolling based on actions leading to the plaintiffs’ bankruptcy runs afoul of a specific provision in the bankruptcy laws. As this case was filed before the effective date of the Bankruptcy Code, the Bankruptcy Act applies. Section 11(e) of the Bankruptcy Act provides the trustee in bankruptcy with two additional years before the statute of limitations runs on any suit in law or equity. A similar provision is made in the Bankruptcy Code. Since Congress has already provided for the hardships that arise during bankruptcy, this court will not create another extension.

There being no reason to toll the statute of limitations, all claims arising more than four years before the filing of this suit are barred by the statute of limitations.

IT IS HEREBY ORDERED that defendants’ Motion for Partial Summary Judgment is granted as to all claims arising before February 5, 1976.


author: MANSMANN, District Judge.

text:
    Alfredo LONGO and Maria Rosaria Longo, Plaintiffs, v. PENNSYLVANIA ELECTRIC COMPANY, a corporation, Herman Beckinger and Frank Carpellotti, d/b/a Carp Transit, Defendants.
    Civ. A. No. 83-1840.
    United States District Court, W.D. Pennsylvania.
    May 3, 1985.

      James G. Connolly, David L. Robertson, Paris, Pa., and Lawrence E. Stewart, Cleveland, Ohio, for plaintiffs.
    Warren D. Ferry, Pittsburgh, Pa., for Beckinger.
    John E. Hall, Pittsburgh, Pa., for Pennsylvania Elec.
    Alan H. Perer, Pittsburgh, Pa., for M. Caupellotte.
   OPINION

MANSMANN, District Judge.

This matter comes before the Court on Defendant Frank Carpellotti’s Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below Defendant’s Motion is denied.

Factual and Procedural Background

This case involves a claim for personal injuries allegedly sustained by Alfredo Lon-go when an International tractor-trailer truck operated by John A. Moore tipped over onto the Plaintiff’s truck on August 27, 1981. At the time of the accident, both vehicles were in the process of dumping coal at Defendant Pennsylvania Electric Company’s generating station in Erie, Pennsylvania. On September 3, 1982, Plaintiff filed a complaint, citing two defendants: namely, the aforementioned Pennsylvania Electric Company and Herman Beckinger, owner of the truck and employee of the driver, John A. Moore. A Motion for Leave to Amend Complaint to set forth a new party defendant, “M. Caupellotte” of 829 Benwood Avenue, McKees Rocks, Pennsylvania 15136, was subsequently filed by Plaintiff on June 27, 1983.

This Court signed an order permitting such amendment on November 2, 1983; and on this same day, the amended complaint was filed by Plaintiff, 1) alleging that Plaintiff’s personal injuries were the direct and proximate result of both Defendants Herman Beckinger’s and M. Carpellotti’s, “independent, joint, and concurrent negligence” and 2) that Moore was the employee of the aforementioned defendants.

The answer and crossclaim of M. Caupellotte represented that Frank J. Carpellotti t/d/b/a Carp Transit was the proper party defendant. M. Carpellotti Trucking is a different company operated by Frank Carpellotti’s mother and is not involved in this action.

An “open” lease agreement existed between Frank J. Carpelletti and Beckinger whereby Carpellotti, who possessed a Pennsylvania Public Utilities Commission (hereinafter PUC) permit to operate a public haulage concern, arranged hauling jobs for Beckinger and supplied the necessary PUC authority. In this particular case, Carpellotti telephoned Beckinger and requested that Beckinger haul coal to the Pennsylvania Electric Company’s Erie, Pennsylvania location.

Regarding the instant Motion for Summary Judgment, defendant Carpellotti asserts there is no genuine issue as to any material fact and he is entitled to judgment as a matter of law. To this end, he raises the following questions for this Court’s review: (1) whether Defendant Carpellotti can be held liable for any negligence of Moore and Beckinger absent a master-servant or agency relationship; (2) whether Defendant Carpellotti can be held liable based upon his lease with Beckinger since an International tractor-trailer truck and not a Mack trailer truck was involved in the accident and (3) whether Plaintiff’s action is barred by the applicable statute of limitations.

DISCUSSION

In order to grant a motion for summary judgment, the district court, pursuant to FED.R.CIV.P. 56(c) must determine that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See also, Sames v. Gable, 732 F.2d 49, 51 (3d Cir.1984). Moreover, the district court must “ ‘resolve any doubts as to the existence of fact against the moving parties’ ” and “ ‘inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.’ ” Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982) (citations omitted). Bearing in mind the above-noted standards, the Court will determine if Defendant Carpellotti is entitled to summary judgment.

Defendant’s statute of limitations argument contends that the action against him is barred in that Pennsylvania has a two year limitations period for bringing personal injury actions, and the instant action was not timely filed. We note that the date of the accident was August 27, 1981, and both the order granting the Motion to Amend as well as the actual amended complaint naming Carpellotti as party defendant was filed on November 2, 1983. (The applicable statute would require the joinder of additional parties defendant prior to August 27,1983).

We note, however, that the Motion to Amend Complaint setting forth a new party defendant was filed with the Court on June 27, 1983, thirty days prior to the expiration of the statute of limitations. The timely filing of this Motion to Amend and not the final court approval was sufficient to meet the requirement of FED.R.CIV.P. 3 that “a civil action is commenced by the filing of a complaint with the court.” See Gloster v. Pa. R. Co., 214 F.Supp. 207 (W.D.Pa.1963) (where motion to amend to add additional party defendant was filed within the time allowed for wrongful death action, statute of limitations did not bar court from granting the motion after period expired).

Within the same argument, Defendant makes reference to the mistaken identity problem; namely, that “M. Caupellotte” and not Frank J. Carpellotti was listed in the amended complaint as the new party defendant. In the answer and crossclaim of “M. Caupellotte” it was revealed that Frank J. Carpellotti t/d/b/a Carp Transit was the proper party. Moreover, Carpellotti testified 1) that Carp Transit and M. Carpellotti Trucking, owned by his mother, share the same office at the same address; 2) that he spoke to the Plaintiff by telephone within three or four days after the August 27, 1981 accident and 3) that it was his trucking firm and not his mother’s which had an open agreement for hauling with Beckinger. Given these facts, it is clear that there was no prejudice to Defendant concerning the filing of the amended complaint, for he had received notice of the institution of the action and knew that but for a mistake concerning identity, the action would have been brought against him. See FED.R.CIV.P. 15(c). Although the Pennsylvania statute of limitations pertaining to this action expired on August 27, 1983, there is no prejudice resulting if an amended complaint is filed correcting the identity of the party defendant. The amendment simply relates back to the date of the filing of the original Motion to Amend, or June 27, 1983.

Defendant next argues that absent a master-servant relationship, he cannot be held liable under the doctrine of respondeat superior for the negligence of Moore or Beckinger. He further contends that both Moore and Beckinger were independent contractors.

The hallmark of a master-servant relationship is that the master not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has exclusive control of the manner of performing it, being responsible only for the result. See Green v. Independent Oil Co., 414 Pa. 477, 201 A.2d 207 (1964); Johnson v. Angretti, 364 Pa. 602, 73 A.2d 666 (1950).

That Beckinger could accept or refuse any of Carpellotti’s hauling jobs under the open lease agreement, that he owned the trucks, that he paid all expenses incident to the operation of the trucks, that he was not subject to orders from Carpellotti except as to the place of loading and unloading are facts indicative of an independent contractor relationship. Although it is true that the doctrine of respondeat superior is limited to the master-servant relationship and is not applicable where the tortious acts are committed by an independent contractor, there are, as is the case herein, limited situations where public policy requires that liability remain with the employer of an independent contractor.

Section 428 of the Restatement of Law of Torts provides:

An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.

Restatement (Second) of Torts § 428 (1965).

To provide a proper and safe highway system in the public interest, the Commonwealth of Pennsylvania has enacted the Public Utility Code, and through the Pennsylvania Utility Commission (PUC), regulates the services of carriers. See 66 PaCSA §§ 101 et seq. (1979) Only Carpellotti possessed the requisite PUC authority to haul the coal. At the time of the accident, the truck, owned by Beckinger and operated by Moore, was engaged in the hauling of coal for Carpellotti pursuant to the open lease agreement between Carpellotti and Beckinger. Moore was unquestionably acting within the scope of his employment for Carpellotti when the accident occurred.

Without the PUC permit, the hauling could not legally have been performed. In this instance, Carpellotti cannot transfer his responsibility and liability to Beckinger or Moore who did not have the requisite PUC authority. To allow this to be done would render ineffective the requirements of Pennsylvania’s Public Utility Code. A motor carrier operating under a public franchise cannot escape its responsibility to the public by conducting its business through independent contractors. In Kissell v. Motor Age Transit Lines, 357 Pa. 204, 53 A.2d 593 (1947), the Superior Court of Pennsylvania held that a person who has an Interstate Commerce Commission permit to conduct interstate shipment by public carrier cannot validly create with another person who does not have such a permit the relationship of independent contractor so as to place upon the latter sole responsibility for the harm caused by his negligence while transporting the shipment. Although the Kissell case involved an Interstate Commerce Commission permit and not a PUC permit, the holding is controlling instantly. See also Magenau v. Aetna Freight Lines, 360 U.S. 273, 275, 79 S.Ct. 1184, 1186, 3 L.Ed.2d 1224 (1959).

As an additional facet of this argument, Defendant contends that even if he could be held liable based upon the fact that he alone possessed the PUC permit for hauling, he should not be accountable for accidents involving the International tractor-trailer since his lease agreement with Beckinger calls for the use of a Mack triaxle truck. Yet, in his deposition Carpellotti admits that as the lessee under the terms of the open lease agreement, he could not require that one truck be utilized as opposed to another although the lessor is “supposed” to use the particular truck under lease. (Carpellotti’s deposition at pp. 20-21, 39-40) Regardless of which truck was used, the fact remains that but for the PUC permit, supplied by Carpellotti, the work could not have proceeded.

For the reasons set forth above, Defendant’s Motion for Summary Judgment is denied. Accordingly, discovery shall close on July 30, 1985. The parties shall file their pretrial narratives pursuant to Local Rule 5 — II D.

An appropriate Order shall issue.

      . Although cited in the amended complaint as "M. Caupellotte,” the correct spelling of the name is "M. Carpellotti” as noted in this same answer and crossclaim.

      . The governing Pennsylvania Statute, codified at 42 PaCSA § 5524(2) (1981), states: "The following actions and proceedings must be commenced within two years: ... (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect as unlawful violence or negligence of another.”

      . FED.R.CIV.P. 15(c) states:
      (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

      . Moreover, the actual lease in question was destroyed by Carpellotti when updating his office files since it had expired. The Court, therefore, does not have the benefit of its review.

      . For his final allegation, Defendant argues that he bears no liability for the accident since a substantially different instrumentality was used, citing Section 239 of the Restatement (Second) of Agency. This doctrine, however, is predicated upon the master-servant relationship. Because the Court has concluded Beckinger to be an independent contractor, we need not address , . f. ls ma er'


author: JAMES E. DOYLE, District Judge.

text:
    UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. GREEN COUNTY, WISCONSIN, Defendant.
    No. 84-C-490-D.
    United States District Court, W.D. Wisconsin.
    May 21, 1985.

      Frances H. Assa, Senior Trial Atty., E.E. O.C., Milwaukee, Wis., for plaintiff.
    Melli, Walker, Pease & Ruhly by Jack D. Walker, Madison, Wis., for defendant.
   OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is a civil action for back wages and liquidated damages under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Jurisdiction is present under 28 U.S.C. §§ 1337, 1343, and 1345. Plaintiffs and defendant have filed competing motions for summary judgment pursuant to Fed.R. Civ.P. 56. The motions will be reviewed together.

I find there is no genuine issue as to the facts set forth below under the heading “Facts.”

Facts

Plaintiff is an agency of the United States of America and is responsible for the administration, interpretation, and enforcement of the equal pay requirement of the Fair Labor Standards Act.

Defendant is a political subdivision of the State of Wisconsin and is engaged in the maintenance and operation of a jail in Monroe, Wisconsin.

Prior to January 1, 1982, defendant employed persons in the classifications of clerical/dispatcher/jailer and dispatcher/jailer. On January 1, 1982, defendant merged these classifications into that of clerical/jailer.

Employees working under the old classification of clerical/dispatcher/jailer tended to be female while employees working under the old classification of dispatcher/jailer tended to be male.

Employees working under the old classifications of clerical/dispatcher/jailer and dispatcher/jailer were, and employees working under the present classification of clerical/jailer are, represented by the Green County Deputy Sheriffs’ Association for the purpose of collective bargaining regarding wages, hours, and other conditions of employment.

Under the collective bargaining agreement between defendant and the Green County Deputy Sheriffs’ Association, wage rates for the period of January 1, 1980 through December 31, 1981, were greater for dispatcher/jailers than for clerical/dispatcher/jailers.

Female and male employees under the new classification of clerical/jailers performed substantially equal work.

Between January 1, 1982 and June 4, 1984, female clerical/jailers were paid a lower wage rate than their male counterparts.

On August 14, 1981, a representative of the Sheriffs’ Association notified defendant that it wished to commence negotiations on a new contract. Although negotiations commenced, the parties could not agree on a wage rate for the new classification.

On February 2, 1982, defendant unilaterally implemented a certain health insurance proposal it had made.

On January 11, 1984, the Wisconsin Employment Relations Commission found that an impasse existed within the meaning of Wis.Stat. § 111.77, and ordered arbitration.

On June 4, 1984, defendant unilaterally raised the pay of plaintiffs to that of their male counterparts.

On November 21, 1984, the Wisconsin Employment Relations Commission issued its decision and concluded that defendant had violated Wis. Stat. § 111.70(3)(a)(l) & (4), by implementing the change in health insurance.

Opinion

The complaint alleges two violations of the Fair Labor Standards Act: (1) that defendant violated the equal pay provision (the Equal Pay Act, 29 U.S.C. § 206(d)) of the FLSA by paying female clerical/jailers at a lower rate of pay than that given to male clerical/jailers; and (2) that defendant failed to post a notice to employees of the Fair Labor Standards Act as required by statute. Plaintiff has moved for summary judgment on the first allegation. Defendant has filed a cross motion for summary judgment on the first allegation, and also has moved for summary judgment that the applicable statute of limitations is two years.

. 1. Pay disparity.

A claimant under the Equal Pay Act “must show that her salary was lower than that paid by the employer to ‘employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 448 (D.C.Cir.1976), quoting 29 U.S.C. § 206(d)(1)(1970). The facts which are beyond genuine issue show that females working under the job classification of clerical/jailer were paid less than their male counterparts between January 1, 1982 and June 4, 1984. In addition defendant admitted, for the purposes of considering this motion, that female and male employees working under the job classification of clerical/jailer performed “substantially equal work.” Nothing in defendant’s proposed findings of fact detracts from this admission.

Once a plaintiff has established a disparity of wages between female employees and their male counterparts performing equal work, the burden of justifying the disparity falls on the employer. To meet its burden, the employer must show the pay disparity is attributable to one of four justifiable reasons .set forth in the Equal Pay Act: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). In an effort to satisfy this burden, defendant cites the fourth exception, offering three purportedly non-sexual bases for the disparity.

First, defendant claims it “did not violate the Equal Pay Act because the differences in wages of female and male clerieal/jailers pending collective bargaining were caused by a factor other than sex.” I take this claim to mean defendant considers the collective bargaining agreement to have been a restraint on its freedom to raise female employees’ wages to the level of their male counterparts, in an effort to satisfy the Equal Pay Act. This is not the law. “[A] collective bargaining agreement perpetuating prior pay discrimination affords the employer no defense to a charge under the Equal Pay Act.” Laffey v. Northwest Airlines, 567 F.2d at 447, citing Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974).

Second, defendant advances the related argument that “avoiding a claim of violation of state law is a factor other than sex.” I believe defendant is asserting that the unilateral increase of female clerical/jailers’ wages to match those of their male counterparts would have given rise to a claim of violation of state labor law. (I note that defendant eventually did raise unilaterally female clerical/jailers’ wages. Also, despite the risk of giving rise to a claim of violation of state labor law, Wis. Stat. § 111.70(3)(a)(l) & (4), defendant unilaterally implemented a change in health insurance.) Where state law and federal labor law collide — and here the collision would be clear and direct — under the constitutional doctrine of preemption state law must yield to the federal. See Allis-Chal mers v. Lueck, — U.S. -, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985).

Third, defendant claims “the lack of an established wage rate for the classification of clerical/jailer is a factor other than sex.” The Equal Pay Act does not refer to established wage rates for job classifications; rather, the Act refers to the wage rate that is paid to employees in the same establishment. 29 U.S.C. § 206(d)(1). Inasmuch as female clerieal/jailers were paid a wage rate that was less than the wage rate paid to their male counterparts, I find defendant’s claim to be meritless.

Plaintiff has met its burden of showing that based on the material facts beyond genuine issue defendant is liable under the Equal Pay Act. It follows that defendant’s motion for summary judgment on the same issue must fail.

2. Applicable limitations period.

Defendant seeks a summary declaratory judgment that this action is barred by a two-year statute of limitations, while plaintiff claims the appropriate statute of limitations is three years. Section 255(a) of the Fair Labor Standards Act states that if the violation of the Act is willful, a three year statute of limitations applies. 29 U.S.C. § 255(a). “A violation may be willful even if an employer does not have the specific knowledge that his actions violate the Act.” Donovan v. Simmons Petroleum Corp., 725 F.2d 83, 85 (10th Cir.1983), citing Donovan v. Williams Oil Co., 717 F.2d 503 (10th Cir.1983). It is enough that an employer knew that the Act was “in the picture.” Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir.1972). In its proposed findings of fact, defendant admits it was aware that the Equal Pay Act was “in the picture.” The three year statute of limitations applies. Although it was defendant who moved for summary judgment on this issue, summary judgment in favor of the non-moving party is appropriate when there is no dispute as to the critical fact. 6 J. Moore, Moore’s Federal Practice ¶ 56.12 (2d ed. 1976).

ORDER

Plaintiff’s motion for partial summary judgment on the issue of defendant’s liability under the Equal Pay Act is granted.

Defendant's motion for summary judgment is denied in all respects, and it is adjudged that a three year limitations period applies to this action, under 29 U.S.C. § 255(a).

      . In its motion for partial summary judgment, plaintiff seeks a favorable judgment "on the issues of liability and liquidated damages for violations of the Equal Pay Act of 1963.” The reporting requirements are not part of the Equal Pay Act of 1963, 29 U.S.C. § 206(d), but are found in another part of the FLSA, specifically 29 U.S.C. § 211(c). Although plaintiffs proposed conclusions of law include the proposition that defendant unlawfuly failed to post a notice, and both parties addressed the question in their briefs, the notice issue is outside the scope of plaintiffs motion, and thus is not properly before me.

      . Defendant also claims that because no wage rate was established for complainants’ particular classification, the Equal Pay Act is not applicable. I find no merit to this claim. Obviously, complainants were being paid. The fact that no wage rate had yet been established for clerical/jailers under a collective bargaining agreement is irrelevant for Equal Pay Act coverage.


author: RYAN, District Judge.

text:
    Bill O. BLUME, Plaintiff, v. Stanley LEAKE, et al., Defendants.
    Civ. No. 84-3123.
    United States District Court, D. Idaho.
    June 4, 1985.

      Bill 0. Blume, pro se.
    William R. VanHole, U.S. Atty., Boise, Idaho, and F. Michael Kovach, Jr., Trial Atty., Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendants.
   ORDER

RYAN, District Judge.

On March 4, 1985, defendants filed their Motion for Summary Judgment supported by a statement of material facts not in dispute, the declaration of Michael Kovach, Jr., and a memorandum brief of points and authorities. Plaintiff responded on March 18, 1985, by filing his memorandum in opposition to defendants’ Motion for Summary Judgment. On April 16, 1985, defendants filed a reply brief. Finally, on April 22, 1985, plaintiff filed a “Plaintiffs Answer.” The court has reviewed all pleadings on file and determines that defendants’ Motion for Summary Judgment should be granted.

This action arises out of a sale, by the Internal Revenue Service, of nine undeveloped lots owned by plaintiff. The sale took place to satisfy plaintiff’s outstanding tax liability for the years 1976, 1977, and 1978. The sale took place on June 16, 1983. On June 17, 1983, before plaintiff’s tax liabilities were satisfied, plaintiff filed a Complaint and demand for injunction. See Blume v. Leake, Civil No. 83-3074 (D.Idaho March 15, 1984). Both the 1983 action and the present action seek to restrain the collection of plaintiff’s federal tax liability. In the 1983 action, the court held that Mr. Blume had failed to state a claim upon which relief could be granted. Pursuant to this finding, the court dismissed plaintiff’s claim on November 7, 1984. Said dismissal constituted an adjudication upon the merits. See Rhodes v. Jones, 351 F.2d 884, 887 (8th Cir.1965), cert. denied, 383 U.S. 919, 86 S.Ct. 914, 15 L.Ed.2d 673 (1966); Shaw v. Merritt-Chapman & Scott Corp., 554 F.2d 786, 789 (6th Cir.1977). It is well-established that a final judgment upon the merits in an action constitutes a bar for purposes of relitigating issues that were or could have been litigated in that action. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981). Since this action raises the same issues raised in the 1983 suit, res judicata prohibits re-litigation of these same issues.

Defendants have also requested the court, pursuant to Section 7402(a) of the Internal Revenue Code of 1954, to enjoin plaintiff from filing any more claims without prior approval of the court. Such a broad-reaching injunction may violate plaintiff’s due process rights. However, the court is cognizant of the problem posed by plaintiffs tendency to file frivolous suits. In an effort to address this problem, the court believes an order prohibiting plaintiff from filing any more actions based upon the June 16, 1983, sale of his property is more appropriate. In addition, Mr. Blume should be prohibited from instigating suit against the Internal Revenue Service, its agents, or any of the individuals that purchased or may purchase the property in question at the June 16, 1983, sale.

Lastly, defendants have requested the court to impose Rule 11 sanctions on Mr. Blume. See Rule 11, Fed.R.Civ.P. The court recognizes Mr. Blume is proceeding pro se in this matter, and as such, the court will grant Mr. Blume the benefit of the doubt. However, the court specifically puts Mr. Blume on notice that if he files any more frivolous suits before this court, the court will not hesitate to impose substantial Rule 11 sanctions against him.

Based upon the foregoing and the court being fully advised in the premises,

IT IS HEREBY ORDERED that the defendants’ Motion for Summary Judgment should be, and hereby is, GRANTED pursuant to Rule 56 of the Federal Rules of Civil Procedure.

IT IS FURTHER ORDERED that the plaintiff is hereby ENJOINED FROM FILING future suits based upon the sale of this land. This will include, but is not limited to, suits against the Internal Revenue Service, agents of the Internal Revenue Service, and the purchasers of the property.


author: RAMBO, District Judge.

text:
    Thomas John LEONZI, Petitioner, v. U.S. PAROLE COMMISSION, Respondent.
    Civ. A. No. 84-1684.
    United States District Court, M.D. Pennsylvania.
    June 14, 1985.
   ORDER

RAMBO, District Judge.

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On April 29, 1985, the Magistrate filed a report recommending that the petitioner’s Petition for a Writ of Habeas Corpus be denied. On May 24, 1985, the undersigned entered an order adopting the Magistrate’s report. On June 7, 1985, this court received a letter from petitioner in which he stated that this court had failed to address his response to the Magistrate’s report, a request for extension of time and a request for appointment of counsel.

Petitioner is correct in noting that these documents were not available to the undersigned at the time the May 24, 1985 order was filed. Petitioner is incorrect in stating that the aforesaid documents were timely filed. Petitioner states that the Magistrate’s report, which was filed on April 29, 1985, was served on him on May 2, 1985. Petitioner’s papers should have been filed no later than May 13, 1985. Petitioner was advised by the Magistrate of the time requirements. Petitioner could have at least filed his motion for extension of time before the deadline. The documents filed on May 17,1985 will be deemed untimely filed.

IT IS THEREFORE ORDERED THAT:

1. Petitioner’s documents filed on May 17, 1985 are deemed not timely filed.

2. The order of May 24, 1985 is deemed in effect.