JOHN J. MATSKO, III; TERESA A. MATSKO, Husband and Wife v. United States of America

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
___________
No. 03-3666
___________
JOHN J. MATSKO, III;
TERESA A. M ATSKO,
Husband and Wife,
Appellants
v.
UNITED STATES OF AMERICA;
RUDY KOTOR
___________
APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
(D.C. No. 01-cv-00076)
District Judge: The Honorable
Joy F. Conti
___________
ARGUED MAY 11, 2004
BEFORE: NYGAARD, McKEE, and
WEIS, Circuit Judges.
(Filed: June 16, 2004)
___________
Vincent J. Barbera, Esq. (Argued)
Barbera, Clapper, Beener, Rullo & Melvin
146 West Main Street
P.O. Box 775
Somerset, PA 15501
Counsel for Appellant
Christine A. Sanner, Esq. (Argued)
Bonnie R. Schlueter, Esq.
Office of United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219
Rudy Kotor
1397 Eisenhower Boulevard, Suite 100
Richland Square III
Johnstown, PA 15904
Counsel for Appellees
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
John J. Matsko III1 filed a lawsuit
sounding in tort for injuries inflicted by
Rudy Kotor, a federal employee, during a
business visit to the offices of the Mine
Safety and Health Administration
(“MSHA”). Matsko’s amended complaint
asserted two theories under which he
claimed the United States was liable for
his injuries. First, he argued that Kotor’s
actions can be imputed to the United
1. Matsko’s wife Teresa A. Matsko is also
a plaintiff-appellant in this case, as she
asserts a derivative claim of loss of
consortium.

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States, as his employer. Second, Matsko
asserted that the United States was liable
because, despite a duty owed to him as a
business invitee, it failed to protect him
from injury by Kotor. The District Court
concluded that it lacked subject matter
jurisdiction because the United States
enjoys sovereign immunity, and that
immunity had not been waived as to either
of Matsko’s claims. The Court thus
dismissed the suit in its entirety pursuant
to Federal Rule of Civil Procedure
12(b)(1).
Because we agree with the District
Court that the Federal Tort Claims Act
(“FTCA”) does not waive the United
States’ immunity for intentional assaults
by government workers who are acting
outside the scope of their employment, we
will affirm the dismissal of Matsko’s first
claim. We will reverse, however, the
dismissal of Matsko’s claim that the
United States is liable because Kotor’s
supervisors and coworkers did not act to
prevent the assault. If, on remand, Matsko
is able to prove that Kotor’s supervisors
and coworkers were negligent, then his
claim would be squarely within the
FTCA’s waiver of sovereign immunity.
I.
Matsko, the Director of Safety for
PBS Coals, Inc., visited the MSHA offices
for a meeting with Earl Miller, a MSHA
inspector.2 The meeting was conducted at
Miller’s desk, with M iller “pulling up” a
chair from fellow inspector Kotor’s desk
for Matsko to sit in. Once the meeting was
underway, Kotor returned to his desk. In
a voice characterized by Matsko as “loud
and menacing,” Kotor told Matsko
“You’re in my ----ing chair.” Then, before
Matsko was able to give the chair back,
and without provocation, Kotor slammed
Matsko’s face into a briefcase that was
lying on M iller’s desk. Matsko suffered a
fractured vertebra and herniated disc in his
neck.3
On his way out of the MSHA
offices, Kotor’s supervisors and coworkers
gave Matsko the impression that they were
not surprised by Kotor’s behavior. One of
the MSHA inspectors told Matkso “I told
you don’t piss Rudy [Kotor] off.” A
supervisor smirked at the comment.
In accordance with the FTCA,
Matsko initially filed an administrative tort
claim with the Department of Labor.4
When that claim was denied, Matsko filed
suit in federal court against Kotor and the
United States, seeking $5 million in
damages. Before answering Matsko’s
complaint, the government filed a motion
under Federal Rule of Civil Procedure
12(b)(1) seeking to dismiss the complaint
for lack of subject matter jurisdiction. In
response to Matsko’s amended complaint,
2.PBS Coals, Inc. is a company regulated
by the MSHA.
3.Criminal charges against Kotor resulted
in his pleading guilty to recklessly
committing simple assault, harassment,
and stalking.
4. MSHA is a division of the federal
Department of Labor.

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

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

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

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

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

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

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