Perucki v. United States, 76 F. Supp. 34 (M.D. Pa. 1948)

*35 James J. Zaydon, of Scranton, Pa., for plaintiff.

Arthur A. Maguire, U. S. Atty., of Scranton, Pa., for the government.

WATSON, District Judge.

This case is before the Court on a motion by the defendant to dismiss the action for failure to state a claim upon which relief may be granted. The action is brought under the Federal Tort Claims Act, 28 U.S. C.A. § 921.

Plaintiff, a veteran of World War II, alleges that he had occasion to be treated by a doctor assigned to a Sub-Regional Office of the Veterans Administration, by whom the doctor was employed. Plaintiff further alleges that he suffered burns on both of his legs due to negligence on the part of the doctor, and seeks damages from the United States therefor.

The defendant contends that this case is analogous to those in which a charitable institution is the defendant, the Pennsylvania decisions having consistently held that the rule of respondeat superior does not apply in the case of injuries occasioned by the negligence of agents or servants of charitable institutions. The rationale which applies to these decisions does not apply to the United States. Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087, 136 Am.St.Rep. 879.

If this Court should later, upon the introduction of evidence, conclude that a master-servant relationship did not exist, between the Government as employer and the doctor as employee, a similar motion by the Government may then be presented.

In view of the novelty and difficulty of the question of the relationship of the doctor to the defendant, this Court concludes that the motion should be denied at this time without prejudice. The proper application of the Act may become clearer on further proceedings.

The motion of the defendant, the United States of America, to dismiss the action is denied without prejudice.