446 F2d 1380 Schwartz v. United States

446 F.2d 1380

Milton S. SCHWARTZ and Ethel Schwartz, Appellants,

No. 18519.

United States Court of Appeals, Third Circuit.

Argued May 7, 1971.
Decided July 19, 1971.

Mark S. Levy, Kremer, krimsky & Luterman, Philadelphia, Pa. (John F. Penrose, Philadelphia, Pa., on the brief), for appellants.

Edwin E. Naythons, Asst. U.S. Atty., Philadelphia, Pa. (Louis C. Bechtle, U.S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before HASTIE, Chief Judge, and KALODNER and ALDISERT, Circuit judges.



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This is an appeal from an Order of the District Court entering judgment in favor of the appellants in the amount of $2,100.00 in their action against the United States under the Federal Tort Claims Act1 for personal injuries sustained by Mrs. Ethel Schwartz on July 28, 1964, when an Army truck collided with an automobile she was operating in center city, Philadelphia, Pennsylvania.


The record establishes that Mrs. Schwartz on July 30, 1964, executed an administrative 'Claim for Damage or Injury' for $6,000.00 for 'personal injury,' and $553.34 for 'property damage.' The 'Claim' was returned to appellants' counsel on April 29, 1965 by Government counsel with the advice that the Army was without jurisdiction to consider the claim as presented since it was in excess of $2,500.00. On July 8, 1965, appellants filed a new administrative Claim in the amount of $2,100.00. In light of failure of the Government to act an this Claim, appellants filed the instant action on July 28, 1966-- two years after the accident occurred-- seeking $2,000.00 personal injury damages for Mrs. Schwartz and $100.00 property damages to the automobile which was owned by appellant Milton S. Schwartz.


The District Court, to which the case was tried, on September 16, 1969, awarded damages of $2,100.00 to appellants. In doing so, the District Court held that the plaintiffs had failed to sustain their burden 'of showing us any newly discovered evidence or intervening facts,' bearing on Mrs. Schwartz' injuries, and accordingly their claim 'must be limited to the amount claimed before the (federal) agency' under 28 U.S.C.A. 2675(b), which provides that 'Action under this section shall not be instituted for any sum in excess of the amount of the claim ($2,100.00) presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.'


Appellants here urge that the District Court erred in its finding that they had failed to sustain their burden of showing newly discovered evidence or intervening facts relating to their claim.


On review of the trial record, we cannot say that the District Court erred in the respects stated. On this score, we note that the administrative Claim seeking damages of $2,100.00 was filed a year after the accident occurred, and the instant action seeking the same amount was filed two years after the accident, and that during the entire two year period Mrs. Schwartz frequently consulted various physicians, with respect to the injuries sustained in her accident.


The Order of the District Court will be affirmed.


28 U.S.C.A. 2371 et seq., and 28 U.S.C.A. 1346(b)