The opinion of the court was delivered by: FULLAM
Defendant's motion for summary judgment raises novel and perplexing procedural issues. The underlying facts are undisputed:
On Saturday morning, March 13, 1965, Riley Freeman was gravely injured in a waterfront accident. At 10:47 a.m. he was brought to the hospital, unconscious and in critical condition. His wife, Eleanor Freeman, was made aware of the seriousness of the situation and promptly consulted counsel. She arrived at the offices of her attorneys at about 11:30 a.m. Counsel immediately prepared a complaint, claiming damages for Mr. Freeman's injuries, and telephoned a deputy clerk of this Court, at his home, explaining that an emergency had arisen and that it was imperative that suit be instituted at once. The latter official agreed to proceed forthwith to the courthouse in order to open the clerk's office to receive the complaint.
Counsel's representative arrived at the courthouse with the complaint at 12:15 p.m. The deputy clerk arrived at about 12:45 or 12:50 p.m. The two men then proceeded to the clerk's office, where the complaint was time-stamped and docketed, at 1:00 p.m. The plaintiff named in the complaint was Riley Freeman. However, in the meantime, at 12:20 p.m., Mr. Freeman died.
The complaint was duly served and an appearance entered by counsel for the defendant. The next procedural event of present significance occurred on August 3, 1967, when counsel for the defendant filed a "suggestion of death", making Mr. Freeman's death a matter of record. On August 23, 1967, plaintiff's counsel obtained court approval for the substitution of Eleanor Freeman, as administratrix of the estate of her late husband, as party-plaintiff. It is to be noted that this substitution occurred more than two years after the accident and ensuing death.
A wrongful death action under the Pennsylvania statute
(Pa.Stat.Ann. tit. 12, § 1601) must be brought within one year after the death (Pa.Stat.Ann. tit. 12, § 1603). A survival action (Pa.Stat.Ann. tit. 20, § 320.603), like other claims for personal injuries, must be brought within two years (Pa.Stat.Ann. tit. 12, § 34 and tit. 12, § 1603).
At common law, all causes of action abated at death, Johnson v. Peoples First Nat. Bk. & Tr. Co., 394 Pa. 116, 123, 145 A.2d 716 (1958). And the amendment of the caption and "substitution" of parties permitted in August of 1967 could not retroactively validate the proceedings, if there was no pending action to be amended. Thompson v. Peck, 320 Pa. 27, 30, 181 A. 597 (1935).
Thus the present motion makes it necessary to decide whether or not this action was commenced on behalf of the decedent during his lifetime. This is a question to be decided according to federal law. Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); Mahan v. Ohio Auto Rentals Co., 207 F. Supp. 383 (D.C.Ohio, 1962).
"A civil action is commenced by filing a complaint with the court." Fed.R.Civ.P. 3. This means "filing [it] with the clerk of court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk." Fed.R.Civ.P. 5(e).
Fed.R.Civ.P. 77(a) provides that "The district courts shall be deemed always open for the purpose of filing any pleading or other proper paper * * *."
There is no local rule in this district establishing Saturday office hours for the clerk's office; as provided in Rule 77(c), the office is normally closed on Saturdays.
The question of how pleadings can be filed when the clerk's office is closed does not often arise, largely because of the well-nigh universally established methods of computing time for limitations and related purposes, whereby a filing due on Saturday is regarded as timely if accomplished on Monday following. See, e.g., Rule 6(a) Fed.R.Civ.P.; Pa.Stat.Ann. tit. 46, §§ 538-540; Jones & Laughlin Steel Corp. v. Gridiron Steel Co., 382 U.S. 32, 86 S. Ct. 152, 15 L. Ed. 2d 26 (1965); Rupe v. State Public School Building Authority, 245 F. Supp. 726 (W.D.Pa.1965).
This principle of time-computation sheds no light on the present problem, however. To provide for flexibility in computing the expiration of a specified period of time measured from a known reference-point is one thing; to pretend to lengthen a man's life is quite another. The fixed reference-point in our case is at the end of the time period, not the beginning. Mr. Freeman's capacity to commence a law-suit, or to authorize, expressly or by implication, his wife to do so for him, ended at 12:20 p.m. on Saturday, March 13, 1965. The issue here is, as previously stated, had this action been "commenced" by that time?
It is self-evident that the court could not be deemed "always open" for the filing of pleadings (Rule 77(a)) unless it were possible to file papers while the clerk's office is physically closed. Accordingly, it is settled law that delivery of a pleading to a proper official is sufficient to constitute filing thereof. United States v. Lombardo, 241 U.S. 73, 36 S. Ct. 508, 60 L. Ed. 897 (1916); Milton v. United States, 105 F.2d 253, 255 (5th Cir. 1939). In Greeson v. Sherman, 265 F. Supp. 340 (D.C.Va.1967) it was held that a pleading delivered to a deputy clerk at his home at night was thereby "filed."
But it is also reasonably clear that after-hours delivery to the clerk's office can constitute "filing", even though no one is present to receive, or learn about, the papers in question. In Hetman v. Fruit Growers Express Co., 200 F. Supp. 234 (D.N.J.1961), a complaint mailed at 5:00 p.m. on the last day, which reached the court's mailbox before midnight, was held timely filed. In Johnson v. Esso Standard Oil Co., 181 F. Supp. 431 (W.D.Pa.1960) the same result was reached where the complaint was delivered to the clerk's post-office box before midnight on the final day. See also Johansson v. Towson, 177 F. Supp. 729 (M.D.Ga.1959). In Central Paper Co. v. Commissioner of Internal ...