The opinion of the court was delivered by: GREEN
This is an action in which relief is sought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. The cause of action arises from the sale of a property in Philadelphia by the named defendant to the parent-plaintiffs, on or about February 23, 1972. At the time of sale, the interior of the property was allegedly covered by a lead based paint. The complaint further avers that the minor-plaintiff ate, consumed and was exposed to the lead based paint, causing her serious personal injuries, between February 23, 1972 and June 10, 1973.
Presently before the Court is plaintiff's motion to amend her complaint to substitute the United States of America for the present named defendant and to have the amendment relate back to the time of filing of the original complaint. The government opposes the motion and asserts that the United States did not receive such notice within the appropriate limitation period as to allow relation back to an amendment of the complaint.
We grant plaintiff's motion.
An administrative claim was filed which was denied by letter dated, May 23, 1974. The last paragraph of that letter reads as follows:
You are advised that your client has the right to file suit against the United States in an appropriate United States District Court within six months of the date of mailing of this letter.
The complaint in this action was filed on November 19, 1974. The complaint and summons were served on the United States Attorney for this district, on November 29, 1974 and on the present defendant, on December 20, 1974. The complaint and summons were mailed to the Attorney General on November 25, 1974, with receipt on December 6, 1974.
The time periods governing this action are contained in 28 U.S.C. § 2401(b), which provides:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. (Emphasis Added)
Federal Rule of Civil Procedure 15 governs amendment of pleadings. Section (a) provides that "leave [to amend] shall be freely given when justice so requires". Section (c), pertaining to the relation back of ...