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FREY v. WOODARD

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA


December 12, 1979

WOODROW FREY and BETTY FREY
v.
GERALD DEAN WOODARD, JOE McCRACKEN and THE UNITED STATES OF AMERICA

The opinion of the court was delivered by: TROUTMAN

MEMORANDUM AND ORDER

A Marine Corps sergeant driving a five ton truck in Jacksonville, Florida, allegedly forced plaintiffs, pedestrians crossing Highway 17, into the path of vehicle owned and operated by defendant Woodard. The resulting accident between Woodard and plaintiffs caused injuries for which they now seek redress. Plaintiffs brought this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, Et seq., which requires that prior to bringing suit in district court a claim must be filed with the appropriate federal agency within two years after the claim accrues. West v. United States, 592 F.2d 487, 492 (8th Cir. 1979), Bernard v. United States Lines, Inc., 475 F.2d 1134, 1136 (4th Cir. 1973), Accardi v. United States, 435 F.2d 1239, 1241 (3d Cir. 1970), Knight v. United States, 442 F. Supp. 1069, 1071 (D.S.C.1977), Montalvo v. Graham, 390 F. Supp. 533, 534 (E.D.Wis.1975), Robinson v. United States Navy, 342 F. Supp. 381, 383 (E.D.Pa.1972), 28 U.S.C. §§ 2401(b), 2675(a). See also 2 U.S.Code Cong. & Admin.News, 89th Cong., 2d Sess., pp. 2515, 2522 (1966). For purposes of this statute a claim is deemed to be presented to a federal agency when it "receives from a claimant, his duly authorized agents or legal representative, an executed Standard Form 95 . . . or other written notification of an incident". 28 C.F.R. § 14.2. Plaintiffs delivered two of these forms to the Enlistment Recruiting Office at the Marine Corps Recruiting Station, Allentown, Pennsylvania, on Monday, April 23, 1979, two years and two days after the accident. The government moved for summary judgment *fn1" on the ground that plaintiffs failed to file an administrative claim within the time period prescribed by statute. The Court denied the motion *fn2" on the basis of Bledsoe v. Department of Housing and Urban Development, 398 F. Supp. 315 (E.D.Pa.1975), which held that Fed.R.Civ.P. 6(a) governs computation of the six-month limitation period in 28 U.S.C. § 2401(b). Because the two-year limitation in the instant situation Factually expired on a Saturday, this Court, applying Bledsoe, held that legally the period expired the following Monday. Accordingly, we concluded that plaintiffs had filed a timely complaint.

 Thereafter, the government, moving for reconsideration, explained that the recruiting station where plaintiffs delivered their original forms was staffed and open for business on Saturday, April 21, 1979, from 9:00 a.m. until 2:00 p.m. Therefore, plaintiffs could have presented their forms to the appropriate federal agency by filing their claim on or before April 21, 1979, the date on which the two-year limitation period expired Factually as well as Legally.

 Congress created a limited waiver of sovereign immunity in the Federal Tort Claims Act. United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979). The waiver allows suit only on prescribed terms and conditions. Honda v. Clark, 386 U.S. 484, 501, 87 S. Ct. 1188, 18 L. Ed. 2d 244 (1967), Bialowas v. United States, 443 F.2d 1047, 1048-49 (3d Cir. 1971). Battaglia v. United States, 303 F.2d 683, 685 (2d Cir. 1962). The limitation period established by Congress must be strictly observed, Soriano v. United States, 352 U.S. 270, 276, 77 S. Ct. 269, 1 L. Ed. 2d 306 (1957), United States v. Sherwood, 312 U.S. 584, 590, 61 S. Ct. 767, 85 L. Ed. 1058 (1941), United States v. Michel, 282 U.S. 656, 660, 51 S. Ct. 284, 75 L. Ed. 598 (1931), and is not to be extended by equitable considerations, Childers v. United States, 442 F.2d 1299, 1303 (5th Cir.), Cert. denied, 404 U.S. 857, 92 S. Ct. 104, 30 L. Ed. 2d 99 (1971), United Missouri Bank South v. United States, 423 F. Supp. 571, 577 (W.D.Mo.1976), Binn v. United States, 389 F. Supp. 988, 991 (E.D.Wis.1975), for the terms of consent to be sued in any court define that court's jurisdiction. United States v. Sherwood, 312 U.S. at 586-87, 92 S. Ct. 104, Minnesota v. United States, 305 U.S. 382, 388, 59 S. Ct. 292, 83 L. Ed. 235 (1939). Exceptions are not to be implied. *fn3" Soriano v. United States, 352 U.S. at 276, 77 S. Ct. 269, United States v. Sherwood, 312 U.S. at 590-91, 61 S. Ct. 767, United States v. Michel, 282 U.S. at 659, 51 S. Ct. 284, Eastern Transportation Co. v. United States, 272 U.S. 675, 686, 47 S. Ct. 289, 71 L. Ed. 472 (1927), Thompson v. Dugan, 427 F. Supp. 342, 344 (E.D.Pa.1977), Binn v. United States, 389 F. Supp. at 988, Hammond v. United States, 388 F. Supp. 928, 930 (E.D.N.Y.1975). The time within which a suit must be initiated against the federal government under federal statute is a strict condition of the provided remedy, Gallion v. United States, 389 F.2d 522, 524 (5th Cir. 1968), United States v. Croft Mullins Electric Co., 333 F.2d 772, 777 n. 9 (5th Cir. 1964), Cert. denied, 379 U.S. 968, 85 S. Ct. 664, 13 L. Ed. 2d 561 (1965), and is substantive, not merely procedural. United Missouri Bank South v. United States, 423 F. Supp. at 577, Trepina v. Wood, 227 F. Supp. 726, 727 (D.Mont.1964), Lomax v. United States, 155 F. Supp. 354, 357 (E.D.Pa.1957). Failure to comply with the statutory directive deprives the court of jurisdiction. West v. United States, 592 F.2d at 492, Rosario v. American Export-Isbrandtsen Lines, Inc. v. United States, 531 F.2d 1227, 1231 (3d Cir. 1976), Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 23-24 (3d Cir. 1975), Bialowas v. United States, 443 F.2d at 1049, Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir. 1972), Goodman v. United States, 324 F. Supp. 167, 170 (M.D.Fla.), Aff'd, 455 F.2d 607 (5th Cir. 1971), Morano v. United States Naval Hospital, 437 F.2d 1009, 1011 (3d Cir. 1971), Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969), Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968),> Powers v. United States, 390 F.2d 602-604 (9th Cir. 1968), Crown Coat Front Co. v. United States, 363 F.2d 407, 411 (2d Cir. 1966), Rev'd on other grounds, 386 U.S. 503, 87 S. Ct. 1177, 18 L. Ed. 2d 256 (1967), Binn v. United States, 389 F. Supp. at 991, Hammond v. United States, 388 F. Supp. at 930, Robinson v. United States Navy, 342 F. Supp. at 382-83, Lomax v. United States, 155 F. Supp. at 357-58. Accordingly, plaintiffs' complaint was not timely filed. Summary judgment will be entered in favor of the government and against plaintiffs. *fn4"


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