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MARRICONE v. UNITED STATES

September 30, 1988

JOSEPHINE MARRICONE
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: BRODERICK

 RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE

 Plaintiff Josephine Marricone, personal representative and administratrix of the estate of her son, Anthony Marricone, Jr., filed an action against the United States, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674, in connection with the death of her son during his incarceration at the Federal Correctional Institute ("FCI") in Lexington, Kentucky. Plaintiff has set forth both wrongful death and survival claims under Kentucky law. Pursuant to this Court's Order of March 31, 1988, plaintiff was permitted to amend her Complaint to name as beneficiaries of the wrongful death action the two putative illegitimate minor children of the decedent. The government has filed a motion to dismiss the wrongful death cause of action on the ground that this Court lacks subject matter jurisdiction over the wrongful death claim because no administrative claim was ever filed with the relevant federal agency by or on behalf of the two allegedly illegitimate children. For the reasons stated, this Court will deny the government's motion.

 I.

 On March 1, 1985, Anthony Marricone, Jr. reported to the FCI at Lexington, Kentucky. The following day, March 2, 1985, Mr. Marricone was transferred to the Emergency Room of St. Joseph's Hospital, Lexington, Kentucky, where he died from a massive myocardial infarction. Mr. Marricone died intestate and was never married. Neither at the time of his death nor at any time since has a judicial determination of the paternity of Sandra and Sharon Marricone, the alleged illegitimate daughters of Mr. Marricone, been made. On September 22, 1985, the Registrar of Wills of Philadelphia County issued letters of administration for the estate of Mr. Marricone to his mother, plaintiff Josephine Marricone.

 In late November 1985, plaintiff filed a survival claim, on behalf of the estate of her son, with the Bureau of Prisons. The administrative claim, which contained a full narrative of the facts upon which plaintiff based her claim as well as a demand for a sum specific, was denied by letter dated April 13, 1986. The letter stated in relevant part:

 
We have reviewed your client's claims along with reports from appropriate staff members. In accordance with the Federal Tort Claims Act, 28 U.S.C. § 2672, we can find no negligence on the part of the government, therefore, your client's claim must be denied.

 Subsequently, on November 19, 1986, plaintiff filed a Form 95 claim for wrongful death with the Bureau of Prisons in which she again set forth the facts upon which the claim was based and requested $ 1,000,000 in damages. In her opposition to the instant motion, plaintiff states that although she believed that Sandra and Sharon Marricone were the daughters of her son, in view of the fact that no judicial determination of that fact had ever been made, she filed the administrative claim without mentioning the two alleged illegitimate minor children.

 Plaintiff filed the FTCA action on July 16, 1986, and lacking any documentation or judicial determination of the paternity of the two children, brought the wrongful death action as personal representative and sole survivor. During the past two years, the government has filed three separate motions designed to prevent plaintiff from litigating, pursuant to the FTCA, the death of her son despite the fact that the Bureau of Prisons, having been notified of the circumstances of the accident and the damages sought, denied plaintiff's administrative claims.

 II.

 In tort suits against the United States, the jurisdiction of the federal courts is limited by 28 U.S.C. § 2675(a) which provides in pertinent part:

 
An action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the claim to the appropriate federal agency.

 Pursuant to the rulemaking authority conferred in 28 U.S.C. § 2672, the Attorney General promulgated regulations governing the processing of administrative ...


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