MEMORANDUM and ORDER
In this personal injury action, based upon diversity jurisdiction, the defendant has filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56, predicated upon the argument that the plaintiffs' cause of action is time-barred under Pennsylvania law as a result of their filing the complaint two years and a day after the cause of action arose (the matter is controlled by a two-year statute of limitations, 42 Pa Stat. Ann. § 5524 (1992)). It asserts that the proper way to calculate the statutory period is to equate the term "year" with a period of three hundred sixty-five (365) days only, notwithstanding the fact that one of the years was a leap year consisting of three hundred sixty-six (366) days. The plaintiffs filed their complaint seven hundred and thirty-one (731) days after the cause of action had arisen, being arguably one day beyond the applicable Pennsylvania statute of limitations for personal injury actions. On the other hand, the plaintiffs maintain that their filing was timely in that the interpretation of a year under the statute may be either three hundred sixty-five (365) days or three hundred sixty-six (366) days in a leap year when February consists of twenty-nine (29) days. Thus, the accident having occurred on August 18, 1990, and the complaint being filed on August 18, 1992, the defendants claim the statutes of limitations expired on August 17, 1992, seven hundred thirty (730) days after the accident, while the plaintiff identifies August 18, 1992, seven hundred thirty-one (731) days after the accident, as the date of expiration.
As an additional argument, the plaintiffs contend that they mistakenly mailed the complaint to the Office of the United States Attorney (the address being the same as the Clerk of Court, with the exception of different post office box numbers) where it was received prior to the expiration of the seven hundred and thirty (730) days, and that this was effective service under the Federal Rules of Civil Procedure. For reasons which follow, the court will deny the defendant's motion.
The parties agree that the cause of action which precipitated this case occurred on August 18, 1992, when Sandra La Rosa, a resident of New York State, slipped while dancing on a section of a parquet floor at Cove Haven, t a Caesers at Cove Haven (hereinafter "Caesers"), Wayne County, Pennsylvania. The plaintiffs purportedly attempted to file their complaint by means of United States mail on August 11, 1992, by correctly addressing it to the U.S. District Clerk's office, but erroneously forwarding it to Box 309, the mailing address of the Office of the United States Attorney. Both offices are in the same building and the complaint was received by the U.S. Attorney's office at least by August 17, 1992, although not forwarded to the Clerk's office until August 18, 1992, at which time it was appropriately logged in by stamp as having been received on August 18, 1992.
After granting the defendant's motion for an extension of time in which to file its answer, the same was filed on November 17, 1992. On November 24, 1992, the defendant submitted a motion for summary judgment and supporting brief. The plaintiffs responded on January 5, 1993, and the defendant filed its reply brief on January 15, 1993. On February 1, 1993, the plaintiffs filed a supplemental brief challenging the defendant's contention that the plaintiffs' had conceded in their January 5, 1993, brief that the statute had expired on August 17, 1992, and on February 18, 1993, at the direction of the court, they filed a further memorandum addressing the computation of time when a leap year is involved. The motion is now ripe for disposition.
The issue to be resolved by the court, as posed by the defendant in its motion for summary judgments, is as follows; In Pennsylvania, does the word "year" as used in 42 Pa. Cons. Stat. Ann. § 5524 (1992), denote only a continuous stretch of three hundred sixty-five (365) days or can it also be, in the case of a leap year, three hundred and sixty-six (366) days?
In Pennsylvania, "when any period of time referred to in any rule, such period in all cases, . . ., shall be computed so as to exclude the first and include the last day of such period." Pa R. Civ. P. 106(a). This rather simplistic rule becomes somewhat muddled when the period of time considered includes a leap year. As previously stated, it is the defendant's posture that, excluding August 18, 1990, as the first day, the application of two 365 day calendar years would result in August 17, 1992, as the last day for filing. The plaintiffs, on the other hand, claim that two years, if one is a leap year, amounts to 731 days thereby recognizing August 18, 1992, as the final day.
A review of case law discussing this issue reveals that, although it is not an issue recently, or even frequently reported in either the Third Circuit or in the Middle District of Pennsylvania, it is not exactly a case of first impression either. In Perrine v. Heishman, 253 F. Supp. 68 (M.D.Pa. 1966), Judge Follmer, deciding a personal injury case wherein the same Pennsylvania two-year statute of limitations was at issue in a motion for summary judgment, recognized, without deciding, that the term year could include either a period of three hundred sixty-five (365) days or, in the case of a leap year, three hundred sixty six (366) days. Judge Follmer's language in Perrine is instructional as the court begins its analysis of this issue:
In computing the time in which an action must be brought, in Pennsylvania, the day on which the cause of action arose must be omitted and the last day of the period is included. See Tellip v. Home Life Insurance Co., 152 Pa. Super. 147, 150, 31 A.2d 364 (1943). Thus the last day for the plaintiff to have brought this action was February 28, 1966. The filing of the complaint with the Clerk of Court will toll the Statute of Limitations. In regard to this, the plaintiff maintains that since 1964 was a leap year the Complaint did not have to be filed until March 1, 1966. If the accident had occurred on February 29, 1964, this argument would be applicable, but under these facts, the fact that 1964 was a leap year is irrelevant.