Dubin v. Southeastern Pennsylvania Transp. Authority

• Decision Date: 21 September 1971
• Citation: 219 Pa.Super. 476,281 A.2d 711
• Parties: Madelyn A. DUBIN v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
• Court: Pennsylvania Superior Court

281 A.2d 711

219 Pa.Super. 476

Madelyn A. DUBIN v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.

Superior Court of Pennsylvania.

September 21, 1971.

John M. Fitzpatrick, Philadelphia, for appellant.

Arthur W. Hankin, Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JOCOBS, HOFFMAN SPAULDING and CERCONE, JJ.

HOFFMAN, Judge.

This case is an action in Trespass to recover damages for personal injuries allegedly sustained by appellee on November 9, 1968 while attempting to debark from a bus operated by appellant. On May 16, 1969, six months and seven days after the accident, appellee sent adequate notice of her injury to appellant. Appellant thereafter commenced an investigation of the accident, including an examination by its own doctor and statements from appellee's attending physicians. No witnesses to the accident were discovered.

Subsequently appellant filed an Answer to the complaint alleging by way of defense that appellee's action was barred by Section 2036 of the Metropolitan Transportation Act of 1963. ^[1] Appellee's Reply denied the applicability of § 2036, and interposed a Motion for Partial Summary Judgment to test the validity of that defense as a matter of law. The lower court granted this motion allowing the case to proceed to trial.

Appellee argues that § 2036 does not bar her action because she substantially complied with its provisions and appellant was not prejudiced by any untimeliness in the notification. Appellant contends that the Act absolutely bars any action where notice is not filed within six months from the date of the accident. We agree with the lower court that appellee's position is more reasonable and meritorious.

The purpose of a notice requirement such as § 2036 is to provide the defendant with the opportunity to make timely investigation and avoid the difficulty of defending against stale and fraudulent claims. Cf. Zack v. Saxonburg Borough, 386 Pa. 463, 126 A.2d 753 (1956). Thus, cases which have construed the Pennsylvania statute which provides that notice of an accident must be filed within six months in order to maintain an action against a municipality ^[2] have emphasized that the determination of lack of timeliness must give significant consideration to any 'undue hardship' which the municipality may have suffered. Cf. Yurechko v. Allegheny County, 430 Pa. 325, 243 A.2d 372 (1968); Parks v. Borough of Clarion, 392 Pa. 265, 140 A.2d 448 (1958). Although that act provides for late filing upon 'reasonable excuse', the purpose of the act clearly has been furthered by the liaberality with which the courts have considered such excuses.

As noted in the very able opinion of Judge Bradley in the court below, '(t)he defendant's contention that Section 2036 must be rigidly construed totally ignores the statutes's purpose. While the statute imposes a six month notice requirement upon the right to bring an action against the defendant, it is not a statute of limitations. It must be reasonably applied to effectuate its purpose and not to needlessly strike down just claims. * * * The position urged by the defendant that the late notice here bars this suit is harsh. There is no question that the plaintiff has substantially complied with the provisions of Section 2036. The notice was sent only one week beyond the six month time period and gave the defendant ample opportunity to conduct a full investigation. The defendant was not prejudiced by the delay in notice and the purpose of Section 2036 was fully promoted. Dismissal of the suit under these circumstances would merely exalt form over substance.' This position is in accord with cases from other jurisdictions with similar statutes. ^[3]

The Order granting appellee's Motion for Partial Summary Judgment is affirmed.

JACOBS, J., did not take part in the consideration of decision of this case.

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Notes:

^[1] The Act of August 14, 1963, P.L. 984, 66 P.S. § 2036 reads, in part as follows: 'Within six months from the date that any injury was received * * * any person sho is about to commence any civil action in any court against the authority for...