Irrera v. Southeastern Pennsylvania Transp. Authority

• Citation: 231 Pa.Super. 508,331 A.2d 705
• Parties: Immaculate IRRERA and Joseph Irrera, h/w Appellants, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and City of Philadelphaia.
• Decision Date: 11 December 1974
• Court: Superior Court of Pennsylvania

331 A.2d 705

231 Pa.Super. 508

Immaculate IRRERA and Joseph Irrera, h/w Appellants, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and City

of Philadelphaia.

Superior Court of Pennsylvania.

December 11, 1974.

Bernard J. Avellino, Philadelphia, for appellants.

Robert H. Messerman, Joseph F. Keener, Jr., James Ciamaichelo Philadelphia, for appellee Southeastern Pa. Trans Authority.

James M. Penny, Jr., Philadelphia, for appellee City of Philadelphia.

Before WATKINS, President Judge, and JACOBS CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge.

Appellants are Immaculate Irrera and her husband Joseph Irrera. They appeal from the entry of summary judgment against them and in favor of Southeastern Pennsylvania Transportation Authority.

On July 13 1970, Mrs. Irrera injured herself when she tripped and fell while crossing 8th Street at Tasker Street in Philadelphia. Her fall was due to a hole or depression in the surface of the street near but not between SEPTA's trolley tracks. On August 10, 1970, notice of Mrs. Irrera's claim was given to the City of Philadelphia. ^[1] On July 3, 1972, ten days before the statute of limitations expired, ^[2] Mrs. Irrera and her husband brought an action in trespass against the City and SEPTA. The City denied all responsibility and filed new matter averring that 'the area and situs described in plaintiffs' Complaint was possessed or controlled by the co-defendant SEPTA,' and 'if there was any unsafe or hazardous condition thereon it was due to (SEPTA's) carelessness and negligence.' SEPTA filed new matter averring that by virtue of Section 36 of the Metropolitan Transportation Authorities Act of August 14, 1963, P.L. 984, 66 P.S. § 2036, it was entitled to 'written notice . . . within six months of the date of injury or accrual of the cause of action by any person sustaining injury or to whom such cause of action has accrued,' but that it had not received such notice. In Reply Mr. and Mrs. Irrera pleaded the August 10, 1970, notice to the City, adding: 'This notice was supplemented by letter dated August 20, 1970, wherein the precise location of the accident was described, the names and addresses of eye witnesses were provided, and a description of each injury sustained by the Wife Plaintiff was supplied as was information on her medical care. Therefore, Plaintiffs contend that having provided adequate notice of Wife Plaintiff's claim within thirty (30) days to the party primarily responsible for Wife Plaintiff's injuries, Wife Plaintiff has satisfied in substance any statutory duty which might exist to provide such notice to the Southeastern Pennsylvania Transportation Authority, whose liability is either concomitant or secondary.'

On these pleadings SEPTA moved for summary judgment. Mr. and Mrs. Irrera's answer to the motion for summary judgment added nothing to their reply to SEPTA's new matter. No depositions were taken nor any affidavits filed. Counsel for Mr. and Mrs. Irrera did file a 'memorandum in support' of their answer to SEPTA's motion for summary judgment. This memorandum consisted of the following 'exhibits': letter of August 10, 1970, addressed to the City Solicitor by counsel for Mrs. Irrera and notifying the City of her claim; acknowledgment of August 18, 1970, addressed to counsel for Mr. and Mrs. Irrera by an Assistant City Solicitor and requesting 'additional information' '(t)o assist our investigation'; reply of August 18, 1970, furnishing certain additional information; and finally, letter of March 7, 1973, addressed to counsel for Mr. and Mrs. Irrera by the Assistant City Solicitor, and stating that 'the following information may be of some help to you in reference to (SEPTA's) motion (for summary judgment). Our investigation reveals that on February 24, 1970 a City highway inspector sent to SEPTA a notice No. P.I.R. 409 advising them that there was a 'working rails (sic) causing defective paving in and along both rails, possible cave-in all along the section.' Therefore, although SEPTA may not have been aware of this accident, they certainly were aware of this dangerous condition prior to the accident.'

It should at this point be observed that these 'exhibits' were not properly before the court. Pa.R.Civ.Proc. No. 1035(a), 12 P.S. Appendix, provides that the court may consider depositions, answers to interrogatories, admissions on file, and affidavits prior to ruling on a motion for summary judgment. These papers, however, 'shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.' Pa.R.Civ.Proc. No. 1035(d). Here appellants' 'exhibits' were simply characterized as a 'memorandum' without being sworn to or without otherwise complying with Rule 1035. As such, they cannot be considered part of the record. ^[3] Appellants' irregular practice is however of no importance, for if the exhibits are regarded as part of the record nevertheless the court below properly entered summary judgment in SEPTA's favor.

Appellants contend that Section 36 of the Metropolitan Transportation Authorities Act, Supra, 66 P.S. § 2036, violated Article I, § 26, and Article III, § 18, of the Pennsylvania Constitution, P.S. ^[4] Briefly, the contention is that Section 36 is discriminatory in violation of Article I, § 26, and is a statute of limitation in violation of the provision of Article III, § 18, that '(n)o act shall prescribe any limitation of time within which suit may be brought against corporations for injuries to persons . . . different from those fixed by general laws regulating actions against natural persons . . ..' These issues, however, were not raised in the court below. It is settled that issues not raised below cannot be raised on appeal even though they involve constitutional questions. Altman v. Ryan, 435 Pa. 401, 257 A.2d 583 (1969); Wynnewood Civic Assn. v. Lower Merion Twp. Bd. of Adj., 406 Pa. 413, 179 A.2d 649 (1962); Muse-Art Corp. v. Phila., 373 Pa. 329, 95 A.2d 542 (1953); Montgomery County Bar Ass'n v. Rinalducci, 329 Pa. 296, 197 A. 924 (1938); Lovejoy v. Georgeff, 224 Pa.Super. 206, 303 A.2d 501 (1973). The proper way to challenge the constitutionality of a statute in a civil case is to plead the issue and give notice to the Attorney General as required by Pa.R.Civ.Proc. No. 235(a). McIlwain v. McIlwain, 27 Som. 352 (1972). As that procedure was not followed here the issue must be deemed abandoned or waived. Cf. Superior Mining Co. Property Tax Sale, 359 Pa. 357, 59 A.2d 301 (1948). Further, in Dilliplaine v. Lehigh, 457 Pa. 255, 322 A.2d 114 (1974), the Supreme Court has held that the doctrine of fundamental error is no longer applicable in civil cases. 'This doctrine, which may in the past have been acceptable, has become an impediment to the efficient administration of our judicial system.' Id. at ---, 322 A.2d at 117.

The argument that appellants did make in the court below, and which they repeat here, is that they substantially complied with Section 36 of the Metropolitan Transportation Authorities Act.

Section 36 provides:

Within six months from the date that any injury was received, or any cause of action accrued, any person who is about to commence any civil action in any court against the authority for damages on account of any injury to his person shall file in the office of the secretary of the board, and also in the office of the chief counsel for the authority, either by himself, his agent, or attorney, a statement in writing, signed by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date, and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any. If the notice provided for by this section is not filed, as provided, any civil action commenced against the authority more than six months after the date of injury, shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing. 66 P.S. § 2036.

Substantial compliance with these provisions is sufficient to prevent dismissal. Dubin v. Southeastern Pennsylvania Trans. Auth., 219 Pa.Super. 476, 281 A.2d 711 (1971) (suit allowed though notice not given for six months and six days). See also LaBriola v. Southeastern Pennsylvania Trans. Auth., 227 Pa.Super. 305, 323 A.2d 9 (1974).

Appellants first contend that the timely notice to the City as the party primarily responsible for the repair of defective paving Sculley v. Philadelphia, 381 Pa. 1, 112 A.2d 321 (1955), constituted substantial compliance with Section 36. This argument depends on a misunderstanding of the reasons for the enactment of the Metropolitan Transportation Authorities Act. The Act was intended to alleviate traffic congestion in urban and suburban communities due to uncoordinated and obsolete mass transportation facilities. Id. § 2, 66 P.S. § 2002. As an authority created pursuant to the Act, SEPTA operates in a regional capacity. It is not limited in its operation to Philadelphia but may also operate in the counties immediately surrounding Philadelphia. Id. § 4, 66 P.S. § 2004. Incident to this grant of regional capacity, the Act explicitly states that 'an authority shall in no way be deemed to be an instrumentality of any city or county or other municipality engaged in the performance of a municipal function, but shall exercise the public powers of the Commonwealth as an agency...