James v. Southeastern Pennsylvania Transp. Authority

• Citation: 312 Pa.Super. 512,459 A.2d 338
• Parties: William JAMES, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
• Decision Date: 24 May 1983
• Court: Superior Court of Pennsylvania

Page 338

459 A.2d 338

312 Pa.Super. 512

William JAMES, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.

Superior Court of Pennsylvania.

Argued April 22, 1982.

Filed March 11, 1983.

Reargument Denied May 24, 1983.

George J. O'Neill, Philadelphia, submitted a brief on behalf of appellant.

Norman Hegge, Jr., Philadelphia, for appellee.

Before WICKERSHAM, BROSKY and WIEAND, JJ.

BROSKY, Judge:

The Metropolitan Transportation Authority Act provided, inter alia, that those suing such authorities had to give notice within six months of the accrual of the action. ¹ This provision is challenged here on constitutional grounds. Despite the fact that appellant failed to notify the Attorney General of the constitutional challenge at the trial court level, ² we choose to reach the issue on its merits here. We hold that the statute is unconstitutional.

The background of this case is as follows. On May 7, 1975, plaintiff-appellant, James, allegedly slipped on debris littering the steps of a SEPTA station stairwell. ³ Among his injuries was a spiral, comminuted fracture of his right leg.

The only evidence that James had given notice of his claim against SEPTA within the six-month period is an answer he gave to an interrogatory to that effect. His complaint was filed in 1977, well after the six-month period. After holding an evidentiary hearing on the matter, Judge Braig held that James had not met the six-month notice of claim requirement and entered summary judgment in favor of SEPTA. ⁴

While at the trial court level, James also raised a challenge to the constitutionality of the statute. He failed, however, to notify the State Attorney General of this challenge as Pa.R.C.P. 235(a) mandates. The trial court failed to address the constitutional issue in its opinion.

On appeal, the only issue raised is the constitutionality of this now-repealed statute. Notification of the constitutional challenge at this appellate level was given to the Attorney General in accordance with Pa.R.A.P. 521(a). This notification was sent on February 2, 1982 and a reply from the Attorney General's office dated March 2, 1982, states: "If no notification is received from this Office within 30 days of the date of this letter, please assume that the Commonwealth will not be entering its appearance in these matters." To date, more than six months after that letter, the Attorney General has not joined this case.

Usually, a rule is a rule. Rule 235, supra, requires that the Attorney General be notified of a constitutional challenge to a statute at the trial court level. Normally, noncompliance with this rule would mandate our quashing of this appeal. Irrera v. SEPTA, 231 Pa.Super. 508, 331 A.2d 705 (1974), involved a constitutional challenge to this same statute and also involved a failure to comply with this same rule. ⁵ The "issue was deemed abandoned or waived." Irrera, supra, at 515, 331 A.2d at 708.

In the case before us, appellant did fail to comply with Rule 235; but he did raise the constitutional issue below, it was not addressed by the trial court, he did notify the Attorney General of the appellate proceedings, and the Attorney General did fail to enter the case.

This same configuration of facts existed in the case of Commonwealth v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979). There, considering those particular circumstances, Justice Nix held that the noncompliance with Rule 235 was not "a basis for refusing to consider the" constitutional issue. ⁶ Stein, supra, at 8, 406 A.2d at 1384.

We are willingly guided by Justice Nix's thoughts on this matter, even though they are not in this case binding precedent. ⁷ Under the circumstances occurring here, the noncompliance with Rule 235 is not fatal and we will address the merits of the constitutional challenge.

Appellant contends that the notice of claim requirement violates the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution. ⁸ The provision before us states Limitation of actions against authority

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 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. ⁹

The first step in any Equal Protection analysis is to determine which of three standards will be used. ¹⁰ The most minimal of the standards merely requires that the classification be rationally connected to a legitimate governmental purpose. The most stringent standard, strict scrutiny, is used to review actions affecting fundamental rights or using suspect categories. There is also a third, intermediate standard, often referred to as heightened scrutiny. This intermediate standard will be employed here.

The selection of the heightened scrutiny standard is determined by its use in a similar context by this Commonwealth's Supreme Court. In Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975), Chief Justice Jones used this standard to review the exclusion of slander and libel actions from surviving the death of plaintiff or defendant. As stated in that case, the applicable standard is as follows.

The Equal Protection Clause of both constitutions does not deny the State the power to treat different classes of persons in different ways, but does deny the right to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of the particular statute. The classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike.

Moyer, supra, at 400-1, 341 A.2d at 443.

The high courts of other states have also applied heightened scrutiny in cases which were even more directly on point with the one before us. Noting that "the right to recover for personal injuries is ... an important substantive right," the New Hampshire Supreme Court used this same intermediate standard in reviewing another notice of claim requirement. ¹¹ Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 at 830 (N.H., 1980). In another notice of claim case the Supreme Court of Washington stated:

The right to be indemnified for personal injuries is a substantial property right, not only of monetary value but in many cases fundamental to the injured person's physical well-being and ability to continue to live a decent life. Statutory classifications which substantially burden such rights as to some individuals but not others are permissible under the equal protection clause of the Fourteenth Amendment only if they ... [meet the heightened scrutiny test.]

Hunter v. N. Mason High School, 85 Wash.2d 810, 539 P.2d 845 at 848 (Wash., 1975) (a four month notice of claim requirement).

In order to apply the heightened scrutiny test, the purpose of the statute must be established. This court has held that the purpose of the § 2036 notice requirement "... is to provide the defendant with the opportunity to make timely investigation and avoid the difficulty of defending against stale and fraudulent claims." Dubin v. Southeastern Pennsylvania Transportation Authority, 219 Pa.Super. 476 at 478, 281 A.2d 711 at 712 (1971).

Next, the classification itself must be identified. Here, the classification, or grounds for differential treatment is whether or not the defendant is a transportation authority; or, looked at from the other side, whether or not the plaintiff is suing a transportation authority.

Having determined the applicable Equal Protection standard and identified the statutory purpose and classification, it remains to apply the standard to the statute in question.

Is this classification "reasonable"; does it have a "fair relation" to the purpose of the legislation? We think not. The Supreme Court of Appeals of West Virginia also held that a similar notice requirement was "neither reasonable nor fair." Though the notice time period was 30 days, the statements about it are entirely apropos here. ¹² "Few laymen, unversed in the law, know within thirty days of their injury whether they will sue; fewer yet know of the thirty-day notice." O'Neil v. City of Parkersburg, 237 S.E.2d 504 at 508 (W.Va., 1977). Even at this level the statute is patently unfair, but when viewed in terms of its disproportionate effect upon certain segments of our society, this statute's unreasonableness is even more apparent.

While the differential impact of a statute along economic lines is not, per se, an Equal Protection violation, such an impact can be relevant in evaluating a statute's fairness and reasonableness.

Ordinarily the affluent and educated tort victim has a retained or family attorney. His attorney may ethically--and probably does--come forward to inform his client of the notice requirement. Iowa Code of Professional Responsibility for Lawyers, Ethical Canon 2-3. It is the poor, uneducated tort victim, without counsel and unacquainted with lawyers, who naively assumes he will be compensated and unknowingly permits...