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ZACK v. SAXONBURG BOROUGH. (11/12/56)

November 12, 1956

ZACK, APPELLANT,
v.
SAXONBURG BOROUGH.



Appeals, Nos. 110 and 111, March T., 1956, from order of Court of Common Pleas of Butler County, Sept. T., 1955, at A.D. No. 57, in case of Ruth Zack, a minor, et al. v. The Borough of Saxonburg et al. Order reversed. Trespass for personal injuries. Defendants' preliminary objections sustained in part and order entered dismissing action as to defendant Borough; plaintiffs' motion to amend pleadings refused, opinion by SHUMAKER, P.J. Plaintiffs appealed.

COUNSEL

Hugh S. Millar, with him J. Campbell Brandon, Brandon, Millar & Rockenstein, and Evans, Ivory & Evans, for appellants.

William C. Robinson, with him Zeno F. Henninger, and Henninger & Robinson, for appellees.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 386 Pa. Page 465]

OPINION BY MR. JUSTICE MUSMANNO

We have before us interpretation of the Act of July 1, 1937, P.L. 2547, 53 PS 2774, which provides: "Hereafter any person, copartnership, association or corporation claiming damages from any county, city, borough, town, township, school district or other municipality, arising from the negligence of such municipality or any employe thereof, shall, within six (6) months from the date of origin of such claim or within six (6) months from the date of the negligence complained of, file in the office of the clerk or secretary of such municipality a notice in writing of such claim, stating briefly the facts upon which the claim is based. Such notice shall be signed by the person or persons claiming damages or their representatives. No cause of action may be validly entered of record where there was a failure to file such notice within the time required by this act, except leave of court to enter such action upon a showing of a reasonable excuse for such failure to file said notice shall first have been secured."

It is obvious that "In enacting the statute the legislature clearly intended to provide municipalities with a safeguard against the loss of an opportunity to make timely investigation and thus avoid the difficulty of defending against stale and fraudulent claims." (Lutz v. Scranton, 140 Pa. Superior Ct. 139). The question we have to decide here is whether there can be conditions which will excuse a rigid and literal enforcement of the Act against one who fails to file notice within the time specified but who otherwise appears to have a legitimate, plausible prima facie claim against the municipality.

In the case at bar Ruth Zack, a 16-year old girl, while participating as a member of the Turtle Creek

[ 386 Pa. Page 466]

Bugle and Drum Corps parading in Saxonburg, fell on a defective sidewalk in the latter town and suffered serious injuries. The accident occurred on July 23, 1953, but the statement of claim by the minor plaintiff and her parents against the Borough of Saxonburg and Eva Knoch, who owned the premises adjoining the involved sidewalk, plus Harry A. Nixon, who rented the property, was not filed until July 19, 1955. Written notice of the accident was not served on the defendants at any time. The defendant Borough filed preliminary objections with a motion to dismiss the complaint on the grounds, inter alia, that the plaintiffs had failed to observe the requirements of the Act of 1937. The lower Court sustained the preliminary objections on this phase and dismissed the complaint. This appeal followed.

The question presented is not a novel one in our appellate courts. In the case of McBride v. Rome Township, 347 Pa. 228, the plaintiff was injured by a fall on an alleged negligently maintained township road. No notice of the accident was served on the municipality and the statement of claim was not filed until 11 months after the cause of action had arisen. At an even later date, when plaintiff's counsel realized he had ignored the Act of 1937, he petitioned the Court for leave to file notice nunc pro tunc. The Court granted a rule and testimony was taken. It developed at the hearing that although the municipality had not been formally notified by the plaintiff of the accident, the township commissioners learned of it a few days after it occurred and in fact ordered the road repaired, ...


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