Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1961, No. 1259, in case of Joseph M. Yurechko v. County of Allegheny.
Orrin G. Hatch, with him Robert S. Grigsby, and Pringle, Bredin, Thomson, Rhodes & Grigsby, for appellant.
Harvey E. Schauffler, Jr., for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice Cohen dissent. Mr. Justice Roberts took no part in the consideration or decision of this case.
On August 14, 1959, at 1:30 a.m., Joseph Yurechko was operating his motorcycle along Simpson Hollow Road, Elizabeth Township, Allegheny County. Seated behind him on the rear seat of the motorcycle was Helen Case, a young girl employed as a helper in the Yurechko household. At Simpson Hollow Road and Round Hill Church Road there is a "T" intersection and, at this intersection, Yurechko made a left turn and proceeded along Round Hill Church Road, a county highway. When approximately 350 feet from the intersection
and while traveling at about 25 miles per hour, the front wheel of the motorcycle struck a pot hole and upset. As a result of the mishap, Yurechko's right leg was so badly crushed and fractured that it had to be amputated and he sustained other personal injuries. Miss Case was not injured.
On May 22, 1961 -- one year and nine months after the accident -- Yurechko's attorney, -- having been retained but shortly before that date -- sent to the office of the Solicitor of Allegheny County [County] a letter stating that Yurechko had been "seriously injured about 10:00 p.m., August 14, 1958, when his motorcycle struck an unlighted obstruction left in the Simpson-Hollow Roadway, Elizabeth Township, Pennsylvania, by Allegheny County employees."*fn1 This letter constituted the only formal attempt to notify the County of the happening of this accident aside from the filing of a complaint on February 25, 1962, when Yurechko instituted this action against the County in the Court of Common Pleas of Allegheny County 30 months after the accident. The County filed an answer raising, as an affirmative defense (under the Act of July 1, 1937, P. L. 2547, § 1, 53 P.S. § 5301) Yurechko's failure to file notice of his claim in the office of the clerk or secretary of the County within six months from the date of origin of his claim and Yurechko's failure to obtain leave of court to file an action upon a showing of a "reasonable excuse" for failure to file such notice. At the outset of the trial, the court ruled that "the [County] may raise this question of notice as an affirmative defense, that [it] may introduce testimony and the issue as to whether or not proper notice was given to the [County] will be left for determination by
the jury." The jury returned a verdict in favor of Yurechko and against the County in the amount of $35,000 and, after entry of judgment thereon, the County filed this appeal. The County seeks the entry of judgment n.o.v. or, in the alternative, a new trial.
The Act of 1937, supra, pertinently provides: "Notice of claim for negligence against municipality. Hereafter any person, . . . claiming damages from any county, . . ., 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."
An allegation that a claimant has failed to meet the statutory requirement of notice must be set forth as an affirmative defense under new matter in an answer to the complaint.*fn2 The claimant may, but need not, petition the court for allowance to proceed by filing a complaint, and by doing so put the issue of "reasonable excuse" directly before the trial court before the proceedings go further. But, as in this case, where the defense does not relate either to the ...