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decided: September 21, 1971.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, No. 495, in case of Madelyn A. Dubin v. Southeastern Pennsylvania Transportation Authority.


John M. Fitzpatrick, with him Dilworth, Paxson, Kalish, Levy & Coleman, for appellant.

Arthur W. Hankin, with him Meyer, Lasch, Hankin & Poul, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 219 Pa. Super. Page 477]

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 Authorities Act of 1963.*fn1 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

[ 219 Pa. Super. Page 478]

    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*fn2 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 Co., 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 liberality 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

[ 219 Pa. Super. Page 479]

    the statute'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 sixth 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.*fn3

The order granting appellee's motion for partial summary judgment is affirmed.


Order affirmed.

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