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DUBIN v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (09/21/71)

decided: September 21, 1971.

DUBIN
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, APPELLANT



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.

COUNSEL

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 ...


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