Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 4341, in case of Domenic LaBriola and Caroline LaBriola v. Southeastern Pennsylvania Transportation Authority.
Martin Greitzer, with him Greitzer & Locks, for appellants.
Stanley J. Sinowitz, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J.
[ 227 Pa. Super. Page 306]
This is an appeal from an order granting appellee's (hereinafter, SEPTA) motion for a summary judgment. The trial court granted the motion on the basis of the pleadings.*fn1
The facts as disclosed by the record are as follows: On November 7, 1970, wife-appellant (Mrs. LaBriola) sustained injuries as she was alighting from a subway-surface trolley car. Appellants filed their complaint almost two years later, alleging that the injuries were sustained as a result of the trolley conductor's failure to allow Mrs. LaBriola adequate time to safely alight from the car.
In its answer, SEPTA denied negligence, and by way of new matter averred that appellants' failure to give notice as required by § 36 of the Metropolitan Transportation Act*fn2 was a complete bar to their cause
[ 227 Pa. Super. Page 307]
of action. Subsequently, SEPTA filed the motion for summary judgment alleging this failure to give notice as the basis for its motion. In their reply to new matter and answer to SEPTA's motion, appellants averred that they had substantially complied with the notice provisions, that SEPTA was not prejudiced by the lack of literal compliance, and that SEPTA was estopped from asserting the lack of notice as a bar to their cause of action.
Appellants alleged that Mrs. LaBriola gave notice of the accident to a SEPTA employee immediately after its occurrence. On the following day, a SEPTA investigator visited the appellants, acknowledged notification of the accident, and obtained a signed statement from Mrs. LaBriola concerning the facts of the accident and the extent of her injuries. Appellants also signed authorization form which allowed SEPTA to obtain wage loss information from her employer and medical information from her physicians. Thereafter, SEPTA received that information and for a period of more than 6 months after the accident attempted to negotiate a settlement with appellants. During this period,*fn3 SEPTA's representative repeatedly assured
[ 227 Pa. Super. Page 308]
appellants that the claim would be settled. When SEPTA refused to compensate appellants, the instant action was brought and formal notice of claim was given to ...