decided: April 3, 1974.
LABRIOLA ET UX., APPELLANTS,
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY
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 SEPTA 15 months after the date of the accident.
There are no Pennsylvania cases on the question of whether a municipal authority may be estopped from availing itself of the defense of lack of notice where the claimant's failure to give notice is the result of conduct or statements by the authority's representatives.*fn4 While there is a split of authority in other jurisdictions,*fn5 we believe that the cases applying this principle to statutes similar to ours strike a just balance between the authority's need for timely notice and the reasonable expectations of claimants who rely on statements and conduct by the authority's representatives.
Two determinative factors have been emphasized in holding that a governmental entity entitled to notice has either waived the right or is estopped from asserting it: (1) immediate actual notice and full investigation of the accident; and (2) conduct or assurances by representatives of the authority which lead a claimant to believe that further action is unnecessary. Farrell v. Placer County, 23 Cal. 2d 624, 145 P. 2d 570 (1944); Rand v. Andreatta, 60 Cal. 2d 846, 36 Cal. Rptr. 846, 389 P. 2d 382 (1964); Cruise v. City & County of San Francisco, 101 Cal. App. 2d 558, 225 P. 2d 988 (1951); Tillman v. City of Pomona Beach, 100 So. 2d 53 (Fla. 1957); Rabinowitz v. Bay Harbor Island, 178 So. 2d 9 (Fla. 1965); Bauer v. New York City Housing Authority, 1 Misc. 2d 690, 149 N.Y.S. 2d 379 (1956); City of Fairbourne v. Clanton, 117 S.E. 2d 197 (Ga. App.
[ 227 Pa. Super. Page 3091960]
); Santa Rosa Island Authority v. F. Rust and Sons, Inc., 303 F. 2d 576 (5th Cir. 1962). In these cases, the authority received actual notice of the accident and conducted a full investigation thereof which disclosed all of the information required by the notice statute. Representatives of the agency discussed the accident with the claimants and assured them that a settlement would be made. After expiration of the notice period, the authorities either denied liability or refused settlement, and asserted the lack of notice as a bar to the claimants' suit. In these circumstances, the courts refused to apply the notice statute, finding that the failure to notify was the result of the authority's acts.
Applying these principles to the instant case, appellants' uncontradicted allegations present a jury question as to whether, because of the conduct and statements of SEPTA's representatives, the appellants reasonably believed that they had adequately notified SEPTA of its claim. The court below erred in granting the summary judgment. Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969).
The order of the court below in granting the summary judgment is reversed with a procedendo.
Order reversed with a procedendo.