Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1972, No. 188, in case of Immaculate Irrera and Joseph Irrera, husband and wife, v. Southeastern Pennsylvania Transportation Authority and City of Philadelphia.
Bernard J. Avellino, for appellants.
James Ciamaichelo, with him Robert H. Messerman, Lewis H. Van Dusen, Jr., Joseph F. Keener, Jr., Emil F. Toften, and Norman M. Hegge, Jr., for appellee, Southeastern Pennsylvania Transportation Authority.
James M. Penny, Jr., Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee, City of Philadelphia.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Van der Voort, J., dissents. Hoffman, J., took no part in the consideration or decision of this case.
[ 231 Pa. Super. Page 512]
Appellants are Immaculate Irrera and her husband Joseph Irrera. They appeal from the entry of summary judgment against them and in favor of Southeastern Pennsylvania Transportation Authority.
On July 13, 1970, Mrs. Irrera injured herself when she tripped and fell while crossing 8th Street at Tasker Street, in Philadelphia. Her fall was due to a hole or depression in the surface of the street near but not between SEPTA's trolley tracks. On August 10, 1970, notice of Mrs. Irrera's claim was given to the City of Philadelphia.*fn1 On July 3, 1972, ten days before the statute of limitations expired,*fn2 Mrs. Irrera and her husband brought an action in trespass against the City and SEPTA. The City denied all responsibility and filed new matter averring that "the area and situs described in plaintiffs' Complaint was possessed or controlled by the co-defendant SEPTA," and "if there was any unsafe or hazardous condition thereon it was due to [SEPTA's] carelessness and negligence." SEPTA filed new matter averring that by virtue of Section 36 of the Metropolitan Transportation Authorities Act of August 14, 1963, P. L. 984, 66 P.S. § 2036, it was entitled to "written notice . . . within six months of
[ 231 Pa. Super. Page 513]
the date of injury or accrual of the cause of action by any person sustaining injury or to whom such cause of action has accrued," but that it had not received such notice. In reply Mr. and Mrs. Irrera pleaded the August 10, 1970 notice to the City, adding: "This notice was supplemented by letter dated August 20, 1970, wherein the precise location of the accident was described, the names and addresses of eyewitnesses were provided, and a description of each injury sustained by the Wife Plaintiff was supplied as was information on her medical care. Therefore, Plaintiffs contend that having provided adequate notice of Wife Plaintiff's claim within thirty (30) days to the party primarily responsible for Wife Plaintiff's injuries, Wife Plaintiff has satisfied in substance any statutory duty which might exist to provide such notice to the Southeastern Pennsylvania Transportation Authority, whose liability is either concomitant or secondary."
On these pleadings SEPTA moved for summary judgment. Mr. and Mrs. Irrera's answer to the motion for summary judgment added nothing to their reply to SEPTA's new matter. No depositions were taken nor any affidavits filed. Counsel for Mr. and Mrs. Irrera did file a "memorandum in support" of their answer to SEPTA's motion for summary judgment. This memorandum consisted of the following "exhibits": letter of August 10, 1970, addressed to the City Solicitor by counsel for Mrs. Irrera and notifying the City of her claim; acknowledgement of August 18, 1970, addressed to counsel for Mr. and Mrs. Irrera by an Assistant City Solicitor and requesting "additional information" "[t]o assist our investigation;" reply of August 18, 1970, furnishing certain additional information; and finally, letter of March 7, 1973, addressed to counsel for Mr. and Mrs. Irrera by the Assistant City Solicitor, and stating that "the following information may be of some help to you in reference to [SEPTA's] motion [for
[ 231 Pa. Super. Page 514]
summary judgment]. Our investigation reveals that on February 24, 1970, a City highway inspector sent to SEPTA a notice No. P.I.R. 409 advising them that there was a 'working rails [ sic ] causing defective paving in and along both rails, possible cave-in all along the section.' Therefore, although SEPTA may not have been aware of ...