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GEORGE A. LANDIS v. CITY PHILADELPHIA (11/22/76)

decided: November 22, 1976.

GEORGE A. LANDIS, APPELLANT,
v.
CITY OF PHILADELPHIA



Appeal from the Order dated January 13, 1976, of the Court of Common Pleas, Trial Division, Law, of Philadelphia County at No. 2135, August Term, 1970. No. 945 October Term, 1976.

COUNSEL

William L. Keller, Philadelphia, for appellant.

H. Abramson, Philadelphia, with him James M. Penny, Jr., Assistant City Solicitor, Philadelphia, for appellee.

Jacobs, Judge.

Author: Jacobs

[ 245 Pa. Super. Page 517]

This is an appeal from an order of the court below dismissing appellant's negligence action against the City of Philadelphia. The trial court based its ruling on the fact that appellant failed to file a timely reply to appellee's answer, in which, under the heading of new matter, appellee averred that appellant had not given the city the required notice of claim*fn1 and that appellant's action was therefore barred. While it is clear that under Pa.R.C.P. No. 1045(b), appellant, by failing to reply to the new matter, admitted the fact that appellee was not notified of the claim within six months after the alleged incident, we do not believe that this fact alone warranted the dismissal of appellant's claim without additional findings by the trial judge. Consequently, we reverse.

Appellant's cause of action arose out of an accident on November 19, 1969, at which time he allegedly fell and injured himself while walking along a path, owned and controlled by appellee, which appellant contends was maintained in a defective condition. Appellant did not retain counsel until June 27, 1970, more than one month after the six month notice period had expired. On June 30, 1970, appellant's counsel served written notice of the claim on appellee. The complaint was filed on August

[ 245 Pa. Super. Page 51814]

, 1970. On April 9, 1971, following an extension of time, appellee filed the answer in which it was averred that appellee had not received timely written notice of the claim, and that the action was therefore barred.

Two years passed, during which time both parties submitted and answered interrogatories. Finally, on April 30, 1973, appellant replied to the new matter, but pursuant to appellee's objections, the reply was stricken for lack of timeliness. A subsequent petition for leave to file a reply to new matter was similarly denied. The case went to arbitration, resulting in a decision in favor of the City of Philadelphia, appellee. Appeal was taken to the Court of Common Pleas, at which time Judge LORD, after reviewing the pleadings, dismissed the action. This appeal followed.

Appellant argues that his failure to reply in a timely manner to appellee's new matter resulted only in admission of the fact that notice had not been given within the six month period, but was not an admission of appellee's contention that the action was consequently barred. We agree with this argument inasmuch as failure to file a responsive pleading where required results only in the admission of factual averments, not legal conclusions. Pa.R.C.P. No. 1029.

The issue then, is whether or not the sole fact that the Act of 1937*fn2 was not strictly complied with by appellant warranted dismissal of the complaint without additional findings by the trial judge. In resolving this matter, we must look at the rationale behind the Act of 1937. Our Supreme Court has said that the purpose of the statute requiring that a municipality be notified of a claim against it within six months of the date of the accident or the complained of negligence is that ...


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