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filed: March 11, 1983.


No. 2308 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1395 May Term, 1977


George J. O'Neill, Philadelphia, submitted a brief on behalf of appellant.

Norman Hegge, Jr., Philadelphia, for appellee.

Wickersham, Brosky and Wieand, JJ. Wickersham, J., concurs in result. Wieand, J., files dissenting opinion.

Author: Brosky

[ 312 Pa. Super. Page 514]

The Metropolitan Transportation Authority Act provided, inter alia, that those suing such authorities had to give notice within six months of the accrual of the action.*fn1 This provision is challenged here on constitutional grounds. Despite the fact that appellant failed to notify the Attorney General of the constitutional challenge at the trial court level,*fn2 we choose to reach the issue on its merits here. We hold that the statute is unconstitutional.

The background of this case is as follows. On May 7, 1975, plaintiff-appellant, James, allegedly slipped on debris littering the steps of a SEPTA station stairwell.*fn3 Among his injuries was a spiral, comminuted fracture of his right leg.

The only evidence that James had given notice of his claim against SEPTA within the six-month period is an answer he gave to an interrogatory to that effect. His complaint was filed in 1977, well after the six-month period. After holding an evidentiary hearing on the matter, Judge Braig held that James had not met the six-month notice of claim requirement and entered summary judgment in favor of SEPTA.*fn4

While at the trial court level, James also raised a challenge to the constitutionality of the statute. He failed, however, to notify the State Attorney General of this challenge as Pa.R.C.P. 235(a) mandates. The trial court failed to address the constitutional issue in its opinion.

On appeal, the only issue raised is the constitutionality of this now-repealed statute. Notification of the constitutional challenge at this appellate level was given to the Attorney General in accordance with Pa.R.A.P. 521(a). This notification

[ 312 Pa. Super. Page 515]

    was sent on February 2, 1982 and a reply from the Attorney General's office dated March 2, 1982, states: "If no notification is received from this Office within 30 days of the date of this letter, please assume that the Commonwealth will not be entering its appearance in these matters." To date, more than six months after that letter, the Attorney General has not joined this case.

Usually, a rule is a rule. Rule 235, supra, requires that the Attorney General be notified of a constitutional challenge to a statute at the trial court level. Normally, noncompliance with this rule would mandate our quashing of this appeal. Irrera v. SEPTA, 231 Pa. Super. 508, 331 A.2d 705 (1974), involved a constitutional challenge to this same statute and also involved a failure to comply with this same rule.*fn5 The "issue was deemed abandoned or waived." Irrera, supra, 231 Pa. Superior at 515, 331 A.2d at 708.

In the case before us, appellant did fail to comply with Rule 235; but he did raise the constitutional issue below, it was not addressed by the trial court, he did notify the Attorney General of the appellate proceedings, and the Attorney General did fail to enter the case.

This same configuration of facts existed in the case of Commonwealth v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979). There, considering those particular circumstances, Justice Nix held that the noncompliance with Rule 235 was not "a basis for refusing to consider the" constitutional issue.*fn6 Stein, supra, 487 Pa. at 8, 406 A.2d at 1384.

[ 312 Pa. Super. Page 516]

We are willingly guided by Justice Nix's thoughts on this matter, even though they are not in this case binding precedent.*fn7 Under the circumstances occurring here, the noncompliance with Rule 235 is not fatal and we will address the merits of the constitutional challenge.

Appellant contends that the notice of claim requirement violates the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution.*fn8 The provision before us states:

Limitation of actions against authority

Within six months from the date that any injury was received, or any cause of action accrued, any person who is about to commence any civil action in any court against the authority for damages on account of any injury to his person shall file in the office of the secretary of the board, and also in the office of the chief counsel for the authority, either by himself, his agent, or attorney, a statement in writing, signed by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date, and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any. If the notice provided for this section is not filed as provided, any civil action commenced against the

[ 312 Pa. Super. Page 517]

    authority more than six months after the date of injury, shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.*fn9

The first step in any Equal Protection analysis is to determine which of three standards will be used.*fn10 The most minimal of the standards merely requires that the classification be rationally connected to a legitimate governmental purpose. The most stringent standard, strict scrutiny, is used to review actions affecting fundamental rights or using suspect categories. There is also a third, intermediate standard, often referred to as heightened scrutiny. This intermediate standard will be employed here.

The selection of the heightened scrutiny standard is determined by its use in a similar context by this Commonwealth's Supreme Court. In Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975), Chief Justice Jones used this standard to review the exclusion of slander and libel actions from surviving the death of plaintiff or defendant. As stated in that case, the applicable standard is as follows.

The Equal Protection Clause of both constitutions does not deny the State the power to treat different classes of persons in different ways, but does deny the right to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of the particular statute. The classification must be reasonable, not arbitrary, ...

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