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decided: May 24, 1984.


No. 88 E.D. Appeal Docket, 1983, Appeal from the Judgment of Superior Court of Pennsylvania at No. 2308 Philadelphia, 1981 dated March 11, 1983, reversing and remanding Order of the Court of Common Pleas - Civil Division Philadelphia, at No. 1395, May Term, 1977, Pa. Super. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a concurring opinion. Hutchinson, J., concurs in the result. Larsen, J., files a dissenting opinion.

Author: Flaherty

[ 505 Pa. Page 140]


On May 7, 1975 William James, the plaintiff-appellee in this case, allegedly fell and sustained injuries while walking on stairs owned and maintained by SEPTA (Southeastern Pennsylvania Transportation Authority). He filed a summons and complaint against SEPTA, and SEPTA answered and raised new matter alleging that James had not given the proper notice of the injury as was required by the Metropolitan Transportation Authorities Act. Section 2036 of that act, now repealed, provided:

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,

[ 505 Pa. Page 141]

    and the name and address of the attending physician, if any. If the notice provided for [in] this section is not filed as provided, any civil action commenced against the 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.

66 P.S. § 2036.*fn1

Although James argued that he had given the statutorily required notice through his original attorney, who was

[ 505 Pa. Page 142]

    deceased at the time of this action, SEPTA put in evidence that it never received such notice. The trial court determined that SEPTA had not received the required notice and granted SEPTA's motion for summary judgment without addressing James' claim that the notice statute violated "equal protection of the law, due process of law, and the privileges and immunities of citizens of the United States guaranteed by the U.S. Constitution and the Constitution of Pennsylvania." A panel of Superior Court, 312 Pa. Superior Ct. 512, 459 A.2d 338, reversed, Judge Wieand dissenting, holding that the six month notice requirement of the Metropolitan Transportation Authorities Act violated the equal protection clause of the United States Constitution.

We granted allocatur primarily to determine whether provisions of the Pennsylvania or the United States Constitution were violated by the notice statute in question. There is, of course, a presumption of constitutionality attaching to any lawfully enacted legislation. Should the constitutionality of such legislation be challenged, the challenger must meet the burden of rebutting the presumption of constitutionality by a clear, palpable, and plain demonstration that the statute violates a constitutional provision.

[ 505 Pa. Page 143]

James' challenge to the notice provision, however, is also grounded on the equal protection clause of the Fourteenth Amendment to the United States Constitution and Art. I, § 26 of the Pennsylvania Constitution. The relevant portion of the Fourteenth Amendment provides: "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Art. I, § 26 of the Pennsylvania Constitution provides:

Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.

The claims made under these separate constitutional provisions are in essence the same: that an unlawful discrimination between classes of litigants and tortfeasors has been made. The claim, in other words, is that it is unlawful and unconstitutional for government tortfeasors and plaintiffs-against-the-government to be treated in one way, while non-governmental tortfeasors and plaintiffs against non-governmental entities are treated in another.

This Court has held, however, that it is not per se violative of the equal protection clause for the Commonwealth to treat different classes in different ways:

Our inquiry . . . cannot conclude with the discovery of unequal treatment. "[T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways." Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971), and cases cited therein. Except where an invidious discrimination against a suspected class is at issue or a fundamental right burdened, "a legislative classification must be sustained unless it is 'patently arbitrary' and bears no rational relationship to a legitimate governmental interest." Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973).

[ 505 Pa. Page 145]

Protection Clause, we look to the Constitution to see if the right infringed has its source, explicitly or implicitly, therein.

Plyler v. Doe, 457 U.S. 202, 216 n. 15, 102 S.Ct. 2382, 2395, n. 15, 72 L.Ed.2d 786, 799, n. 15 (1982). The question, therefore, as to whether the notice classification affects a fundamental right is to be determined by whether the right affected -- that of access to the courts in suits against the Commonwealth -- is to be found in the Constitution. To ask the question is to answer it. As we have seen, Art. I, § 11 of the Pennsylvania Constitution explicitly reserves to the Commonwealth the power to determine in which cases it will be sued. This power, in turn, is derived from the Eleventh Amendment to the United States Constitution, permitting the states to exercise sovereign immunity, should they choose so to do. We conclude, therefore, that there is no "fundamental right" to sue the Commonwealth, for such right is explicitly limited by Art. I, § 11 of the Constitution of Pennsylvania. Since it is not contended that any suspect classification has been made, and we have concluded that there is no fundamental right at issue, strict scrutiny of the statute is inappropriate.

Whether an intermediate or heightened standard of review is appropriate, as Superior Court held was the case, will depend upon whether an "important" interest has been affected by the classification, and whether sensitive, though not suspect classifications have been made, e.g., classifications based on paternity, Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), or gender, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). There are, of course, no sensitive classifications in this case; and as Professor Laurence Tribe summarizes "important" interests, they are liberty interests or "a denial of a benefit vital to the individual." American Constitutional Law, § 16-31 (1978). Although it may be argued that James' liberty is not affected by this classification, since he was at liberty to sue the Commonwealth had he complied with the notice requirement, it is, nevertheless true that James' important

[ 505 Pa. Page 147]

    interest in access to the courts to sue the Commonwealth in cases where the Commonwealth has consented to suit, has been restricted. Superior Court, therefore, was correct in determining that an intermediate or heightened scrutiny standard of review is appropriate.

This standard of review is characterized by the following techniques: (1) requiring that the governmental interest asserted be an important one, though not "compelling" as is required in a strict scrutiny review, See Vlandis v. Kline, 412 U.S. 441, 458-59, 93 S.Ct. 2230, 2239-40, 37 L.Ed.2d 63, 75 (1973) (concurring opinion of Mr. Justice White), Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); (2) requiring that the governmental classification be drawn so as to be closely related to the objectives of the legislation, Craig v. Boren, 429 U.S. 190, 199, 97 S.Ct. 451, 458, 50 L.Ed.2d 397, 408 (1976), Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977); (3) requiring that a person excluded from enjoyment of an important right or benefit because of his membership in a class be permitted to challenge the denial on the grounds that his particular denial would not further the governmental purpose of the legislation.*fn3 This last technique has been aptly described by Mr. Justice Marshall in U.S. Dept. of Agriculture v. Murry:

[ 505 Pa. Page 148]

In short, where the private interests affected are very important and the governmental interest can be promoted without much difficulty by a well-designed hearing procedure, the Due Process Clause requires the Government to act on an individualized basis, with general propositions serving only as rebuttable presumptions or other burden-shifting devices. That, I think, is the import of Stanley Page 148} v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

413 U.S. at 518, 93 S.Ct. at 2837, 37 L.Ed.2d at 775. Thus, when an important right has been infringed upon by a government classification, the government must have an important object in making the classification, must provide a mechanism such as a hearing in which those contesting their exclusion from the right can challenge that exclusion, or, it must draw the class so that only those are affected whose exclusion is consistent with the governmental purpose of exclusion. See Tribe, American Constitutional Law, § 16-30.

In the present case, the governmental purpose of the § 2036 notice provision has been articulated by Superior Court in prior cases, where it has held that the purpose of the notice requirement "'. . . is to provide the defendant with the opportunity to make timely investigation and avoid the difficulty of defending against stale and fraudulent claims.'" Dubin v. Southeastern Pennsylvania Transportation Authority, 219 Pa. Super. 476, 478, 281 A.2d 711, 712 (1971).

It remains, then, to analyze the importance of this governmental purpose and whether the classification at issue affects only those persons intended to be affected. As to the importance of the purpose, it is self-evident that the prevention of stale and fraudulent claims is an important and legitimate governmental objective. Further, it is apparent that the classification in the present case is so narrowly drawn as to be closely fitted to the statutory purpose, thus obviating any need for a hearing. Thus, we conclude that the statute passes constitutional muster under both the Fourteenth Amendment and Art. I, § 26 of the Pennsylvania Constitution.

Order of the Superior Court is reversed. Order of the trial court granting SEPTA's motion for summary judgment is reinstated.

[ 505 Pa. Page 149]

ZAPPALA, Justice, concurring.

While I agree with the result reached today by the majority, and the legal analysis regarding the three different types of classifications for purposes of determining whether a statute violates the Fourteenth Amendment, I must disagree with the majority's application of this analysis to the facts. In particular, I disagree with the majority's determination that an intermediate or "heightened scrutiny" standard of review is appropriate. I cannot agree that the notice requirement of the statute reaches the importance for which the "heightened scrutiny" review was developed. Neither does this case present a sensitive classification such as paternity or gender. Therefore, under the facts of this case, I would apply the rational basis test and hold that the notice requirement does not create an impermissible constitutional barrier.

LARSEN, Justice, dissenting.

Because I am convinced the six-month notice provision of the Metropolitan Transportation Authorities Act*fn1 (now repealed) violates the equal protection guarantees of the Fourteenth Amendment of the United States Constitution,*fn2 and Article 1, Section 26 of the Pennsylvania Constitution,*fn3 I dissent.

[ 505 Pa. Page 150]

"The equal protection clause directs that 'all persons similarly circumstanced shall be treated alike.' F.S. Royster Page 150} Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed.2d 989 (1920)."

Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).

"In determining whether or not a State law violates the equal protection clause, we must consider the facts and circumstances behind the law, the interests which the state claims to be protecting, and the interests of those who are disadvantaged by the classification. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968)."

Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).

In this case, I agree that the standard of review applied by the majority in examining the challenged statute is the correct one. Appellee, James, suffered serious personal injuries when allegedly, he fell while descending steps leading to public transportation. He claims his fall and injuries were caused by the tortious conduct of appellant, Southeastern Pennsylvania Transportation Authority (SEPTA). Appellee has an important interest*fn4 in seeking redress, in the courts, for his injuries. The Act in question (66 P.S. § 2036) erects a special impediment to appellee's access to the courts. The impediment is grounded wholly on the status of the alleged tort-feasor as a transportation authority. Viewing it from the claimant's side, the Act burdens appellee's right to sue for damages based upon his classification as a claimant against SEPTA.

The arbitrary provisions of the Act (66 P.S. § 2036) have the effect of dividing all tort-feasors into classes: (1) private tort-feasors to whom no notice of claim is owed, and (2) governmental-authority tort-feasors to whom notice of claim is owed. Likewise, injured claimants are divided into classes: (1) claimants injured by a private tort-feasor who

[ 505 Pa. Page 151]

    are not required to give notice within six months,*fn5 and (2) claimants injured by a governmental-authority tort-feasor who must give notice within six months. See: Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973), cert. den. 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973); Reich v. State Highway Dept., 386 Mich. 617, 194 N.W.2d 700 (1972).

The purpose of the diverse treatment mandated by the notice of claim provisions has been stated to be:

[T]o provide the [governmental]-defendant with the opportunity to make timely investigation and avoid the difficulty of defending against stale and fraudulent claims.

Dubin v. Southeastern Pennsylvania Transportation Authority, 219 Pa. Super. 476, 281 A.2d 711 (1971). Other reasons have been put forth for the statutory notice requirement:

". . . (2) to discourage unfounded claims; (3) to facilitate prompt settlement; and (4) to allow the municipality to make the necessary reserve in the annual budget."

O'Neil v. City of Parkersburg, 160 W.Va. 694, 237 S.E.2d 504 (1977). Additionally, it is said that the relatively short notice period allows for quick repairs, thus avoiding further injuries. See: Hunter v. North Mason School District, 85 Wash.2d 810, 539 P.2d 845 (1975).

The arbitrary division of tort-feasors into governmental-tort-feasors and private tort-feasors, and the classification of claimants as those with claims against a governmental-tort-feasor and those with claims against a private tort-feasor is unrelated to any recognized purpose of the Act. All of the reasons advanced for the notice requirement are in no way peculiar to a governmental-tort-feasor. Each of the stated reasons has equal vitality when related to private tort-feasors.*fn6 There is no rational, substantial basis for

[ 505 Pa. Page 152]

    burdening a victim injured by a governmental-tort-feasor with a special notice requirement which does not apply to one injured by a private tort-feasor.

As did the Supreme Courts of Michigan,*fn7 Nevada,*fn8 Washington,*fn9 and West Virginia*fn10 in considering notice of claim statutes in their states, I would hold the notice provision of 66 P.S. § 2036 violative of constitutional equal protection guarantees and affirm the order of the Superior Court.

I dissent.

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