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PILAR RAMON v. COMMONWEALTH PENNSYLVANIA (03/27/89)

decided: March 27, 1989.

PILAR RAMON, A MINOR, BY HER PARENTS AND NATURAL GUARDIANS, GUIDO RAMON AND ELSIE RAMON, AND GUIDO RAMON AND ELSIE RAMON, IN THEIR OWN RIGHT, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Pilar Ramon, a minor, by her parents and natural guardians, Guido Ramon and Elsie Ramon, and Guido Ramon and Elsie Ramon, in their own right, No. 2982 May Term, 1983.

COUNSEL

William J. Weiss, Machles & Caplan, P.C., for appellants.

Robert L. Gallagher, Deputy Attorney General, for appellee.

Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 124 Pa. Commw. Page 417]

Pilar Ramon (minor-appellant) and Guido Ramon and Elsie Ramon (parent-appellants) appeal from an order of the Court of Common Pleas of Philadelphia County which entered summary judgment in favor of the Department of Transportation (DOT) and against the appellants.

On December 16, 1981, minor-appellant sustained injuries when she allegedly fell after stepping into a pothole that existed in that portion of the highway located in front of the premises at 1838 Bristol Pike in Bensalem Township, Bucks County. At that time, the hole was allegedly concealed by an accumulation of ice and snow. More than six months after the date of the minor-appellant's accident, the parent-appellants, who were born in Cuba and emigrated to the United States in the 1960s, instituted an action on behalf of the minor-appellant and themselves against DOT. Prior to doing so, however, appellants had not filed written notice of their intention to file suit with DOT and the Attorney General, as they were required to do under subsection (a)(1) of Section 5522 of the Judicial Code, 42 Pa. C.S. ยง 5522(a)(1).

In response to the complaint filed by the appellants, DOT filed an answer and new matter in which, inter alia, it was alleged that the action was barred by reason of appellants' failure to comply with the notice requirement of subsection (a)(1) of Section 5522. Following discovery, DOT filed a motion for summary judgment on the ground that the entire action was barred because of that failure. In opposing this motion, the parent-appellants filed affidavits

[ 124 Pa. Commw. Page 418]

    in which, inter alia, they stated that they were absolutely unaware of the legal requirements concerning suit against a governmental agency. The motion for summary judgment was granted by the trial court. This appeal followed.

Section 5522 of the Code provides in pertinent part:

(a)(1) Within six months from the date that any injury was sustained or any cause of action accrued, any person who is about to commence any civil action or proceeding within this Commonwealth or elsewhere against a government unit for damages on account of any injury to his person or property under Chapter 85 (relating to matters affecting government units) or otherwise shall file in the office of the government unit, and if the action is against a Commonwealth agency for damages, then also file in the office of the Attorney General, a statement in writing, signed by or in his behalf, setting forth:

(i) The name and residence address of the person to whom the cause of ...


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