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ELIZABETH ANN AUGUSTA v. COMMONWEALTH PENNSYLVANIA (09/19/89)

decided: September 19, 1989.

ELIZABETH ANN AUGUSTA, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from Common Pleas Court, Philadelphia County; Honorable Curtis C. Carson, Jr., Judge.

COUNSEL

Mark Steven Fridkin, Daniel J. McCarthy, Marks, Feiner & Fridkin, P.C., Philadelphia, Pennsylvania, for appellant.

William A. Slotter, Deputy Atty. Gen., Ernest D. Preate, Jr., Atty. Gen., Torts Litigation Section Allentown, Pennsylvania, for appellee.

Barry, McGinley and Smith, JJ.

Author: Barry

[ 128 Pa. Commw. Page 558]

OPINION

Elizabeth Ann Augusta appeals an order of the Court of Common Pleas of Philadelphia which granted a motion for

[ 128 Pa. Commw. Page 559]

    summary judgment filed by the Department of Transportation (DOT) and dismissed her lawsuit against DOT.

Appellant was injured in an automobile accident when the car she was driving went out of control after encountering a deep berm on I-80, a state designated highway under the control of DOT. Not realizing that she had a possible cause of action against DOT, appellant did nothing for approximately one year until a friend of the family suggested that she contact a lawyer. Being a resident of New Jersey, she contacted a New Jersey lawyer who immediately referred her to a lawyer in Pennsylvania. That lawyer is present counsel, who immediately sent notice to DOT as required by 42 Pa.C.S. § 5522.

Following the filing of appellant's complaint, DOT filed an answer and new matter which pled the failure to give the required Section 5522 notice within six months. DOT thereafter filed a motion for summary judgment based upon this failure. The trial court granted DOT's motion and dismissed appellant's suit against DOT. This appeal followed.

Section 5522(a)(2) states in pertinent part, "The court shall excuse noncompliance with [the six month notice] requirement upon a showing of reasonable excuse for failure to file such statement." 42 Pa.C.S. § 5522(a)(2). In Ramon v. Department of Transportation, 124 Pa. Commonwealth Ct. 416, 556 A.2d 919 (1989), the minor daughter of Cuban immigrants was injured when she fell in a pothole of a DOT highway. Section 5522 notice was not given within the six month period and the trial court dismissed the suit against DOT. We vacated the trial court's order and remanded for further proceedings based on Yurechko v. County of Allegheny, 430 Pa. 325, 243 A.2d 372 (1968), holding that where a reasonable excuse was offered for noncompliance, the burden shifted to the public body to prove that ...


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