Appeal from Common Pleas Court, Delaware County; Honorable Clement J. McGovern, Jr., Judge.
Richard J. Mennies, Sherr & Zuckerman, P.C., Norristown, for appellant.
Felix P. Gonzalez, Philadelphia, for appellee.
Doyle and Palladino, JJ., and Narick, Senior Judge. Palladino, Judge, dissenting.
[ 129 Pa. Commw. Page 354]
Alice Hoy (Appellant) has appealed from an order of the Court of Common Pleas of Delaware County granting a motion for summary judgment filed by Southeastern Pennsylvania Transportation Authority (SEPTA). The trial court's grant of summary judgment was based upon Appellant's failure to comply with the six months' notice provision of 42 Pa.C.S. § 5522. For the reasons set forth herein, we hereby vacate the trial court's order and remand the matter to that court for further findings of fact.
On January 11, 1985, while disembarking from a SEPTA train, Appellant slipped on some snow located on one of the train's steps. While attempting to establish a foothold and prevent herself from falling, Appellant felt a pull and a pain in her right shoulder. On Saturday, January 12, 1985,
[ 129 Pa. Commw. Page 355]
Appellant sought medical assistance for her injury at a hospital. At the hospital, Appellant was advised by a doctor that she had a torn right biceps muscle. Shortly thereafter, Appellant consulted her personal physician who advised her that her injury would heal in time. When her injury failed to improve, she was referred to an orthopedist. On March 11, 1986, an ortho CAT scan revealed a torn ligament in her right shoulder rotator. On May 12, 1986, surgery was performed to correct this problem.
In August 1986, Appellant sought legal advice regarding a possible cause of action against SEPTA. On August 15, 1986, Appellant's attorney notified SEPTA of the accident by mail and suggested that they forward a copy of the letter to their insurance carrier. On January 6, 1987, a summons naming SEPTA as defendant was filed and on March 16, 1987, Appellant filed a complaint in negligence. SEPTA subsequently filed a motion for summary judgment alleging that Appellant failed to comply with the notice requirement set forth in 42 Pa.C.S. § 5522. The trial court granted SEPTA's motion for summary judgment and this appeal followed.
Appellant does not contest the fact that she failed to provide notice to SEPTA within the requisite time frame. Rather, Appellant argues that the trial court committed two errors: first, in finding that she did not have a reasonable excuse for failing to provide this notice to SEPTA; and second, in failing to consider whether SEPTA was prejudiced by the failure to receive notice. We will address these issues keeping in mind that when reviewing a trial court's order granting summary judgment, our scope of review is confined to a determination of whether the trial court committed an error of law or an abuse of discretion. Kuehner v. Parsons, 107 Pa. Commonwealth Ct. 61, 527 A.2d 627 (1987).
The statute in question, 42 Pa.C.S. § 5522(a), provides in pertinent part:
(1) Within six months from the date that any injury was sustained or any cause of action ...