36 A.2d 507 | Pa. | 1944
The Act of July 1, 1937, P. L. 2547, provides that any person claiming damages from a municipality, arising from the negligence of such municipality or any employe thereof, shall, within six months from the date of origin of the claim or the date of the negligence complained of, file in the office of the clerk or secretary of the municipality a notice in writing of the claim, stating briefly the facts upon which it is based. It further provides that "No cause of action may be validly entered of record where there was a failure to file such notice within the time required by this act, except leave of court to enter such action upon a showing of a reasonable excuse for such failure to file said notice shall first have been secured."
The obvious purpose of this statute, as was said in Lutz v.Scranton,
In the present case plaintiff, on June 23, 1941, allegedly sustained a fall upon a sidewalk located in defendant township as a result of which she suffered certain injuries. About a month later the accident was called to the attention of one of the township commissioners. Plaintiff employed counsel, who, on December 12, 1941, wrote a letter to New Amsterdam Casualty Company setting forth the date, place and nature of the accident, the injuries sustained, and the name and address of plaintiff's physician; the letter stated that counsel was informed that the casualty company carried insurance for the township against such accidents, and invited it to investigate the matter and to discuss an amicable adjustment of the claim. The company did not reply *554 to this letter until after the six months' period prescribed by the statute had expired, but, in answer to another letter from counsel on January 2, 1942, wrote to him on January 3, 1942, acknowledging receipt of his letter of December 12, 1941, and naming a physician whom, it stated, it had requested to communicate with him for the purpose of arranging for an examination of plaintiff. Suit upon the claim was started on June 1, 1942, and it was not until the filing of an affidavit of defense raising questions of law that plaintiff's counsel learned of the requirement as to the giving of a preliminary notice, the statute never previously having come to his attention. He thereupon discontinued the suit. On November 20, 1942, plaintiff filed a petition and obtained a rule thereon to show cause why she should not be allowed to maintain an action. While not all of the facts above recited were proved at the hearing on the petition by technically admissible evidence, there is no doubt as to their correctness. The court discharged the rule. At the argument on the present appeal counsel for defendant frankly admitted that New Amsterdam Casualty Company is in fact the insurance carrier for the township.
The relief sought by plaintiff being obtainable only by way of grace and not as of absolute right, the decision of the court below can be reversed only if there was an abuse of the power granted by the statute. It was said in Garrett's Estate,
Order reversed; plaintiff to pay the costs to date.