*2 WICKERSHAM, Before WIEAND, BROSKY JJ. BROSKY, Judge:
The Metropolitan Transportation Act Authority provided, alia, inter suing those such authorities had give notice within six months of the accrual of the action.1 This provision is challenged here on constitutional grounds. De spite the fact that appellant failed to notify Attorney General of the constitutional challenge at the trial court level,2we choose to reach the issue on its merits here. We hold that the statute is unconstitutional.
The background of this case is as follows. On May 1975, plaintiff-appellant, James, on allegedly slipped debris littering the of a steps SEPTA station Among stairwell.3 injuries his was a spiral, comminuted fracture of right his leg. evidence only given that James had notice of his
claim against SEPTA within the six-month period is an gave answer he to an to that interrogatory effect. His complaint was filed in well after the six-month period. holding After an hearing matter, on evidentiary Judge Braig held that James had not met the six-month notice of summary judgment claim and entered in favor of SEPTA.4 at level,
While the trial court James also raised a chal- lenge to the of the constitutionality failed, statute. He however, to notify the State Attorney General of this chal- lenge 235(a) as Pa.R.C.P. mandates. The trial court failed to address the constitutional issue in opinion. its appeal, only
On issue raised is the constitutionality this now-repealed statute. Notification of the constitutional at this challenge appellate given level was to the Attorney 521(a). General accordance with Pa.R.A.P. This notifica- 1. 66 P.S. § 2036. 235(a).
2. Pa.R.C.P. authority by 3. SEPTA is an provision, covered the six-month notice supra, n. 1. appeal. 4. That issue is not raised on from the reply 1982 and a February sent on
tion was “If states: dated March General’s office Attorney days within 30 from this Office is received no notification letter, assume that the Common- please the date of this in these mat- entering appearance its not be wealth will letter, the after that date, than six months ters.” To more not this case. joined General has Attorney supra, requires rule is a rule. Rule Usually, a of a constitutional chal be notified Attorney General non Normally, court level. at the trial lenge to a statute quashing rule mandate our with this would compliance SEPTA, Pa.Super. this Irrera v. appeal. to this same (1974), challenge a constitutional involved this same comply a failure to with and also involved
statute
Irr
or waived.”
deemed abandoned
rule.5 The “issue was
515,
Limitation of actions injury months from the date that was any Within six accrued, received, person of who any any or cause action against action in court any any to commence civil about injury on account of to his authority damages any the for secretary file in the office of the of the person shall for the board, and also in the office of the chief counsel himself, agent, attorney, either his or authority, by himself, signed agent, his writing, statement the the name of the to whom giving person attorney, accrued, the name and residence cause of action has the date, and the hour of person injured, about oc- accident, or location where the accident place curred, attending physi- the name and address of the cian, this section is not provided if If the notice any. any filed as civil action commenced provided, Superior this appeal the matter to the Court and to er’s claims on Court, sought in this matter nor to raise the and neither to intervene prompt for his decision not issue of lack of notification as a reason intervene, refusing accept we cannot this as a basis for consider the same. 8-9, Stein, supra, at 487 Pa. at court, with Justice Roberts Nix wrote the above for the 7. Justice concurring joining Justices Justice Larsen concurrence. concurred in the result and Chief Justice O’Brien and Manderino Thus, justices participating Eagen the six Justices dissented. three approved supported reasoning quotation and five of the above the result. I, Pennsylvania to be 11 of the Constitution is also said 8. Article § disposition Equal makes it of the Protection claim violated. Our unnecessary this issue. for us to reach *5 injury, six months the date of more than after authority such person any and the to whom shall be dismissed shall be any personal injury of action accrued cause suing.9 from further forever barred in Protection step any Equal analysis The first The will be used.10 determine which of three standards the requires that merely most minimal of the standards govern to a rationally legitimate classification be connected standard, The strict scruti stringent mental most purpose. rights fundamental affecting is used to review actions ny, third, is also a interme using suspect categories. There standard, heightened scrutiny. diate often referred to as standard will be here. employed This intermediate The standard is de- heightened scrutiny selection in this by termined its use a similar context Common- 395, In 462 Pa. Supreme Phillips, wealth’s Court. Moyer (1975), used this standard Chief Justice Jones from the exclusion of slander and libel actions to review plaintiff the death of or defendant. As stated surviving case, applicable standard is as follows. constitutions does Equal Protection Clause of both to treat different classes of deny power not the State deny right in different does persons ways, but persons that different treatment accorded to legislate a statute into different classes on the basis placed by wholly particular criteria unrelated to the objective reasonable, not arbi- statute. The classification must be of difference trary, upon ground and must rest some having a fair and relation to the of the object substantial 1963, Metropolitan Transportation August Authorities Act of Act of 9. 1963, 28, 1978, Repealed April P.L. 66 P.S. P.L. § § 2(a) (1371), effective No. June § requirements 10. Two law review notes have dealt with notice of claim Note, Equal Equal Provisions: An Protection: Notice Claim Note, (1975); Delay Perspective, Protection 60 Cornell L.Rev. 417 Against Agency, of Tort Claim a Government 20 Clev.St.L.Rev. Notice Annotation, Sections 5 and 6. See also 59 A.L.R.3d *6 legislation so persons that all similarly circumstanced shall be treated alike.
Moyer, supra,
400-1,
The high courts of other states have applied also height ened scrutiny cases which were even more on directly point with the one before Noting us. right that “the recover for personal injuries is ... an important substantive right,” the Hampshire New Supreme Court used this same intermediate standard reviewing another notice of claim requirement.11 Maurer, Carson v. 120 N.H. 424 A.2d (N.H., 1980). 825 at 830 In another notice of claim case the Supreme Court of Washington stated:
The right to be personal indemnified for injuries is a substantial property right, not only monetary value but in many cases fundamental to the injured person’s physi- cal well-being and ability continue to live a decent life. Statutory classifications which substantially burden such rights as to some individuals but not others are permissi- ble under the equal protection clause of the Fourteenth Amendment if only they heightened ... the scruti- [meet ny test.]
Hunter v. N. School, Mason High 85 Wash.2d 539 P.2d (Wash., 1975) (a 845 at 848 four month notice of claim requirement).
In order to the apply heightened test, scrutiny the purpose of the statute must be established. This court has § held that the purpose of the 2036 notice requirement “... provide is to the defendant with opportunity make timely investigation and avoid the difficulty of defending against stale and fraudulent claims.” Dubin v. Southeast ern Pennsylvania Transportation Authority, Pa.Su per. at at 712 Next, the classification Here, itself must be identified. classification, grounds for differential treatment is whether or not the defendant is a transportation authority; 11. The statute required reviewed in days Carson notice 60 before commencing an action. side, or not the or, other whether from the looked at plaintiff suing transportation authority. Protection stan- applicable Equal
Having determined classification, statutory purpose dard and identified the in question. to the statute it remains to the standard apply “reasonable”; it have a “fair classification does Is this not. We think purpose legislation? to the relation” Virginia also held Appeals of West Supreme Court was “neither reasonable similar notice that a days, time Though period the notice was nor fair.” here.12 “Few entirely apropos it are statements about law, thirty days in the know within unversed laymen, sue; know of the fewer they yet will injury their whether *7 237 Parkersburg, City notice.” O’Neil v. thirty-day the (W.Va., 1977). at this level Even 504 at S.E.2d unfair, in terms of its when viewed patently statute is but of our socie segments effect certain upon disproportionate apparent. is even more this statute’s unreasonableness ty, economic along of a statute impact While the differential violation, such an not, se, an Protection Equal lines is per fairness and evaluating a statute’s impact can be relevant reasonableness. has a affluent and educated tort victim
Ordinarily the His ethical- attorney. attorney may retained or family inform his client does—come forward to ly—and probably of Professional requirement. of the notice Iowa Code 2-3. It is the Ethical Canon Responsibility Lawyers, victim, unacq- counsel and uneducated tort without poor, assumes he will be lawyers, naively uainted with who notice time to unknowingly permits and the compensated lapse. (Iowa, 213 N.W.2d 911-12 v.
Lunday Vogelmann, 1973) J., dissenting) an action (requiring (Reynoldson, provision holding a notice of claim 12. We note that some of the cases period—as does the statute involved a six-month time unconstitutional infra; State, Turner, Mich.App. Reich v. before us. See Baskin, 1972); (Mich.App., King Nev. 511 P.2d v. N.W.2d 226 State, (Nev., 1973); P.2d 85 Wash.2d and Jenkins (Wash., 1975) (this provision). last a five-month months, commence within three unless notice had been given within 60 days).
the On
same
subject,
Washington Supreme Court
“By
observed:
increasing
potential
demands on the
these
plaintiff,
grossly magnify
impact
statutes
the unfair
unequal
of the
legal
knowledge
distribution of
counsel and
poor.” Hunter,
rich and
supra,
between
Another allied of the scrutiny test is that there be “a fair and substantial relation to the object legislation.” of the This determination can made interest by comparing public private furthered and the Carson, Due to right supra, restricted. at 831. of state constitutional cases in New particular history Carson), (whose issued the test Hampshire, Supreme Court respective public private there is a of the weighing interests affected. That is not our intention here. Rather other, determining outweighs merely than which we are ascertaining public private whether or not the interests grossly disproportionate. involved are We conclude that *8 are they . in public investigating poorly
The interest claims is claims by by served this statute. The affected this statute are like the one actions in tort. Provid- typically judice, sub the months and 29 ing Authority up days notice to five slipped littering after James on debris a stairwell would investigation of the condi- hardly permitted timely have (Such steps pertinent tion of the at the time. a timely investigation normally by Authority would be activated the driver, personnel example—and involved—the bus by Authority’s investigators.) would be undertaken the Also, Authority adequate the would receive notice to investigate through and its case normal of prepare service in any proof the of has burden plaintiff The also process. adversary our whole and proof of This burden action. of passage The claims. defeat fraudulent act to system in plaintiff to the detrimental equally least also at time is provision is Thus, the only not forming his case. to serve ineffective, operate independently other but factors that to conclude former leads us The objective. the stated the of object relation the is not a there substantial comparison to the between the latter is relevant legislation; restricted. private right the interest public served the right readily is private of restricted The nature this requirement the notice comply with Failure to apparent. might that he right to recover any a forfeiture of works catastrophic This result could be court. have established monetary of real need injured individual severely to a recovery. public and the
Thus, is most substantial private right the the minimal, by furthered inadequately since it is is interest by described accurately This was provision. comparison no real serve “... claim statutes Supreme Court. Nevada unwary.” for the trap indeed a they use but are beneficial (Nev., 879 at 882 510 P.2d Staggs, 89 Nev. Turner 1973) (citations omitted). a fair nor has neither that the classification apparent
It statute’s objective. relation to the a substantial requires scrutiny test heightened element of the Another that all ... so “arbitrary classification not be con- treated alike.” We situated shall be persons similarly to meet also fails provision the notice of claim clude that Michigan properly of Court Supreme this standard. point of this in a 1972 case: disposed divides operation its as the notice Just tortfeasors, so too negligent natural class of is also negligent conduct natural class victims govern- subclasses: arbitrarily split into two victims meet requirement, must negligence mental who such are to no private negligence subject who victims *9 requirement.
Reich v.
Dept.,
State
Highway
386 Mich.
N.W.2d
(Mich.,
(a
700 at 702
1972)
month
requirement).
two
O’Neil,
Hunter,
See also
507-8;
supra,
S.E.2d at
supra,
Turner,
847;
WICKERSHAM, J., concurs in result.
WIEAND, J., dissenting files opinion.
WIEAND, Judge, dissenting:
The has majority concluded that the notice requirement contained in the Metropolitan Transportation Authorities § 14, 1963, of August 2036,1 Act P.L. 66 P.S. constitutes equal protection a violation clause of the Fourteenth Amendment and is unconstitutional. In order result, to achieve this the author of the opinion lead has employed the intermediate or “heightened scrutiny” level Metropolitan Transportation 1. The Authorities Act of 1963 was re- 28, 1978, pealed by Judiciary April Repealer Section 2 of the Act Act of 53, 2(a) P.L. No. The notice § [1371]. claims against metropolitan transportation authorities is not contained in the 142, 221(i)(l); Act of October P.L. No. § Pa.C.S. 5522(a) provides, which inter § alia: (a) prerequisite against government Notice to action unit.— (1) any injury Within six months from the date that was sustained accrued, any any person or any cause of action who is about to commence proceeding civil action or within this Commonwealth or else- against government damages any where injury affecting government a unit for on account of person property Chapter (relating to his under to matters units) or otherwise shall file in the office of the unit, government agency and if the action is a Commonwealth General, damages, Attorney for statement in then also file in the office of the behalf, writing, signed by setting or in his forth: (i) person The name and residence address of the to whom the cause of action has accrued. (ii) person The injured. name and residence address of the (iii) The date and hour of the accident. (iv) approximate location where the accident occurred. (v) any attending The name and residence or office address of physician. *10 authority applicable persuaded by Because I am review. is incorrect and because review utilized the standard of achieved, I but respectfully, must I with the result disagree dissent. vigorously, James, May on injured was appellant, the
William at Fifth and Market descending subway steps the while slipping on as a result of allegedly Philadelphia, in Streets coated with chocolate. Suit partially candy wrapper an old summons on praecipe for against SEPTA was instituted and also interrogatories Answers SEPTA’s May 1977. 24,1977. August Appel- filed on complaint were appellant’s present on and attorney February died lant’s 24, 1978. SEPTA’s appearance July on counsel entered his alleged the affirmative matter which answer contained new Section required by notice as provide of failure to defense that notice reply denied Appellant’s of Act of 1963. the by plaintiff’s indicated averring that lacking, was “[a]s 19, defendant was notified No. interrogatories answers to June, Powlen, in Esquire Murry accident by the also Appellant’s reply 1978.” February Mr. died Powlen in contained Section the averred that of 1963 unconstitutional. of the Act was August on summary judgment a motion for Appellee filed constituted a 22, 1978, the of notice contending that absence In support of action. appellant’s bar to cause complete Hackett, Elmer affidavit of thereof, upon relied an appellee had no of SEPTA received employee which averred that Jr. Metropoli- required by as appellant's injuries notice of Appellant filed Authorities Act of 1963. Transportation tan summary motion for which judgment an to the answer notified, incorporated by had not been denied that SEPTA to the interrogatories objected and reference the answers dated October By affidavit. order Hackett adequacy for summa- denied motion Judge appellee’s White notice to concerning the issue of fact because ry judgment to a The case was referred remained unresolved. SEPTA which, an arbitration, hearing, after entered award board of for three thousand SEPTA appellant favor dollars. An filed, appeal was case was listed for trial before the Honorable P. Joseph Braig. On July 1981, Judge Braig held an evidentiary but hearing, notes of testimony therefrom not have been transcribed. Judge Braig determined given that notice had not been SEPTA and granted appellee’s motion for summary judg- opinion ment. The trial court states that summary judgment was entered appellee favor of because the required notice had given. not been William James filed an *11 appeal from this summary judgment. In so he doing has challenged not the finding trial court’s that notice was not given. His contention on only appeal the that of of the Act 1963 is unconstitutional. His constitutional challenge is based on the equal protection clause of the Fourteenth Amendment of the Constitution of I, United States and also on 11 Article Sections and 26 of the Pennsylvania Constitution.
When reviewing challenge to the constitutionality of a statute, lawfully enacted this Court must be guided by the well established principle that a statute is cloaked with a strong presumption constitutionality. appellant The bears demonstrating the burden of legislation “clearly, palpably and violates plainly Constitution.” Hayes v. Erie Insurance Exchange, 150, 155, 493 Pa. 425 citing Singer Sheppard, 419, v. (1981) A.2d 421 387, Pa. 464 and Tos to v. Pennsylvania 393, 897, (1975) 346 A.2d 900 Home Nursing Agency, Loan 1, 16, 198, 460 Pa. A.2d 331 Snider v. Thornburgh, 496 (1975). 203 Accord: 159, Pa. 166, 593, Tsarnas v. Jones Laughlin (1981); & 436 A.2d 596 Corporation, Steel 522, 513, 1094, Pa. 412 488 A.2d 1099 (1980); Milk Battista, Control Commission v. 652, 413 Pa. 659, 840, (1964), 198 A.2d 843 appeal 3, dismissed 379 U.S. 75, Freezer Inc. 85 13 Storage, (1964); v. S.Ct. L.Ed.2d 22 Armstrong Co., Cork 441, 234 447, Pa.Super. 184, 341 A.2d aff'd, 476 Pa. (1975), 270, Robson 186 A.2d (1978); 382 715 Hills District, Penn School 63 Pa.Cmwlth. Street, In re 1273, (1981); A.2d Pa.Cmwlth. Picariello v. Common- (1982); (1980); A.2d 252, 255, 421 wealth, 54 Pa.Cmwlth. Board v. Bethlehem Appeal Compensation Workmen’s 520, 80-81 23 Pa.Cmwlth. Corp., Mines 36 of that Section contention appellant’s It is it clause because equal protection Act of 1963 violated the tortfeasors, consisting one created two classifications authorities, and the transportation metropolitan solely or He corporations. including all individuals private other “substantial, rational lacked contends that this distinction governmental tort- favoring or reasons reasonable requirements.” special notice feasor with the correct protection challenge in any equal Initially, must determined. are scrutiny level of judicial “[T]here are created classifications legislatively which three tests classifica determine whether those in order to measured Protection Equal of the Clause. tions meet the muster to those classifica applied test’ is scrutiny so-called ‘strict liberties, classifi affecting rights tions fundamental See: San Antonio ‘inherently suspect’. are cations which 411 U.S. 93 S.Ct. v. Rodriguez, School Dist. Election, 394 (1973); Board
L.Ed.2d 16
McDonald v.
*12
is
(1969). There
an
802,
1404,
with a
right,
fundamental
the “rational basis” test must be
employed. Snider v. Thornburgh,
supra,
167,
496 Pa.
at
Tsarnas v. Jones
436 A.2d
Laughlin
596;
&
at
Steel
Corporation,
supra
523,
488
1099;
Pa. at
412 A.2d at
Commonwealth v.
Bottchenbaugh,
406,
306
Pa.Super.
411,
789,
v. 130
452 A.2d
Long
(1982);
Market Street
791
&Gift
Novelty
Johnstown,
supra
294
Pa.Super.
402,
at
440
Aviation,
Schroeder
DeFehr,
A.2d at 527. Accord:
Inc. v.
147,
1979); Brown v. Wichita State
283 N.W.2d
(N.D.,
152
University,
2,
219
16,
Kan.
1015,
547 P.2d
(1976)
1027
appeal dismissed
806,
41,
429 U.S.
97 S.Ct.
147, (1981), appeal dismissed sub nom Bucheit v. Lau denberger, U.S. 102 S.Ct. 72 L.Ed.2d 462 v. Hayes Erie Insurance (1982); Exchange, supra Pa. Kroger v. at Company 422; O’Hara A.2d at Township, Pa. 392 A.2d (1978); Moyer Phillips, 462 Pa. 400-401,
Appellant’s argument of Sec- tion 36 of the Act of 1963 is constitutionally infirm because it creates two tortfeasors, classes of based solely upon the “ tortfeasor, status of the is without merit. Four- ‘[T]he teenth Amendment permits the States a wide scope of *13 discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safe- guard is offended if only the classification rests on grounds wholly irrelevant to the achievement of the objec- State’s
527
acted within
presumed
are
have
legislatures
State
tive.
that, in practice,
the fact
power despite
their constitutional
A
discrimi
statutory
inequality.
result
some
their laws
reasonably
if
state
facts
any
not
set aside
nation will
be
”
Inc. v.
Storage,
Freezer
it.’
to justify
be conceived
may
447, 341 A.2d
Co.,
Pa.Super.
234
at
Armstrong
supra
Cork
420, 425-
Maryland,
v.
366 U.S.
McGowan
quoting
at 187
(1961). Accord:
393
426,
6 L.Ed.2d
81 S.Ct.
253,
L.Ed.2d 225
Reed, 404
75,
at
30
v.
at
92 S.Ct.
Reed
U.S.
supra
493 Pa.
Exchange,
v. Erie Insurance
Hayes
(1971);
v. Jones
Steel
Laughlin
Tsarnas
&
422;
155,
425 A.2d at
at
1098-1099;
522, 412 A.2d at
supra 488 Pa. at
Corporation,
Pa. at
Township, supra
v.
481
Company
O’Hara
Kroger
Hospital
Adler v.
275;
118-119,
A.2d at
392
Montefiore
60, 76-77,
Pa.
Pennsylvania,
Western
453
Association of
denied,
1131,
94
cert.
634,
(1973),
643
414 U.S.
A.2d
311
v. Bottch
Commonwealth
(1974);
870,
at 482. i.e., metro- appellant, all challenged by
The classification
tortfeasors,
a classifica-
transportation authority
politan
furthering
upon
objective
a
state
legitimate
tion based
In furtherance
transportation.
urban mass
improving
persons
imposed upon
has
goal,
legislature
of this
notify
transportation
duty
authorities
injured
claims
made.
are
agencies against whom
promptly
to recover.
upon
right
reasonable restriction
This is a
has
“it is within
Court
held that
Pennsylvania Supreme
certain
to determine that
Legislature
province
*14
bars to
are,
suit
judgment,
its
needed for
operation
local government.” Carroll v.
York,
County
supra Pa.
at
(footnote
Section 2 of the Metropolitan Transportation Authorities Act of 1963 contained the declaration of legislative public policy regard with to the establishment of transportation authorities Act, under the provided in part:
“It is hereby determined and declared as a matter of legislative finding: (a) That there exists in the urban and suburban communities metropolitan areas, traffic con- gestion and serious mass transportation problems be- cause of underdeveloped, uncoordinated obsolete mass facilities____ transportation (b) ... harmful to the social area____ and economic well-being of the (c) entire That ... cannot be dealt effectively with by private enterprise (d)— ... that the public acquisition of existing mass transportation facilities ... will promote the public welfare____ health, safety, convenience and (g) That the establishment of metropolitan transportation authorities will promote the public safety, convenience and welfare Therefore, it is hereby declared to be. the policy of the Commonwealth of Pennsylvania promote the safety and welfare of the inhabitants thereof by authorizing the creation of a body corporate politic for each metropol- area, itan ... for the purposes contained in this act. uses____ n ” Such purposes are hereby declared to public § 66 P.S.
While the Act of 1963 did not expressly discuss purpose of the notice requirement, this Court has previously held the purpose of Section 36 of the Act of 1963 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 Authority, Pa.Super. Transportation Pennsylvania denied, allocatur (1971), 281 A.2d (1972). Accord: Irrera Southeastern Pa.Super. XXXVII Authority, Pa.Super. Transportation Pennsylvania municipal for claims A similar notice *15 § 1, 1937, 2547, 1, P.L. 53 July ities contained in the Act of § in Eisen challenge 53012 withstood constitutional P.S. Cleveland, 215, 206, 35 Township, v. 154 hauer Pa.Super. recognized as a 570, (1944). notice has been A.2d 574 Early might municipal governments which legitimate “by means those have tarried against themselves claims of who protect difficult for insurmountably it long they so that have made into the proper investigation a to conduct municipality County v. accident.” Yurechko of circumstances of 332-333, 372, (1968). 325, 377 243 A.2d Allegheny, 430 Pa. 463, 465, 386 Pa. 126 Saxonburg Borough, v. Zack Accord: City Washington, 361 Pa. Aloia v. 753, (1956); 754 A.2d of Phila City Landis v. 624, 685, (1949); A.2d 687 620, 65 of 746, 518-519, A.2d 748 514, 369 delphia, Pa.Super. 245 Pennsylvania v. Southeastern See also: LaBriola (1976). 305, 227 323 9 Authority, Pa.Super. Transportation (1974).3 recognized have also of other jurisdictions
Courts requirements similar notice by are served purposes valid (2) fresh; while to “(1) evidence investigate include: to and (3) litigation appears necessary; a defense in case prepare claims, early settlement of meritorious allowing to evaluate 28, Repealer April Judiciary Act Repealed by Act of 2. Section 2 of the 1978, 202, 53, 2(a) for No. The notice § P.L. [1205]. against provided Act of municipalities is now claims 693, 142, 221(i)(l); 42 Pa.C.S. 5522. § § No. October P.L. objectives, recognition statutory purposes courts have of and In permitted plaintiffs pursue of even in the absence of to causes action requirements of and compliance with the of the Acts 1963 unduly prejudiced. See: Yurech- the defendants would not where Philadelphia, supra; supra; City County Allegheny, Landis v. ko v. of Transportation Authority, Pennsylvania su- v. Southeastern LaBriola Authority, Pennsylvania pra; Transportation v. Southeastern Dubin supra. ones; (4) protect unreasonable or nuisance claims; (5) to repairs, facilitate prompt avoiding further injuries; (6) to allow the municipality agency] budget [or claims; for payment (7) to insure that officials responsible for the above tasks are duty aware their act.” Budahl v. Associates, Gordon & David 287 N.W.2d State, Accord: Newlan v. (S.D., 1980). supra, v. 1351-1352; Fuller Idaho at 535 P.2d at Rutgers, State University, N.J.Super.
(1977); Stanley
Francisco,
City
County
San
Cal.App.3d
580,121
Cal.Rptr.
(1975).
See also:
Anno., Modern
of the
Status
Law as to Validity of Statutes
Requiring
Ordinances
Notice of
Against
Tort Claim
Local
Entity,
Governmental
A.L.R.3d 93
opinion
lead
cites decisions from four jurisdictions
held
which have
that notice requirements
applicable only to
governmental
equal
tortfeasors
violate
protection
conclusion, however,
clause.4 In
reaching such
the courts
*16
in all
jurisdictions
respective states,
noted that
their
four
the defense of sovereign immunity was not
available
See: O’Neil v. Parkers
tortfeasors named as defendants.
burg,
Hunter v. North
504,
(W.Va.1977);
237 S.E.2d
507
School,
Mason High
810,
817,
845,
85 Wash.2d
539 P.2d
850
Turner v.
Staggs,
(1975);
230,
879,
89 Nev.
510 P.2d
881
denied,
cert.
(Nev.1973),
1079,
598,
414 U.S.
94 S.Ct.
38
Reich v.
Highway
State
Department,
(1973);
L.Ed.2d 486
700,
386 Mich.
(1972).
194 N.W.2d
702
The vast
courts, however,
majority of
require
have held that notice
ments, some as
days,
short as
do not
thirty
princi
violate
of
ples
equal protection,
sovereign
where
immuni
especially
v.
DeAlmanza
Laredo
is a
ty
recognized defense.
See:
System,
Water Works
(5th Cir.1978)
582
F.2d 970
(applying
Oquendo v. Insurance Company
law);
Puerto
Texas
of
Rico,
(D.C.Puerto
Budahl v.
F.Supp.
1974);
388
1030
Rico
Associates,
Gordon & David
supra;
Magnu
Herman v.
son, 277
Aviation,
Schroeder
Inc.
(N.D.1979);
445
N.W.2d
Maurer,
925,
(N.H.1980)
4. Carson v.
120 N.H.
531
Huntsville,
v.
DeFehr,
City
Parton
362 So.2d
supra;
v.
of
University
Colo
Regents
Fritz v.
(Ala.1978);
898
of
of
Housing
Espanola
(1978);
rado, 196 Colo.
335,
Appellant’s contentions that Section 36 of the Act of 1963
violates
I,
Article
Sections 11 and 26 of the Pennsylvania
Constitution are equally
lacking merit. The Supreme
Carroll,
Court, in
York,
v. County
supra, has already
“
I,
held that Article
Section
was
‘intended to allow the
if
Legislature
desired,
it
to choose cases in which the
immune____’”
Commonwealth should be.
Id.
(1978). Thus,
Legislature
could validly abolish a cause
of action against the Commonwealth, and the Political Sub
division Tort Claims Act6 is a valid exercise of legislative
authority and not
I,
violative of Article
Section 11 of the
Pennsylvania Constitution. See also: Tsarnas v. Jones &
Laughlin
Corporation,
Steel
supra
518-520,
488 Pa. at
A.2d at 1096-1097. If the Legislature can validly abolish a
cause of action against
Commonwealth,
it follows that it
can impose
conditions for
an
procedural
maintaining
action
against an agency or
instrumentality
the state. See also:
Freeze Storage, Inc. v. Armstrong Cork Company, supra
280-281,
5. Article Pennsylvania Section 11 of the provides: Constitution open; "All courts shall every be and injury man for an done him lands, goods, person in his reputation remedy shall have due law, right course justice sale, administered without delay. may brought denial or Suits the Commonwealth manner, in such in such Legislature courts and in such cases as the may by law direct.” 26, 1978, 6. Act of 5311.101-5311.803, November P.L. 53 P.S. §§ repealed by Act, Judiciary Section Repealer 333 of the Act Continua- tion Act of Act of October P.L. 42 P.S. § 20043. A provision Code, similar is now found in the Judicial 42 Pa.C.S. §§ 8541-8564. *18 Constitution Pennsylvania I of the 26 of Article Section political nor any “Neither the Commonwealth provides: any person enjoyment deny thereof shall subdivision in person against any nor discriminate right, of any civil The notice right.” civil any exercise of Transportation Authorities Metropolitan 36 of the Section enjoyment any appellant Act of 1963 did not deny notice to Rather, obligation give created an right. civil it commencing transportation authority before metropolitan a If against authority. such we legal damages action for 36 of the Act of 1963 violated to conclude that Section were Constitution, we would I, 26 of the Article Section applicable limitation to hold that statutes of obliged also violate Section governmental agencies actions purpose not the of the clearly 26 of Article I. This section of the Constitution. See contained this guarantee Susmarski, 499 Pa. compare: Astemborski v. reasons, find that the foregoing statutory I would For the the order of the trial was valid and would affirm provision appellee. of the favor entering summary judgment court A.2d 350 JACOB, Roger Appellant, Brian Y.M.C.A. NEW KENSINGTON Pennsylvania. Superior Court of Argued 1982. June 11, 1983. Filed March Reargument May 1983. Denied Sept. Appeal Denied for Allowance of Petition