227 Pa. Super. 305 | Pa. Super. Ct. | 1974
Opinion by
This is an appeal from an order granting appellee’s (hereinafter, SEPTA) motion for a summary judgment. The trial court granted the motion on the basis of the pleadings.
The facts as disclosed by the record are as follows: On November 7, 1970, wife-appellant (Mrs. LaBriola) sustained injuries as she was alighting from a subway-surface trolley car. Appellants filed their complaint almost two years later, alleging that the injuries were sustained as a result of the trolley conductor’s failure to allow Mrs. LaBriola adequate time to safely alight from the car.
In its answer, SEPTA denied negligence, and by way of new matter averred that appellants’ failure to give notice as required by §36 of the Metropolitan Transportation Act
Appellants alleged that Mrs. LaBriola gave notice of tbe accident to a SEPTA employee immediately after its occurrence. On tbe following day, a SEPTA investigator visited tbe appellants, acknowledged notification of the accident, and obtained a signed statement from Mrs. LaBriola concerning the facts of the accident and the extent of her injuries. Appellants also signed authorization form which allowed SEPTA to obtain wage loss information from her employer and medical information from her physicians. Thereafter, SEPTA received that information and for a period of more than 6 months after the accident attempted to negotiate a settlement with appellants. During this period,
There are no Pennsylvania cases on the question of whether a municipal authority may be estopped from availing itself of the defense of lack of notice where the claimant’s failure to give notice is the result of conduct or statements by the authority’s representatives.
Two determinative factors have been emphasized in holding that a governmental entity entitled to notice has either waived the right or is estopped from asserting it: (1) immediate actual notice and full investigation of the accident; and (2) conduct or assurances by representatives of the authority which lead a claimant to believe that further action is unnecessary. Farrell v. Placer County, 23 Cal. 2d 624, 145 P. 2d 570 (1944); Rand v. Andreatta, 60 Cal. 2d 846, 36 Cal. Rptr. 846, 389 P. 2d 382 (1964); Cruise v. City & County of San Francisco, 101 Cal. App. 2d 558, 225 P. 2d 988 (1951); Tillman v. City of Pomona Beach, 100 So. 2d 53 (Fla. 1957); Rabinowitz v. Bay Harbor Island, 178 So. 2d 9 (Fla. 1965); Bauer v. New York City Housing Authority, 1 Misc. 2d 690, 149 N.Y.S. 2d 379 (1956); City of Fairbourne v. Clanton, 117 S.E. 2d 197 (Ga. App.
Applying these principles to the instant case, appellants’ uncontradicted allegations present a jury question as to whether, because of the conduct and statements of BEPTA’s representatives, the appellants reasonably believed that they had adequately notified SEPTA of its claim. The court below erred in granting the summary judgment. Kotwasinski v. Rasner, 436 Pa. 32, 258 A. 2d 865 (1969).
The order of the court below in granting the summary judgment is reversed with a procedendo.
The court apparently did not consider the averments in appellant’s answer to SEPTA’S motion because of a lack of vertifieation. See Pa. R. C. P. No. 1024(a). This defect should not, however, have been considered by the court sua sponte. General Mills, Inc. v. Snavely, 203 Pa. Superior Ct. 162, 167, 199 A. 2d 640 (1964). SEPTA’S failure to object to the defect constituted a waiver thereof. Pa. R. C. P. No. 1032.
“Within six months from the date that any injury was received, or any cause of action accrued, any person who is about to commence any civil action in any court against the authority for damages on account of any injury to his person shall file in the
The record does not indicate the date on which the settlement negotiations terminated.
Estoppel and waiver concepts have, however, been applied to cases in which the statute of limitations has run. Nesbitt v. Erie Coach Company, 416 Pa. 89, 204 A. 2d 473 (1964).
See, Annotation, 65 A.L.R. 2d 1278.