James v. Southeastern Pennsylvania Transportation Authority ( 1983 )

BROSKY, Judge:

The Metropolitan Transportation Authority Act provided, inter alia, that those suing such authorities had to give notice within six months of the accrual of the action.¹ This provision is challenged here on constitutional grounds. Despite the fact that appellant failed to notify the Attorney General of the constitutional challenge at the trial court level,² we 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 7, 1975, plaintiff-appellant, James, allegedly slipped on debris littering the steps of a SEPTA station stairwell.³ Among his injuries was a spiral, comminuted fracture of his right leg.

The only evidence that James had given notice of his claim against SEPTA within the six-month period is an answer he gave to an interrogatory to that effect. His complaint was filed in 1977, well after the six-month period. After holding an evidentiary hearing on the matter, Judge Braig held that James had not met the six-month notice of claim requirement and entered summary judgment in favor of SEPTA.⁴

While at the trial court level, James also raised a challenge to the constitutionality of the statute. He failed, however, to notify the State Attorney General of this challenge as Pa.R.C.P. 235(a) mandates. The trial court failed to address the constitutional issue in its opinion.

On appeal, the only issue raised is the constitutionality of this now-repealed statute. Notification of the constitutional challenge at this appellate level was given to the Attorney General in accordance with Pa.R.A.P. 521(a). This notification was sent on February 2, 1982 and a reply from the Attorney General’s office dated March 2, 1982, states: “If no notification is received from this Office within 30 days of the date of this letter, please assume that the Commonwealth will not be entering its appearance in these matters.” To date, more than six months after that letter, the Attorney General has not joined this case.

Usually, a rule is a rule. Rule 235, supra, requires that the Attorney General be notified of a constitutional challenge to a statute at the trial court level. Normally, noncompliance with this rule would mandate our quashing of this appeal. Irrera v. SEPTA, 231 Pa.Super. 508, 331 A.2d 705 (1974), involved a constitutional challenge to this same statute and also involved a failure to comply with this same rule.⁵ The “issue was deemed abandoned or waived.” Irrera, supra, 231 Pa.Superior at 515, 331 A.2d at 708.

In the case before us, appellant did fail to comply with Rule 235; but he did raise the constitutional issue below, it was not addressed by the trial court, he did notify the Attorney General of the appellate proceedings, and the Attorney General did fail to enter the case.

This same configuration of facts existed in the case of Commonwealth v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979). There, considering those particular circumstances, Justice Nix held that the noncompliance with Rule 235 was not “a basis for refusing to consider the” constitutional issue.⁶ Stein, supra, 487 Pa. at 8, 406 A.2d at 1384.

We are willingly guided by Justice Nix’s thoughts on this matter, even though they are not in this case binding precedent.⁷ Under the circumstances occurring here, the noncompliance with Rule 235 is not fatal and we will address the merits of the constitutional challenge.

Appellant contends that the notice of claim requirement violates the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution.⁸ The provision before us states:

Limitation of actions against authority

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 office of the secretary of the board, and also in the office of the chief counsel for the authority, either by himself, his agent, or attorney, a statement in writing, signed by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date, and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any. If the notice provided for this section is not filed as provided, any civil action commenced against the authority more than six months after the date of injury, shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.⁹

The first step in any Equal Protection analysis is to determine which of three standards will be used.¹⁰ The most minimal of the standards merely requires that the classification be rationally connected to a legitimate governmental purpose. The most stringent standard, strict scrutiny, is used to review actions affecting fundamental rights or using suspect categories. There is also a third, intermediate standard, often referred to as heightened scrutiny. This intermediate standard will be employed here.

The selection of the heightened scrutiny standard is determined by its use in a similar context by this Commonwealth’s Supreme Court. In Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975), Chief Justice Jones used this standard to review the exclusion of slander and libel actions from surviving the death of plaintiff or defendant. As stated in that case, the applicable standard is as follows.

The Equal Protection Clause of both constitutions does not deny the State the power to treat different classes of persons in different ways, but does deny the right to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of the particular statute. The classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike.

Moyer, supra, 462 Pa. at 400-1, 341 A.2d at 443.

The high courts of other states have also applied heightened scrutiny in cases which were even more directly on point with the one before us. Noting that “the right to recover for personal injuries is ... an important substantive right,” the New Hampshire Supreme Court used this same intermediate standard in reviewing another notice of claim requirement.¹¹ Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 at 830 (N.H., 1980). In another notice of claim case the Supreme Court of Washington stated:

The right to be indemnified for personal injuries is a substantial property right, not only of monetary value but in many cases fundamental to the injured person’s physical well-being and ability to continue to live a decent life. Statutory classifications which substantially burden such rights as to some individuals but not others are permissible under the equal protection clause of the Fourteenth Amendment only if they ... [meet the heightened scrutiny test.]

Hunter v. N. Mason High School, 85 Wash.2d 810, 539 P.2d 845 at 848 (Wash., 1975) (a four month notice of claim requirement).

In order to apply the heightened scrutiny test, the purpose of the statute must be established. This court has held that the purpose of the § 2036 notice requirement “... 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 Pennsylvania Transportation Authority, 219 Pa.Super. 476, at 478, 281 A.2d 711, at 712 (1971).

Next, the classification itself must be identified. Here, the classification, or grounds for differential treatment is whether or not the defendant is a transportation authority; or, looked at from the other side, whether or not the plaintiff is suing a transportation authority.

Having determined the applicable Equal Protection standard and identified the statutory purpose and classification, it remains to apply the standard to the statute in question.

Is this classification “reasonable”; does it have a “fair relation” to the purpose of the legislation? We think not. The Supreme Court of Appeals of West Virginia also held that a similar notice requirement was “neither reasonable nor fair.” Though the notice time period was 30 days, the statements about it are entirely apropos here.¹² “Few laymen, unversed in the law, know within thirty days of their injury whether they will sue; fewer yet know of the thirty-day notice.” O’Neil v. City of Parkersburg, 237 S.E.2d 504 at 508 (W.Va., 1977). Even at this level the statute is patently unfair, but when viewed in terms of its disproportionate effect upon certain segments of our society, this statute’s unreasonableness is even more apparent.

While the differential impact of a statute along economic lines is not, per se, an Equal Protection violation, such an impact can be relevant in evaluating a statute’s fairness and reasonableness.

Ordinarily the affluent and educated tort victim has a retained or family attorney. His attorney may ethically—and probably does—come forward to inform his client of the notice requirement. Iowa Code of Professional Responsibility for Lawyers, Ethical Canon 2-3. It is the poor, uneducated tort victim, without counsel and unacquainted with lawyers, who naively assumes he will be compensated and unknowingly permits the notice time to lapse.

Lunday v. Vogelmann, 213 N.W.2d 904, 911-12 (Iowa, 1973) (Reynoldson, J., dissenting) (requiring an action to commence within three months, unless notice had been given within 60 days).

On the same subject, the Washington Supreme Court observed: “By increasing the demands on the potential plaintiff, these statutes grossly magnify the unfair impact of the unequal distribution of legal counsel and knowledge between rich and poor.” Hunter, supra, 539 P.2d at 848. The increased demands on the potential plaintiff imposed by § 2036 are unnecessarily precise and duplicative. Notice must be given to both “the office of the secretary of the board, and also in the office of the chief counsel for the authority.” It is clear that this notice of claim statute is “neither reasonable nor fair.”

Another allied requirement of the heightened scrutiny test is that there be “a fair and substantial relation to the object of the legislation.” This determination can be made by comparing the public interest furthered and the private right restricted. Carson, supra, 424 A.2d at 831. Due to the particular history of state constitutional cases in New Hampshire, (whose Supreme Court issued Carson), the test there is a weighing of the respective public and private interests affected. That is not our intention here. Rather than determining which outweighs the other, we are merely ascertaining whether or not the public and private interests involved are grossly disproportionate. We conclude that they are.

The public interest in investigating claims is poorly served by this statute. The claims affected by this statute are typically like the one sub judice, actions in tort. Providing notice to the Authority up to five months and 29 days after James slipped on debris littering a stairwell would hardly have permitted a timely investigation of the condition of the steps at the pertinent time. (Such a timely investigation would normally be activated by the Authority personnel involved—the bus driver, for example—and would be undertaken by the Authority’s investigators.)

Also, the Authority would receive adequate notice to investigate and prepare its case through normal service of process. The plaintiff also has the burden of proof in any action. This burden of proof and our whole adversary system act to defeat fraudulent claims. The passage of time is also at least equally detrimental to the plaintiff in forming his case. Thus, not only is the notice provision ineffective, but other factors operate independently to serve the stated objective. The former leads us to conclude that there is not a substantial relation to the object of the legislation; the latter is relevant to the comparison between the public interest served and the private right restricted.

The nature of this restricted private right is readily apparent. Failure to comply with the notice requirement works a forfeiture of any right to recover that he might have established in court. This result could be catastrophic to a severely injured individual in real need of monetary recovery.

Thus, the private right is most substantial and the public interest is minimal, since it is inadequately furthered by the provision. This comparison was accurately described by the Nevada Supreme Court. “... claim statutes serve no real beneficial use but they are indeed a trap for the unwary.” Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 at 882 (Nev., 1973) (citations omitted).

It is apparent that the classification has neither a fair nor a substantial relation to the statute’s objective.

Another element of the heightened scrutiny test requires that the classification not be “arbitrary ... so that all persons similarly situated shall be treated alike.” We conclude that the notice of claim provision also fails to meet this standard. The Supreme Court of Michigan properly disposed of this point in a 1972 case:

Just as the notice requirement by its operation divides the natural class of negligent tortfeasors, so too the natural class of victims of negligent conduct is also arbitrarily split into two subclasses: victims of governmental negligence who must meet the requirement, and victims of private negligence who are subject to no such requirement.

Reich v. State Highway Dept., 386 Mich. 617, 194 N.W.2d 700 at 702 (Mich., 1972) (a two month notice requirement). See also O’Neil, supra, 237 S.E.2d at 507-8; Hunter, supra, 539 P.2d at 847; and Turner, supra, 510 P.2d at 882.

Finding the notice of claim provision unconstitutional under the Equal Protection clause, we reverse the summary-judgment and remand for further proceedings on the merits of James' action in trespass. This court relinquishes its jurisdiction in this case.

WICKERSHAM, J., concurs in result. WIEAND, J., files dissenting opinion.

1 . 66 P.S. § 2036.

2 . Pa.R.C.P. 235(a).

3 . SEPTA is an authority covered by the six-month notice provision, supra, n. 1.

4 . That issue is not raised on appeal.

5 . In addition to not complying with Rule 235, Irrera had not even pled the constitutional issue at the trial court level. In the instant case, appellant did raise the constitutional issue below.

6 . The respondent next contends that petitioner’s failure to notify the Attorney General of the Commonwealth of a constitutional challenge to an Act of Assembly in a proceeding in which the Commonwealth is not a party in violation of Pa.R.C.P. 235(a) permits our consideration of petitioner’s constitutional claims. The rule requires "prompt” notification of the Attorney General. Under the circumstances of this case in which the court below proceeded forthwith to the adjudication and disposition of the case without addressing itself to the constitutional questions presented by petitioner and where the Attorney General was duly notified of petitioner’s claims on appeal of the matter to the Superior Court and to this Court, and neither sought to intervene in this matter nor to raise the issue of lack of prompt notification as a reason for his decision not to intervene, we cannot accept this as a basis for refusing to consider the same.

Stein, supra, 487 Pa. at 8-9, 406 A.2d at 1384.

7 . Justice Nix wrote the above for the court, with Justice Roberts concurring and Justice Larsen joining that concurrence. Justices O’Brien and Manderino concurred in the result and Chief Justice Eagen dissented. Thus, three justices of the six Justices participating supported the reasoning of the above quotation and five approved of the result.

8 . Article I, § 11 of the Pennsylvania Constitution is also said to be violated. Our disposition of the Equal Protection claim makes it unnecessary for us to reach this issue.

9 . Metropolitan Transportation Authorities Act of 1963, Act of August 14, 1963, P.L. 984, § 36, 66 P.S. § 2036, Repealed April 28, 1978, P.L. 202, No. 53, § 2(a) (1371), effective June 27, 1978.

10 . Two law review notes have dealt with notice of claim requirements and Equal Protection: Note, Notice of Claim Provisions: An Equal Protection Perspective, 60 Cornell L.Rev. 417 (1975); Note, Delay in Notice of Tort Claim Against a Government Agency, 20 Clev.St.L.Rev. 23 (1971). See also Annotation, 59 A.L.R.3d 93, Sections 5 and 6.

11 . The statute reviewed in Carson required notice 60 days before commencing an action.

12 . We note that some of the cases holding a notice of claim provision unconstitutional involved a six-month time period—as does the statute before us. See Turner, infra; Reich v. State, 43 Mich.App. 284, 204 N.W.2d 226 (Mich.App., 1972); King v. Baskin, 89 Nev. 290, 511 P.2d 115 (Nev., 1973); and Jenkins v. State, 85 Wash.2d 883, 540 P.2d 1363 (Wash., 1975) (this last a five-month provision).