Monday, November 25, 2019

Failure To Provide 6 Month's Notice to Government Defendant Should Be Raised as a New Matter Defense

In the case of Meese v. Slater-Bailey, No. 10342 of 2019, C.A. (C.P. Lawrence Co. Oct. 9, 2019 Motto, J.), the court held that an issue regarding whether a Plaintiff provided six (6) months’ notice to a governmental entity Defendant after the date of an injury regarding the claims presented was an issue that was required to be raised by way of an Answer and New Matter and not Preliminary Objections.

In this case, the Plaintiff was allegedly injured when her vehicle was struck by a school bus.

The Defendant school district filed Preliminary Objections to the Complaint raising the sole issue of whether the Complaint was legally insufficient due to the Plaintiffs’ alleged failure to provide notice to the school district and the Attorney General within six (6) months of the date of injury of the potential claim, as required by 42 Pa. C.S.A. §5522. That statute provides that an injured party must given written notice to the governmental entity Defendant prior to commencing a civil action.

The court ruled that the failure to provide the required §5522 notice was not a jurisdictional defect that could be raised by way of Preliminary Objections, particularly where the Plaintiffs were not required to plead compliance with that statute as an element of any cause of action. Rather, the court noted, the failure of written notice was an affirmative defense that a Defendant should plead in a New Matter under Rule 1030 of the Rules of Civil Procedure.

As such, the court overruled the Defendant’s Preliminary Objection and ordered the Defendant to proceed with the filing of the Answer and New Matter to the Complaint.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (October 29, 2019).

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