Failure to Meet Six Month Notice Requirement under PSTCA Not Always Fatal to the Case

In the case of Ohler v. Fayette County Area Voc.-Tech Sch., No. 135 of 2019 G.D. (C.P. Fayette Co. April 27, 2020 Cordaro, J.), the court denied a school’s Motion for Judgment on the Pleadings in a personal injury matter in which the school asserted immunity under the Political Subdivision Tort Claims Act.

According to the Opinion, the Plaintiff was exiting a school bathroom when the door closed on her finger and severed the tip. The Plaintiff filed a lawsuit against the Defendant for her injuries and damages.

The Defendant filed a Motion on the Judgment on the Pleadings asserting that it was entitled to immunity under the Political Subdivision Tort Claims Act.

The court noted that immunity would be denied to a local agency such that a school district where there was negligence that made the government-owned property unsafe for the activities for which it was regularly used, for which it was intended to be used, or for a use that could be reasonably foreseen.

The court also noted that, under the Political Subdivision Claims Act, 42 Pa. C.S.A §8542, there was an exception to the general immunity rule for real property in possession of a local agency.

In this case, the court noted that, under the Act, personal property could become a part of the realty at the school, which would then trigger the immunity exception. As the court noted that it was unclear from the pleading whether the bathroom door was personal property or a fixture, the court held that the Motion for Judgment on the Pleadings was without merit in this respect.

The court also rejected the Defendant’s contention that the Plaintiff’s notification letter to the Defendant was outside the six-month statute of limitations stated in 42 Pa. C.S.A. §5522.

Although the record confirmed that the Plaintiff’s notification letter was outside of the six (6) month window, the court noted that the Defendant, in its motion had ignored a part of the statute.

The court confirmed that, under 42 Pa. C.S.A. §5522(a)(3), a failure to provide a timely tort claims notice was not necessarily fatal to the action if the government unit had actual or constructive notice of the event or injury.

In this matter, the Plaintiff alleged that teachers, the school nurse, and other school personnel attended to the Plaintiff on the day of her injury. As such, the court found that the Defendant school had constructive notice such that the six-month limitation under the Act did not apply.

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


Source: “Digest of Recent Opinions.” Pennsylvania Weekly Law (Jan. 12, 2021).

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).

Plaintiff's Failure to Meet Six Month Notice Requirement in Action Against Governmental Agency Excused

In an unpublished Commonwealth Court decision written by Judge Joseph M. Cosgrove in the case of Dacey v. Luzerne County, PA, No. 156 C.D. 2016 (Pa. Cmwlth. Dec. 6, 2016 McCullough, Cosgrove, Pellegrini, J.J.), the Commonwealth Court reversed the trial court's sustaining of the defendant's Preliminary Objections in a trip and fall case filed against a governmental agency.

The trial court sustained the defendant's preliminary objections which asserted that the Plaintiff's failed to comply with the six month notice requirement under 42 Pa.C.S.A. Section 5522(a).

The appellate court noted that there was no dispute that the Plaintiff had failed to provide notice of the claim to the governmental agency within six months of the incident.

Judge Joseph  M. Cosgrove
Pennsylvania Commonwealth Court

However, the appellate court accepted the argument of the Plaintiff, who was a New Jersey resident, that she was unaware of the six month notice requirement and that ignorance of the law could be deemed a reasonable excuse in this context.  The court also found that there was no prejudice sustained by the defendant by the late notice.

As such the trial court's decision was reversed and the matter was remanded for further proceedings.

Anyone wishing to review this unpublished decision by the Commonwealth Court in the Dacey court may contact me at dancummins@comcast.net.


I send thanks to Attorney Jonathan Comitz of the Wilkes-Barre, PA office of Comitz Law Firm LLC for bringing this case to my attention.  Attorney Jeremy Weinstock of that office handled this matter.