IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon Dacey, :

Appellant :

:

v. :

: No. 156 C.D. 2016

Luzerne County, Pennsylvania : Argued: September 15, 2016

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: December 6, 2016

Sharon Dacey (Dacey) appeals from the October 26, 2015 order of the

Luzerne County Court of Common Pleas (trial court) granting Luzerne County’s

(County) preliminary objections and dismissing the matter. We reverse and

remand.

On November 15, 2013, Dacey drove to the Pennsylvania Veteran

Affairs Office in Wilkes Barre to obtain paperwork for her father. She parked in a

lot across the street from the Veteran Affairs Office (VAO) which was under the

direction and control of the County. According to Dacey, after obtaining the

paperwork from the VAO, she walked back to her vehicle, tripped on a large crack

in the pavement, and fell. As a result of the fall, Dacey fractured her finger which

required surgical repair. Dacey notified the County of the claim by letter dated

October 28, 2014.2 On February 23, 2015 Dacey filed a single

- count negligence

Complaint against the County for failure to properly and adequately inspect or

discover an allegedly dangerous condition in the parking lot. The County filed

prelimi nary objections to the Complaint, contending that the Complaint is legally

insufficient in that Dacey failed to give the requisite six month notice to the

C ounty as required by 42 Pa.C.S

. § 5522(a).

The trial court held oral argument on the matter on July 14, 2015, and

noted that all parties agree d the notice should have been given to the County by

May 15, 2014

, rather than October 28, 2014. The trial court found that the lack of

timely notice was unduly harmful to the County because the County was un able to

discover properly the events and conditions that led to Dacey's fall. On October

26, 2015, the trial court issued an Order stating "[the County's] Preliminary

Objections are GRANTED

... [and t]he matter is DISMISSED." (Reproduced

Record ( R.R. ) at 59a. )

On November 30, 2015, Dacey filed a Notice of Appeal with the trial

court, indicating that she was "appeal[ing] to the Superior Court of Pennsylvania."

The Superior Court entered the Notice of Appeal on its docket on December 11,

2015, and issued an Order on January 12, 2016, requesting that Dacey show cause

as to why the appeal should not be transferred to this court. Given our exclusive

jurisdiction over appeals and final orders of the courts of common pleas in matters

involving tort claims aga inst local governmental parties

, the Superior Court entered

an order transferring the matter to this Court on February 3, 2016. 1

1 This Court's review of a trial court's order sustaining preliminary objections and

dismissing a complaint is limited to determining whether the trial court abused its discretion or

committed an error of law. Pub. Ad vocate v. Brunwasser

, 22 A.3d 261 (Pa. Cmwlth. 2011).3 On appeal Dacey raises two issues: (1) whether the trial court abused

its discretion and committed errors of law in granting the County ’s preliminary

objection regarding her fail ure to notify County of her trip and fall within six (6)

months since Pennsyl vania law provides that the notice requirement is waived

upon a showing of reasonable excuse; and, (2) whether the trial court abused its

discretion and committed errors of law in dismissing Dacey ’s Complaint and

specifically finding that County suffered p rejudice by the late notice of Dacey ’s

claim.

DISCUSSION

It is undisputed that Dacey gave the County notice of her claim after

the six

- month deadline. Dacey, a resident of New Jersey, alleges she was unaw are

that notice must be given to a governmental entity within six (6) months of an

alleged incident, as required by 42 Pa.C.S. § 5522. 2 She contends that her

2 42 Pa.C.S

. § 5522 provides as follows:

(a) Notice prerequisite to action against government unit.

—

(1) Within six months from the date that any injury was sustained

or any cause of action accrued, any person who is about to

commence any civil action or proceeding within this

Commonwealth or elsewhere against a government unit for

damages on account of any injury to his person or property under

Chapter 85 (relating to matters affecting government units) or

otherwise shall file in the office of the government unit, and if the

action is against a Commonwealth agency for damages, then also

file in the office of the Attorney General, a statement in writing,

signed by or in his behalf, setting forth:

(i) The name and residence address of the person to

whom the cause of action has accrued.

(ii) The name and residence address of the person

injured.

(iii) The date and hour of the accident.4

ignorance of the law is a reasonable excuse for failure to comply with Section 5522

and that this failure caused no undue hardship to the County. We agree.

Upon the showing of a reasonable excuse, Section 5522 of the Judicial

Code provides relief for failure to give notice within th e six month period. 42

Pa.C.S

. § 5522(a)(2). Determining whether th e reasonable excuse provision has

been sustained requires a balancing of the reason for the delay against the prejudice

to the defendant. Thomas v. City of Philadelphia

, 861 A.2d 1023 (Pa. Cmwlth.

2004).

In Yurechko v. Allegheny County

, 243 A.2d 372 (Pa

. 1968), the

Supreme Court found that, where the ignorance of the claimant or the negligence

of his/her counsel is coupled with a determination that the municipality suffered no

undue hardship from the failure to provide notice within the six month period, then

a ‘reasonable excuse’ has been established, and the trier of fact may render its

decision based upon the merits of the case. Id. at 377; see also Leedom v. Dep ’ t of

Transp

. , 699 A.2d 815 (Pa. Cmwlth. 1997).

(iv) The approximate location where the accident

occurred.

(v) The name an d residence or office address of any

attending physician.

(2) If the statement provided for by this subsection is not filed, any

civil action or proceeding commenced against the government unit

more than six months after the date of injury to person or proper ty

shall be dismissed and the person to whom any such cause of

action accrued for any injury to person or property shall be forever

barred from proceeding further thereon within this Commonwealth

or elsewhere. The court shall excuse failure to comply with this

requirement upon a showing of reasonable excuse for failure to file

such statement.5 This Court has stated that specific facts must be raised in order to

establish undue hardship. Bissey v. Dep't of Transp.

, 613 A.2d 37, 45 (Pa.

Cmwlth. 1992). Whe re the defendant merely asserts that it has been substantially

and unfairly prejudiced by a failure to comply with the notice requirement, we

have stated that s uch a conclusory statement is not sufficient to establish prejudice.

Id

.

Dacey asserts that the County fails to meet its burden of proof because

it did not present any specific examples of how the County was prejudiced. The

County offered the fact that certain in dividuals are no longer in its employ as

ev idence of the hardship that it would endure if the case went forward. There is

nothing in the records, however, to even suggest that t hese employees (whatever

their evidentiary value to the defense) were unavailable to the County or could not

be contacted for discovery or trial purposes. There is likewise no evidence that

Dacey's failure to provide notice within the designated six

- month period impeded

the County's ability to investigate the alleged accident or to defend against this

cause of action. Against this backdrop, any finding of prejudice is illusory.

Based on the foregoing, the order of the trial is revers ed and this case

is re manded to the trial court for further proceedings consistent with this opinion.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon Dacey, :

Appellant :

:

v. :

: No. 156 C.D. 2016

Luzerne County, Pennsylvania :

O R D E R

AND NOW, this 6 th day of December

, 2016, this Court hereby

relinquishes jurisdiction, the order of the Court of Common Pleas of Luzerne

County is revers ed

, and this case is remanded to the trial court for further

proceedings consistent with this opinion.

___________________________ JOSEPH M. COSGROVE, Judge