IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TERRENCE FAUCHER :

Plaintiff, :

: Docket No.: 3:15-cv-01630

v. : (Magistrate Judge Saporito)

:

LEIGHTON FORD, INC., et al, :

Defendants. :

MEMORANDUM

This diversity action is brought by Terrance Faucher against

Lehighton Ford, Inc. (“Lehighton Ford”) and Lehighton Water Authority

(the “Water Authority”).

The action arises out of the plaintiff’s fall on snow or ice on the

premises of Lehighton Ford on February 24, 2014. The plaintiff filed his

complaint on August 21, 2015. (Doc. 1). Lehighton Ford filed its answer

(Doc. 9) and joinder complaint against the Water Authority (Doc. 10) on

October 1, 2015. Thereafter,the plaintiff filed an amended complaint(Doc.

12) against both Lehighton Ford and the Water Authority.

Before the court is a motion to dismiss (Doc. 22) filed by the Water

Authority seeking to dismiss the amended complaint because the plaintiff

failed to provide notice of his claim to the Water Authority within six

months from the date of his injury, as required for actions against a

Case 3:15-cv-01630-JFS Document 30 Filed 10/06/16 Page 1 of 8
government unit under 42 Pa. Cons. Stat. § 5522(a). As a result of that

alleged failure, the Water Authority seeks dismissal of the amended

complaint as against it. The motion has been fully briefed and is now ripe

for disposition. For the reasons set forth below, we will deny the motion.

I. Background

The plaintiff alleges that Lehighton Ford was negligent on February

24, 2014, when it allowed snow/ice/water to accumulate and remain on the

parking lot of its property causing the plaintiff to slip and fall and sustain

serious injuries. (Doc. 1 ¶¶ 5,6). In its answer, Lehighton Ford raised as

an affirmative defense, the allegation that the plaintiff’s alleged injuries

and damages may have been directly and proximately caused by the

negligence of parties other than it over whom it had no supervision or

control for those actions and omissions. (Doc. 9 ¶30). On October 1, 2015,

Lehighton Ford filed its joinder complaint against the Water Authority.

(Doc. 10). In the joinder complaint, Lehighton Ford alleges that the Water

Authority is solely liable to the plaintiff, liable over to the joining

defendant, and/or jointly and/or severally liable with the joining

defendant. (Id. ¶7). Further, Lehighton Ford alleges that the Water

Authority knew or should have known that a leak in a water line it

2

Case 3:15-cv-01630-JFS Document 30 Filed 10/06/16 Page 2 of 8
controlled caused water to flow upon Lehighton Ford’s property thereby

providing the Water Authority with actual or constructive notice of the

dangerous condition. (Id. ¶¶10,11).

On October 20, 2015,the plaintiff filed his amended complaint. (Doc.

12). In the amended complaint, the plaintiff alleges that Lehighton Ford

was negligent for allowing snow/ice/water to accumulate on its property

which caused the plaintiff to slip and fall and sustain serious injuries. He

also alleges alternatively, that the Water Authority may have caused

and/or contributed to the unreasonably dangerous snow/ice/water

accumulation on the parking lot of the property when it knew or should

have known that a leak in its water line that it controlled caused water to

flow upon Lehighton Ford’s property which eventually caused the

plaintiff to slip and fall and sustain injuries. (Id. ¶¶ 6-8, 10-15, 27).

In its motion to dismiss (Doc. 22), the Water Authority maintains

that, as a government unit, itis entitled to the protections and immunities

under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.

Cons. Stat. §§ 8541-8564). It seeks dismissal on the basis that the plaintiff

failed to provide notice of his claim to it within six months from the date

of the injury, and thus it warrants dismissal of the amended complaint

3

Case 3:15-cv-01630-JFS Document 30 Filed 10/06/16 Page 3 of 8
against it under 42 Pa. Cons. Stat. § 5522(a).

II. Legal Standards 

Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which relief

is granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion to

dismiss may be granted only if, accepting all well-pleaded allegations in

the complaint as true and viewing them in the light most favorable to the

plaintiff, a court finds the plaintiff’s claims lack facial plausibility.”

Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although

the Court must accept the fact allegations in the complaint as true, it is

not compelled to accept “unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Morrow

v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.

McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)).

Under Rule12(b)(6), the defendant has the burden of showing that

no claim has been stated. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d

1406, 1409 (3d Cir. 1991); Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir.

1980); Holocheck v. Luzerne Cty. Head Start, Inc., 385 F. Supp. 2d 491,

4

Case 3:15-cv-01630-JFS Document 30 Filed 10/06/16 Page 4 of 8
495 (M.D. Pa. 2005). In deciding the motion, the court may consider the

facts alleged on the face of the complaint, as well as “documents

incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007). The court may also consider “undisputedly authentic

document[s] that a defendant attaches as an exhibitto a motion to dismiss

if the plaintiff’s claims are based on the [attached] documents.” Pension

Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.

1993). Moreover, “documents whose contents are alleged in the complaint

and whose authenticity no party questions, but which are not physically

attached to the pleading, may be considered.” Pryor v. Nat’l Collegiate

Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002).

III. Discussion

It is undisputed that the Water Authority is a government unit,

ordinarily entitled to notice of a personal injury claim prior to

commencement of suit. (Docs. 23, 24-1, 25). The issues for our

consideration are (1) whether the plaintiff was required to give notice to

the Water Authority of his claim within the time limitations under 42 Pa.

Cons. Stat. §5522(a); and (2) whether the plaintiff has shown a reasonable

5

Case 3:15-cv-01630-JFS Document 30 Filed 10/06/16 Page 5 of 8
excuse for the failure to file a notice of claim.

a. Whether the Plaintiff was Required to Give Notice

Itis clear thatthe plaintiff did not provide written notice to the

Water Authority within six months from the date of his injury. The

statute requires written notice of intent to file suit against a government

unit within six months from the date of injury or the accrual of the cause

of action. 42 Pa. Cons. Stat. § 5522(a)(1). Failure to comply with this

mandate requires dismissal of any civil action commenced against the

government unit unless the court excuses the failure to comply upon a

showing of reasonable excuse. Id. § 5522(a)(2).

b. Whether the Failure to File the Notice Within Six

Months Should be Excused

In its opposition papers, the plaintiff maintains that his noncompliance with the notice statute is excused because he had no

knowledge of any potential liability against the Water Authority. He

further asserts that once he knew that Lehighton Ford attempted to shift

blame to the Water Authority through the allegations contained in the

joinder complaint, he immediately filed the amended complaint naming

the Water Company as a defendant to the action. He claims that these

6

Case 3:15-cv-01630-JFS Document 30 Filed 10/06/16 Page 6 of 8
facts provide him with a reasonable excuse for not supplying the required

notice thereby shifting the burden to the Water Authority to show

prejudice. We agree.

Section 5522 specifically states that the court shall make the

determination of whether a reasonable excuse has been shown. Landis v.

City of Philadelphia, 369 A.2d 746, 749 (Pa. Super. Ct. 1976). The court

shall consider the reasons offered by the plaintiff and the prejudice

allegedly suffered by the defendant in order to determine whether a

reasonable excuse has been established. Id.; Bissey v. Commonwealth

Dept of Transp., 613 A.2d 37, 41 (Pa. Commw. Ct. 1992). We are guided

further by Pennsylvania case law. See Ramon v. Dep’t. of Transp., 556

A.2d 919 (Pa. Commw. Ct. 1989) (ignorance of the statute coupled with a

lack of prejudice constituted a reasonable excuse); Hoy v. Se. Pa. Transp.

Auth., 565 A.2d 848 (Pa. Commw. Ct. 1989) (ignorance of the extent of

injuries coupled with a lack of prejudice constituted a reasonable excuse);

Magill v. Dep’t of Transp., 571 A.2d 539 (Pa. Commw. Ct. 1990) (delay

caused by the seriousness of the injuries coupled with a lack of prejudice

constituted a reasonable excuse); Bissey, 613 A.2d 37 (lack of knowledge

that injury occurred on state property coupled with lack of prejudice could

7

Case 3:15-cv-01630-JFS Document 30 Filed 10/06/16 Page 7 of 8
constitute reasonable excuse).

The plaintiff’s opposition papers reflect that the plaintiff was

unaware of any potential liability against the Water Authority until the

filing of the joinder complaint. Moreover, the Water Authority has not

alleged that it was prejudiced because of the plaintiff’s failure to provide

notice under Section 5522. Rather, the Water Authority simply maintains

that failure to comply with the statute’s notice requirements in this case

mandates dismissal per se. But it is clear from the relevant case law that

a necessary consideration under Section 5522 is whether and to what

extent the government unit will be prejudiced.

An appropriate order follows.

s/ Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge

Dated: October 6, 2016

8

Case 3:15-cv-01630-JFS Document 30 Filed 10/06/16 Page 8 of 8