The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Collin Fisher, :
:
Appellant :
:
v. : No. 894 C.D. 2024
: Submitted: May 6, 2025
Christopher Kennedy :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MATTHEW S. WOLF, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: June 23, 2025
Collin Fisher (Appellant) appeals from the April 30, 2024 order of the
Court of Common Pleas of Delaware County (trial court), granting Christopher
Kennedy’s (Officer Kennedy) motion for summary judgment. For the reasons that
follow, we vacate and remand to the trial court.
Appellant commenced this matter on June 10, 2021, by filing a writ of
summons against the Glenolden Borough Police Department (Glenolden Borough
PD). Writ of Summons, 6/10/2021, Reproduced Record (R.R.) at 3a. On August 4,
2021, the Borough of Glenolden filed a praecipe for rule to file complaint with the
trial court. Praecipe for Rule to File Complaint, 8/4/2021, R.R. at 6a. Thereafter,
on September 2, 2021, Appellant filed a praecipe to amend writ of summons, seeking
to reissue the writ of summons against the Norwood Borough Police Department
(Norwood Borough PD). Praecipe to Amend Writ of Summons, 9/2/2021, R.R. at
8a. On September 7, 2021, the Borough of Norwood filed a praecipe for rule to file
complaint. Praecipe for Rule to File Complaint, 9/7/2021, R.R. at 11a.
On September 16, 2021, Appellant filed a motion to compel pre-
complaint discovery responses (motion to compel) in an attempt to identify the
officers involved in his arrest. Motion to Compel Pre-Complaint Discovery
Responses, 9/16/2021, Original Record (O.R.) at No. 11. Thereafter, on September
17, 2021, Appellant filed an “Emergency Petition to Stay Enforcement of Rule to
File Complaint” (petition to stay) to allow the trial court time to rule on his motion
to compel before the complaint was due to be filed. Emergency Petition to Stay
Enforcement of Rule to File Complaint, 9/17/2021, R.R. at 13a. By order dated
September 21, 2021 (entered on September 27, 2021), the trial court granted the
petition to stay. Trial Court Order, 9/21/2021, R.R. at 42a. Appellant’s motion to
compel was then granted by the trial court by order dated December 21, 2021
(entered on December 29, 2021). That same day, the trial court issued a separate
order directing Appellant to file a complaint on or before February 21, 2022 (entered
on December 29, 2021). Trial Court Order, 12/21/2021, O.R. at No. 24.
Appellant filed his complaint on February 17, 2022, bringing claims
against Officer Kennedy in his individual capacity, Police Officers John Doe One
through Five, and the Norwood Borough PD. Complaint, 2/17/22, O.R. at No. 26.
Appellant filed an amended complaint on March 14, 2022, bringing claims against
Officer Kennedy in his individual capacity and Police Officers John Doe One
through Five. Amended Complaint, 3/14/2022, O.R. at No. 30. After preliminary
objections were filed, Appellant filed a second amended complaint on April 5, 2022.
Second Amended Complaint, 4/5/22, R.R. at 43a.
2
The second amended complaint alleges that on February 10, 2020,
Appellant went to dinner with his mother at an establishment called “Bud’s Café.”
Second Amended Complaint, ¶7. As they were leaving, Appellant decided not to
drive his vehicle and instead ordered a car service to take them home. Id., ¶8. While
waiting for the car service, Appellant was approached by several police officers who
inquired if there was a problem. Appellant responded that there was no problem.
Officer Kennedy, an officer with the Norwood Borough PD, then informed
Appellant that the officers had received a complaint that Appellant was carrying a
gun. Officer Kennedy asked Appellant to get into a police vehicle and Appellant
complied. Id., ¶¶9-11. Officer Kennedy asked Appellant if he could search
Appellant’s vehicle and Appellant consented to the search. Id., ¶12.
Appellant alleges that while he was in the police vehicle, his cell phone
began to ring in his back pocket. Officer Kennedy snatched the phone and proceeded
to violently strike Appellant with a flashlight. Officer Kennedy informed Appellant
that he was being arrested for public drunkenness and disorderly conduct. Officer
Kennedy handcuffed Appellant behind his back, and Appellant remained in the
police vehicle. Officer Kennedy did not use a seatbelt to secure Appellant in the
backseat of the vehicle. Second Amended Complaint, ¶¶13-17.
The second amended complaint asserts that as Officer Kennedy
transported Appellant to the Glenolden Borough police station,1 he “repeatedly sped
up and then abruptly slammed on the breaks, causing an unbuckled [Appellant] to
repeatedly slam into the partition between the front and back seats.” Second
Amended Complaint, ¶18. Appellant contends that he hit the vehicle’s partition with
1
Appellant avers upon information and belief that the Norwood Borough PD houses its
arrestees at the Glenolden Borough police station. Second Amended Complaint, ¶18 n.1
3
such force that he suffered a broken nose, a fractured clavicle, and rib injuries. Id.,
¶19.
Appellant alleges that upon arriving at the Glenolden Borough police
station, Officer Kennedy once again beat him as he was being taken out of the police
vehicle. Second Amended Complaint, ¶21. Appellant further alleges that, as he was
walking towards his jail cell, Officers John Doe One and Two surrounded him, threw
Appellant against the wall, and caused further injury to his shoulder and ribs. Id.,
¶23. Appellant avers that he requested medical care, but his request was denied by
Officer Kennedy and Officers John Doe One and Two. Id., ¶24.2
Appellant was released the following morning and was charged with
the summary offenses of public drunkenness, disorderly conduct and harassment.
Second Amended Complaint, ¶27. Appellant avers that all charges were
subsequently dismissed. Id. Appellant states that he sought medical attention for
his injuries and subsequently underwent months of physical therapy because of his
injuries. Id., ¶28. The second amended complaint asserts that as a result of the
actions of Officer Kennedy and Officers John Doe One through Three (collectively,
Defendants), he suffered injuries and pain to his face, shoulder, and ribs, as well as
nightmares, anxiety, depression, fear, embarrassment and harassment, loss of
consortium with his partner and medical expenses exceeding $1,500. Id., ¶31.
Count I of the second amended complaint seeks damages from
Defendants for assault. Second Amended Complaint, ¶¶32-36. Count II of the
second amended complaint seeks damages against Defendants for battery. Id., ¶¶37-
42. Count III of the second amended complaint seeks damages from Defendants
2
The second amended complaint also alleges that Appellant repeatedly asked Officer John
Doe Three to take him to the hospital, but the Officer refused. Second Amended Complaint, ¶¶25-
26.
4
based on negligence, including Officer Kennedy’s failure to secure Appellant with
a seatbelt and in operating the police vehicle in a manner that caused Appellant’s
injuries. As to this Count, Appellant maintains that Defendants’ negligent acts fall
within the vehicle liability section of Section 8542 (b)(1) of the Judicial Code, 42
Pa. C.S. §8542(b)(1) (commonly referred to as the Political Subdivision Tort Claims
Act (Tort Claims Act), 42 Pa. C.S. §§8541-8542). Id., ¶¶50, 52. Count IV of the
second amended complaint seeks damages from Defendants based on
“Recklessness.” Id., ¶¶54-63. Count V of the second amended complaint seeks
damages for intentional infliction of emotional distress. Finally, Count VI alleges
that Appellant is entitled to damages from Defendants based on “Reckless Disregard
of Safety.” Id., ¶¶69-76.
Officer Kennedy filed preliminary objections to the second amended
complaint. See Officer Kennedy’s Preliminary Objections, 4/11/2022, O.R. at No.
33. Appellant responded by filing preliminary objections to Officer Kennedy’s
preliminary objections. See Appellant’s Preliminary Objections to Officer
Kennedy’s Preliminary Objections, 5/2/2022, O.R. at No. 34. The parties’
respective preliminary objections were eventually overruled, and Officer Kennedy
filed an answer and new matter to the second amended complaint on February 21,
2023. Officer Kennedy’s Answer and New Matter, 2/21/2023, O.R. at No. 48.
In his answer to the second amended complaint, Officer Kennedy
denies that the charges against Appellant were dismissed. On the contrary, the
answer asserts that Appellant admitted to the charges and, with the consent of Officer
Kennedy, negotiated a plea agreement in which Appellant would perform
community service in exchange for the dismissal of the charges. Officer Kennedy’s
Answer and New Matter, ¶27. Meanwhile, Officer Kennedy’s new matter raises
5
affirmative defenses including, inter alia, lack of notice as required by Section 5522
of the Judicial Code, 42 Pa. C.S. §5522, and governmental immunity. Id., ¶¶79-88.
Appellant answered Officer Kennedy’s new matter on March 13, 2023.
Appellant’s Answer to Officer Kennedy’s New Matter, 3/13/2023, O.R. at No. 50.
Thereafter, Officer Kennedy filed his motion for summary judgment on February 1,
2024. Officer Kennedy’s Motion for Summary Judgment, 2/1/2024, R.R. at 83a.
Appellant responded to the motion for summary judgment. See Appellant’s
Response to Officer Kennedy’s Motion for Summary Judgment, R.R. at 164a.
Following argument, the trial court issued an order on April 26, 2024 (docketed on
April 30, 2024), granting the motion for summary judgment. Trial Court Order,
4/30/2024, O.R. at No. 69. Appellant filed a notice of appeal3 and on July 12, 2024,
the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) (Opinion).4
In its Opinion, the trial court maintains that it did not err in granting
Officer Kennedy’s motion for summary judgment. Citing Pa.R.C.P. 1035.2, the trial
court notes that Pennsylvania law provides that after the relevant pleadings are
closed, but within such time as not to unreasonably delay trial, any party may move
for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or
defense which could be established by additional
discovery or expert report, or
(2) if, after the completion of discovery relevant to the
motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial
3
Appellant initially appealed to the Superior Court. By order dated June 6, 2024, the
Superior Court transferred the matter to this Court.
4
The Opinion can be found in the Original Record at No. 73.
6
has failed to produce evidence of facts essential to the
cause of action or defense which in a jury trial would
require the issues to be submitted to a jury.
Pa.R.C.P. 1035.2(1)-(2).
Pertinent here, Section 5522 of the Judicial Code, sets forth a
prerequisite to bringing a civil action against a government unit. Specifically,
Section 5522(a)(1)-(2) provides in relevant part:
(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,
. . . 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.
(iv) The approximate location where the accident
occurred.
(v) The name and 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
7
the date of injury to person or property 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.
Id. The trial court explained:
Section 5522 is not strictly a statute of limitations which
bars the right to bring the action, but rather provides an
affirmative defense to recovery. Therefore, the issue must
first be raised by the governmental defendant as an
affirmative defense in its answer and new matter. Once
the defense is properly raised, [the] plaintiff must set forth
the reasons for his delay. Having done so, the burden
shifts to the defendant to aver specific facts alleged to
constitute prejudice.
Trial Court Opinion at 4 (quoting Bissey v. Department of Transportation, 613 A.2d
37, 41 (Pa. Cmwlth. 1992)). The trial court further noted that the determination of
what constitutes a reasonable excuse is largely within the discretion of the trial court
“and the scope of review is an abuse of discretion.” Trial Court Opinion at 4-5
(citing Bissey, 613 A.2d at 41).
The trial court determined that in the instant action, it was uncontested
that Appellant did not notify Officer Kennedy of his claim within six months of the
alleged incident as required by Section 5522(a) of the Judicial Code. Furthermore,
the issue was raised in Officer Kennedy’s new matter. Finally, while Appellant did
not set forth reasons for his delay in providing notice in his reply to new matter, he
did argue in his response to Officer Kennedy’s motion for summary judgment that
he (1) provided notice to the County Solicitor; and in the alternative (2) that he made
a reasonable mistake in failing to provide notice to the correct entity. Trial Court
Opinion at 5.
8
Per the trial court, the record established that on or about March 5,
2020, Appellant’s attorney sent a letter to County Solicitor Robert Scott at “the
Office of the Solicitor” at 201 W. Front Street, Media, PA 19063, in which counsel
set forth Appellant’s intention to file a lawsuit against Glenolden Borough, the
Glenolden Borough PD, and the specific officers involved during Appellant’s arrest.
Trial Court Opinion at 5. Before the trial court, Appellant argued that the county
solicitor should have notified the correct borough and that the notice was properly
served. The trial court rejected this argument in short order, emphasizing that
contrary to Appellant’s assertions, the county solicitor was under no such obligation
and, furthermore, that the Appellant was mistaken when he argued that all borough
departments in Delaware County report to the solicitor’s office. Id. at 5 n. 5.
The trial court was similarly unpersuaded by Appellant’s argument that
it was reasonable for him, through counsel, to provide notice to the Glenolden
Borough PD because Appellant was taken to the Glenolden Borough PD following
his arrest. The trial court noted:
[B]ased upon the evidence presented, namely, that
Appellant received a citation from [Officer Kennedy] that
set forth Norwood Borough, and that the docket for this
case clearly listed the [Norwood Borough PD] as the
arresting agency, this court does not find Appellant’s
excuses for his failure to send the timely notice to [Officer
Kennedy] to be reasonable in this case. . . . A review of
the evidence clearly establishes that Norwood Borough
was the entity involved here.
Moreover, Appellant’s [second amended complaint]
alleged that [Officer Kennedy] had operated his police
vehicle in a manner that caused injuries to Appellant.
Based on these allegations, Appellant’s failure [to provide
notice] did create an undue hardship on [Officer
Kennedy], because a timely investigation surrounding
Appellant’s assertions was not able to be conducted in this
9
case because of his delay. Based upon the excuses
presented by Appellant and the prejudice alleged by
[Officer Kennedy], this court found that Appellant had not
shown a reasonable excuse for failing to comply with the
notice requirement. No notice was provided pursuant to
42 Pa. C.S. §5522. Accordingly, summary judgment was
proper on this claim.
Trial Court Opinion at 5-6 (footnotes omitted). Notably, the trial court also found
that, due to the lack of case law presented by counsel, there was no merit to
Appellant’s assertions that Officer Kennedy should be held liable in his individual
capacity. Id. at 6 n. 6.
On appeal to this Court,5 Appellant first argues that the trial court erred
in holding that all of Appellant’s claims against Officer Kennedy are claims against
a government unit as set forth in the notice provisions of Section 5522 of the Judicial
Code. Appellant points out that paragraphs two through five of the second amended
complaint reflect that Defendants are being sued in their individual capacities and
that no government agency or unit was identified by Appellant in this case.
Appellant maintains that “[a]s this is a matter of statutory interpretation,
the General Assembly’s intent is controlling.” Appellant’s Brief at 16 (citing 1
Pa. C.S. §1921(a)). In this regard, Appellant asserts, “[c]ourts of the Commonwealth
have found that the Tort Claims Act’s intent is to limit the government’s liability for
its tortious acts.” Id. (citing Christy v. Cranberry Volunteer Ambulance Corps, Inc.,
856 A.2d 43, 46-47 (Pa. 2004) (emphasis supplied by Appellant)). Moreover,
Appellant notes, “[t]he Tort Claims Act provides, with certain exceptions, that ‘no
5
Our review is limited to determining whether the trial court committed an error of law or
an abuse of discretion. Kaplan v. Southeastern Pennsylvania Transportation Authority, 688 A.2d
736, 738 n.2 (Pa. Cmwlth. 1997). “Summary judgment is properly granted ‘whenever there is no
genuine issue of material fact as to a necessary element of the cause of action.’” Laich v. Bracey,
776 A.2d 1022, 1024 (Pa. Cmwlth. 2001) (quoting Pa.R.C.P. 1035.2(1)). Furthermore, we must
review the record in the light most favorable to the non-moving party. Id.
10
local agency shall be liable for any damages on account of any injury to a person or
property caused by any act of the local agency or an employee thereof or any other
person.’” Id. at 16-17 (quoting Section 8541 of the Tort Claims Act, 42 Pa. C.S.
§8541) (emphasis supplied by Appellant)). Appellant believes that by its plain
language, the Tort Claims Act is explicitly concerned with the liability of local
agencies and not individuals. Because Appellant brought suit against Officer
Kennedy individually, Appellant argues that Section 5522’s notice provision simply
does not apply in this case.
In response, Officer Kennedy argues that the trial court properly
rejected Appellant’s argument that the statutory notice provision is not required for
either negligence or intentional tort claims against a municipal defendant who is sued
solely in his/her individual capacity, or that suing a municipal defendant in his or
her individual capacity somehow negates the defense of governmental immunity.
Officer Kennedy argues that “[t]o hold otherwise would entirely eviscerate
governmental immunity.” Officer Kennedy’s Brief at 6. Citing to this Court’s
unreported opinion in Robins v. Ward (Pa. Cmwlth., No. 1789 C.D. 2017, filed
August 15, 2018), Officer Kennedy argues that the notice provision in Section 5522
applies to all claims of any kind against a government agency and its employees who
are sued in connection with their duties on behalf of the agency.6
In Flagg v. International Union, Security, Police, Fire Professionals of
America, 146 A.3d 300 (Pa. Cmwlth. 2016), this Court had occasion to discuss the
difference between personal capacity and official capacity lawsuits. The facts of
6
Unreported memorandum opinions of this Court filed after January 15, 2008, may be
cited for their persuasive value pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 126(b), and Section 414(a) of the Court’s Internal Operating Procedures, 210
Pa. Code §69.414(a).
11
Flagg present a long and tortured history. At its core, the dispute in Flagg arose
from an altercation between Frank Kelly (Kelly) and Thomas Flagg (Flagg). Both
Kelly and Flagg were sergeants in the Cheyney University (Cheyney) campus police
department. Years of animosity between Kelly and Flagg culminated in an argument
between the two in September of 2009. Following the argument, Kelly filed a
complaint with the Pennsylvania State Police, accusing Flagg of assault. Criminal
charges were filed against Flagg, and he was placed on administrative leave pending
the outcome of the criminal charges. Flagg was eventually terminated from his
position with the campus police department and ultimately filed a petition for review
in this Court’s original jurisdiction asserting, inter alia, a Section 19837 action
against Kelly for allegedly violating Flagg’s First Amendment Rights.
Kelly filed an application for summary relief pursuant to Pa.R.A.P.
1532(b), arguing that Flagg’s Section 1983 action must fail because, inter alia, Flagg
sued Kelly in his official capacity and, therefore, Kelly was not a “person” for
purposes of Section 1983.8 Conversely, Flagg argued that there was a genuine issue
7
42 U.S.C. §1983
8
The Flagg court observed:
The United States Supreme Court has held that “neither a State nor
its officials acting in their official capacities are ‘persons’
under §1983.” Will v. Michigan Department of State Police, 491
U.S. 58, 71 (1989); see also Wareham v. Jeffes, 564 A.2d 1314,
1321–22 (Pa. Cmwlth. 1989). However, state officers may be
subject to [S]ection 1983 liability for damages in their personal
capacities even when the conduct in question relates to their official
duties. Arizonans for Official English v. Arizona, 520 U.S. 43, 69
n. 24 (1997).
Id., 146 A.3d at 305-06.
12
of material fact regarding whether Kelly was sued in his personal or official capacity,
which precluded the entry of summary relief.
In addressing the issue, the Flagg court recognized that:
“Personal-capacity suits seek to impose personal liability
upon a government official for actions he takes under color
of state law.” Kentucky v. Graham, [473 U.S. 159, 165
(1985)]. “Official-capacity suits, in contrast, ‘generally
represent only another way of pleading an action against
an entity of which an officer is an agent.’” Id. To
determine whether the defendant has been sued in his
individual or official capacity, the court must look to the
complaint and the course of the proceedings to determine
whether the defendant has been sued in his individual or
official capacity. Colvin v. McDougall, 62 F.3d 1316,
1317 (11th Cir.1995).
In Colvin, the United States Court of Appeals for the
Eleventh Circuit determined that the individual defendant
was sued in his official capacity because: the caption listed
the defendant as the “Sheriff of the Lee County;” each
time the individual was referenced in the complaint he was
identified as the sheriff of the county; and, most
importantly, the plaintiff’s counsel stated on the record
that the suit was brought against the sheriff in his official
capacity. Id. at 1317-18.
Id., 146 A.3d at 306. Based on the above, the Flagg court held that Kelly was indeed
sued in his individual capacity. The court was persuaded by the fact that Kelly’s
position was not mentioned in the caption of the petition for review, that Kelly was
referred to as “Defendant Kelly” throughout the pleading with his official position
omitted, and the petition for review was clearly seeking to impose liability upon
Kelly for the misuse of his office because of purported animus toward Flagg, not
against Kelly’s employer (Cheyney) because of Kelly’s conduct. Id.
13
With Flagg in mind, our review of the instant action leads us to
conclude that although Appellant asserts that he brought this action against Officer
Kennedy only in his individual capacity, Appellant’s claims are belied by the
remaining averments of the complaint. The caption of the second amended
complaint reflects that Appellant is bringing the action against “Police Officer
Christopher Kennedy….” Second Amended Petition for Review, R.R. at 43a.
Furthermore, contrary to Appellant’s assertions, the averments of the complaint all
relate to actions taken by Officer Kennedy while acting as a Norwood Borough
police officer. To be sure, the averments of the complaint reflect that Officer
Kennedy was in uniform, was operating a police vehicle, and signed the non-traffic
citations issued against Appellant in his official capacity as an officer of the
Norwood Borough PD. R.R. at 142a-143a. Accordingly, we cannot agree with the
Appellant that a bald assertion that Officer Kennedy is being sued only in his
individual capacity can overcome the clear averments of his complaint or vitiate the
notice requirements of Section 5522.
Having found that Section 5522’s notice provisions apply to the instant
action, we will now address whether Appellant complied with that section. Bissey
guides our disposition of this issue.
In Bissey, the appellant was riding a motorcycle on a state highway. He
failed to negotiate a turn and was injured when the motorcycle left the road and
struck a tree. The Pennsylvania State Police investigated the accident and filed an
accident report. The appellant did not file a notice of intent to sue within six months
of the accident as required by Section 5522 of the Judicial Code. The appellant’s
cause of action commenced by the filing of a complaint alleging, in pertinent part,
that the Department of Transportation (DOT) had negligently designed and
14
maintained the highway and had failed to post proper warning signs. In its answer
and new matter, DOT initially raised the issue of lack of notice. Thereafter, DOT
filed a motion for summary judgment which was granted by the trial court.
On appeal to this Court, the appellant argued that a genuine issue of
material fact existed as to whether the appellant had shown a reasonable excuse for
failing to meet the six-month notice requirement. Specifically, the appellant asserted
that he had no knowledge that the accident was on a state highway and that DOT
was not prejudiced by the failure to notify.
In disposing of the appeal, the Bissey court focused on Section
5522(a)(2) of the notice provisions. This Section provides:
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 property 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.
42 Pa. C.S. §5522(a)(2) (emphasis supplied). Further, the Bissey court looked to the
case of Yurechko v. County of Allegheny, 243 A.2d 372 (Pa. 1968), where the
Pennsylvania Supreme Court interpreted a predecessor statute to Section 5522.9 In
this regard, the Yurechko court set forth the rationale for determining whether a
reasonable excuse exists for failing to comply with Section 5522, stating:
The statute is not a sword provided to municipalities by
the legislature whereby they might cut down the rights of
[a]ll tardy litigants, [i]ncluding those whose claims are
validly based upon negligence of that very municipality
9
See Act of July 1, 1937, P.L. 2547, §1, formerly 53 P.S. §5301 (Act of 1937).
15
[a]nd whose tardiness has not caused any prejudice.
Rather, the Act of 1937, . . . serves as a shield by which
municipal governments might protect themselves against
claims of those who have tarried so long that they have
made it insurmountably difficult for the municipality to
conduct a proper investigation into the circumstances of
the accident.
Id., 243 A.2d at 377.
The Bissey court emphasized that Section 5522 is not strictly a statute
of limitations which bars the right to bring an action; rather, it provides an
affirmative defense to recovery. Id., 613 A.2d at 44. Thus, the issue must first be
raised as an affirmative defense in the government defendant’s answer and new
matter. Once the defense is properly interposed, the plaintiff must set forth the
reasons for the delay. After that occurs, the burden shifts to the defendant to aver
specific facts showing prejudice. Id. The onus then falls on the trial judge to
consider the reasons offered by the plaintiff, and the prejudice allegedly suffered by
the defendant, to determine whether a reasonable excuse has been established. Id.
As the Bissey court observed:
Specific facts must be raised in order to establish undue
hardship. Where the defendant merely asserted that it had
“been substantially and unfairly prejudiced” by the failure
to comply with the notice requirement, we have stated that
such a conclusory statement is insufficient to establish
prejudice. Ramon [v. Department of Transportation, 556
A.2d 919, 923 (Pa. Cmwlth.1989), aff’d per curiam, 573
A.2d 1025 (Pa. 1990)].[10]
10
In Ramon, a minor sustained injuries when she allegedly fell after stepping into a pothole
on a highway. The minor’s parents (parent-appellants) brought suit on her behalf against DOT.
DOT’s answer and new matter alleged that the action was barred because parents failed to provide
notice pursuant to Section 5522. DOT eventually sought summary relief. The parent-appellants
filed affidavits in support of their opposition to the motion for summary relief alleging, in part,
that they were unaware of the notice requirements and that they had a reasonable excuse for failing
(Footnote continued on next page…)
16
Id., 613 A.2d at 45.
The Bissey court observed that DOT raised the defense of lack of notice
in its answer and new matter. Furthermore, the appellant’s answer to new matter
averred that, in the event the trial court ruled that he failed to provide the
Commonwealth with notice, he “acted out of ignorance and had no knowledge that
the roadway was under the jurisdiction of the Commonwealth agency.” Bissey, 613
A.2d at 45. DOT’s motion for summary judgment countered these assertions, noting
that the police report of the accident was “replete with references that the roadway
upon which the accident occurred was ‘PA-390’.” Id. at 46. Further, DOT asserted
to file a timely notice of intention to file suit. The trial court granted DOT’s motion for summary
relief.
On appeal, this Court vacated and remanded. The Ramon court acknowledged that where
a plaintiff’s ignorance of the law is coupled with a determination that no undue hardship resulted
to the government unit from the failure to file a claim in the six-month period, then a “reasonable
excuse” is established. Id. at 922. The court further noted that it is the governmental unit’s burden
to prove that the failure to file the notice of claim within the six-month period caused undue
hardship to it. Id. The Ramon court held:
In reviewing the pleadings, affidavits, answers to interrogatories and
responses to requests for admission that are included in the record
of this case, this Court is unable to find any item wherein DOT has
alleged specific facts that would indicate that, as a result of [the
parent-appellants’] noncompliance with subsection (a) of Section
5522, it has suffered undue hardship. There is nothing in the record
indicating whether, after it was served with a copy of [the parent-
appellants’] complaint, DOT attempted to investigate the claim or
showing any actual insurmountable difficulties that it faced in
delving into the claim. Furthermore, there is nothing in the record
indicating that DOT has had difficulty in locating witnesses to
support its case. Instead, DOT, in its verified motion for summary
judgment, simply asserted that it had “been substantially and
unfairly prejudiced by [the parent-appellants’] failure to provide the
statutorily required notice[.]” Such a conclusory statement is not
enough to satisfy DOT’s burden of proof.
Id. Thus, the matter was remanded to the trial court for further proceedings.
17
it was prejudiced by the appellant’s failure to comply with Section 5522 because,
while the cause of action arose in Pike County, the suit was brought in Bucks County.
This necessitated the Philadelphia regional office of the
Office of Attorney General to represent [DOT] by having
to rely upon the documentation and recollections of
employees who are not only physically distant from the
locus of the suit, but also distant in time from when the
cause of action arose.
Id. Moreover, the court observed, it was later discovered that the appellant gave
away both the helmet he wore at the time of the accident as well as the motorcycle.
Thus, essential pieces of evidence were unavailable, materially hampering DOT’s
investigation of the cause of the action. Id.
The Bissey court recognized that the lack of knowledge that an injury
occurred on state property could, coupled with a lack of prejudice, constitute a
reasonable excuse; however, such was not the case. The court reasoned that the trial
court properly found that the police report clearly stated that State Highway PA-390
was the roadway involved and, therefore, did not err in concluding that the
appellant’s claims were not persuasive and that he failed to show a reasonable excuse
for failing to comply with the notice requirement.
In the instant action, Appellant argues that he had a reasonable excuse
for not providing proper notice pursuant to Section 5522. Appellant emphasizes that
on March 3, 2020, only 22 days after the incident in question, he sent notice to the
Solicitor for Delaware County based on the mistaken belief that the Glenolden
Borough PD was a department of Delaware County. The letter noted that the
incident involved the Glenolden Borough PD and copied the Glenolden Borough
Police Chief. Appellant maintains it was reasonable for the letter to reference the
Glenolden Borough PD because that is the police station that he was taken to and
18
released from. Appellant contends that he made a reasonable, albeit incorrect,
assumption that he had been arrested by the Glenolden Borough PD.
Appellant further argues that nothing in the record reflects that Officer
Kennedy or Norwood Borough PD suffered undue hardship due to the lack of notice.
Appellant points out that the government units of Glenolden Borough and Norwood
Borough were represented by the same counsel during the proceedings.
Furthermore, the same counsel entered her appearance on behalf of Officer
Kennedy. Moreover, the record does not reflect that Appellant was unduly burdened
in investigating the claims and witnesses, or that he faced any difficulties
whatsoever. “[Officer Kennedy] only claimed prejudice[] [in a] hypothetical
argument that a criminal investigation could have been conducted by the District
Attorney’s office had proper notice been given.” Appellant’s Brief at 24.
Appellant maintains that this case is similar to Ramon where the
government unit failed to allege specific facts showing that it was prejudiced by the
plaintiff’s noncompliance with Section 5522. Appellant asserts that the conclusory
and non-specific statements made by the government unit in Ramon “bear a striking
resemblance to [Officer Kennedy’s] argument[,]” and that Appellant’s
noncompliance should have been excused. Appellant’s Brief at 25.
Officer Kennedy responds that Appellant’s failure to provide the
required notice resulted in prejudice because, had he known of the claim within six
months of Appellant’s arrest, Officer Kennedy “could have engaged in an
investigation of the matter and locat[ed] and obtain[ed] cooperation of witnesses to
refute the scurrilous, unfounded claims.” Officer Kennedy’s Brief at 11.11
11
Officer Kennedy also insinuates that Appellant had a strategic reason to not provide
notice while his criminal case was pending. In this vein, Officer Kennedy implies that Appellant
(Footnote continued on next page…)
19
Based on our review of the record, including the pleadings, Appellant’s
motion for summary judgment and attachments, as well as the transcript of the
argument held before the trial court, we cannot say that Officer Kennedy has shown
he was prejudiced by the lack of notice in this action. Much like DOT in Ramon,
Officer Kennedy has failed to allege specific facts that would indicate that
Appellant’s noncompliance with Section 5522(a) caused him undue hardship.
Absent from the record is any indication that Officer Kennedy attempted an
investigation or, for that matter, that he was thwarted when doing so. Moreover, the
record does not show that Kennedy faced “any actual insurmountable difficulties . . .
in delving into the claim.” Ramon, 556 A.2d at 923. See also Dacey v. Luzerne
County (Pa. Cmwlth., No. 156 C.D. 2016, filed December 6, 2016) (nothing in the
record suggested that certain potential witnesses were unavailable to the defendant
county or that the failure to give timely notice impeded the defendant county’s ability
to investigate the accident or defend against the cause of action). Accordingly, we
conclude that the trial court erred in granting summary judgment based on the lack
of notice.12
waited to give notice to ensure that Appellant would receive the plea bargain deal and ultimately
have his charges dismissed. Officer Kennedy suggests that if Appellant had been convicted of the
offenses, the conviction could conceivably have been introduced by Officer Kennedy in the instant
proceedings, thereby negatively impacting Appellant’s case. This argument is speculative at best.
Moreover, we do not believe this is the type of prejudice envisioned in our case law.
12
In light of our disposition, we will not address Appellant’s alternative argument that it
was unnecessary to provide notice to Officer Kennedy because he had actual notice of the alleged
incident based on his involvement as the arresting officer. See Section 5522(a)(3)(iii) of the
Judicial Code, 42 Pa. C.S. §5522(a)(3)(iii) (providing that failure to comply with the six-month
notice provision shall not be a bar to bringing the action if the government unit had actual or
constructive notice of the incident or condition giving rise to the claim of a person). Moreover,
even if we were to address this argument, we would reject it. Taking this argument to its logical
conclusion, the notice provisions of Section 5522 would be rendered a nullity.
20
Because the trial court erred in finding that Officer Kennedy met his
burden of showing that he suffered prejudice as a result of Appellant’s failure to
provide notice pursuant to Section 5522 of the Judicial Code, the order of the trial
court is vacated, and this matter is remanded to the trial court to address the
remaining issues raised in Officer Kennedy’s motion for summary judgment.
MICHAEL H. WOJCIK, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Collin Fisher, :
:
Appellant :
:
v. : No. 894 C.D. 2024
:
Christopher Kennedy :
ORDER
AND NOW, this 23rd day of June, 2025, the April 30, 2024 order of the
Court of Common Pleas of Delaware County (trial court) is VACATED, and this
matter is REMANDED to the trial court to address the remaining averments in
Appellee Christopher Kennedy’s motion for summary judgment.
Jurisdiction relinquished.
__________________________________
MICHAEL H. WOJCIK, Judge