# Davis v. Commonwealth > Commonwealth Court of Pennsylvania · December 21, 1989 · 130 Pa. Commw. 287 URL: https://www.frixlaw.com/law-library/cases/6373643 ## Case - **Full name:** Allen R. DAVIS and Brenda Davis v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA LIQUOR CONTROL BOARD - **Court:** Commonwealth Court of Pennsylvania - **Decided:** December 21, 1989 - **Citations:** 130 Pa. Commw. 287; 568 A.2d 270; 1989 Pa. Commw. LEXIS 826 - **Precedential status:** Published - **Opinion:** Opinion of the court by Craig - **Judges:** Barry, Colins, Craig, Crumlish, McGinley, Palladino, Smith - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6373643 ## Opinion text CRAIG, Judge. Mr. and Mrs. Allen R. Davis appeal from orders of the Court of Common Pleas of Philadelphia County, denying their motion to strike the Pennsylvania Liquor Control Board’s (LCB) answer and new matter as untimely under Pa.R.C.P. No. 1026(a), and granting the LCB’s motion to dismiss the suit because of the Davises’ failure to comply with the six-month notice requirement under subsection (a)(1) of section 5522 of the Judicial Code, 42 Pa.C.S. § 5522(a)(1). On February 15, 1986, Allen Davis was involved in an automobile accident. The driver of another car was killed and Davis became a paraplegic. On March 26, 1987, the Davises filed a complaint against the LCB for damages resulting from the accident, alleging that a state store sold him liquor even though he had been “visibly intoxicated.” Subsection (b)(7) of section 8522 of the Judicial Code, 42 Pa.C.S. § 8522(b)(7), places liability on the LCB for selling liquor to any person visibly intoxicated. On April 8, 1987, the LCB wrote to the Davises requesting an extension of time in which to file its answer to the complaint, beyond the twenty-day requirement of Pa.R.C.P. No. 1026. The request stated that the LCB would assume the Davises had granted the extension, unless they notified the LCB to the contrary. 1 The Davises did not object to the time extension. On April 22, 1988, both parties agreed to a three-month continuance as to trial date. On April 27, 1988, the LCB filed an answer and new matter claiming that the case should be barred because the Davises failed to comply with the six-month notice requirement. The Davises filed a *290 motion to strike the LCB’s answer and new matter on the ground that the answer and new matter had been untimely filed. Judge Lehrer of the Court of Common Pleas of Philadelphia county dismissed that motion. The Davises filed a reply to new matter stating that, under 42 Pa.C.S. § 5522(a)(2), a reasonable excuse could be shown for not giving notice of their claim within six months. On September 26, 1988, the common pleas court conducted an evidentiary hearing regarding the Davises’ noncompliance with the notice requirement. The court concluded that the Davises had not shown a reasonable excuse for failing to comply and therefore dismissed their suit. The questions we must consider are: (1) whether the trial court erred in denying the Davises’ motion to strike the LCB’s untimely filed answer and new matter; and (2) whether the trial court erred in granting the LCB’s motion to dismiss the Davises’ complaint for failing to comply with the notice requirements of 42 Pa.C.S. § 5522(a)(1). I. In determining whether an answer and new matter is untimely, the trial court must adjust the relative equities in light of any agreement between the parties and the procedural posture of the case. Trial courts have broad discretionary power in considering procedural issues. Allison v. Merris, 342 Pa. Superior Ct. 571 , 493 A.2d 738 (1985). A trial court has discretionary power to waive noncompliance with procedural rules which govern the timing of pleadings. Gagliardi v. Lynn, 446 Pa. 144 , 285 A.2d 109 (1971). Before the LCB filed an answer, the Davises took no action to preclude the LCB from filing an untimely answer, nor did they seek a default judgment. Pa.R.C.P. No. 1037(b) does not allow opposing parties to sit idly and then move to strike an untimely answer. Rather, a party must take affirmative action to secure a judgment by *291 default. Colonial School District v. Romano’s School Bus Service, 118 Pa. Commonwealth Ct. 460 , 545 A.2d 473 (1988). Pa.R.C.P. No. 126 provides that the rules of civil procedure shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Because the LCB’s late filing did not prejudice the Davis-es, the trial court did not abuse its discretion by refusing to strike the LCB’s answer and new matter. II. However, we agree with the Davises’ assertion that the trial court erred in granting the LCB’s motion to dismiss the suit because of the Davises’ failure to comply with the notice provision of section 5522 of the Code. The relevant portions of that statute provide: (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.... (2) If the statement provided for by this subsection is not filed, any civil action or proceeding commenced *292 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 mth this requirement upon a showing of reasonable excuse for failure to file such statement. (3) In the case of a civil action or proceeding against a government unit other than the Commonwealth government: (iii) failure to comply with this subsection shall not be a bar if the government unit had actual or constructive notice of the incident or condition giving rise to the claim of a person. (Emphasis added). In Yurechko v. County of Allegheny, 430 Pa. 325 , 243 A.2d 372 (1968), the Supreme Court held that, where the plaintiff had been ignorant of the law and where the government unit sustained no undue hardship because of the plaintiffs failure to file a claim within the six-month period, 2 the plaintiff had established a “reasonable excuse” for failing to comply with section 5522(a)(1). In a recently decided case, the Commonwealth Court followed the Yurechko analysis in stating: This Court is unable to see any language in Section 5522 of the Code which would provide it with a basis for concluding that the holding of the Supreme Court in Yurechko does not control a case where a plaintiff has failed to comply with the notice requirement established by subsection (a)(1) thereof, and then contends that his noncompliance should be excused pursuant to the final sentence of subsection (a)(2). Ramon v. Department of Transportation, Bureau of Traffic Safety, 124 Pa. Commonwealth Ct. 416 , 556 A.2d 919, 923 (1989). *293 During the six months following the accident, Davis applied for benefits from the Catastrophic Loss Fund, and hired an attorney to defend him on vehicular homicide charges arising out of the accident. The LCB contends that, because the Davises retained counsel during this period, they cannot assert ignorance of the law as an excuse for failing to comply with the notice requirement. However, Yurechko states that a reasonable excuse exists when either the claimant or the claimant’s attorney is ignorant of the six-month notice requirement, so long as no undue hardship resulted to the governmental unit. The LCB relies on this court’s decision in Graffigna v. City of Philadelphia, 98 Pa. Commonwealth Ct. 624 , 512 A.2d 91 (1986), which held that the government unit did not need to show that it had been prejudiced by the appellant’s failure to comply with the notice requirement. There this court noted that there are two exceptions to the notice requirement of 42 Pa.C.S. § 5522. The last sentence of section 5522(a)(2) provides one exception by excusing noncompliance when a plaintiff provides a reasonable excuse. Section 5522(a)(3)(iii) provides the other exception by excusing a plaintiff’s failure to comply with the notice provision if the government unit had actual or constructive notice of the incident giving rise to the claim. However, unlike the Davises, the appellant in Graffigna did not argue that he had a reasonable excuse for failing to comply with the notice requirement; rather, he argued only that the government unit had constructive notice. Because the issue in the present case is whether the Davises had a reasonable excuse, Graffigna is distinguishable. Therefore, following Yurechko , the LCB has the burden of proving that undue hardship has resulted to it from the Davises’ failure to file a claim within the six-month period. Accordingly, we affirm the trial court’s order denying the Davises’ motion to strike the LCB’s answer and new matter, but we reverse the trial court’s order dismissing the Davis-es’ suit for failure to comply with the notice prerequisite of 42 Pa.C.S. § 5522, and remand the issue to the trial court to *294 determine whether the LCB can meet its burden of proving that it suffered undue hardship because of the Davises’ failure to comply with the six-month notice provision. ORDER NOW, December 21, 1989, the order of the Court of Common Pleas of Philadelphia County, March Term, 1987, at No. 5709, 1987, dated July 11, 1988, is affirmed. However, the order of the Court of Common Pleas of Philadelphia County, March Term, 1987, No. 5709, dated September 26, 1988 is vacated, and this case is remanded with a direction that the trial court determine whether the LCB can prove that undue hardship has resulted because of the Davises’ untimely notice. Jurisdiction relinquished. . Pa.R.C.P. No. 248 provides that "the time prescribed by any rule of civil procedure for the doing of any act may be extended or shortened by written agreement of the parties or by order of the court.” . Required by the Act of July 1, 1937, P.L. 2547, formerly 53 P.S. 5301, which has been replaced by 42 Pa.C.S. § 5522. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6373643. Public record. Not legal advice.