decided: December 13, 1971.
FLISEK ET AL., APPELLANTS,
STAR FIREWORKS, INC.
Appeal from order of Court of Common Pleas of Montgomery County, No. 70-4056, in case of Michael Flisek, a minor by his parents and natural guardians, Walter Flisek and Caroline Flisek, in their own right, v. Star Fireworks, Inc., a/k/a Star Fireworks Manufacturing, Inc. and Borough of Bridgeport and Bridgeport Community Fund, Inc. and Upper Merion Area School District and Frank Stalone.
Benjamin Kuby, with him Jerold Allen, Charles Blasband, and Klovsky, Kuby and Harris, for appellants.
Andrew L. Braunfeld, with him Waters, Fleer, Cooper & Gallager, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Spaulding and Cercone, JJ., join in this dissent.
Author: Per Curiam
[ 220 Pa. Super. Page 351]
Dissenting Opinion by Hoffman, J.:
This is an appeal from the order of the lower court sustaining appellee's preliminary objections to the complaint on the grounds that appellee Borough of Bridgeport was engaged in a governmental function and was therefore immune from liability in tort.
On July 14, 1968, the minor-appellant suffered severe injury when his right hand was blown off while he was playing with an aerial bomb firecracker which
[ 220 Pa. Super. Page 352]
he found in the Bridgeport Memorial Park. The park is allegedly "owned and controlled by the Bridgeport Community Fund, Inc., or in the alternative, was controlled by the Upper Merion School District." Appellant claims that the aerial bomb which injured him belonged to defendant Frank Stalone, who acted for Star Fireworks, Inc., and The Lady of Mt. Carmel Roman Catholic Church. Mr. Stalone set off fireworks in the park in connection with a "Feast Day Celebration" run by the church.
Appellant's complaint charges the municipality with negligence in failing to provide proper police protection for this event, and failing to enforce an ordinance forbidding the use of fireworks within the Borough limits. The court below dismissed the complaint on the ground that under Pennsylvania law governmental entities are not liable in tort for the negligent acts of their servants in the performance of governmental rather than proprietary functions.*fn1 Appellant argues, however, that
[ 220 Pa. Super. Page 353]
the Borough's failure to provide adequate police supervision of activities in a park open to the public is not a governmental function, and that, therefore, the lower court should not have dismissed the complaint.
In Hill v. Allentown Housing Authority, 373 Pa. 92, 95 A.2d 519 (1953), Mr. Chief Justice Horace Stern reviewed Pennsylvania law as to the scope of the governmental immunity doctrine: "In Honaman v. Philadelphia, 322 Pa. 535, 185 A. 750, it was held that in maintaining parks and playgrounds a city acts in its proprietary capacity and is therefore liable for failure to exercise reasonable care; there was cited with approval the statement from 2 Dillon, Mun. Corp., 3d ed., § 985, that '. . . municipal corporations, are liable, for the improper management and use of their property, to the same extent and in the same manner as private corporations and natural persons.'
"In Weber v. Harrisburg, 216 Pa. 117, 64 A. 905, in Novak v. Ford City Borough, 292 Pa. 537, 141 A.
[ 220 Pa. Super. Page 354496]
, in Paraska v. Scranton, 313 Pa. 227, 169 A. 434, in Bonczek v. Philadelphia, 338 Pa. 484, 13 A.2d 414, and in Styer v. Reading, 360 Pa. 212, 61 A.2d 382, it was held that where a city undertakes to manage and supervise property, such, for example, as a public park, it must exercise reasonable care to keep the property in reasonably safe condition for those who lawfully come upon it, including the policing of it sufficiently to protect children from dangers in connection with their entrance and play thereon." Hill v. Allentown Housing Authority, supra at 97 (emphasis added).
Applying this standard to the instant case it is clear that the lower court improperly dismissed appellant's complaint insofar as appellant was urging that the municipality should be liable for the precise type of negligence which Mr. Chief Justice Stern held a municipality may not avoid.*fn2
"What was said in this regard by the Honorable Robert von Moschzisker, who once served with distinction as a Justice, and then Chief Justice of this Court is pointedly pertinent. 'But if, . . . a prior judicial decision seems wrong in principle or manifestly out of accord with modern conditions of life, it should not be followed as a controlling precedent, where departure therefrom can be made without unduly affecting contract rights or other interests calling for consideration.' von Moschzisker, Stare Decisis, Res Judicata and other Selected Essays (1929)."
*fn2 Appellee's argument that its nonownership of the park immunizes it from liability is spurious. The language in Hill v. Allentown Housing Authority, supra, indicates quite clearly that the liability of a municipality does not turn on the niceties of title, but instead turns on whether the municipality had assumed the duty to supervise and police activities taking place within the park.
In Krause v. Ohio, supra, the most recent case considering the question of governmental immunity, the Ohio Court of Appeals held that the doctrine was violative of the Equal Protection Clause of the fourteenth amendment: "The operation of the doctrine of sovereign immunity results in different consequences for injured persons in at least two ways. Persons victimized by private tortfeasors may be compensated for their damages. But so long as sovereign immunity is extant persons suffering damage through comparable fault on the part of the state may not recover unless the tortious action happens to be one within a specific exception to the immunity rule. Assuming a case within a specific exception, then two classes of persons injured by the state develop -- those hurt in the course of the excepted activity and those not. Such circumstances raise the question whether such differences as those described mount arbitrary and unreasonable distinctions incompatible with the constitutional standard established by the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States." Krause v. Ohio, supra at 2196.