Appeal from judgment of Court of Common Pleas of Northumberland County, May T., 1972, No. 645, in case of Joseph Snyder, a minor, by his guardian, Doris Snyder and Doris Snyder, individually and in her own right v. Shamokin Area School District, and Most Reverend Joseph T. Daley, D.D., Bishop of the Roman Catholic Diocese of Harrisburg, as Successor Trustee for the Roman Catholic Congregation of St. Anthony of Padua Church, Ranshaw, Pennsylvania.
Myron M. Moskowitz, for appellants.
Leonard R. Apfelbaum, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J.
[ 226 Pa. Super. Page 370]
This is an appeal from a summary judgment in favor of the appellee school district on the basis of governmental immunity.
[ 226 Pa. Super. Page 371]
The instant action arose as a result of injuries sustained by the appellant's 12-year old son when an iron fence in the school yard fell upon him. The school district filed preliminary objections in the nature of a demurrer to the complaint, and a motion for summary judgment, both based upon the doctrine of governmental immunity. On May 7, 1973, the lower court dismissed appellant's complaint. On May 23, 1973, the Supreme Court of Pennsylvania abolished the doctrine of governmental immunity. Ayala v. Philadelphia Board of Education, 453 Pa. 584, 305 A.2d 877 (1973). Subsequent to Ayala, but within the statutory period, appellant took a direct appeal to this Court.
Appellee argues that Ayala, supra, while abolishing governmental immunity, did not speak to the question of retroactivity. Appellee contends, therefore, that this Court may afford only prospective effect to future cases decided after Ayala.
While we believe that there is ample authority for deciding the question of retroactivity, see, e.g., Nolan v. Tifereth Israel Synagogue of Mount Carmel, Pa., 425 Pa. 106, 227 A.2d 675 (1967),*fn1 it is not necessary for us to expound on this issue. Subsequent to Ayala, supra, our Supreme Court reversed two cases which had been dismissed on governmental immunity grounds prior to Ayala, and were before the Court on direct appeal, Kitchen v. Wilkinsburg School District, 455 Pa. 633, 306 A.2d 294 (1973); Hansen v. Wilkinsburg School District, 455 Pa. 633, 306 A.2d 294 (1973). Though the decisions were filed as Per Curiam Orders,
[ 226 Pa. Super. Page 372]
sans opinions, we believe that this action by our Supreme Court demonstrates the clear intent to apply Ayala to all cases which are, at the very least, pending or on appeal.
We, therefore, reverse the judgment of the court below, vacate the order dismissing plaintiff's complaint, and remand the case to the lower court to enter an appropriate order overruling defendant's Preliminary Objections and granting defendant leave to ...