Flisek v. Star Fireworks, Inc.

Decision Date13 December 1971
Citation220 Pa.Super. 350,286 A.2d 673
PartiesMichael FLISEK, a minor by his parents and natural guardians, Walter Flisek and Caroline Flisek and Walter Flisek and Caroline Flisek, in their own right, Appellants, v. STAR FIREWORKS, INC. a/k/a Star Manufacturing, Inc., et al.
CourtPennsylvania Superior Court

Appeal No. 883, October Term, 1971, from the Order of the Court of Common Pleas, Civil Action, Law, of Montgomery County at No. 70-4056; Robert W. Tredinnick, Judge.

Benjamin Kuby, Klovsky, Kuby & Harris, Philadelphia, for appellant.

Andrew L. Braunfeld, Norristown, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

PER CURIAM.

Order affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAULDING and CERCONE, JJ., join.

HOFFMAN, Judge (dissenting):

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 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. 1 Appellant argues, however, that 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. City of Philadelphia, 322 Pa. 535, 185 A. 750, 751, 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. City of Harrisburg, 216 Pa. 117, 64 A. 905, in Novak v. Ford City Borough, 292 Pa. 537, 141 A. 496, in Paraska v. City of Scranton, 313 Pa. 227, 169 A. 434, in Bonczek v. City of 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, 95 A.2d at 522 (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 Justice Stern held a municipality may not avoid. 2

Therefore, I would reverse the order of the lower court dismissing appellant's complaint and remand with a procedendo. 3

SPAULDING and CERCONE, JJ., join.

1 In Dillon v. York City School District, 422 Pa. 103, 220 A.2d 896 (1966), and Graysneck v. Heard, 422 Pa. 111, 220 A.2d 893 (1966), our Supreme Court declined to overrule the judicially initiated governmental immunity doctrine. The basis for the Court's decision was its belief that any change in the doctrine should be made by the legislature rather than the courts.

It should be noted, however, that our Supreme Court, on October 12, 1971, abolished the doctrine of parental immunity in an unanimous decision. Falco v. Pados et al., 444 Pa. 372, 282 A.2d 351 (1971). It had been argued that parental immunity, also a judicially initiated doctrine, should be subject to legislative rather than judicial correction. Justice EAGEN answered that argument: "It will be argued that such a change in the law as we enunciate today should be left to the legislature. Judge Fuld, Chief Judge of the New York Court of Appeals, adequately answered this contention in Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 43, 174 N.E.2d 718 (1961), when he said at 724: '... it is urged, that, if there is a remedy it must be given by the Legislature, if there is to be a change, it may not be effected by the courts. This court has heard such arguments before and has answered them by saying that, where the rule is court made, it may be court modified if reason and a right sense of justice recommend it (citations omitted).' So too, in recent years this Court has had the fortitude and wisdom to effectuate changes in the law where 'reason and a right sense of justice' recommend it. For example, see Flagiello case [Flagiello v. Pennsylvania Hospital], 417 Pa. 486, 208 A.2d 193 (1965); Griffith case [Griffith v. United Air Lines], 416 Pa. 1, 203 A.2d 796 (1964); Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970); Reitmeyer v. Sprecher, 431 Pa. 284, 243 A.2d 395 (1968); and Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). [ Footnotes omitted]

"Cries will also be heard about our failure to adhere to the principle of 'stare decisis.'

"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)."

2 Appellee's argument that its non-ownership 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.

3 I do not reach appellant's other contentions that 1) the negligence of the appellee constituted a public nuisance, and such negligence has not been granted immunity, and 2) the doctrine of governmental immunity should be abolished.

It should be noted, however, that the inequities of governmental immunity are well-known, and many states have abandoned it, particularly in recent years. The doctrine of governmental immunity "is no longer able to claim the allegiance of those who have given serious consideration to the problem." Dillon v. York City School District, 422 Pa. 103, 109, 220 A.2d 896, 899 (...

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