Casey v. Geiger

499 A.2d 606, 346 Pa. Super. 279, 1985 Pa. Super. LEXIS 8761

• Court: Supreme Court of Pennsylvania
• Decided: October 4, 1985
• Docket: 2110
• Status: Published

Opinions

TAMILIA, Judge:

Appellants contend that the lower court erred in sustaining appellees’ preliminary objections in the nature of a demurrer to counts IV and V of appellants’ amended complaint and in dismissing the amended complaint as against appellees. We disagree and, accordingly, affirm the Order of the court below.

On September 10, 1981, appellants Bridget Casey and her daughter, Lisa, filed a complaint against defendant James Geiger alleging false imprisonment, assault and battery, and intentional infliction of emotional distress, and against appellees, Borough of Camp Hill and Andrew Janssen, Borough Manager, alleging negligence.¹ On September 23, appellees filed preliminary objections in the nature of a demurrer to counts IV and V, the negligence counts, of the complaint. Appellees claimed that appellants failed to state a cause of action against them in accordance with the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et seq. (formerly 53 P.S. § 5311.101 et seq.) [hereinafter cited as the “Act”]² The court below sustained the objections on November 2 and filed in support thereof a Memorandum Opinion on November 4, basing its decision on Chapman v. City of Philadelphia, 290 Pa.Super 281, 434 A.2d 753 (1981). The court, however, granted appellants’ leave to file an amended complaint, which they did on April 12, 1982. On April 16, appellees filed the same objections to the amended counts IV and V. The lower court sustained the objections, dismissed the amended complaint as against appellees, and filed an opinion in support thereof on June 18, again relying primarily upon Chapman. This appeal followed.

In considering preliminary objections in the nature of a demurrer, the following standard is applied:

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom____ Conclu-

sions of law and unjustified inferences are not admitted by the pleading. Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained____

Abarbanel v. Weber, 340 Pa.Super. 473, 479, 490 A.2d 877, 880 (1985) (citations omitted).

In their amended complaint, the appellants allege the following: (1) On June 19, 1979, appellant Lisa Casey, then ten years old, participated in swimming lessons sponsored by appellee Borough at Seibert Memorial Park, a recreational park facility owned and operated by the Borough for use solely by the residents of the Borough; (2) appellant Bridget Casey, Lisa’s mother, paid an annual fee to appellee Borough for which consideration her children were entitled to use of the recreational facilities in the Park; (3) at about 10:40 on the morning of June 19, 1979, appellant, Lisa Casey, after completing her swimming lesson, proceeded to walk through the Park; (4) at about 10:45 a.m. defendant Geiger engaged appellant Lisa Casey in conversation, then forcibly picked up a ad carried her into the bushes and overgrown underbrush in the Park whereupon he proceeded to rape and assault her; (5) at the time of the above-described incidents, appellant Lisa Casey was an invitee of appellee Borough; (6) appellees owed appellant Lisa Casey, as an invitee, a duty of reasonable care for her protection and even a greater duty of care than that owed an adult invitee because appellant was a minor; (7) appellees failed to exercise reasonable care and were negligent (a) in failing to provide adequate protection in the form of police or security personnel to protect her as an invitee against the criminal acts of third persons, (b) by permitting underbrush in the Park to become overgrown thus facilitating such criminal acts, (c) by allowing a nonresident, defendant Geiger, to gain entrance into the Park and remain there without being questioned as to his purpose for being there, and (d) by reason of the fact that appellees knew or should have known that the type of criminal act committed against appellant was likely, as a rape of a young girl had occurred in the Park only months before the attack on appellant; and (8) by permitting her daughter to attend the swimming lessons, appellant justifiably relied upon appellees to reasonably provide for her daughter’s safety. Accepting the above facts as true, we find that appellants have failed to state a claim upon which relief may be granted.

We begin our analysis by noting that 42 Pa.C.S.A. § 8541 provides:

§ 8541. Governmental immunity generally

Except as otherwise provided in this subchapter, no 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.³

The Political Subdivision Tort Claims Act was a legislative response to the proliferation of liability claims against governmental units following Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), which abrogated the common law doctrine of governmental immunity. See generally Comment, The Political Subdivision Tort Claims Act: Pennsylvania’s Response to the Problems of Municipal Tort Liability, 84 Dick L.Rev. 717 (1980). While the Act generally provides for immunity, 42 Pa.C.S.A. § 8542 sets forth several conditions which, if fulfilled, will impose liability on a local agency.⁴ Specifically, section 8542 provides:

§ 8542. Exceptions to governmental immunity

(a) Liability imposed. — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):

(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and

(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

(3) Real property. — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, “real property” shall not include:

(i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems:

(ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way;

(iii) streets; or

(iv) sidewalks.⁵

In construing the above section, one must keep in mind that it is an exception to the general rule of governmental immunity that is stated in section 8541. Therefore, a proper application of the rules of statutory construction dictates a strict and narrow interpretation of the eight categories of liability enumerated in section 8542(b). 1 Pa.C.S.A. § 1924 (Purdon Supp.1984-85). See Borenstein v. City of Philadelphia, 595 F.Supp. 853 (Ed.Pa.1984) (waivers of immunity are to be narrowly construed). Moreover, a narrow reading of the eight categories of liability is also mandated upon consideration of the legislative intent to insúltate political subdivisions from tort liability, as expressed in the preamble of the Act. 1 Pa.C.S.A. § 1921 (Purdon Supp.1984-85).

Appellants contend that section 8542(b)(3) strips from appellees the cloak of immunity afforded them under section 8541 since the acts of appellees fall within “[t]he care, custody, or control of real property” exception. We disagree and refer to the instructive case of Vann v. Board of Education of the School District of Philadelphia, 76 Pa. Coramw. 604, 464 A.2d 684 (1983), wherein the distinguished Commonwealth Court Judge Joseph P. Doyle stated:

We have held that Section 8542(b)(3) does not waive immunity as to any unfortunate incident solely because it occurs on government-owned premises. Wimbish v. School District of Penn Hills, 59 Pa. Commonwealth Ct. 620, 430 A.2d 710 (1981). We believe the Section must be read as a narrow exception to a general legislative grant of immunity and we construe it to impose liability only for negligence which makes government-owned property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may be reasonably foreseen to be used. Violent criminal acts such as occurred here are not a reasonably foreseeable use of school property such that the exception will be applied.

Id. at 606, 464 A.2d at 686 (footnotes omitted).

Further expounding on this rationale, the Vann Court noted:

We point out in addition that while it is the clear intent of Section 8542 of the Judicial Code to waive governmental immunity and impose liability for negligence in the control and maintenance of public property, we do not read the statute to impose a standard of liability in cases involving this exception to immunity greater than that to which private landowners are held. While a school district may be held liable for negligence in maintenance and control of property when injury results to a public invitee, see Bersani v. School District of Philadelphia, 310 Pa. Superior Ct. 1, 456 A.2d 151 (1983), the School District here owed no duty to Javelle Vann or to the public at large to prevent the use of its property for criminal attacks such as occurred in this case. Surely, had the attack on Javelle Vann occurred on private property, the private landowner would not be held liable for failure to secure his property from such use, or for failure to illuminate the unlighted areas on his property. The School District as landowner, therefore, cannot be held liable here.

Id. at 608 n. 5, 464 A.2d at 686 n. 5 (emphasis added).

The above language of the Vann decision has been strengthened by the recent case of Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). In Feld, our Supreme Court held that a private landlord is not liable to a tenant for the criminal acts of unknown third persons absent a pre-existing duty, such as where the landlord either gratuitously or for compensation assumes a duty, and then negligently performs it. In reaching this conclusion, the Feld Court stated:

The threshold question is whether a landlord has any duty to protect acts of third persons, and if so, under what circumstances. Well settled law holds landlords to a duty to protect tenants from injury arising out of their negligent failure to maintain their premises in a safe condition. See Smith v. M.P. W. Realty Co. Inc., 423 Pa. 536, 225 A.2d 227 (1967). Lopez v. Gukenback, 391 Pa. 359, 137 A.2d 771 (1958). That rule of law is addressed to their failure of reasonable care, a failure of care caused by their own negligence, a condition, the cause of which was either known or knowable by reasonable precaution. The criminal acts of a third person belong to a different category and can bear no analogy to the unfixed radiator, unlighted steps, falling ceiling, or the other myriad possibilities of one’s personal negligence. To render one liable for the deliberate criminal acts of unknown third persons can only be a judicial rule for given limited circumstances.

The criminal can be expected anywhere, any time, and has been a risk of life for a long time. He can be expected in the village, monastery and the castle keep.

Id., 506 Pa. at 390-91, 485 A.2d at 745-46 (emphasis added).

Justice Zappala’s Concurring Opinion in Feld v. Merriam adds:

As noted in the Opinion of the Court, the weakness of Appellees’ argument is demonstrated by their failure to recognize a crucial distinction between the risks of injury from a condition of the property and from criminal acts of a third person. In failing to maintain the condition of the common areas of the leased premises, the landlord’s conduct, has created the risk of injury to a tenant. It is the responsibility of the landlord to abate the risk which his conduct has created. Liability may then be imposed upon a landlord where injury results because of his conduct or failure to remove the risk of harm created by his conduct. The risk of injury from criminal acts arises not from the conduct of the landlord, but from the conduct of a third person.

Id., 506 Pa. at 402, 485 A.2d at 751 (Zappala, J., Concurring) (footnote ommitted).

In Cooper v. City of Pittsburgh, 390 Pa. 534, 136 A.2d 463 (1957), our Supreme Court, in reversing a judgment against the city, noted that while a city must exercise reasonable care in maintaining its parks, playgrounds, etc., it is not an insurer of the safety of children playing on its public playgrounds. The Cooper Court stated that a municipality need only “supervise children to the same degree that a reasonably prudent parent would do under the circumstances — in this case supervising children over a 25 acre playground.” Id., 390 Pa. at 538, 136 A.2d at 464-65. We find the following rationale of Cooper to be particularly antithetical to the appellants’ claim:

The effect of plaintiff’s contention would be to require the city to have sufficient supervisors (a) to supervise sixty minutes of every hour of every day the use by children of swings, slides, sand boxes and other amusement facilities common to playgrounds, and (b) to organize and supervise hard and soft ball games and other sports, and (c) to prevent fighting and rowdyism, and (d) to carefully watch and safeguard all the children in the entire playground virtually every minute he, she or they are there. Such a standard advocated by this plaintiff, cannot be adopted because it would impose so high and so unreasonable a degree of care as to make the city, in practical effect, an insurer of the safety of every child who enters the playground.

Id., 390 Pa. at 539, 136 A.2d at 465. See Close v. Voorhees, 67 Pa.Commw. 205, 446 A.2d 728 (1982) (alleged negligence of school district for failing to prevent stabbing death of student by fellow student did not relate to care, custody and control of real property); Robson v. Penn Hills School District, 63 Pa.Commw. 250, 437 A.2d 1273 (1981) (“it would be a total distortion of the language of section [8242](b)(3) to allow the supervision, or lack of supervision, of school children to fall within the scope of care, custody and control of real property”); Wimbish v. School District of Penn Hills, 50 Pa.Commw. 620, 430 A.2d 710 (1981) (same); Munoz v. School District of Penn Hills, 23 Pa.D. & C.3d 473 (1982) (same). See also Styer v. City of Reading, 360 Pa. 212, 61 A.2d 382 (1948) (Patterson, J., dissenting).

Applying the above case law to the instant facts, we conclude that appellants’ claim is barred under 42 Pa.C.S.A. § 8541 since none of the exceptions to governmental immunity apply.

In addition, even if the activity at issue fell within the care, custody and control of real property exception, 42 Pa.C.S.A. § 8542(b)(3), appellants have failed to satisfy the preliminary hurdle of section 8542(a)(1) which requires them to establish that their cause of action against the municipality must meet the same standards as would be the case if a private party were being sued. Vann, supra. That being so, we note the basic elements of a cause of action founded upon negligence are:

1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

2. A failure on his part to conform to the standard required.

3. A reasonably close causal connection between the conduct and the resulting injury____

4. Actual loss or damage resulting to the interests of another.

Prosser, Law of Torts, § 30 at 143 (4th ed.1971).

Macina v. McAdams, 280 Pa.Super. 115, 120, 421 A.2d 432, 434 (1980). “[D]uty is a question of whether a defendant is under any obligation for the benefit of the particular plaintiffs, and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of apparent risk.” Prosser, Law of Torts, § 53 at 970 (4th ed.1971). Our inquiry thus becomes whether the appellees had a duty to protect Lisa R. Casey from the intentional criminal acts of a third party. While a municipality is under a duty to exercise reasonable care under all the circumstances, we reiterate that it is not an insurer of the safety of children at public parks. Cooper, supra. See also Zeman v. Borough of Canonsburg, 423 Pa. 450, 223 A.2d 728 (1966). For instance, had Lisa R. Casey been injured while swimming at a public pool because the Borough provided no lifeguard at the pool, the Borough would be liable because it had a duty to exercise reasonable care. DeSimone v. Philadelphia, 380 Pa. 137, 110 A.2d 431 (1955). Under the present facts, however, appellants’ claim falls short because no such duty exists.⁶

Like the lower court, we find the case of Chapman v. City of Philadelphia, 290 Pa.Super. 281, 434 A.2d 753 (1981) to be controlling here. In Chapman, this Court upheld the trial court’s dismissal of a wife’s lawsuit against the city alleging a negligent breach of duty to protect citizens after her husband died from injuries sustained during an attack and robbery by three men on the platform of the city railroad station. The Chapman Court held that:

The duty of the City of Philadelphia to provide police protection is a public one which may not be claimed by an individual unless a special relationship exists between the city and the individual. Berlin v. Drexel University, 10 Pa.D. & C.3d 319 (1979); 46 A.L.R.3d 1084. A special relationship is generally found to exist only in cases in which an individual is exposed to a special danger and the authorities have undertaken the responsibility to provide adequate protection for him. Berlin v. Drexel, supra; 46 A.L.R.3d 1084.

Id., 290 Pa.Superior Ct. at 283, 434 A.2d at 754. See Melendez by Melendez v. City of Philadelphia, 320 Pa.Super. 59, 466 A.2d 1060 (1983) (city not liable for failing to protect minor injured in racially troubled neighborhood; no special relationship existed); Morris v. Musser, 84 Pa. Commw. 170, 478 A.2d 937 (1984) (plaintiffs’ complaint alleging inadequate police protection failed to set forth facts necessary to establish a special relationship with the police).

The Chapman Court went on to state:

In her memorandum of law filed with her answer to the city’s preliminary objections, plaintiff indicated that her action against the City of Philadelphia was predicated on the fact that the city was aware that the Wayne Junction Railroad Station was a particularly dangerous area but that it did nothing about it. It is clear that such proof would not be sufficient to state a cause of action because it does not establish that a special relationship existed between the city and the plaintiff’s decedent. In their appellate brief, appellants urge us to find that a special relationship exists between the city and any individual who is injured in a particularly dangerous area. We decline to do so.

Appellants urge this court to proclaim a sweeping duty of protection in the law of tort, far beyond anything any court or indeed our own State legislatures has been willing to recognize.

Id. 290 Pa.Super. at 285, 434 A.2d at 755. We find the above language persuasive in its application to the facts before us.⁷

Appellants rely on several cases where municipalities were found liable for injuries to children in public parks. Our careful review of these cases discloses that none of them dealt with injuries caused by the criminal acts of third persons. See Cooper v. Pittsburgh, supra, DeSimone v. Philadelphia, supra; Styer v. City of Reading, supra; Hill v. Allentown Housing Authority, 373 Pa. 92, 95 A.2d 519 (1953).⁸

Courts have recognized that where there is a special relationship between the victim and the police, there may follow some duty to provide police protection. See Miller v. United States, 530 F.Supp. 611 (E.D.Pa.1982) (police agreed to protect an informant). A leading case on the special relationship is DeLong v. Erie County, 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (1983), in which the New York Court of Appeals held that the actions of a city and county in holding out a 911 telephone number to be called by someone in need of emergency assistance constitutes a duty. Emphasizing the plaintiffs reliance on the actions of the city and county in holding out the number as well as the plaintiffs further reliance on the assurance that help was on its way, the DeLong Court found that the police created a special relationship with particular members of the public by establishing the 911 emergency number. Once this relationship was created between the caller and the police, a special duty arose which made the government accountable for negligence in the performance of that duty. DeLong v. Erie County, supra. See Note, 22 Duq.L.Rev. 299 (1983). See also Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534 (1958) (city deemed to have undertaken a special duty to protect a police informant whose life had been threatened); Yearwood v. Town of Brighton, 101 A.D.2d 498, 475 N.Y.S.2d 958 (1984) (municipality cannot be held liable for negligence in the investigation of a domestic quarrel unless a special relationship exists between the municipality and the injured party); Ammirati v. New York City Transit Authority, 117 Misc.2d 213, 457 N.Y.S.2d 738 (Sup.Ct. Kings Co.1983) (claim against Transit Authority alleging a failure to prevent or protect a passenger from injury by a thrown rock was dismissed; no special duty existed).

Applying the rationale of the above cases to the present matter, it becomes unequivocabiy clear that no special relationship existed between Lisa R. Casey and the Borough of Camp Hill. In the instant case, the Borough should not be held to a higher standard of care since it did not undertake any obligation to provide a greater degree of protection.

Appellants nevertheless contend that because a prior rape had occurred some months before the instant attack,⁹ the criminal act was not a superseding cause of appellees’ negligence, but rather its proximate result, and they cite the Restatement (Second) of Torts § 448¹⁰ in support thereof. However, we find appellants’ reliance on section 448 to be misplaced since that section is only relevant to the question of causation in a negligence action and does not determine whether appellees owed a duty of care to the appellant, Lisa R. Casey.

Finally, we wish to point out that our decision, like this Court’s decision in Chapman, is supported by sound policy considerations. If the standard of supervision and care adopted by the dissent were implemented, it is questionable how long any municipality could maintain its parks, playgrounds and swimming pools. Due to the cost of increased insurance premiums and added police protection, municipalities will lack the necessary funds to provide recreational services. The end result is that the welfare of the public at large will suffer. We, therefore, decline to stretch the concept of duty beyond its limits to reach such an unreasonable and illogical result. While we sympathize with the appellant, Lisa R. Casey, who no doubt was subjected to a horrible experience, we must refrain from judicial innovation which would allocate the limited resources of municipalities in a manner contrary to the public interest.

Accordingly, the Order sustaining appellees’ preliminary objections in the nature of a demurrer and dismissing appellants’ amended complaint is affirmed.¹¹

Order affirmed.

HOFFMAN, J., files a dissenting opinion.

1 . Although the docket sheet indicates that the complaint was filed on August 10, this is error because the complaint is stamped September 10.

2 . Act of November 26, 1978, P.L. 1399, as amended, 53 P.S. §§ 5311.101-.803, repealed by the Act of October 5, 1980, P.L. 693, now codified in sections 8541-64 of the Judicial Code, 42 Pa.C.S.A. §§ 8541-64. “Because the incident which gave rise to the cause of action herein occurred prior to its repeal, the Political Subdivision Tort Claims Act is controlling for the purposes of this case.” Close v. Voorhees, 67 Pa.Commw. 205, 208 n. 5, 446 A.2d 728, 730 n. 5 (1982).

3 . Local agencies are government units, such as appellee Borough of Camp Hill, other than the Commonwealth government. See 42 Pa.C. S.A. § 8501.

4 . Liability of appellee Janssen is governed by 42 Pa.C.S.A. § 8545:

An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter.

Further, employees also have the benefit of the defenses enumerated in § 8546.

5 . The eight acts which may impose liability on the local agency are: (1) motor vehicle liability; (2) care, custody or control of personal property; (3) care, custody or control of real property; (4) a dangerous condition of trees, traffic controls and street lighting; (5) a dangerous condition of utility service facilities; (6) a dangerous condition of streets; (7) a dangerous condition of sidewalks; and (8) care, custody or control of animals. 42 Pa.C.S.A. § 8542(b).

6 . The gravamen of the appellant’s complaint is an attack on the governmental discretion to allocate police and other security resources rather than the articulation of a specific duty owed to the injured party. This type of claim seems to be filed by victims of crime with increasing frequency today. As there is no indication that the courts of this Commonwealth are considering adopting a broader concept of duty in this area, most of this litigation is wasteful and counterproductive.

7 . Appellants argue that Lisa R. Casey was an invitee on public property and therefore the Borough owed her a special duty. However, in Chapman, the plaintiff was also an invitee at the public train station; nevertheless, this Court found no special duty on the part of the municipality.

8 . Other jurisdictions have refused to find liability under similar circumstances. See, e.g., Prickett v. Hillsboro, 323 IlI.App. 235, 55 N.E.2d 306 (1944) (no liability on behalf of municipality for death of young boy shot by a third party while swimming in a lake on municipal property despite fact that police knew of dangerous propensities of third party); Trujillo v. City of Albuquerque, 93 N.M. 564, 603 P.2d 303 (1979) (municipality not liable for failure to provide police protection in shotgun killing of decedent in public park where there was no direct relationship or contact between victim and police such as to create a special duty). See generally, Annot., 46 A.L.R.3d 1084 (1972).

9 . Appellees dispute appellants’ characterization of the previous rape as occurring "only months before.” (Appellants’ Amended Complaint at 11). Appellees' aver that the “alleged assault was reported June 19, 1976.” (Appellees’ Answer to Appellants’ Interrogatories, Interrogatory 15). As we have noted, however, in ruling upon a demurrer, we must accept as true appellants’ allegations of fact.

10 . The Restatement (Second) of Torts § 448 provides:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

11 . There is no issue of Commonwealth Court jurisdiction in this case, as the law applicable is that under 42 Pa.C.S.A. § 762(a)(7), "Immunity waiver matters. — Matters in which immunity has been waived pursuant to Subchapter C of Chapter 85 (relating to actions against local parties)”, which was amended 1982, Dec. 20, P.L.1409, No. 326 art. II, § 201, effective in 60 days which amendment, in (a)(7) substituted "conducted” for "in which immunity has been waived.” The incident here occurred before the effective date of the amendment, which is not retroactive, and since immunity was not waived, appeal to Commonwealth Court did not lie.