Opinion by President
Bеfore us are several complex appeals by a variety of individuals and a corporate petitioner whose property interests have been adversely affected by an extensive fire on September 8, 1978.
The Citizens Fire Company # 1 of Palmyra was summoned on that date to fight a fire in a building owned by Edward Zern. The fire had started in the kitchen of a restaurant located therein, which was operated by Charles Muldoon. When the firefighters arrived on the scene, they observed flames in the exhaust system of the kitchen area. The fire chief went to the basement and turned off the electricity, disengaging the exhaust system. Other firefighters climbed to the roof and attempted to fight the fire through a vent. These and other efforts failed. The building suffered extensive damage and was subsequently razed.
Eight separate lawsuits were subsequently filed in Lebanon County Common Pleas Court in which the Plaintiffs, the majority of whom were other tenants in the building, sought to recover damages from Muldoon and/or Zern. Muldoon in turn joined the fire company as an additional defendant in each suit. The fire company filed motions for summary judgment in which it sought that the actions be dismissed as to it because (1) the joinders of the fire company were prohibited by 42 Pa. C. S. §5522 for failure to give the statutorily required six months notice of a claim and (2) the suits against it were barred by governmental immunity. 1
*263 In Nos. 79 T.D. 1983 through 85 T.D. 1983, the trial court granted summary judgment in favor of the fire company, concluding as a matter of law that volunteer fire companies were entitled to thе common law defense of governmental immunity. In No. 86 T.D. 1983, it granted summary judgment in favor of the fire company, finding that the fire company was entitled to the six-month notice of claim against a government unit as provided in 42 Pa. C. S. §5522 and suggesting also that it would grant the motion on the grounds of governmental immunity.
Our scope of review of a trial court order granting summary judgment is limited to whether an error of lаw was committed or whether the trial court abused its discretion.
Nordmann v. Commonwealth,
To decide these appeals, we must define the legal relationship between volunteer fire companies and the local municipalities they serve. In pursuit thereof, we will first examine the origin and development of volunteer fire companies in this Commonwealth.
History of Firefighting in this Commonwealth
An early, exhaustive recitatiоn of the history of firefighting in the City of Philadelphia is found in
Harmony Fire Co. v. Trustees of the Fire Association,
These volunteer companies effectively replaced the City’s early efforts to combat fires and, in 1811, the City, recognizing their contribution, began appropriating monies to the companies. The divergent companies then combined to form the “Fire Association of Philadelphia,” which administratively governed disputes among the member companies and regulated their financial and equipment requirements.
The City of Philadelphia, pursuant to Section 42 of the Act Incorporating the City of Philadelphia, 2 in 1855 assumed total responsibility for fire prevention and cоntrol of volunteer fire companies by establishing and funding its Fire Department. Its officers consisted of a chief engineer, his seven assistants, and a secretary, all of whom were salaried. These officers were responsible to the City Administration for the organization and control of the volunteer fire companies which, having met certain equipment standards, were assigned fire duty in specific geographic areas. The volunteer companies, which still performed the actual firefighting duties, were funded by a conglomerate of interests viz. the City, insurance companies, businessmen, property owners, and the actual firefighters.
On March 15, 1871, following numerous hostile clashes among volunteer fire companies over territorial *265 jurisdictiоn, equipment need and even political differences, the City enacted a resolution which established a permanent fully funded fire department.
Although this marked the demise of the volunteer force in Philadelphia, volunteer fire companies still maintain a strong presence to this day throughout this Commonwealth. Many of these volunteer fire companies are suрported by the statutorily created relief associations, 3 which control the economic and social agenda of the companies.
The unique structural development of these volunteer fire companies presented difficult questions of law respecting funding and liability for damages caused by the discharge of their duties.
Early Funding of Volunteer Fire Companies
To enable the City of Philadelphia to fund its newly formed fire department, foreign fire insurance companies 4 operating in that city were required by the Act of May 7, 1857, P.L. 423, to pay two percent of their annual premiums received to the Philadelphia Association for the Relief of Disabled Firemen, a state-created association 5 which aided disabled firemen, their families and persons injured by firе apparatus.
In
Philadelphia Association for Relief of Disabled Firemen v. Wood,
This is an association for charitable purposes, it is true, but still it is strictly a private corporation. No public officer has any official knowledge of its existence, or of its members, organization, or acts. It renders no account of its proceedings or of its funds. It is a close corporation, fixing its own tеrms of membership, and changing its organization but not its object, as it pleases.
Id. at 82.
The legislature, in 1895, enacted a similar tax on foreign fire insurance companies. Act of June 28, 1895, P.L. 408. The tax upon gross premiums was paid to the State Treasurer who distributed the funds to the treasurers of political subdivisions. It appears that the funds were often used by municipalities to aid volunteer firefighters and their relief associations. In
Commonwealth v.
Barker,
In permitting limited appropriations in Barker, Chief Justice Mitchell, writing for the Court, stated:
The objection that the ordinance is in violation of article IX, section 7, of the constitution prohibiting municipal appropriations for ‘any corporation, association, institution or individuаl’ is not tenable. The history and scope of that provision of the constitution are fully and clearly set forth in Com. ex rel. Police Pension Fund Assn. v. Walton,182 Pa. 373 , where it was said by the late Chief Justice Sterrett that ‘no strictly legitimate municipal purpose was intended to *267 be prohibited,’ and if councils were satisfied, as they doubtless were, that the distribution of the fund would be better effected thrоugh the agency of the association than by an agency of their own creation, they had a right to so provide.’ This language could not have been more appropriate to the case at bar if it had been written for it. The protection of the city from fire is a municipal function of the highest importance, and as said in the case just cited ‘a judiciously administered pension fund is doubtless a potent agency in securing the services of the most faithful and efficient class of men.’ At the time of the passage of the ordinance the city had no paid fire department and the appellant association was performing that part of the city’s municipal functions. The fact that it was doing so voluntarily did not make it any the less еligible for appointment as the city’s agent in that regard.
Barker
at 614,
Early Immunity of Fire Companies
The earliest decisions treating the issue of the liability of a volunteer fire company for damages caused by its negligence are found in
Boyd v. Insurance Patrol of Philadelphia,
However, Justice Paxson, writing for the Court, in addressing the status of volunteer fire companies, also indicated that they would be immune under the doctrine of governmental immunity:
Our conclusion is that the Fire Insurance Patrol of Philadelphia is a public charitable institution; that in the performance of its duties it is acting in aid and in ease of the municipal government in the preservation of life and property at fires. It remains to inquire whether the doctrine of respondeat superior applies to it. Upon this point we are free from doubt. It has been held in this state that the duty of extinguishing fires and saving property therefrom is a public duty, and the agent to whom such authority is delegated is a public agent and not liable for the negligence of its employees. This doctrine was affirmed by this court in Knight v. City of Philadelphia, 15 W.N. 307, where it was said: ‘We think the court did not commit any error in entering judgment for the defendant upon the demurrer. The members of the fire department are not such servants of the municipal corporation as to make it liable for their acts or negligence. Their duties are of a public character, and for a high order of public benefit. The feet that this act of assembly did not make it obligatory on the *269 city to organize a fire department, does not change the legal liability of the municipality for the conduct of the members of the organization. The same reason which exempts the city from liability for the acts of its policemen, applies with equal force to the acts of the firemen.’ And it would seem from this and other cases to make no difference as respects the legal liability, whether the organization performing such public service is a volunteer or not: Jewett v. New Haven,38 Conn. 379 ; Russell v. Men of Devon, 2 T.R. 672; Feoffees of Heriot’s Hospital v. Ross, 12 C.&F. 506; Riddle v. Proprietors,7 Mass. 187 ; McDonald v. Hospital,120 Mass. 432 ; Boyd v. Insurance Patrol,113 Pa. 269 . But I will not pursue this subject further, as there is another and higher ground uрon which our decision may be placed.
Boyd II
at 646-47,
Present Legislative Aid to Volunteer Fire Companies
The legislature has also continued to aid volunteer fire companies financially and functionally. A pertinent recitation of statutory assistance to volunteer fire companies is found in
Harmony Volunteer Fire Co. v. Pennsylvania Human Relations Commission,
Numerous legislative enactments further interweave the functioning of the government and the fire company. Several statutes provide the fire company with particular benefits and powers: volunteer firefighters may become special fire police with full power to regulate traffic, control crowds and exercise all other police powers necessary to facilitate the fire company’s *270 work at а fire or any other emergency; volunteer fire associations are exempt from vehicle title and registration fees; and fire companies are eligible for low interest state loans in order to purchase equipment. Other statutes also recognize the intimate relationship between a volunteer fire company and governmental entities; the bоrough is liable for the negligent operation of equipment by a volunteer firefighter responding to an emergency; an employer may not terminate a volunteer firefighter for missing work while responding to a fire call; firefighters are government employees under the workmen's compensation act; firefighter relief associations are entitled to receivе a two percent tax on all foreign fire insurance premiums; the borough may make regulations for fire safety and may make appropriations to volunteer fire companies; the state may regulate relief companies; and the fire station is exempt from property taxes.
(Footnotes omitted.)
Moreover, the legislature has solidified the existence of volunteer fire companies by decreeing that local volunteer fire companies may not be replaced by a paid firefighting force unless a majority of the voters in the local municipality vote by referendum in favor of the change. Act of June 13, 1955, P.L. 173, as amended, 53 P.S. §§3831-3834.
We draw from this plethora of statutory and judicial pronouncements an important conclusion—the history, structure, оrganization and public duty of volunteer fire companies distinguish them as an entity from any other organization in existence in this Commonwealth today.
*271 Issue
From this focus point, we now turn to the question of whether volunteer fire departments are entitled to immunity for damages arising from its actions.
Discussion
In
Radobersky v. Imperial Volunteer Fire Department,
As. to the defendants claims of immunity from liability for the torts of its servants, the learned court below conceded that the fire company was a charity (see Fire Insurance Patrol v. Boyd,120 Pa. 624 , 646-647,15 A. 553 ; also Humane Fire Company’s Appeal,88 Pa. 389 , 392; and Bethlehem Borough v. Perseverance Fire Co.,81 Pa. 445 , 457) and also an agency capable of performing a governmental function and, as such, was entitled to immunity from liability fоr torts committed by its servants while acting in furtherance of the defendant’s corporate purpose to ‘engage in the prevention and control and ex-tinguishment of fires in the town of Imperial, Pennsylvania, and in the surrounding vicinity.’
This conclusion is supported by a recognition that the functions and accomplishments of volunteer fire *272 departments affix to their continued existence a public, governmental character. The extensive statutory legislation which enhances and directs the organization of volunteer fire companies demonstrates an adoption by the Commonwealth and its citizеnry of the governmental characteristic of volunteer fire companies. The charitable emphasis in Boyd I and Boyd II has been replaced by the critical realization of the need for continued public protection from fire and the realization that a governmental duty can be capably performed by mostly volunteer organizations.
However, since the time
Radobersky
was decided, our Supreme Court, following the national trend, abolished the immunity doctrine as it applied to charitable organizations,
Flagiello v. Pennsylvania Hospital,
Although the legislature responded quickly to restore immunity, with certain specific exceptions to local municipalities 8 and to the sovereign, 9 the fire that destroyed Mr. Zerns building took place during the period between the judicial and legislative action, i.e., September 8, 1978.
*273 Therefore, wе are constrained to hold that the common pleas court erred in granting summary judgment in favor of the fire departments in Nos. 79 T.D. 1983 through 85 T.D. 1983 because at the time the fire occurred, the doctrine of governmental immunity was not in existence due to the judicial decision in Ayala, May 23, 1973, and had not yet been revived through the November 26, 1978 Political Subdivision Tort Claims Act.
We recognize the common pleas courts able attempt to distinguish Ayala and create an exception to protect volunteer fire companies during the void in the governmental immunity protection. We can, however, find no appellate decisions to support the exception.
Finally, the order of the common pleas court in No. 86 T.D. 1983 is reversed. The trial court held that the volunteer fire company was entitled to the six-month notice of claim against a government unit as found in 42 Pa. C. S. §5522. However, this notice provision was not effective until sixty days past its enactment, October 5, 1980. At the time the plaintiffs’ cause of action arose, September 8, 1978, the six-month statutory notice prerequisite to actions against governmental immunity applied only to injuries to individual persons, nоt property damage. Section 2 of the Act of July 9, 1976, P.L. 586, as amended, formerly 42 PS. §5522. 10
The common pleas court orders in Nos. 79 T.D. through 86 T.D. are reversed and these cases are remanded for further proceedings.
*274 Order
The Lebanon County Common Pleas Court orders at No. 2348 of 1979 dated June 8, 1983, and Nos. 3402 of 1978; 2373, 3273, 3274, 3275 and 3508 of 1979; and 2323 of 1980, dated June 9, 1983, are reversed. These cases are remanded for proceedings consistent with this opinion.
Jurisdiction relinquished.
Notes
The fire company also asserted that there were no genuine issues as to material fects present and that summary judgment be granted on this basis. The trial court disagreed and held that disputes as to certain fects existed and declined to grant summary judgment on this basis.
Act of February 2, 1854, P.L. 21, as amended, 53 P.S. §§16251—17096.
The Volunteer Firemens Relief Association Act, Act of June 11, 1968, P.L. 149, as amended, 53 P.S. §§8501—8508.
Foreign fire insurance comрanies are entities incorporated in other states or foreign countries who contracted business in this Commonwealth.
Act of March 25, 1835, P.L. 85.
A fire insurance patrol was an organization of men who acted with suitable apparatus to save and preserve life or property at or after a fire. The men could enter burning buildings, but were explicitly ordered not to interfere with firefighters.
In Flagiello, the Supreme Court expressly rejected the charitable immunity doctrine as established in Boyd I and Boyd 11.
See the former Political Subdivision Tort Claims Act of November 26, 1978, P.L. 1339, formerly 53 P.S. §§5311.101 —5311.803. The Tort Claims Act was replaced by the 1980 Immunity Act, specifically, 42 Pa. C. S. §§8541-8564.
See the former Sovereign Immunity Act, Act of September 28, 1978, P.L. 788, formerly 42 P.S. §§5110, 5111. The Sovereign Immunity Act was replaced by the 1980 Immunity Act, specifically, 42 Pa. C. S. §§8521—8528.
Section 2 of the Act of September 28, 1978, P.L. 788, as amended, formerly 42 P.S. §5522, amended the 1976 act to require notice of property damage to be filed within six months of the accident. The Act of October 5, 1980, P.L. 693, repealed both the 1976 and 1978 acts and enacted the present 42 Pa. C. S. §5522.