*408Dissenting Opinion by
Jacobs, J.:I must dissent.
This appeal raises the question of whether the preliminary objections of defendant-appellee Downingtown School District were properly sustained, and the plaintiff’s complaint as to that defendant dismissed, on the ground that the school district was immune from liability when acting within its legitimate governmental functions. I would hold that the preliminary objections were improperly sustained and would therefore reverse the order below.
According to appellant’s complaint, the minor plaintiff, William B. Cooper, sustained serious injuries resulting in blindness due to a fall on ice in the school yard in December, 1966. At that time, Pennsylvania espoused the doctrine of governmental immunity and school districts were considered immune from suit. See, e.g., Dillon v. York City School District, 422 Pa. 103, 220 A.2d 896 (1966) (minor plaintiff, injured in fall on icy steps on school grounds, denied recovery on basis of governmental immunity); Shields v. Pittsburgh School District, 408 Pa. 388, 184 A.2d 240 (1962) (school district not liable for injury to child in school yard, resulting in loss of vision, due to governmental immunity). On May 23, 1973, the Supreme Court of Pennsylvania abolished the doctrine of governmental immunity in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), overruling its prior decisions to the contrary. The plaintiff’s complaint was filed on June 10, 1974, to which the defendant Downingtown School District raised preliminary objections in the nature of a demurrer, claiming that there was “no basis under the applicable law existing at the time the alleged cause of action arose and during the statutory period of limitations for imposing liability on a school district acting within the scope of its legitimate governmental functions.” These preliminary objections were sustained and the complaint as to *409the school district dismissed, by an order of the lower court, without an opinion.
The new law in respect to governmental immunity announced in Ayala was held to be applicable to cases pending or on appeal at the time of its pronouncement, even though the incidents giving rise to the cause of action occurred prior to the decision in Ayala. Snyder v. Shamokin Area School District, 226 Pa. Superior Ct. 369, 311 A.2d 658 (1973).1 Thus it is clear that Ayala is certainly to be applied to those cases initially brought subsequent to its holding. We cannot, therefore, approve the lower court’s dismissal of the present action on the ground of governmental immunity.
Appellee school district both in its brief and in oral argument, strenuously presses the additional contention that Ayala is not to be applied to those cases in which the cause of action arose sufficiently prior to Ayala to be barred by the statute of limitations. If the claim is indeed barred by the statute of limitations, this issue would be properly raised as an affirmative defense and pleaded under “New Matter” in the defendant’s answer. Pa.R.C.P. 1030.2 “Since each of appellee’s defenses are waivable, *410Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1965) (statute of frauds), and Leister v. Miller, 376 Pa. 452, 103 A.2d 656 (1954) (statute of limitations)', these defenses may be raised only by new matter in a defendant’s answer.” (Emphasis original). Royal Oil & Gas Corp. v. Tunnelton Mining Co., 444 Pa. 105, 109, 282 A.2d 384, 386 (1971). Here, the only pleading filed by the appellee was the preliminary objection. Therefore, it is my opinion that the question, of the statute of limitations is not properly before this Court, nor was it properly before the lower court. Appellee’s preliminary objections should not be sustained, and the order should be reversed.
Cercone and Spaeth, JJ., join in this dissenting opinion.
. In Snyder v. Shamokin Area School District, 226 Pa. Superior Ct. 369, 311 A.2d 658 (1973), it is noted that the Supreme Court applied its holding in Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965), abolishing the doctrine of charitable immunity, to a case on appeal despite the fact that the cause of action arose more than two years prior to Flagiello. See Nolan v. Tifereth Israel Synagogue, 425 Pa. 106, 227 A.2d 675 (1967).
. Pa.R.C.P. 1017, relating to preliminary objections, provides: “Preliminary objections are available to any party and are limited to
“ (4) a demurrer, which may include the bar of a non-waivable statute of limitations or frauds which bars or destroys the right of action. . . .”
Where the statute of limitations is a waivable defense, it is to be pleaded under “New Matter” as set forth by Pa.R.C.P. 1030. *410In personal injury actions, such as the one at bar, the statute of limitations constitutes only a procedural bar to the remedy and not to the cause of action itself. Goldstein v. Stadler, 417 Pa. 589, 208 A.2d 850 (1965) ; Echon v. Pennsylvania R.R. Co., 365 Pa. 529, 76 A.2d 175 (1950). Therefore it is a waivable defense. Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969). “It is not a defense absolute which will be taken notice of by the court nor may it be raised by preliminary objection.” Sykes v. Southeastern Pa. Transp. Authority, 225 Pa. Superior Ct. 69, 73, 310 A.2d 277, 280 (1973).