The opinion
STATON, Judge,
dissenting.
I dissent. Only allegations of conduct which would amount to a waiver of the 180 day statutory notice or which would amount to an estoppel of asserting the notice defense could negate the rationale of Judge Lowdermilk in Delaware Co. v. Powell (1979), Ind., 382 N.E.2d 958 . Justice Pivarnik, writing for the Supreme Court in Delaware Co. v. Powell (1979), Ind., 393 N.E.2d 190 , clearly delineated the rationale for transfer being granted:
“When acts and conduct of the defendant or his agents have established that the purposes of the statute have been satisfied, these acts and conduct could constitute a waiver of notice or create an estop-pel.”
393 N.E.2d at 192 . Justice Pivarnik further noted that:
“The Court of Appeals decision was based on their conclusion that the notice requirement is a procedural precedent and that ‘a procedural precedent, once “properly placed in issue, cannot be subject to estoppel or waived as a result of prior actions of the defendant or its agents.’ ”
393 N.E.2d at 191 . Therefore, summary judgment should not be granted where material, genuine issues of fact remain as to substantial compliance with the statutory notice.
In the case before us, Burks has not alleged any facts which would constitute waiver of substantial compliance with notice or has he alleged any facts which would constitute an estoppel. Without these allegations, it is my view that IC 34-4-16.5-5(a) clearly applies and that the trial court’s judgment should be affirmed. The majority’s reliance upon Geyer v. City of Logans- *152 port (1977), Ind., 370 N.E.2d 333 , 337 is misplaced. The plaintiff’s action in Geyer, supra, was filed prior to the enactment of IC 34 — 4-16.5-5(a) and would have little bearing on the issue before this Court. I would affirm the judgment of the trial court.