Appeal from the Order of the Court of Common Pleas of Washington County in case of Patty Jean Preteroti, Administratrix of the Estate of Sherri Lynn Preteroti, deceased v. Uniservice, Inc. and Commonwealth of Pennsylvania v. Margaret Novak, No. 137 July Term, 1978.
Stephen P. McCloskey, with him William D. Phillips, Phillips and Faldowski, for appellant.
J. Lawson Johnston, Deputy Attorney General, with him Herbert L. Olivieri, Chief, Torts Litigation Unit, and Edward G. Biester, Jr., Attorney General, for appellee.
Judges Crumlish, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr. President Judge Bowman and Judge DiSalle did not participate in the decision in this case. Concurring and Dissenting Opinion by Judge MacPhail.
This appeal is from an order of the Washington County Common Pleas Court sustaining preliminary
objections to Uniservice Corporation's cross claim in the nature of new matter. We affirm.
The question is whether the liability asserted falls within one of the eight enumerated instances in Section 5110 of the Judicial Code, 42 Pa. C.S. § 5110 (Act 152), as to which the legislature has granted limited waiver of immunity.
Accordingly, therefore, we focus on subsection (a)(4) of Section 5110, which reads:
(4) Commonwealth real estate, highways and sidewalks. -- Damages caused by a dangerous condition of Commonwealth real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of the Commonwealth and Commonwealth real property leased to private persons, and highways under the jurisdiction of Commonwealth agencies except as limited in paragraph (5).
Uniservice has averred that plaintiff-decedent drowned in a state-owned lake when she voluntarily left one of its rental boats for a swim in a prohibited area.*fn1 It avers further that the failure of the Commonwealth to properly police the area ...