Goodson v. Racine, 61 Wis.2d 554, 213 N.W.2d 16 (1973) as indicating that the Commonwealth is not an owner within 68 P.S. § 477-2(2). After examining the purposes of the Wisconsin and the Pennsylvania Acts, the Common Pleas Court concluded that the Wisconsin case does not support the Hahns' position. However, the Court questioned whether the Pennsylvania legislature intended to confer upon the Commonwealth a redundant immunity since at the time of the passage of the Recreation Use of Land and Water Act, the Commonwealth already possessed sovereign immunity. As a result, the Court concluded that the Recreation Use of Land and Water Act did not apply to the Commonwealth. As an alternate ground, the Centre County Court of Common Pleas discussed 68 P.S. § 477-6(1) which as noted previously provides that the limited liability of the Recreation Act does not apply to wilful or malicious failure to guard or warn against a dangerous condition, use, or structure or activity. The Court's construction of this provision of the Act prevented the Commonwealth from using the Recreation Use of Land and Water Act, even assuming that it were available to the Commonwealth as an "owner" of property. Because the parties in the above-captioned case have entered into a stipulation such that the provisions of 68 P.S. § 477-6(1) could not possibly apply, the Court need not evaluate the reasoning of the Centre County court with regard to that section.
The United States is normally immune from suit except as it consents to be sued and the terms of such consent to be sued define a court's jurisdiction to entertain an action. See Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1230-31 (3d Cir.) cert. denied, 429 U.S. 857, 97 S. Ct. 156, 50 L. Ed. 2d 135 (1976). Unlike the Commonwealth of Pennsylvania, the United States had waived its sovereign immunity to some extent at the time of the Recreation Use of Land and Water Act was passed. 28 U.S.C. § 2674 provided then, as it does now, that the United States is liable with respect to tort claims in the same manner and to the same extent as a private individual would be under like circumstances. Clearly, the provisions of the Recreation Use of Land and Water Act are available to a private individual. It is the Court's view that it thus must be available to the United States. Because the Court has concluded as noted above that no exception to the Act makes the United States liable, the motion for summary judgment will be granted.
A motion to dismiss has also been filed by the United States on the grounds that the Plaintiffs have failed to comply with pre-trial proceedings required by the Court's practice order. The Commonwealth of Pennsylvania has filed a motion to dismiss the third party complaint. Given the Court's decision on the motion for summary judgment, there is no need to reach the additional motions nor will the Court reach the issues raised in Plaintiffs' brief of April 28, 1980 dealing with the Court's jurisdiction over Hahn's "new claims." Because the Court's order of April 10, 1980 dismissed Count II of the amended complaint which contained the claim of Shirley P. Hahn, no additional order dealing with Mrs. Hahn's claims is necessary. The motion for summary judgment filed by the United States against Mervin E. Hahn will be granted and the Court will direct the entry of judgment in favor of the United States.
The Court will also correct an error in citation contained in the Court's order of May 2, 1980.
NOW, THEREFORE, IT IS ORDERED THAT:
1. The United States' motion for summary judgment is granted.
2. The Clerk of Court shall enter judgment in favor of the United States against the Plaintiff Mervin Hahn.
3. The Court's order of May 2, 1980 is amended such that the number 58 on page 1 line 8 is deleted and the number 68 is substituted therefor.
4. The Clerk of Court shall close the file in the above-captioned case.
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