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PAULA M. DAVIDOW AND GERALD DAVIDOW v. BARRY ANDERSON ET AL. (06/06/84)

decided: June 6, 1984.

PAULA M. DAVIDOW AND GERALD DAVIDOW, APPELLANTS
v.
BARRY ANDERSON ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Paula M. Davidow and Gerald Davidow v. Barry Anderson, Century Boat Company, a corporation, and Pennsylvania Fish Commission v. Gerald Davidow and C.H.W. Products, Inc., No. GD 80-01787.

COUNSEL

Paul E. Moses, Evans, Ivory & Evans, P.C., for appellants.

Brian H. Baxter, Deputy Attorney General, with him, Herbert L. Olivieri, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellees.

Judges MacPhail, Barry and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 83 Pa. Commw. Page 87]

Paula M. Davidow and Gerald Davidow, appellants, appeal here an order of the Court of Common Pleas of Allegheny County which granted a compulsory non-suit in favor of the Pennsylvania Fish Commission (Commission).

On September 3, 1979, a motor boat collision occurred on Raystown Lake in Huntington County between boats that were owned and operated by Gerald Davidow and Barry Anderson. Paula Davidow, who was a passenger in the Davidow boat at the time of the collision, suffered serious injuries. The Davidows,

[ 83 Pa. Commw. Page 88]

    consequently, sued the Commission, Anderson, and other defendants, who need not be mentioned in this opinion, in actions predicated upon negligence and strict liability. At the time of the accident, the Commission, pursuant to a Memorandum of Understanding executed between it and the United States Army Engineer District (Corps of Engineers), was responsible for, inter alia, enforcing the boating rules and regulations on Raystown Lake, which was built and owned by the federal government. At the conclusion of the plaintiffs' case, a compulsory non-suit was granted for the Commission, and, after a motion for removal of the compulsory non-suit was denied, the instant appeal ensued.

At trial, the Davidows contended that the Commission failed to maintain danger buoys in the vicinity of the accident. In granting the compulsory non-suit, however, the trial court concluded that, even if the Commission failed as alleged, this did not bring it within any of the enumerated sovereign immunity exceptions found in 42 Pa. C.S. § 8522(b), and ruled, therefore, that the Commission was immune from any potential liability.

42 Pa. C.S. § 8522(b) provides, in part, as follows:

(b) Acts which may impose liability. -- The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity ...


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