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SHARYN L. BORGEN v. FORT PITT MUSEUM ASSOCIATES (06/13/84)

decided: June 13, 1984.

SHARYN L. BORGEN
v.
FORT PITT MUSEUM ASSOCIATES, INC., A CORPORATION AND KEYSTONE FIREWORKS MFG. CO., INC. AND CITY OF PITTSBURGH AND COMMONWEALTH OF PENNSYLVANIA. COMMONWEALTH OF PENNSYLVANIA, APPELLANT. LOUIS G. ROYSTON, JR., V. FORT PITT MUSEUM ASSOCIATES, INC., A CORPORATION, AND KEYSTONE FIREWORKS MANUFACTURING CO., INC., A CORP. AND CITY OF PITTSBURGH AND COMMONWEALTH OF PENNSYLVANIA. COMMONWEALTH OF PENNSYLVANIA, APPELLANT. MARGARET A. SCOTT V. FORT PITT MUSEUM ASSOCIATES, INC. A CORPORATION AND KEYSTONE FIREWORKS MFG. CO. INC., A CORP. AND CITY OF PITTSBURGH AND COMMONWEALTH OF PENNSYLVANIA. COMMONWEALTH OF PENNSYLVANIA, APPELLANT



Appeals from the Order of the Court of Common Pleas of Allegheny County in the cases of Margaret A. Scott v. Fort Pitt Museum Associates, Inc., a corporation v. Keystone Fireworks Mfg. Co., Inc. and City of Pittsburgh v. Commonwealth of Pennsylvania, No. G.D. 81-34327; Louis G. Royston, Jr. v. Fort Pitt Museum Associates, Inc., a corporation, and Keystone Fireworks Mfg. Co., Inc., a corporation v. City of Pittsburgh v. Commonwealth of Pennsylvania, No. G.D. 82-2985, and Sharyn L. Borgen v. Fort Pitt Museum Associates, Inc., a corporation v. Keystone Fireworks Mfg. Co., Inc. and City of Pittsburgh v. Commonwealth of Pennsylvania, No. 844-83.

COUNSEL

Frank J. Micale, Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellant.

No appearance for appellees.

Judges Roger, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Rogers. Dissenting Opinion by Judge Palladino.

Author: Rogers

[ 83 Pa. Commw. Page 209]

Three trespass actions were commenced in the Court of Common Pleas of Allegheny County against Fort Pitt Museum Associates, Inc. (Fort Pitt) by persons claiming injuries as a result of an explosion of a ceremonial cannon fired by the Royal American Regiment at Point State Park in Pittsburgh on August 9, 1981. The plaintiffs allege that Fort Pitt created and sponsored the Royal American Regiment whose careless firing of the cannon caused their injuries.

Fort Pitt joined the City of Pittsburgh as an additional defendant in each action alleging that the city was in possession of, and had care, custody and control of the park pursuant to an agreement with the Commonwealth of Pennsylvania.

The City joined the Commonwealth in each action as an additional defendant alleging in its third party complaint that the plaintiffs' injuries were the result of the Commonwealth's failure to safely maintain the park or control the activities of the original defendant.

The Commonwealth in each action filed an answer and new matter denying that it had sole ownership, possession, custody and control of the park and raising the defense of sovereign immunity.

After all of the pleadings seemed to have been filed, the Commonwealth filed motions to amend its answers and new matter in each action by interposing a defense based on the Recreation Use of Land and

[ 83 Pa. Commw. Page 210]

Water Act, Act of February 2, 1966, P.L. 1860, 68 P.S. ยง 477-1, which provides that an owner of land owes no duty to keep his property safely for the use of others for recreation purpose or to warn them of dangerous conditions. One of the plaintiffs opposed the amendment. The court of common pleas by opinion and order denied the Commonwealth's motion to amend its answer and new matter on the ground that the Act just cited did not afford the Commonwealth a valid defense. The Commonwealth has appealed from the court's order.*fn1

The Commonwealth argues that the court acted prematurely in deciding the merits of the issue of the validity of its assertion of a defense based on the Act of 1966 on the occasion of its motions to amend; it contends that the court should have allowed the amendment and decided the question of whether the defense could be interposed at the trial.

In Posternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966), the Supreme Court held that a trial court erred by denying a motion to amend an answer to raise the defense of res judicata. The Supreme Court stated that:

It has long been the law in this Commonwealth that an amendment to the pleadings is a matter of judicial discretion. . . . By the same token, it is equally well established that such amendments should be liberally allowed except where surprise or prejudice to the other party ...


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