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decided: September 7, 1984.


Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Christine Ehehalt, Individually and as Executrix of the Estate of Caron N. Ehehalt, deceased v. Nyari O'Dette, Inc., and Commonwealth of Pennsylvania, Department of Environmental Resources, Bureau of State Parks, No. 78-2361.


Diane S. Hudachek, Deputy Attorney General, with her, LeRoy S. Zimmerman, Attorney General, for appellant.

Stewart L. Cohen, Meltzer & Schiffrin, for appellee, Christine Ehehalt, individually and as Executrix of the Estate of Caron N. Ehehalt, Deceased.

James D. Hilly, LaBrum and Doak, for appellee, Nyari O'Dette, Inc.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Colins, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 85 Pa. Commw. Page 95]

Department of Environmental Resources, Bureau of State Parks (Commonwealth) appeals a Bucks County Common Pleas Court order denying post-trial motions. We affirm.

In May, 1977, decedent Caron Ehehalt drove his automobile up a tow path*fn1 and over the edge of a Delaware Canal lock in Roosevelt State Park.*fn2 Ehehalt's wife filed wrongful death and survival act complaints*fn3 against the Commonwealth which owned the land at the scene of the incident and against Nyari O'Dette,

[ 85 Pa. Commw. Page 96]

Inc.,*fn4 the operator of the restaurant and parking lot where Ehehalt had been a patron prior to this happening.*fn5

At trial, the jury allocated the negligence percentages as follows: 20% for O'Dette; 70% for the Commonwealth; and 10% for Ehehalt under the Pennsylvania Comparative Negligence Act, as amended, 42 Pa. C.S. § 7102. It then assessed wrongful death damages at $550,000 and survival act damages act $500,000. The trial judge reduced the award to reflect Ehehalt's causal negligence and, after assessing delay damages pursuant to Pa. R.C.P. No. 238,*fn6 wrongful death act damages then totaled $614,532.41 and survival act damages totaled $558,677.18.*fn7 The Commonwealth filed post-trial motions (1) for judgment notwithstanding the verdict (judgment n.o.v.) in its favor and (2) to reduce the verdict to not exceed $250,000.

The Commonwealth contends first that the trial judge erred as a matter of law when he refused to direct a verdict, charge on, and/or grant the Commonwealth

[ 85 Pa. Commw. Page 97]

    a judgment n.o.v. as directed by the provisions of the Recreational Use of Land and Water Act.*fn8 "The purpose of this act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." Section 1 of the Act, 68 P.S. § 477-1. The trial court properly held that the Act should not be construed to grant immunity to government agencies which, of course, includes the Commonwealth. It adopted the rationale declared in Hahn v. Commonwealth, 18 Pa. D. & C. 3d 260 (1980), and Watterson v. Commonwealth, 18 Pa. D. & C. 3d 276 (1980), both of which held that the Commonwealth was not an "owner" for the purposes of the Act. While the Act is silent as to whether the term "owners" means private owners, it is clear that the Commonwealth was immune from liability under pre- Mayle case law.*fn9 The Commonwealth's parks and recreational facilities by definition are available for public use. Thus, it is clear that it need not be encouraged to make land available.*fn10 See Borgen v. Fort Page 98} Pitt Museum Associates, 83 Pa. Commonwealth Ct. 207, 477 A.2d 36 (1984).

The record adduced no evidence that Ehehalt entered the Roosevelt State Park premises for recreation.*fn11 The trial court reasonably concluded that Ehehalt, a patron of O'Dette's, being a stranger to the area, mistakenly entered the canal lock area. The danger of such a course was insufficiently posted to warn him that misdirection would lead to inevitable disaster.

The Commonwealth argues that judgment n.o.v. must be entered because of the indemnity clause*fn12 in the lease agreement between it and O'Dette or, in the alternative, that a new trial must be granted because the trial court failed to instruct the jury on the pertinence of the indemnity issue. We hold that the indemnity clause does not apply. "[T]he parties' intent to have their indemnity contract apply to a loss caused by the indemnitee's own negligence must be expressed in clear and unequivocal language." Urban Redevelopment Authority v. Noralco Corp., 281 Pa. Superior Ct. 466, 474, 422 A.2d 563, 567 (1980). If the contractual language is not explicit on the liability for

[ 85 Pa. Commw. Page 99]

    losses caused by the indemnitee's negligence, the Court will consider the surrounding circumstances and the parties' contractual intent. Noralco Corp., 281 Pa. Superior Ct. at 474, 422 A.2d at 565. The loss did not result by virtue of the use and occupation of the O'Dette premises. It occurred in the park (the canal). It cannot be seriously contended that the terms of the agreement applied. Unlike the Noralco case, the indemnitor, O'Dette, did not have exclusive possession and control of the premises at the time of the accident. Our careful review of this record justifies the 70% negligence assessment against the Commonwealth because the Commonwealth failed to properly warn, maintain or supervise the park canal area.

The Commonwealth finally seeks to restrict the verdict to the $250,000 limitation imposed by Act 142 and to remove the delay damages awarded under the authority of Pa. R.C.P. No. 238. The Commonwealth argues that Act 142*fn13 should be applied retrospectively because the damage limitation in the Act is "procedural" and is not "substantive." We disagree. We disposed of these issues recently in Commonwealth v. Twentier, 76 Pa. Commonwealth Ct. 537, 464 A.2d 642 (1983), appeal denied, No. 250 W. D. Allocatur Docket 1983 (April 30, 1984). In Twentier, we held that causes of actions arising prior to the effective date of Act 152 (presently Act 142) are not subject to the $250,000 damage limitation provision. We held also that the assessment of delay damages against the Commonwealth pursuant to Pa. R.C.P. No. 238 is constitutional.

[ 85 Pa. Commw. Page 100]

The Bucks County Common Pleas Court properly denied the Commonwealth's post-trial motions.*fn14



The order of the Bucks County Common Pleas Court dated April 14, 1983 at No. 78-2361, is affirmed.



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