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ANTHONY AURESTO v. COMMONWEALTH PENNSYLVANIA (04/03/85)

decided: April 3, 1985.

ANTHONY AURESTO, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND JOHN H. BITZER AND FRED HESSE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Pike County in case of Anthony Auresto v. Commonwealth of Pennsylvania, Department of Environmental Resources and John H. Bitzer and Fred Hesse, No. 106-1984.

COUNSEL

Edward R. Eidelman, Stamberg & Caplan, for appellant.

Victor P. Stabile, with him, Peter J. Kramer, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellees.

President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Judge Williams, Jr., did not participate in the decision in this case. Dissenting Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.

Author: Crumlish

[ 88 Pa. Commw. Page 477]

Anthony Auresto appeals a Pike County Common Pleas Court order granting the Department of Environmental

[ 88 Pa. Commw. Page 478]

Resources (DER) and John Bitzer's*fn1 preliminary objections in the nature of a demurrer.*fn2 We reverse and remand.

Auresto was injured, while riding his snowmobile on a frozen pond, when it struck a protruding tree stump which was concealed by snow. The pond is a designated snowmobile recreational facility owned by DER and maintained by Bitzer.

Auresto's sole contention is that the Commonwealth is not an "owner of land" under Section 3 of the Recreational Use of Land and Water Act (Act),*fn3 which relieves an "owner of land" of the duty to keep his premises safe for use by others for recreational purposes or to warn of dangerous condition. We agree.

In both Borgen v. Fort Pitt Museum Associates, Inc., 83 Pa. Commonwealth Ct. 207, 477 A.2d 36 (1984), and Ehehalt v. Nyari O'Dette, Inc., 85 Pa. Commonwealth Ct. 94, 481 A.2d 365 (1984), we held that the phrase "owner of land" was not intended to include the Commonwealth. "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 Commonwealth's contention, that the legislature intended to grant it immunity, is belied by the fact that (a) lands of the Commonwealth are always acquired, and usually held, for the use of the public, (b) the legislature would have used a more

[ 88 Pa. Commw. Page 479]

    precise phrase than "owners of land" to confer immunity upon the Commonwealth, (c) the doctrine of sovereign immunity already barred suits against the Commonwealth when the Act became effective, and (d) the general phrase "owner of land," just as the word "person," should not be interpreted to ...


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