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COMMONWEALTH PENNSYLVANIA v. ANTHONY AURESTO (07/17/86)

decided: July 17, 1986.

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



Appeal from the Order of the Commonwealth Court at No. 1747 C.D. 1984, reversing the Order of the Court of Common Pleas of Pike County at No. 106-1984, April 6, 1984. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., concurs in the result. Papadakos, J., files a concurring opinion. Larsen, J., files a dissenting opinion.

Author: Mcdermott

[ 511 Pa. Page 75]

OPINION

This appeal is from the order of the Commonwealth Court reversing the order of the Court of Common Pleas of Pike County, 490 A.2d 492. The trial court held that the owner immunity granted by the Recreational Use of Land and Water Act*fn1 (hereinafter Recreation Act) was applicable to the Commonwealth. We agree with the trial court's holding and therefore reverse the decision of the Commonwealth Court.

Appellee, Anthony Auresto, was injured on February 10, 1982, when the snowmobile he was riding hit a snow covered tree stump on Peck's Pond, Pike County. Peck's Pond is located within Delaware State Forest, which is owned and maintained by appellant,*fn2 the Commonwealth of Pennsylvania, under the aegis of the Department of Environmental Resources. A complaint was filed by appellee on February 2, 1984, against the Commonwealth, citing an exception to sovereign immunity for injuries caused by a dangerous condition on Commonwealth real estate. 42 Pa.C.S. § 8522(b)(4).*fn3

Preliminary objections were filed by the Commonwealth in the nature of a demurrer, seeking dismissal of appellee's complaint on the grounds that the Commonwealth as a landowner was immune under terms of the Recreation Act. The trial court agreed with the Commonwealth's position

[ 511 Pa. Page 76]

    and sustained the preliminary objections. On appeal the Commonwealth Court reversed, holding that the Recreation Act was inapplicable to the Commonwealth. This Court subsequently granted allocatur and, for the following reasons, we now reverse.

The specific issue before the Court is whether the Recreation Act, which provides landowners who permit their property to be used for recreational purposes an immunity from tort actions, applies to the Commonwealth of Pennsylvania.

The Recreation Act reads in relevant part:

§ 477-3. Duty to keep premises safe; warning

Except as specifically recognized or provided in section 6 of this act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

68 Pa.C.S. § 477-3. The preceding immunity extends only to owners of land who hold their property open to the public free of charge. 68 Pa.C.S. § 477-6. The purpose of this act is self-evident. It "encourage[s] owners of land to make land and water areas available to the public for recreational purposes by limiting their liability towards persons entering thereon for such purposes." 68 Pa.C.S. § 477-1. Appellee would have us believe that the General Assembly intended to exclude the vast recreational resources of the Commonwealth from this limitation on liability. We disagree.

When the Recreation Act was passed in 1966, the Commonwealth enjoyed the complete protection from liability afforded by the common law doctrine of sovereign immunity. In 1978, the blanket of immunity was lifted, completely exposing the Commonwealth to civil liability. See Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). The ...


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