Appeal from the Order of the Court of Common Pleas of Delaware County, in case of William Farley, III, a minor, and William Farley, Jr., and Patricia Farley, parents and natural guardians of William Farley, III, and William Farley, Jr., and Patricia Farley, in their own right v. Township of Upper Darby and Philip Blemings, No. 81-02334.
Roger N. Huggins, Raynes, McCarty, Binder, Ross & Mundy, for appellants.
John J. Breen, Gibbons, Buckley, Smith, Palmer & Proud, P.C., for appellees.
President Judge Crumlish, Jr., Judges Rogers, Craig, MacPhail, Doyle, Barry and Colins. Opinion by President Judge Crumlish, Jr.
[ 100 Pa. Commw. Page 536]
William Farley, III, appeals a Delaware County Common Pleas Court order granting summary judgment in favor of Upper Darby Township. The common pleas court concluded that the township was immune from suit under the Recreational Use of Land and Water Act (Recreation Act).*fn1 We affirm.
Farley, a seven-year-old, was injured when he fell from a sliding board at Naylors Run Park. The park is owned and maintained by the township. Farley filed a trespass action against the township. In its answer and new matter, the township asserted immunity under the Political Subdivision Tort Claims Act*fn2 and, in its amended new matter, immunity under the Recreation Act. The township moved for summary judgment on the basis of the Recreation Act.
Our scope of review of a common pleas court order granting summary judgment is limited to determining
[ 100 Pa. Commw. Page 537]
whether an error of law was committed or the court abused its discretion. Nordmann v. Commonwealth, 79 Pa. Commonwealth Ct. 187, 468 A.2d 1173 (1983).
The township contends that, regardless of whether it is an "owner of land" under Section 3 of the Recreation Act,*fn3 it is immune from suit in light of Section 8542(a)(1) of the Judicial Code (Code).*fn4 We agree.
This case is controlled by our Supreme Court's reasoning, as articulated by Justice McDermott, in Department of Environmental Resources v. Auresto, 511 Pa. 73, 511 A.2d 815 (1986). The plaintiff in that case was injured, while riding his snowmobile on a frozen Commonwealth pond, when it struck a protruding tree stump which was concealed by snow. The Commonwealth, like the township in this case, sought summary dismissal of the complaint on the grounds that it is immune under the terms of the Recreation Act.*fn5 Justice McDermott, writing for the Supreme Court stated: "The trial court held that the owner immunity granted by the Recreational Use of Land and Water Act . . . was applicable to the Commonwealth. We agree with the trial court's holding. . . ." Id. at 75, 511 A.2d at 816 (footnote omitted).
That Court also granted the Commonwealth immunity under the immunity provisions contained in the Judicial Code. Section § 8522(a) of the Code*fn6 provides, in pertinent ...