Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Lawrence Jones, Father and Administrator of the Estate of Milton Jones, Deceased v. Cheltenham Township, No. 83-12803.
Alan B. Epstein, with him, Thomas Rapp, Kirschner, Walters & Willig, for appellant.
Warren E. Voter, with him, Lawrence A. Looby, Sweeney, Sheehan & Spencer, for appellee.
President Judge Crumlish, Jr., and Judges McGinley and Smith, sitting as a panel of three. Opinion by Judge Smith.
[ 117 Pa. Commw. Page 441]
Appellant Lawrence Jones Appeals from a decision of the Montgomery County Court of Common Pleas which granted summary judgment in favor of Appellee, Cheltenham Township (Township). The trial court determined that the Township was immune from suit under the Recreation Use of Land and Water Act (Recreation Act).*fn1 We affirm.
Appellant's action arose out of the death of his minor son which occurred on September 3, 1981 in the Richard Wall Park (Park) located in Cheltenham Township. Appellant's decedent was swimming in the Tookany Creek (Creek) where he fell into a fifteen foot drop-off in the Creek and drowned. The Township owns and maintains the Park which is open to the public for recreational purposes. The Creek runs along one edge of the Park with the Township owning land on both sides of the Creek. No admission fee is charged for entrance to park grounds or for use of its facilities.
Appellant filed his negligence action against the Township on October 3, 1983, suit having been commenced
[ 117 Pa. Commw. Page 442]
by writ of summons, alleging that the Township failed to warn and to make the Park safe for decedent's use. The Township in its amended answer and new matter asserted an immunity defense under the Recreation Act and moved for summary judgment. The trial court granted summary judgment after finding that the Township was immune from liability under the Recreation Act, specifically noting that the complaint failed to allege that the Township acted either willfully or maliciously at any time in relation to the decedent.
In reviewing the trial court's granting of summary judgment, this Court is limited to determining whether or not the trial court committed an error of law or abused its discretion. Kuehner v. Parsons, 107 Pa. Commonwealth Ct. 61, 527 A.2d 627 (1987), appeal denied, 517 Pa. 626, 538 A.2d 879 (1988). For courts to enter summary judgment, the record must demonstrate that no genuine issue of material fact exists after review of the record in a light most favorable to the non-moving party. Johnson v. Baker, 346 Pa. Superior Ct. 183, 499 A.2d 372 (1985).
Appellant argues that all of the elements of willfulness involving exceptions to immunity under the Recreation Act were properly pled in the complaint and that the trial court's grant of summary judgment constituted ...