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CAROL ANN POMEREN v. COMMONWEALTH PENNSYLVANIA (11/23/88)

decided: November 23, 1988.

CAROL ANN POMEREN, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Carol Ann Pomeren v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 5696-C of 1986.

COUNSEL

Pasco L. Schiavo, for appellant.

Stephen E. Geduldig, Deputy Attorney General, Torts Litigation Section, with him, Mark E. Garber, Chief, Torts Litigation, and LeRoy S. Zimmerman, Attorney General, for appellee.

President Judge Crumlish, Jr., Judge Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge MacPhail did not participate in the decision in this case.

Author: Crumlish

[ 121 Pa. Commw. Page 288]

Carol Ann Pomeren appeals a Luzerne County Common Pleas Court order granting the Department of Environmental Resources' (DER) motion for summary judgment. We affirm.

In May 1985, Pomeren was injured while hiking on a dirt trail in Ricketts Glen State Park. In her complaint against DER for negligence, Pomeren averred that as she stepped over a small rise, her leg sank into a two-inch mud hole which caused her to fall.*fn1 DER moved for summary judgment, asserting immunity under the Recreation Use of Land and Water Act (hereinafter the Recreation Act).*fn2 Pomeren responded by affidavit, averring for the first time that the park and earthen trail were "improved land," thus precluding immunity under the Recreation Act. Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986). The common pleas court held that the Commonwealth was immune under Department of Environmental Resources v. Auresto, 511 Pa. 73, 511 A.2d 815 (1986).

In Auresto, our Pennsylvania Supreme Court held that the Recreation Act's reference to "owners of land" included the Commonwealth. The Auresto decision rested on an in pari materia construction of the Recreation Act and the Sovereign Immunity Act. The Court concluded that the Commonwealth is protected to the extent a private landowner would be under the Recreation Act. Auresto, 511 Pa. at 78, 511 A.2d at 817. Therefore, because the Recreation Act protected private landowners, the Commonwealth was also protected.

[ 121 Pa. Commw. Page 289]

Pomeren contends that the application of Auresto should be prospective only. She argues that since her cause of action accrued before the Supreme Court decided Auresto in July 1986, that decision does not apply retroactively to cloak the Commonwealth in immunity. Pomeren's cause of action accrued in May 1985, one month after this Court's intermediate decision in Auresto.*fn3

"In Pennsylvania, judicial decisions are normally retroactive, and the construction placed by the court upon a statute becomes part of the act from the very beginning." Baker v. Aetna Casualty and Surety Co., 309 Pa. Superior Ct. 81, 454 A.2d 1092 (1982). Here, both statutes were enacted prior to the date Pomeren's cause of action accrued. The fact that the Supreme Court's decision in Auresto was announced subsequently does not alter the result. Auresto did not overrule any prior Supreme Court decisions or precedents but rather was a clarification of the sovereign and recreational land use immunity statutes. Hence, the statutory rights explained therein already existed. Consequently, we will adhere to the rule that appellate decisions are retrospective unless the decision specifically declares the ruling prospective. Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983).

Pomeren next argues that, even if Auresto applies, summary judgment was improperly granted where there was evidence that the injury occurred on improved land. The Recreation Act states that a landowner owes no duty to keep the land safe for recreational ...


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