68 P.S. § 477-6(2) does not Preclude PP&L from asserting immunity from liability under the Recreation Act.
D. Plaintiffs' Contention That the Tree Was on Land Not Open to the Public
Plaintiffs' next argument is that because the area where the tree was rooted was not used by the public, it was not within the scope of the Recreation Act's grant of immunity. Plaintiffs claim that the tree was located on land that, although owned by PP&L, was not part of the recreation area open to the public. However, plaintiffs do not present a scintilla of evidence to support this claim.
Instead, defendant has come forth with evidence in the form of deposition testimony that clearly establishes that the land on which the tree was located was not restricted and that the public could and did go on that land. Benjamin Lefever testified that the area where the tree was located was used by people for recreation and that it was not restricted. (B. Lefever deposition, pp. 11, 56). Mark Arbogast also testified that the area where the tree was located was not restricted and that people used that area. (M. Arbogast deposition, pp. 46-47).
Faced with defendant's evidence on this matter which directly contradicts plaintiffs' unsupported allegations, I must conclude that there is no genuine issue of material fact concerning the use of the land on which the tree was located. Hideout Records & Distrib. v. El Jay Dee, Inc., 601 F. Supp. 1048, 1053 (Del. 1984); 10A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2727 (1983). Since the only evidence on the record clearly establishes that the land in question was open to the public and in fact used by the public, defendant is not precluded from asserting the immunity granted by 68 P.S. § 477-1 et seq. as asserted by plaintiffs.
E. The Effect of Defendant's Late Admissions
Plaintiffs' final argument is that since defendant did not answer plaintiffs' Request for Admissions within the time period permitted by Federal Rule of Civil Procedure 36, the matters addressed in those requests should be deemed admitted pursuant to the Rule. Fed. R. Civ. P. 36.
However, part (b) of Rule 36 states that any matter deemed admitted under the Rule is conclusively established unless the Court permits withdrawal or amendment of the admission. Thus the Court can, at its discretion, permit what would otherwise be an untimely answer to a request for admissions. See generally Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2257 (1970 & Supp. 1992) and cases cited therein. The Court should normally permit untimely answers when doing so would aid in the presentation of the merits of the action and would not prejudice the party who made the requests. Id; Fed. R. Civ. P. 36(b).
Plaintiffs have failed to show that they have relied on these supposed admissions to their detriment in this litigation. In fact, plaintiffs fail to disclose when defendant's answers were actually filed, or even to detail specifically what the supposed admissions said. In light of these facts, I do not find that plaintiff was seriously prejudiced by the untimeliness of defendant's answers. Further, I find that to permit defendant's untimely answers would aid in the resolution of this action on the undisputed material facts as presented at the summary judgment stage, and I shall therefore permit defendant's untimely answers pursuant to Fed. R. Civ. P. 36(b).
For the reasons stated above, I shall grant defendant PP&L's motion for summary judgment and enter judgment in favor of defendant.
An appropriate order follows.
Daniel H. Huyett, 3rd, Judge
March 5, 1992
Upon consideration of defendant Pennsylvania Power & Light Company's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, the response of plaintiffs, and for the reasons stated in the accompanying memorandum:
1. Defendant Pennsylvania Power & Light Company's motion for summary judgment is GRANTED.
2. Judgment is entered in favor of defendant Pennsylvania Power & Light Company and the Complaint is DISMISSED in its entirety.
IT IS SO ORDERED.
Daniel H. Huyett, 3rd, Judge