88 Pa. Commw. 476 | Pa. Commw. Ct. | 1985
Lead Opinion
Opinion by
Anthony Auresto appeals a Pike County Common Pleas Court order granting the Department of En
Auresto was injured, while riding his snowmobile on a frozen pond, when it struck a protruding tree stump which was concealed by snow. The pond is a designated snowmobile recreational facility owned by DER and maintained by Bitzer.
Auresto’s sole contention is that the Commonwealth is not an “owner of land” under Section 3 of the Recreational Use of Land and Water Act (Act),
In both Borgen v. Fort Pitt Museum Associates, Inc., 83 Pa. Commonwealth Ct. 207, 477 A.2d 36 (1984), and Ehehalt v. Nyari O’Dette, Inc., 85 Pa. Commonwealth Ct. 94, 481 A.2d 365 (1984), we held that the phrase “owner of land” was not intended to include the Commonwealth. “The purpose of this act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Section 1 of the Act, 68 P.S. §477-1. The Commonwealth’s contention, that the legislature intended to grant it immunity, is belied by the fact that (a) lands of the Commonwealth are always acquired, and usually held, for the use of the public, (b) the legislature would have used a more
We hold that the trial court erred as a matter of law in granting DEE and Bitzer’s preliminary objections in the nature of a demurrer. We reverse and remand this case for further proceedings consistent with this opinion.
Order
The order of the Pike County Common Pleas Court, No. 106-1984 dated April 6, 1984, is reversed and this case is remanded for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
Bitzer is a District Forester for DER.
Although Fred Hesse did not raise ¡the preliminary objections in the nature of a demurrer, the action against, him (as well as Bitzer) has been stayed pending the outcome of this appeal.
Act of February 2, 1966, P.L. (1965) 1860, as amended, 68 P.S. §477-3.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
The doctrine of sovereign immunity historically barred all suits against a sovereign, including the Commonwealth of Pennsylvania, unless the sovereign specifically consented to being sued. See Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) (discussing the history of the doctrine of sovereign immunity). Prior to the Pennsylvania Supreme Court’s decision in Mayle, the Pennsylvania Courts consistently held that the doctrine of sovereign immunity was incorporated into the Penn
In response, the Pennsylvania General Assembly enacted the Act of September 28,1978, P.L. 788, 1 Pa. C. S. §2310 which reaffirmed sovereign immunity as a bar to actions against the Commonwealth and its officials and employees “except as the General Assembly shall specifically waive the immunity. ’ ’ 1 Pa. C. S. §2310. The General Assembly then specifically enacted a limited waiver of the immunity in eight specific categories, Act of September 28, 1978, P.L. 788, as amended, 42 Pa. C. S. §§8521-8528 (Sovereign Immunity Act), which provides, in pertinent part:
(a) Liability imposed.—
The General Assembly pursuant to Section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter . . . sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. (Emphasis added.)
42 Pa. C. S. §8522(a).
In the cases relied upon by the majority, Borgen v. Fort Pitt Museum Associates, Inc., 83 Pa. Commonwealth Ct. 207, 477 A.2d 36 (1984), and Ehehalt v. Nyari O’Dette, Inc., 85 Pa. Commonwealth Ct. 94, 481 A.2d 365 (1984), this Court did not examine the interplay between the Sovereign Immunity Act and the Recreational Use of Land and Water Act. Borgen should not, therefore, control the decision in the case at bar. Nor should Ehehalt, which merely relied on Borgen, be controlling. Additionally, as I stated in Borgen, because of the procedural posture of that case, this Court’s decision on the merits was premature and was no more than an advisory opinion. See 83 Pa. Commonwealth Ct. at 215, 477 A.2d at 40 (Palladino, J., dissenting).
I do not dispute the majority’s conclusion, either in the case at bar or in Borgen, that the Recreational Use of Land and Water Act does not, by its own terms, grant immunity to the Commonwealth. I cannot, however, concur in the majority’s total disregard of the clear language and limitations of the waiver of immunity contained in the Sovereign Immunity Act.
See Act of December 6, 1972, P.D. 1339, §3, 1 Pa. C. S. §§1903, 1921(b),