Summary
In Farley v. Township of Upper Darby, 100 Pa. Commw. 535, 514 A.2d 1023 (1986), we extended the reasoning of Auresto to local governmental landowners and held that, under Section 8542 of the Code (relating to governmental immunity), the township was immune from liability to a minor who was injured when he fell from a sliding board in a township-owned park.
Summary of this case from Ithier v. City of PhiladelphiaOpinion
Argued April 9, 1986
September 17, 1986.
Municipalities — Immunity from suit — Summary judgment — Scope of appellate review — Error of law — Abuse of discretion — Recreational Use of Land and Water Act, Act of February 2, 1966, P.L. (1965) 1860 — Political Subdivision Tort Claims Act, 42 Pa. C. S. § 8542.
1. Review by the Commonwealth Court of Pennsylvania of an order of a court of common pleas granting summary judgment is to determine whether an error of law or abuse of discretion was committed. [536-7]
2. Under provisions of the Recreational Use of Land and Water Act, Act of February 2, 1966, P.L. (1965) 1860, and of the Political Subdivision Tort Claims Act, 42 Pa. C. S. § 8542, a township is immune from suit in trespass arising out of an injury sustained on a sliding board in a park owned by the township. [538]
Argued April 9, 1986, before President Judge CRUMLISH, JR., Judges ROGERS, CRAIG, MacPHAIL, DOYLE, BARRY and COLINS.
Appeal, No. 24 T.D. 1985, 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.
Complaint in trespass filed in Court of Common Pleas of Delaware County against township and individual. Township filed motion for summary judgment. Motion granted. TOAL, JR., J. Appeal filed in Superior Court of Pennsylvania. Case transferred to Commonwealth Court of Pennsylvania. Held: Affirmed. Application for reconsideration filed and granted. Held: Prior order reaffirmed.
Roger N. Huggins, Raynes, McCarty, Binder, Ross Mundy, for appellants.
John J. Breen, Gibbons, Buckley, Smith, Palmer Proud, P.C., for appellees.
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). We affirm.
Act of February 2, 1966, P.L. (1965) 1860, as amended, 68 P. S. § 477-1 — 477-8.
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 and, in its amended new matter, immunity under the Recreation Act. The township moved for summary judgment on the basis of the Recreation Act.
Act of November 26, 1978, P.L. 1399, as amended, formerly 53 P. S. § 5311.101 — 5311.803, repealed by the Act of October 5, 1980, P.L. 693. The subject matter is now covered by Sections 8541-64 of the Judicial Code, 42 Pa. C. S. § 8541-64.
Our scope of review of a common pleas court order granting summary judgment is limited to determining whether an error of law was committed or the court abused its discretion. Nordmann v. Commonwealth, 79 Pa. Commw. 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, it is immune from suit in light of Section 8542(a)(1) of the Judicial Code (Code). 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. 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).
In Auresto, the Commonwealth filed preliminary objections in the nature of a demurrer.
That Court also granted the Commonwealth immunity under the immunity provisions contained in the Judicial Code. Section § 8522(a) of the Code provides, in pertinent part, that the Commonwealth's immunity is waived only "where the damages would be recoverable under the common law . . . if the injury were caused by a person not having available the defense of sovereign immunity." (Emphasis added.) Based on Section 8522(a), the Supreme Court in Auresto reasoned:
Sovereign immunity was reaffirmed by 1 Pa. C. S. § 2310 as a bar to actions against the Commonwealth except as specifically waived by the General Assembly.
[W]hile the Commonwealth as an owner of land may not have been contemplated at the time the Recreation Act was passed, it is obvious that at the time the Sovereign Immunity Act was passed the Commonwealth's exposure to suit was intended to be the same as a private citizen. Consequently, when the two Acts are read in pari materia the conclusion is inescapable that since a private citizen would have been protected from the present suit so must the Commonwealth.
Id. at 78, 511 A.2d at 817 (emphasis added).
The township claims immunity based on Section 8542(a)(1) of the Code. This section provides, in pertinent part, that immunity is waived only where "[t]he damages would be recoverable under common law . . . if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity). . . ." (Emphasis added.) The Supreme Court's analysis in Auresto, respecting Section 8522(a) of the Code, applies to this parallel provision. We, therefore, hold that the township is immune from suit.
The common pleas court decision is affirmed.
ORDER
The Delaware County Common Pleas Court order, No. 81-02334 dated July 23, 1984, is affirmed.
ORDER
NOW, December 19, 1986, having previously granted reconsideration, we hereby reaffirm our prior opinion and Order filed September 17, 1986.