Auresto v. Commonwealth

Opinion by President Judge Crumlish, Jr., Anthony Auresto appeals a Pike County Common Pleas Court order granting the Department of En [478] vironmental Resources (DER) and John Bitzer’s1 preliminary objections in the nature of a demurrer.2 We reverse and remand. 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),3 which relieves an “owner of land” of the duty to keep his premises safe for use by others for recreational purposes or to warn of dangerous condition. We agree. 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 [479] precise phrase than “owners of land” to confer immunity upon the Commonwealth, (c) the doctrine of sovereign immunity already barred suits against the Commonwealth when the Act became effective, and (d) the general phrase “owner of land,” just as the word “person,” should not be interpreted to include the sovereign state. Borgen, 83 Pa. Commonwealth Ct. at 213-14, 477 A.2d at 39. 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. Judge Williams, Jr., did not participate in the decision in this case. Footnotes [1] Bitzer is a District Forester for DER. [2] 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. [3] Act of February 2, 1966, P.L. (1965) 1860, as amended, 68 P.S. §477-3.