Milshteyn, P. v. Fitness International, LLC

J-S29003-21

2022 PA Super 30

PETER MILSHTEYN AND MAYA : IN THE SUPERIOR COURT OF

MILSHTEYN : PENNSYLVANIA

:

Appellant :

:

:

v. :

:

: No. 452 EDA 2021

FITNESS INTERNATIONAL, LLC F/K/A :

LA FITNESS INTERNATIONAL, LLC :

D/B/A LA FITNESS, FITNESS & :

SPORTS CLUBS, LLC F/K/A FITNESS :

INTERNATIONAL, LLC AND REALTY :

INCOME PENNSYLVANIA :

PROPERTIES TRUST :

Appeal from the Order Entered January 18, 2021

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): No. 190501802

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

OPINION BY PANELLA, P.J.: FILED FEBRUARY 18, 2022

Peter Milshteyn and Maya Milshteyn (“the Milshteyns”) appeal from the

order granting the motions for summary judgment filed by Fitness

International, LLC f/k/a LA Fitness International, LLC d/b/a LA Fitness, Fitness

& Sports Clubs, LLC f/k/a Fitness International, LLC (collectively,

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* Former Justice specially assigned to the Superior Court.

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“Defendants”), and Realty Income Pennsylvania Properties Trust (“Realty

Income”),1 in this premises liability action. We affirm.

The Milshteyns were members of an L.A. Fitness facility in Philadelphia,

Pennsylvania. Relevantly, when they joined the facility in 2011, the Milshteyns

executed a Membership Agreement.

On June 11, 2017, the Milshteyns were in the pool area of the L.A.

Fitness at the time of a power outage. Peter slipped while descending the

stairs from the pool to the locker room in the dark. As a result of his fall, Peter

sustained a fracture to his right elbow.

The Milshteyns filed a complaint on May 16, 2019, which included Peter’s

claim for premises liability – slip and fall, and Maya’s claim for loss of

consortium. The complaint alleged that L.A. Fitness employees were negligent

in, inter alia, creating the dangerous condition of “low or no lighting,” failing

to inspect or repair the area where Peter fell, and failing to warn Peter of the

defective condition. Complaint, 5/16/19, at ¶ 22. On June 5, 2019, the

Milshteyns filed a praecipe to reinstate the complaint.

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1 The Milshteyns named Defendants and Realty Income in the complaint.

Following a successful summary judgment motion, the trial court entered

judgment in favor of Realty Income, as there was no dispute that Realty

Income was a landlord out of possession, and thus, did not owe the Milshteyns

a duty of care. The Milshteyns do not challenge the order granting summary

judgment to Realty Income, and Realty Income is not a party to the instant

appeal.

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Defendants filed an answer and new matter. Specifically, Defendants

asserted, inter alia, that the Milshteyns’ claims were barred by the terms of

their Membership Agreement. See Answer and New Matter, 6/18/19, New

Matter at ¶ 15.2

On November 2, 2020, Defendants filed a motion for summary

judgment, again asserting, inter alia, that the Milshteyns’ Membership

Agreement precluded their claims. See Motion for Summary Judgment,

11/2/20, at ¶¶ 15-26. Defendants attached a copy of the Membership

Agreement, which includes, in relevant part, the following language:

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND

INDEMNITY. You hereby acknowledge and agree that use by

Member … of L.A. Fitness’ facilities, services, equipment or

premises, involves risks of injury to persons and property,

including those described below, and Member assumes full

responsibility for such risks. In consideration of Member …

being permitted to enter any facility of L.A. Fitness (a “Club”) for

any purpose including, but not limited to, observation, use of

facilities, services or equipment, or participation in any way,

Member agrees to the following: Member hereby releases and

holds L.A. Fitness, its directors, officers, employees, and

agents harmless from all liability to Member … for any loss

or damages, and forever gives up any claim or demands

therefore, on account of injury to Member’s person or

property, including injury leading to the death of Member,

whether caused by active or passive negligence of L.A.

Fitness or otherwise, to the fullest extent permitted by law,

while Member … [is] in, upon, or about L.A. Fitness premises or

using any L.A. Fitness facilities, services or equipment. Member

also hereby agrees to indemnify L.A. Fitness from any loss,

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2 Defendants also filed a cross-claim for indemnification against Simon

Property Group and Franklin Mills Associates, LP a/k/a Franklin Mills Mall.

Ultimately, the parties stipulated to the dismissal of Simon Property Group

and Franklin Mills Associates.

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liability, damage or cost L.A. Fitness may incur due to the

presence of Member … in, upon or about the L.A. Fitness premises

or in any way observing or using any facilities or equipment of

L.A. Fitness whether caused by the negligence of Member(s) or

otherwise. You represent (a) that Member … [is] in good physical

condition and ha[s] no disability, illness, or other condition that

could prevent Member(s) from exercising without injury or

impairment of health, and (b) that Member has consulted a

physician concerning an exercise program that will not risk injury

to Member or impairment of Member’s health. Such risk of injury

includes (but is not limited to): injuries arising from use by

Member or others of exercise equipment and machines; injuries

arising from participation by Member or others in supervised or

unsupervised activities at a Club; injuries and medical disorders

arising from exercising at a Club such as heart attacks, strokes,

heat stress, sprains, broken bones and torn muscles and

ligaments, among others; and accidental injuries occurring

anywhere in Club dressing rooms, shower and other

facilities. Member further expressly agrees that the foregoing

release, waiver and indemnity agreement is intended to be as

broad and inclusive as is permitted by the law of the State of

Pennsylvania and that if any portion thereof is held invalid, it is

agreed that the balance shall, notwithstanding, continue in full

force and effect. Member has read this release and waiver of

liability and indemnity clause, and agrees that no oral

representations, statements or inducement apart from this

Agreement have been made.

Id., Exhibit E (Membership Agreement) at 2 (emphasis added). Additionally,

the line immediately preceding Peter’s signature reads, “By signing this

Agreement, Buyer acknowledges that Buyer is of legal age, has received a

filled-in and completed copy of this Agreement[,] has read and understands

the entire agreement including … the Release and Waiver of Liability….” Id. at

1.

In response, the Milshteyns averred that there was a genuine issue of

material fact “regarding whether [Peter], who speaks and understands only

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basic English, understood the nature of the Membership Agreement.”

Opposition to Motion for Summary Judgment, 12/1/20, at ¶ 8; see also id.,

at ¶¶ 13-16, 19. The Milshteyns also argued that the Membership Agreement

constitutes a contract of adhesion, which is unconscionable, and therefore

unenforceable. See id., at ¶¶ 18-22. Additionally, the Milshteyns’ claim that

Defendants’ conduct was grossly negligent, and that the Membership

Agreement does not apply to such conduct. See id., at ¶¶ 23-26.

The trial court conducted a hearing on Defendants’ motion for summary

judgment on January 12, 2021. By an order dated January 13, 2021,3 the trial

court granted Defendants’ motion for summary judgment. Specifically,

regarding Fitness & Sports Clubs, the trial court concluded that the release

contained in the Membership Agreement foreclosed the Milshteyns’ claims;

the Milshteyns did not establish that the Membership Agreement was a

contract of adhesion; and the Milshteyns could not raise a gross negligence

claim for the first time in response to Defendants’ summary judgment motion,

effectively amending their complaint after the statute of limitations had run.

See Order, 1/13/21, at 1-2 (unnumbered). Regarding Fitness International,

LLC, the trial court granted summary judgment based on undisputed evidence

that “Fitness International, LLC[,] did not own, control, possess, maintain, or

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3 The order was entered on the docket on January 18, 2021.

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manage the [L.A.] Fitness facility where [Peter’s] accident occurred at any

relevant time.” Id. at 3 (unnumbered).

The Milshteyns filed a timely notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal.4

On appeal, the Milshteyns raise the following issues for our review:

I. Did the trial court abuse its discretion and/or err as a matter of

law when it held there was no genuine issue of material fact as to

whether the Membership Agreement signed by [] Peter

Milshteyn[] was a contract of adhesion?

II. Did the trial court abuse its discretion and/or err as a matter

of law when it held that a claim for gross negligence is a separate

cause of action under Pennsylvania law and, therefore, [the

Milshteyns] were required to plead gross negligence in their

complaint?

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4 Following this appeal, Defendants twice filed applications to quash or dismiss

the appeal based upon the Milshteyns’ failure to timely comply with the

appellate briefing schedule. This Court dismissed both applications, without

prejudice to Defendants’ ability to raise the issue in their appellate brief.

Defendants have renewed their request for dismissal or quashal of the

instant appeal pursuant to Pa.R.A.P. 2188, which provides that, “[i]f an

appellant fails to file his designation of reproduced record, brief or any

required reproduced record within the time prescribed by these rules, or within

the time as extended, an appellee may move for dismissal of the matter.”

Pa.R.A.P. 2188. This Court has discretion to quash or dismiss an appeal if

procedural defects are substantial. See Pa.R.A.P. 2101.

Here, the Milshteyns requested, and were granted, several extensions

of time to comply with the briefing schedule. The most recent extension order

directed the Milshteyns to file their appellate brief by July 12, 2021. The

Milshteyns filed their brief the following day, July 13, 2021. Defendants have

failed to demonstrate that the delay prejudiced them, or otherwise impedes

our review of this case. Accordingly, we decline to dismiss or quash the

Milshteyns’ appeal on this basis.

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III. Did the trial court abuse its discretion and/or err as a matter

of law when it held that a claim for gross negligence is a separate

cause of action under Pennsylvania law[,] and [the Milshteyns]

were precluded from amending their complaint to assert a claim

for gross negligence by the expiration of the statute of limitations

applicable to negligence actions?

IV. Did [] Fitness & Sports Clubs, LLC, engage in grossly negligent

conduct requiring reversal of the granting of summary judgment?

Appellants’ Brief at 10 (some capitalization omitted).

Our review of an order granting summary judgment entails reviewing

the evidence of record to determine if there is a triable issue of fact:

Pennsylvania law provides that summary judgment may be

granted only in those cases in which the record clearly shows that

no genuine issues of material fact exist and that the moving party

is entitled to judgment as a matter of law. The moving party has

the burden of proving that no genuine issues of material fact exist.

In determining whether to grant summary judgment, the trial

court must view the record in the light most favorable to the non-

moving party and must resolve all doubts as to the existence of a

genuine issue of material fact against the moving party. Thus,

summary judgment is proper only when uncontroverted

allegations in the pleadings, depositions, answers to

interrogatories, admissions of record, and submitted affidavits

demonstrate that no genuine issue of material fact exists, and that

the moving party is entitled to judgment as a matter of law. In

sum, only when the facts are so clear that reasonable minds

cannot differ, may a trial court properly enter summary judgment.

On appeal from a grant of summary judgment, we must

examine the record in a light most favorable to the non-moving

party. With regard to questions of law, an appellate court’s scope

of review is plenary. The Superior Court will reverse a grant of

summary judgment only if the trial court has committed an error

of law or abused its discretion. Judicial discretion requires action

in conformity with law based on the facts and circumstances

before the trial court after hearing and consideration.

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Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super. 2008) (citation

and brackets omitted).

The Milshteyns first claim the trial court erred in determining that the

Membership Agreement is not a contract of adhesion. See Appellants’ Brief at

13. The Milshteyns argue that the waiver of liability provision in the

Membership Agreement “overwhelmingly and unreasonably favors”

Defendants by shielding Defendants from liability. Id. at 16-17. According to

the Milshteyns, Peter was incapable of negotiating the terms of the

Membership Agreement and could not reject the waiver of liability provision

without rejecting the entire transaction. See id. at 17.

Exculpatory provisions in contracts are generally enforceable if they are

clear and meet three other conditions:

It is generally accepted that an exculpatory clause is valid where

three conditions are met. First, the clause must not contravene

public policy. Secondly, the contract must be between persons

relating entirely to their own private affairs and thirdly, each party

must be a free bargaining agent to the agreement so that the

contract is not one of adhesion. …[O]nce an exculpatory clause is

determined to be valid, it will, nevertheless, still be unenforceable

unless the language of the parties is clear that a person is being

relieved of liability for his own acts of negligence. In interpreting

such clauses we listed as guiding standards that: 1) the contract

language must be construed strictly, since exculpatory language

is not favored by the law; 2) the contract must state the intention

of the parties with the greatest particularity, beyond doubt by

express stipulation, and no inference from words of general import

can establish the intent of the parties; 3) the language of the

contract must be construed, in cases of ambiguity, against the

party seeking immunity from liability; and 4) the burden of

establishing the immunity is upon the party invoking protection

under the clause.

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Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010)

(internal citations omitted).

In Toro v. Fitness Int’l LLC, 150 A.3d 968 (Pa. Super. 2016), this

Court addressed the same exculpatory provision in an L.A. Fitness Membership

Agreement and concluded that the provision was enforceable. See id. at 972.

Toro was a member of an L.A. Fitness facility, and his Membership Agreement

contained a “release and waiver of liability and indemnity” nearly identical to

the provision in the contract signed by Peter. Id. at 970. Toro filed a

negligence action after he slipped and fell on the wet floor of a locker room in

the facility. See id. at 970-71. The facility filed a motion for summary

judgment based, in part, on the terms of the waiver provision. See id. at 970.

The trial court entered judgment in favor of the facility. See id.

On appeal, this Court concluded that the trial court had properly granted

summary judgment in favor of the facility based on the waiver provision. See

id. at 972. First, this Court concluded that the relevant provision was not

against public policy, as “Toro was engaged in a voluntary athletic or

recreational activity: going to the gym.” Id. at 974; see also id. at 973

(stating that “[e]xculpatory provisions violate public policy only when they

involve a matter of interest to the public or the state. Such matters of interest

… include the employer-employee relationship, public service, public utilities,

common carriers, and hospitals.” (citation and quotation marks omitted)).

Additionally, this Court rejected Toro’s contention that the Membership

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Agreement was a contract of adhesion, explaining that “an exculpatory

agreement involving use of a commercial facility for voluntary athletic or

recreational activities is not considered a contract of adhesion because the

signer is under no compulsion, economic or otherwise, to participate, much

less to sign the exculpatory agreement, because it does not relate to essential

services….” Id. at 975 (citation, quotation marks and brackets omitted).

Here, the trial court, relying on Toro, concluded the Membership

Agreement was not unconscionable or a contract of adhesion. See Trial Court

Opinion, 4/12/21, at 7-10. The record confirms the Milshteyns executed the

Membership Agreement for the purpose of participating in a voluntary athletic

activity, and they were under no compulsion to complete an agreement for

this non-essential service. See Toro, 150 A.3d at 974-75; see also

Chepkevich, 2 A.3d at 1191 (concluding that the release from liability signed

by the plaintiff when she purchased a ski pass was not unconscionable, stating

that “[t]he signer is a free agent who can simply walk away without signing

the release and participating in the activity….”). Additionally, in signing the

Membership Agreement, Peter acknowledged he had read and understood the

agreement, including the exculpatory provision. See Motion for Summary

Judgment, 11/2/20, Exhibit E (Membership Agreement), at 1.5 Accordingly,

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5 On appeal, the Milshteyns have abandoned their argument that Peter did not

understand the terms of the Membership Agreement due to his difficulty

understanding English. Nevertheless, the trial court noted that Peter did not

(Footnote Continued Next Page)

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the trial court properly granted summary judgment in favor of Defendants on

this basis.

We address the Milshteyns’ remaining claims together.6 The Milshteyns

assert that the trial court erred in concluding that a claim for gross negligence

is a separate cause of action, which Appellants were required to plead in their

complaint. See Appellants’ Brief at 18. The Milshteyns contend that

Pennsylvania courts recognize differing standards of care, rather than

separate causes of action for degrees of negligence. See id. at 19. The

Milshteyns therefore argue that they were not required to separately plead a

claim for gross negligence in their complaint to present evidence of such at

trial. See id. at 20.

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ask his wife to help him translate the document and determined that “the

language difficulties presented by [the Milshteyns] … are not legally material

for determining whether the Membership Agreement is enforceable….” Trial

Court Opinion, 4/12/21, at 9-10; see also Toro, 150 A.3d at 976 (stating

that, where the plaintiff signed a Membership Agreement that included an

express acknowledgement that he read and understood the agreement,

plaintiff was bound by the terms of the agreement); Hinkal v. Pardoe, 133

A.3d 738, 743 (Pa. Super. 2016) (stating that “[o]ne who is about to sign a

contract has a duty to read that contract first.”).

6 The Milshteyns do not separately address their fourth claim in the argument

section of their appellate brief. See Pa.R.A.P. 2119(a) (providing that an

appellant’s “argument shall be divided into as many parts as there are

questions to be argued”).

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Further, the Milshteyns argue that a jury could reasonably conclude that

Fitness & Sports Clubs7 engaged in grossly negligent conduct. See id. at 20.

The Milshteyns contend that Fitness & Sports Clubs’ conduct could be deemed

grossly negligent because Fitness & Sports Clubs allowed Peter, unattended,

to descend the steps leading from the pool area to the locker room, despite

the clear dangers associated with a dark, and potentially wet, staircase. See

id. at 23-24.

We conclude the trial court did not err. After the statute of limitations

on a claim has run, a claim cannot be added to a complaint if it is wholly

distinct from the claims originally in the complaint. See Aetna Cas. & Sur.

Co. v. Roe, 650 A.2d 94, 103 (Pa. Super. 1994). “In determining whether a

wholly different cause of action is introduced by [an] amendment, technical

considerations or ancient formulae are not controlling[.]” Id. (citation

omitted). The polestar of the analysis is whether the defendant is improperly

prejudiced by the proposed addition. See id.

One way a defendant can be improperly prejudiced is if the proposed

addition is not subject to the same defenses as the original claim. See id.

Here, it is precisely because a claim for “gross negligence” is not barred by

the Membership Agreement that the Milshteyns seek to add it to the

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7 The Milshteyns concede that Fitness International, LLC, did not control the

premises at the time of Peter’s accident, and therefore restrict their argument

to the entry of summary judgment in favor of Fitness & Sports Clubs. See

Appellants’ Brief at 8 n.1.

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complaint. According to the terms of the Membership Agreement, Fitness &

Sports Clubs cannot be held liable for injuries to patrons arising from its own

negligent conduct. See Motion for Summary Judgment, 11/2/20, Exhibit E

(Membership Agreement), at 2. However, the Membership Agreement does

not preclude liability for injuries arising from grossly negligent conduct. See

generally Feleccia v. Lackawanna Coll., 215 A.3d 3, 21 (Pa. 2019)

(holding that “the same policy concerns that prohibit the application of a

waiver in cases of recklessness—i.e., allowing it would incentivize conduct that

jeopardizes the signer’s health, safety and welfare to an unacceptable

degree[,] requires a similar holding with regard to gross negligence”). As a

result, this circumstance weighs in favor of categorizing their claim for gross

negligence as a wholly new cause of action.

Another circumstance that weighs in favor of treating a claim as a wholly

new cause of action is when “the amendment proposes … a different kind of

negligence than the one previously raised[.]” Aetna, 650 A.2d at 103. “Gross

negligence” is substantively different from ordinary negligence. See Kibler v.

Blue Knob Rec., Inc., 184 A.3d 974, 984-85 (Pa. Super. 2018).

However, the Milshteyns contend that caselaw has established “gross

negligence” as merely a different degree of negligence and not a different

cause of action. We conclude their argument misinterprets the cited cases.

For example, the Milshteyns cite to Ferrick Excavating & Grading Co. v.

Senger Trucking Co. for the proposition that gross negligence is merely a

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differing standard of care and not a distinct cause of action. See id., 484 A.2d

744, 749 (Pa. 1984). However, even Ferrick acknowledged gross negligence

is a distinct standard of care from ordinary negligence. See id., at 749. Nor

does In re Scheidmantel support the Milshteyns’ position. See id., 868 A2d

464 (Pa. Super. 2005). In Scheidmantel, this Court, after acknowledging the

lack of precision in the term “gross negligence,” observed that “when courts

have considered the concept … in various civil contexts, they have concluded

uniformly that there is a substantive difference between ‘ordinary negligence’

and ‘gross negligence.’” See id., at 485.

The Milshteyns’ remaining citations are to Third Circuit and Eastern

District of Pennsylvania decisions. See, e.g., Fialkowski v. Greenwich

Home for Children, Inc., 921 F.2d 459 (3d Cir. 1990). Even if we agreed

with their interpretations of these cases, which we explicitly do not, we note

that they do not constitute binding precedent. See Kleban v. Nat’l Union

Fire Ins. Co. of Pittsburgh, 771 A.2d 39, 43 (Pa. Super. 2001) (noting that

federal court decisions, other than U.S. Supreme Court decisions, are not

binding upon this Court).

Under these circumstances, we conclude that the Milshteyns’ claim for

gross negligence constituted a wholly distinct claim from the claims originally

presented in their complaint. We therefore can find no error in the trial court’s

order granting summary judgment.

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Based upon the foregoing, we affirm the trial court’s order granting

summary judgment in favor of Defendants.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/18/2022

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