The opinion
J-S54042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MELINDA HINKAL IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GAVIN PARDOE & GOLD'S GYM, INC.,
AND GOLD'S GYM INTERNATIONAL, INC.
AND TRT HOLDINGS, INC.
Appellees No. 165 MDA 2014
Appeal from the Order Entered January 7, 2014
In the Court of Common Pleas of Union/Snyder Counties
Union County Civil Division at No: 12-0375
BEFORE: LAZARUS, MUNDY, and STABILE, JJ.
CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.:FILED APRIL 24, 2015
I concur with the Majority’s determination that Appellant has waived
the first issue raised in her brief. However, because I disagree with the
Majority’s conclusion with respect to Appellant’s second issue, and in
particular because I believe the Majority’s reliance on Beck-Hummel v. Ski
Shawnee, Inc., 902 A.2d 1266 (Pa. Super. 2006), is misplaced and in
effect reshapes established contract law, I respectfully dissent.
The trial court concluded that the waiver language set forth in Gold’s
Membership Agreement was valid and enforceable. Trial Court Opinion
(T.C.O.), 1/7/14, at 10. The trial court determined:
By signing the Membership Agreement, [Appellant] executed a
release and assumed the risk of any and all injuries sustained by
virtue of her use of the exercise equipment at the [gym]. Thus,
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[Appellees] are entitled to the entry of judgment in their favor
on the basis of the exculpatory release language set forth in the
Membership Agreement and scrutinized and analyzed at length
herein. There are simply no genuine issues of material fact to
warrant a jury trial in this action.
Id.
In this appeal, Appellant presents three issues for our consideration:
1. Whether the Guest Card signed by the Appellant covering the
six day trial period had expired before the Appellant’s injury
occurred[?]
2. Whether the Waiver on the back page of the Membership
Agreement signed by the Appellant is valid and enforceable[?]
3. Whether the Waiver encompasses Reckless Conduct?
Appellant’s Amended Brief at 4.1
As noted above, I do not take issue with the Majority’s determination
that Appellant’s failure to develop any argument in support of her first issue
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1
Our standard and scope of review from the grant of summary judgment
are as follows:
The overarching question of whether summary judgment is
appropriate is a question of law, and thus our standard of review
is de novo and the scope of review is plenary. O'Donoghue v.
Laurel Sav. Ass'n, 556 Pa. 349, 728 A.2d 914, 916 (1999).
Summary judgment may be entered only in those cases where
the record demonstrates that there remain no genuine issues of
material fact, and that the moving party is entitled to judgment
as a matter of law. Dean v. Commonwealth, Dep't of
Transp., 561 Pa. 503, 751 A.2d 1130, 1132 (2000).
Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1182 (Pa. 2010).
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results in waiver of the issue. See Pa.R.A.P. 2119; Harvilla v. Delcamp,
555 A.2d 763, 764 n.1 (Pa. 1989). Where I must part company with the
Majority is in its analysis of Appellant’s second issue, in which Appellant
questions the validity and enforceability of the waiver on the back page of
her membership agreement. The language on the back page of the
agreement reads in pertinent part as follows:
WAIVER OF LIABILITY; ASSUMPTION OF RISK: Member
acknowledges that the use of Gold’s Gym’s facilities, equipment,
services and programs involves an inherent risk of personal
injury to Member . . . . Member voluntarily agrees to assume all
risks of personal injury to Member . . . and waives any and all
claims or actions that Member may have against Gold’s Gym,
any of its subsidiaries or other affiliates and any of their
respective officers, directors, employees, agents, successors and
assigns for any such personal injury (and no such person shall
be liable to Member . . . for any such injury), including, without
limitation (i) injuries arising from use of any exercise equipment,
machines and tanning booths, (ii) injuries arising from
participation in supervised or unsupervised activities and
programs in exercise rooms . . . or other areas of Gold’s Gym,
(iii) injuries or medical disorders resulting from exercising at any
Gold’s Gym, including heart attacks, strokes, heat stress,
sprains, broken bones and torn or damaged muscles, ligaments,
or tendons and (iv) accidental injuries within any Gold’s Gym
facilities . . . .”
Appellees’ Motion for Summary Judgment, 8/16/13, at Exhibit C.
In its thorough and well-reasoned opinion, the trial court reviewed the
language of the waiver and conducted a review of case law addressing
exculpatory clauses, recognizing:
“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
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thirdly, each party must be a free bargaining agent to the
agreement so that the contract is not one of adhesion.”
[Chepkevich, 2 A.3d at 1189]. “. . . [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 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 clauses.” Id., quoting
Dilks v. Flohr Chevrolet, 192 A.2d 682, 687 (Pa. 1963).
Moreover, “. . . [c]ontracts against liability, although not favored
by courts, violate public policy only when they involve a matter
of interest to the public or the state. Such matters of interest to
the public or the state include the employer-employee
relationship, public service, public utilities, common carrier, and
hospitals.” Seaton v. E. Windsor Speedway, Inc., 582 A.2d
1380, 1382 (Pa. Super. 1990).
T.C.O., 1/7/14, at 4-5.2
The trial court concluded that the exculpatory language at issue cannot
be said to violate public policy because it was an agreement between a
private individual and entities, and because it did not address matters of
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2
The trial court noted that the three-pronged exculpatory clause test applied
in Chepkevich has been identified as the “Topp Copy/Employers
Liability standard” based upon Topp Copy Products Inc. v. Singletary,
626 A.2d 98 (Pa. 1993) and Employers Liability Assurance Corp. v.
Greenville Business Men’s Association, 224 A.2d 620 (Pa. 1966).
T.C.O., 1/7/14, at 5 n.4. I shall refer to the standard as the “Topp
Copy/Employers Liability standard” in this dissent.
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interest to the public or the state. Therefore, the first two prongs of the
Topp Copy/Employers Liability standard were satisfied. Id. at 5. The
trial court further determined that the membership agreement did not
constitute a contract of adhesion. Id. at 6. “[Appellant] was under no
compulsion to join Gold’s Gym as a member and execute the Membership
Agreement. Exercising at a gym with equipment and availing oneself of the
expertise of a personal trainer is a purely voluntary recreational activity.”
Id. at 7. Therefore, the third prong of the Topp Copy/Employers
Liability standard also was satisfied.
Having determined all conditions for evaluating the validity of an
exculpatory clause were met, the trial court concluded that the “Waiver of
Liability; Assumption of Risk” provision of the membership agreement was
valid. Id. The trial court then considered whether the provision spelled out
the intention to release Appellee Gavin Pardoe and Gold’s Gym from liability
for negligence. The trial court stated:
[W]e conclude that the provision at issue expressly states with
particularity the intention to bar all lawsuits arising out of the
inherent risk of personal injury in using exercise equipment and
machines and participating in an exercise program. We do not
find the language in the waiver to be ambiguous such that we
need to construe it against [Appellees]. We conclude that
[Appellees] have satisfied their burden of establishing the
validity of the waiver provision.
We note that in response to the summary judgment motion,
[Appellant] has objected to the font size and the location of the
language in the Membership Agreement. However, [Appellant]
testified in her deposition that she did not read the agreement
prior to signing the same. As [a] result the font size and
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location of the language is of no consequence. Moreover, “ . . .
[i]n the absence of fraud or confidential relationship, the fact
that [a party] may have ‘skimmed’ or ‘somewhat read’ the
subject releases, does not make them any less enforceable.”
Seaton v. E. Windsor Speedway, [582 A.2d 1380 (Pa. Super.
1990)]; Standard Venetian Blind Co. [v. American Emp.
Ins. Co., 469 A.2d 563 (Pa. 1968)].
Id. at 9-10.
In her brief, Appellant does not contend that the trial court’s analysis
is legally deficient. Rather, she simply asserts that her claim is not barred
by the “exclusion clause” on the back of the membership agreement.
Appellant’s Amended Brief at 15-20. Her argument does not focus on
aspects of validity of exculpatory clauses, such as whether the membership
agreement clause contravenes public policy or constitutes a contract of
adhesion. Nor does she contend the language fails to relieve Appellees from
liability. Instead, Appellant ignores the Topp Copy/Employers Liability
standard and the language relieving Appellees from liability, and contends
the waiver is invalid because it appeared on the back of the agreement, she
never read or was told to read the back of the agreement, and the clause
was not “brought home” to her in a way that could suggest she was aware of
the clause and its contents. Id.
Appellant’s argument does not have merit. As the trial court
recognized, Appellant admitted she did not read the agreement prior to
signing it. T.C.O., 1/7/14, at 9. She did not allege fraud or a confidential
relationship. Id. Although she was ostensibly attacking the validity of the
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waiver, Appellant did not present any basis for finding the waiver provisions
invalid or unenforceable. Her failure to read her agreement does not render
it either invalid or unenforceable. “The law of Pennsylvania is clear. One
who is about to sign a contract has a duty to read that contract first.”
Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169,
1174 (E.D. Pa. 1990) (citations omitted). As this Court has stated:
It is well established that, in the absence of fraud, the failure to
read a contract before signing it is “an unavailing excuse or
defense and cannot justify an avoidance, modification or
nullification of the contract”; it is considered “supine negligence.”
Germantown Sav. Bank v. Talacki, 441 Pa. Super. 513, 657
A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co.
v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566
note (1983)).
In re Estate of Boardman, 80 A.3d 820, 823 (Pa. Super. 2013).
The Gold’s Gym Membership Agreement signed by Appellant instructs:
Do not sign this Agreement until you have read both sides. The
terms on each side of this form are a part of this Agreement.
Member is entitled to a completely filled in copy of this
Agreement. By signing this Agreement, Member acknowledges
that (A) This Agreement is a contract that will become legally
binding upon its acceptance by Gold’s Gym, (B) Member has
examined the gym facilities and accepts them in the present
condition, (C) Gold’s Gym makes no representations or
warranties to Member, either expressed or implied, except to the
extent expressly set forth in this Agreement and (D) The
effective date of membership hereunder shall be within six
months after the date of Member’s signature below. This
Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes
any and all prior agreements, whether written or oral, with
respect to such matter.
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Appellees’ Motion for Summary Judgment, 8/16/13, at Exhibit C. The
signature line follows immediately and the words “Notice: See other side for
important information” appear in bold typeface below the signature line. Id.
With an unambiguous directive not to sign the agreement until reading both
sides, a clear pronouncement that the terms on both sides of the form are
part of the agreement, a straightforward statement that the agreement
constitutes the entire agreement between the parties, and Appellant’s
signature upon the agreement, I fail to understand how this agreement can
be compared in any way to the unread and unsigned disclaimer on a ski
facility ticket in Beck-Hummel, a case upon which the Appellant and the
Majority principally rely.
Beck-Hummel concerned the enforceability of a release provision
printed on the back of a tubing ticket purchased at Ski Shawnee, Inc.
(Shawnee). Plaintiff’s husband had purchased four tubing tickets. Neither
the plaintiff nor her husband read the exculpatory language on the tubing
tickets and neither of them was informed by any employee of Shawnee that
they were entering into a contractual agreement with Shawnee. The release
language was printed above a dotted line in the center of the ticket where
the ticket presumably was to be folded. Plaintiff fractured her ankle when
she ran into a wall in the run-out area. She sued Shawnee for negligence.
The issue on appeal was whether the release contained on the tubing ticket
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was enforceable. The resolution of this issue was dependent upon whether
there was a meeting of the minds to establish the existence of a contract.
On appeal to this Court, we concluded there was no agreement as to
this unsigned and unread disclaimer. Drawing upon Section 469B of the
Restatement (Second) of Torts, we found that for there to be an effective
express agreement to assume a risk, it must appear the plaintiff had given
assent to the terms of the agreement. In particular, where the agreement
was drawn by the defendant, and the plaintiff’s conduct was merely that of a
recipient of the agreement, it had to appear that the terms of the release
were in fact understood and “brought home” to the plaintiff to find that the
agreement had been accepted. Shawnee attempted to argue the ticket was
so conspicuous that it put plaintiff on notice of the release provision such
that an agreement could be found. In finding that the release on the ticket
was not sufficiently conspicuous we looked to caselaw addressing Article 2 of
Pennsylvania’s Uniform Commercial Code (PUCC), 13 Pa.C.S.A. § 2101 et
seq., relating to enforcement of warranty disclaimers, to determine whether
a reasonable person should have noticed the release provision. Beck-
Hummel, 902 A.2d at 1274. We were careful to recognize however, that
while Article 2 of the PUCC applied only to the sale of goods, we nonetheless
found it useful for providing guidance in that case. Id. at n.12. Since
neither the plaintiff nor her husband ever read the ticket’s language and the
language was not so conspicuous as to, without more, put the use/purchaser
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on notice, we could not conclude as a matter of law that the release on the
ticket was enforceable.
The distinguishing factor between Beck-Hummel and the instant
matter that makes resort to Beck-Hummel inapposite is the nature of the
respective agreements. In Beck-Hummel, the release provision was
contained on the face of an entry ticket purchased for use of a ski facility.
The ticket did not require a signature or an express acknowledgment that its
terms were read and accepted before using the facility. Nothing about the
ticket ensured that a purchaser would be aware of its release provision. The
purchasers were mere recipients of the document. In short, there was not
sufficient evidence to find conclusively that there was a meeting of the
minds that part of the consideration for use of the facility was acceptance of
a release provision. In stark contrast, here there is a written, signed and
acknowledged agreement between the parties. Not only is the written
contract signed by the Appellant, but also the contract, as previously stated,
contained an unambiguous directive not to sign the agreement until reading
both sides, a clear pronouncement that the terms on both sides of the form
are part of the agreement, and a straightforward statement that the
agreement constitutes the entire agreement between the parties.
Accordingly, there is no need here to resort to proof of notice, as in Beck-
Hummel, to attempt to discern if assent to an agreement had been
reached.
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I also take issue with the Appellant’s and Majority’s almost exclusive
resort to principles of conspicuity to find no agreement existed between the
parties. As a general principle, minimum conspicuity standards are not a
requirement to establish the formation of a contract. While it is true the
legislature has prescribed conspicuity requirements for certain types of
contracts,3 conspicuity per se is not an essential element of contract
formation. See Restatement (Second) of Contracts § 17(1) (a contract
requires a bargain in which there is a manifestation of mutual assent to the
exchange and a consideration). Sufficient proof of this exists by virtue of
the law recognizing and enforcing oral contracts between parties.
Nonetheless, in cases where the existence of a contract, or a meeting of the
minds, cannot be determined as a matter of law, conspicuity has been
resorted to as a means of proving the existence or lack of a contract. Such
was the case in Beck-Hummel where there was no signed agreement
between the parties. Conspicuity principles were borrowed from the PUCC in
aid of determining whether the plaintiff was put on sufficient notice that a
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3
See, e.g., 13 Pa.C.S.A. § 2316(b) (exclusion of implied warranties of
merchantability and fitness to be conspicuous), 73 P.S. § 201-7 (consumer
goods or services contract cancellation clause and notice to be minimum
ten-point boldface), 73 P.S. § 2163(b) (buyer’s right to cancel in health club
contract to be boldface and minimum ten-point font), 73 P.S. § 500-201
(home improvement contract to be at least eight-point type), 73 P.S. §
1970.3(c) (motor vehicle disclosure to be boldface and minimum size of ten
points), 73 P.S. § 2186(a) (credit services contract to be conspicuous in ten-
point bold type), 73 P.S. § 2205 (test of readability in consumer contracts).
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release was a part of the quid pro quo for use of the ski facility. The
Majority here essentially uses Beck-Hummel to supplant the existence of a
valid written contract by imposing undefined conspicuity requirements as
essential elements to all contract formations. In my view, this is
unwarranted and without precedent. The Majority impermissibly has taken
conspicuity, as means of proving the existence of a contract, and made it a
general requirement of contract formation. The Majority decision
substantially alters the landscape of contract formation and allows a properly
executed contract to be set aside through one party’s failure to do what the
law requires: to read the contract before signing. The Majority now places
the burden and risk of this failure upon the performing party. Therefore,
viewing the record in the light most favorable to Appellant, as we are
constrained to do, I find no genuine issue as to any material fact or any
error in the lower court’s determination that the waiver was valid and
enforceable. I conclude Appellant is not entitled to relief based on her
second issue.
The Majority did not address Appellant’s third issue in light of its
disposition of the second issue. In the third issue, Appellant questions
whether the membership agreement waiver encompasses reckless conduct.
She suggests that Pardoe’s actions, adding so much weight to a piece of
exercise equipment, constituted indifference to the consequences of his
actions rising to a level of recklessness outside the purview of the
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membership agreement waiver. Appellant’s Amended Brief at 21-22.
Appellees counter that the issue is waived because it was never raised
before the trial court, either in response to the motion for summary
judgment or at any other time. Appellees’ Brief at 23. Further, Appellant
did not allege reckless conduct as a basis for liability in her Second Amended
Complaint. Appellees’ Brief at 25.
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). Raising the issue in her
1925(b) statement does not cure that defect. “A party cannot rectify the
failure to preserve an issue by proffering it in response to a Rule 1925(b)
order. A Rule 1925(b) statement of matters complained of on appeal is not
a vehicle in which issues not previously asserted may be raised for the first
time.” Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 444 (Pa.
Super. 2003) (internal citations omitted).
Clearly, Appellant’s claims of recklessness on appeal are waived,
unless the allegations of her pleading or assertions in opposition to
Appellees’ summary judgment motion can be read to encompass
recklessness. My review of the pleadings, Appellant’s deposition, and her
brief in opposition to the motion for summary judgment leads me to
conclude recklessness was not raised prior to the filing of Appellant’s briefs
on appeal. All of Appellant’s claims are centered on mere negligence.
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In Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012),
our Supreme Court explained:
Recklessness is distinguishable from negligence on the basis that
recklessness requires conscious action or inaction which creates
a substantial risk of harm to others, whereas negligence
suggests unconscious inadvertence. In Fitsko v.
Gaughenbaugh, 363 Pa. 132, 69 A.2d 76 (1949), we cited with
approval the Restatement (Second) of Torts definition of
“reckless disregard” and its explanation of the distinction
between ordinary negligence and recklessness. Specifically, the
Restatement (Second) of Torts defines “reckless disregard” as
follows:
The actor’s conduct is in reckless disregard of the safety of
another if he does an act or intentionally fails to do an act
which it is his duty to the other to do, knowing or having
reason to know of facts which would lead a reasonable
man to realize, not only that his conduct creates an
unreasonable risk of physical harm to another, but also
that such risk is substantially greater than that which is
necessary to make his conduct negligent.
Restatement (Second) of Torts § 500 (1965). The Commentary
to this Section emphasizes that “[recklessness] must not only be
unreasonable, but it must involve a risk of harm to others
substantially in excess of that necessary to make the conduct
negligent.” Id., cmt. a. Further, as relied on in Fitsko, the
Commentary contrasts negligence and recklessness:
Reckless misconduct differs from negligence in several
important particulars. It differs from that form of
negligence which consists in mere inadvertence,
incompetence, unskillfulness, or a failure to take
precautions to enable the actor adequately to cope with a
possible or probable future emergency, in that reckless
misconduct requires a conscious choice of a course of
action, either with knowledge of the serious danger to
others involved in it or with knowledge of facts which
would disclose this danger to any reasonable man. . . .
The difference between reckless misconduct and conduct
involving only such a quantum of risk as is necessary to
make it negligent is a difference in the degree of the risk,
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but this difference of degree is so marked as to amount
substantially to a difference in kind.
Id., cmt. g.
Tayar, 47 A.3d at 1200-01.
Because Appellant did not assert claims of reckless conduct at any
time prior to her appeal and because her claims of negligence cannot be
read to encompass recklessness, I conclude Appellant’s third issue does not
afford her the right to any relief. Finding no error of law in the trial court’s
conclusion that there were no genuine issues as to material fact and that
Appellees were entitled to judgment as a matter of law, I would affirm the
grant of summary judgment.
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