# Hinkal, M. v. Pardoe, G. > Superior Court of Pennsylvania · April 24, 2015 URL: https://www.frixlaw.com/law-library/cases/2796513 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** April 24, 2015 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2796513 ## Opinion text J-S54042-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MELINDA HINKAL IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. GAVIN PARDOE & GOLD'S GYM, INC., AND GOLD'S GYM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, J-S54042-14 [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 ____________________________________________ 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). -2- J-S54042-14 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 -3- J-S54042-14 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 ____________________________________________ 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. -4- J-S54042-14 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 -5- J-S54042-14 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 -6- J-S54042-14 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. -7- J-S54042-14 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 -8- J-S54042-14 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 -9- J-S54042-14 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. - 10 - J-S54042-14 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 ____________________________________________ 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). - 11 - J-S54042-14 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 - 12 - J-S54042-14 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. - 13 - J-S54042-14 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, - 14 - J-S54042-14 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. - 15 - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2796513. Public record. Not legal advice.