          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Degliomini and                    :
Karen Degliomini                          :
                                          :
             v.                           :
                                          :
ESM Productions, Inc. and                 :
City of Philadelphia                      :
                                          :   No. 1573 C.D. 2018
Appeal of: City of Philadelphia           :   Argued: June 3, 2019



BEFORE:      HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                       FILED: June 25, 2019


             The City of Philadelphia (City) appeals from the October 24, 2018
order of the Court of Common Pleas of Philadelphia County (trial court) which
denied City’s Motion for Post-Trial Relief and determined that an exculpatory
release signed by a participant of a charity bicycle ride was invalid as violative of
public policy. Upon review, we reverse.
             On May 17, 2015, Anthony Degliomini (Degliomini or Appellee)
suffered extensive physical injuries as a result of a fall from his bicycle while
participating in a charity bicycle ride through the streets of Philadelphia (the Ride)
sponsored by the Philadelphia Phillies (Phillies) and ESM Productions, Inc. (ESM).
Before commencing the Ride, Appellee executed via e-signature an exculpatory
release of liability1 entitled “2015 Phillies Charities Bike Ride Release” against,
inter alia, the Phillies, ESM, and the City (the Release).
               Degliomini and his wife, Karen Degliomini (collectively the
Degliominis or Appellees), initiated the instant lawsuit in April 2016 against City
and multiple other defendants seeking damages for the injuries Degliomini sustained
during the Ride and for Mrs. Degliomini’s loss of consortium. City asserted that the
Release absolved it of liability and proceeded to trial. After a five-day trial during
which the trial court refused to allow the admission of evidence regarding the
Release, a jury returned a verdict in favor of Appellees.2 City filed a Motion for
Post-Trial Relief seeking judgment notwithstanding the verdict (JNOV) based on the
Release, Degliomini’s assumption of the risk, and a failure of Appellees’ causation
evidence. Appellees filed a Motion for Delay Damages. Following oral argument,
on October 24, 2018, the trial court denied City’s post-trial motion and granted
Appellees’ delay damages motion. This timely appeal followed.
               In this Court,3 City again asserts the three alternative claims from its
post-trial motion: (1) that the Release precludes the Degliominis from recovering
damages against City for injuries suffered during the Ride; (2) that City owed
Degliomini no duty of care because Degliomini assumed the risks of participating in


       1
        An exculpatory clause “reliev[es] a party from liability resulting from a negligent or
wrongful act.” Black’s Law Dictionary 648 (9th ed. 2009).
       2
        The jury awarded Degliomini $3,086,833.19 in damages and a further $100,000.00 to
Mrs. Degliomini for loss of consortium. The trial court later reduced the verdict amount to
conform to the $500,000.00 statutory damages cap. See 42 Pa.C.S. § 8553(b).
       3
          “This Court’s review of the denial of a motion for JNOV is limited to determining whether
the trial court abused its discretion or committed an error of law.” Joers v. City of Philadelphia,
190 A.3d 797, 803 (Pa. Cmwlth. 2018), reargument denied (Sept. 4, 2018) (citing Dooner v.
DiDonato, 971 A.2d 1187, 1193 (Pa. 2009)).

                                                2
the Ride, participated in the Ride knowing the risks inherent in bicycle races, and
voluntarily chose to continue in the Ride despite his knowledge of dangerous course
conditions; and (3) that the Degliominis failed to meet their burden of proving
causation at trial. See City’s Brief at 2-3.
             We first discuss City’s Release argument, as it is dispositive. City
contends that the Release is a valid and enforceable exculpatory release of the kind
regularly enforced by Pennsylvania courts and to which no public policy exception
applies, and that the trial court erred when it held the Release invalid as violative of
public policy. See City’s Brief at 13-25. We agree.
             Initially, it is undisputed that, prior to participating in the Ride,
Degliomini e-signed the Release, which provided, in pertinent part, as follows:

                     2015 Phillies Charities Bike Ride Release

             I know that participating in an organized bike ride such as
             the 2015 Phillies Charities Bike Ride is a potentially
             hazardous activity. I should not enter and bike unless I am
             medically able and properly trained. I understand that
             bicycle helmets must be worn at all times while
             participating in the event and I agree to comply with this
             rule. I further understand and agree that consumption of
             alcoholic beverages while operating a bicycle is a
             violation of the law and strictly prohibited. I know that
             there will be traffic on the course route and I assume the
             risk of biking in traffic. I also assume any and all other
             risks associated with participating in the event, including
             but not limited to falls; contact with other participants; the
             effects of the weather; the condition of the roads; and
             unsafe actions by other riders, drivers, or non-participants.
             I consent to emergency medical care and transportation in
             the event of an injury, as medical professionals deem
             appropriate.



                                           3
             All such risks being known and appreciated by me, and in
             consideration of the acceptance of my entry fee, I hereby,
             for myself, my heirs, executors, administrators and anyone
             else who might claim on my behalf, promise not to sue and
             I release and discharge The Phillies, Phillies Charities,
             Inc., and any and all sponsors of the event, the City of
             Philadelphia, Philadelphia Authority for Industrial
             Development, Philadelphia Industrial Development
             Corporation, ESM Productions, and each of their
             respective officers, employees, agents, owners, partners,
             successors and assigns and all volunteers (collectively, the
             “Releasees”), from any and all claims of liability for death,
             personal injury, other adverse health consequence, theft or
             loss of property or property damage of any kind or nature
             whatsoever arising out of, or in the course of, my
             participation in the event even if caused by the negligence
             of any of the Releasees. This Release extends to all claims
             of every kind or nature whatsoever.

             ...

             I, intending to be legally bound, represent that I am at least
             eighteen years old; either I am registering to enter this
             event for myself or as a parent or guardian of a minor who
             is at least thirteen years old; I have carefully read and
             voluntarily agree to this Release on behalf of myself and,
             if applicable, the minor who is being registered to
             participate, and I understand its full legal effect.

Release, Reproduced Record (R.R.) 287-88.           Clearly, the text of the Release
intended to create a contract that would insulate, among others, City from liability
for any and all accidents, injuries, or misfortunes that may befall participants during
the course of the Ride. No question exists about the facial validity of the Release.
             Turning to the enforceability of the Release, our Supreme Court has
explained that such exculpatory releases are generally valid and enforceable where
three conditions are met:

                                           4
             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.

Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010). Neither
party alleges, and the trial court did not determine, that the Release is not a contract
between parties relating to private affairs or that the contract was one of adhesion.
Indeed, all agree that the Release pertains to the use of the City’s streets during a
private event – the Ride – in which Degliomini was under no obligation to
participate. Therefore, we need only examine whether the Release contravenes
public policy.
             The Superior Court of Pennsylvania has explained,

             [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 carriers, and hospitals.

Seaton v. E. Windsor Speedway, Inc., 582 A.2d 1380, 1382 (Pa. Super. 1990).
Further, Pennsylvania courts have noted multiple times that

             [a]n agreement exculpating the sponsor of the race and the
             owner of the track does not contravene public policy. It is
             a contract between individuals pertaining to their private
             affairs and does not impair generally the rights of members
             of the public.




                                           5
Id. at 1383 (quoting Valeo v. Pocono Int’l Raceway, Inc., 500 A.2d 492 (Pa. Super.
1985)). Further, a release that does not relate to an essential service, but merely
governs a voluntary recreational activity, does not implicate a public interest. See
Chepkevich, 2 A.3d at 1190-91.
             Generally, the Commonwealth’s courts have consistently upheld the
validity of exculpatory releases with regard to various sporting and recreational
events as non-violative of public policy. See, e.g., Chepkevich, 2 A.3d 1174
(downhill skiing); McDonald v. Whitewater Challengers, Inc., 116 A.3d 99 (Pa.
Super. 2015) (whitewater rafting); Wang v. Whitetail Mountain Resort, 933 A.2d
110 (Pa. Super. 2007) (snow tubing); Nissley v. Candytown Motorcycle Club, Inc.,
913 A.2d 887 (Pa. Super. 2006) (use of motorcycle club’s track); Seaton, 582 A.2d
1380 (automobile race pit crew hobbyist); Valeo, 500 A.2d 492 (automobile racing).
Specifically, this Court has determined that exculpatory releases used in bike tour-
type events are not contrary to public policy. See Vinikoor v. Pedal Pa., Inc., 974
A.2d 1233, 1240 (Pa. Cmwlth. 2009); see also Scott v. Altoona Bicycle Club (Pa.
Cmwlth., No. 1426 C.D. 2009, filed July 16, 2010),4 slip op. at 8. In Vinikoor, this
Court refused to invalidate an exculpatory release used in a bike tour event based on
public policy grounds, stating instead that “[t]here is a valid public policy to preclude
recovery against self-inflicted injuries through known risks.” Vinikoor, 974 A.2d at
1240 (discussing injuries suffered as a result of encountering the known and
voluntary risk of adverse road conditions during bike tour). In Scott, which involved
injuries suffered as the result of a fall during a seven-day bike race, this Court
determined that where an exculpatory release represented a private agreement
between an individual and various entities – including a municipal entity – that did

      4
        This Court’s unreported memorandum opinions may be cited for persuasive value. 210
Pa. Code § 69.414.
                                            6
not involve a mandatory agreement between an individual and an employer, or a
public service, a public utility, a common carrier or a hospital or healthcare provider,
and where the individual was under no obligation to either sign the release or
participate in the biking event, the exculpatory release was valid and did not
contravene public policy, despite the event occurring on public streets. See Scott,
slip op. at 8-9.
                Here, as in Scott, the Release was a private agreement between
Degliomini and various entities involved with the Ride. Degliomini was under no
obligation to agree to the Release or participate in the Ride. The Release did not
concern an essential service but instead merely governed a voluntary recreational
activity. Additionally, because the Ride was a private event that was to occur on
public roads, City’s involvement with the Ride was akin to that of a private race
track owner hosting a race. Therefore, no contravention of public policy occurred
when Degliomini voluntarily agreed to absolve City of liability for the use of its
roads for this specific recreational activity. See Scott; Vinikoor; Seaton.
                The trial court’s reliance on Section 5-500 of the Philadelphia Home
Rule Charter5 (Home Rule Charter) to justify invalidating the Release is misplaced.
See Trial Court Memorandum In Support of Order Denying the Motion for Post-
Trial Relief Filed By the City of Philadelphia (Trial Court Memorandum) at 14-17.
Contrary to the trial court’s position, Section 5-500 is not a regulation that
establishes a non-waivable standard of care as would a health or safety regulation.
Home Rule Charter Section 5-500 is instead an organizational section that mandates
the creation of the Department of Streets and delineates the functions of the
Department upon its creation, which are to include the design, construction, repair


       5
           Phila., Pa., Philadelphia Home Rule Charter (2019).
                                                 7
and maintenance of City’s streets. See Home Rule Charter § 5-500.6 In establishing
the Department of Streets, Section 5-500 provides no standard of care or guidelines
for how the Department must accomplish its road repair duties. Id. Certainly, the
Home Rule Charter established an obligation to maintain City’s streets that would
be carried out by the Department of Streets. However, the Department’s and,
therefore, City’s, duty of care to repair streets arising under Section 5-500 was no
different than any common law duty of reasonable care, which may be waived. See
Chepkevich, 2 A.3d at 1194-95 (exculpatory release waiving negligence claims for
hazardous, voluntary activity valid and enforceable).
              As this Court has previously made clear, in regard to private, voluntary
events like charity bike rides, exculpatory releases are private agreements into which
individual participants are under no obligation to enter. See Scott, slip op. at 9.
Based on the above, the trial court committed an error of law by denying City’s



       6
         Home Rule Charter Section 5-500 establishes City’s Department of Streets and provides,
in pertinent part:

              The Department of Streets shall have the power and its duty shall be
              to perform the following functions:

              (a) City Streets. It shall itself, or by contract, design construct, repair
              and maintain:

                      (1) City streets, which shall include highways, roads, streets,
              alleys, footways, bridges, tunnels, overpasses and underpasses,
              including approaches and viaducts, owned, controlled or operated
              by the City or designated in accordance with law as streets of the
              City;

                      (2) The roads and drives in Fairmount Park.

Home Rule Charter § 5-500(a).



                                                  8
Motion for Post-Trial Relief and finding the Release was invalid as violative of
public policy. See Chepkevich; Scott; Vinikoor. Accordingly, we reverse.7




                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge




       7
          Our disposition on the exculpatory release issue makes unnecessary any discussion of
City’s remaining arguments that Degliomini assumed the risk of a road condition-related accident
by participating in the Ride or that the Degliominis failed to carry their burden of proof regarding
causation.
                                                 9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Degliomini and                :
Karen Degliomini                      :
                                      :
            v.                        :
                                      :
ESM Productions, Inc. and             :
City of Philadelphia                  :
                                      :   No. 1573 C.D. 2018
Appeal of: City of Philadelphia       :


                                  ORDER


            AND NOW, this 25th day of June, 2019, the October 24, 2018 order of
the Court of Common Pleas of Philadelphia County is REVERSED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
