J-E03010-15

                             2016 PA Super 11



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 the 17th Judicial District,
                            Union County Branch,
                        Civil Division at No: 12-0375


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OTT, J., STABILE. J., and JENKINS, J.

OPINION BY STABILE, J.:                          FILED JANUARY 22, 2016

     Melinda Hinkal (“Appellant”) appeals from the January 7, 2014 order

entered in the Court of Common Pleas of Union County granting summary

judgment in favor of Gavin Pardoe (“Pardoe”), Gold’s Gym, Inc. (“Gold’s

Gym”), Gold’s Gym International, Inc. and TRT holdings, Inc. (collectively

“Appellees”). Following review, we affirm.

     In this appeal, Appellant challenges whether agreements she signed

for membership at Gold’s Gym released Appellees from liability for injuries

she alleged she sustained while under the direction of Pardoe, a personal

trainer, at Gold’s Gym. In her Second Amended Complaint, Appellant

asserted claims of negligence against Pardoe, and negligence against Gold’s
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Gym premised upon respondeat superior liability. In its 1925(a) opinion, the

trial court explained:

      [Appellant] alleges she sustained a serious neck injury while
      using a piece of exercise equipment under [personal trainer]
      Pardoe’s direction.    [Appellant] alleges that she suffered a
      rupture of the C5 disc in her neck requiring two separate
      surgeries. [Appellant] alleges that Pardoe’s negligence included,
      inter alia, putting too much weight on the piece of equipment
      that injured [Appellant] and by instructing [Appellant] to
      continue the workout without recognizing that [Appellant] had
      sustained a serious injury.         [Appellant’s] allegations of
      negligence against the remaining [Appellees] are based upon
      vicarious liability for Pardoe’s negligence as well as the
      negligence of unidentified employees, agents and servants.

      [Appellees] have filed a Motion for Summary Judgment
      requesting that we dismiss all [Appellant’s] claims against all
      [Appellees] with prejudice.     In support of their motion,
      [Appellees] aver that as a member of [Gold’s Gym], [Appellant]
      signed a Guest Courtesy Card, a Membership Agreement and a
      Personal Training Agreement with Pardoe. [Appellees] assert
      that these documents contain legally valid “waiver of liability”
      provisions, which in turn, bar [Appellant’s] claims against all
      [Appellees].

Trial Court Opinion (“T.C.O.”), 1/7/14, at 1-2.

      The trial court concluded that the waiver language set forth in Gold’s

Membership Agreement was valid and enforceable. 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,
      [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.


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      Therefore, [Appellees’] Motion for Summary judgment is granted
      with prejudice . . . .

Id.

      Appellant filed a timely appeal to this Court. A divided panel reversed

the trial court’s grant of summary judgment.        Following the grant of

reargument, the case now comes before this Court en banc.

      In her Amended Brief filed with this Court, 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.

      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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      With respect to Appellant’s first issue, questioning whether the guest

card covering Appellant’s six-day trial period expired before the Appellant’s

injury occurred, we observe that Appellant did not address this issue in the

Argument section of her brief.   We therefore, may find this issue waived.

Pa.R.A.P. 2119; Harvilla v. Delcamp, 555 A.2d 763, 764, n.1 (Pa. 1989).

Nonetheless, even if this issue were not considered waived, the guest card is

of no consequence in this case. Appellant received the guest card on June

20, 2010 when she first visited Gold’s Gym. At the conclusion of the six-day

guest period, Appellant signed a membership agreement that included the

provisions in effect on August 24, 2010, the date Appellant alleges she was

injured due to Appellees’ negligence. It was those provisions, not any guest

card, which govern the relevant time here, and upon which the trial court

granted summary judgment.

      In her second issue, Appellant questions whether the waiver on the

back page of her membership agreement is valid and enforceable.            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

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      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. The Gold’s

Gym Membership Agreement signed by Appellant further 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.

Id. The signature line follows immediately and the words “Notice: See other

side for important information” appear in bold typeface below the signature

line. Id.

      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:




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       “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.”
       [Chepkevich, 2 A.3d at 1189] (citations omitted). “. . . [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 4-5.1

____________________________________________


1
  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. We shall refer to the standard as the “Topp
Copy/Employers Liability standard” in this Opinion.




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      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

interest to the public or the state.    Therefore, the first two prongs of the

Topps 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 purely voluntary recreational activity.” Id.

at 7. Therefore, the third prong of the Topps Copy/Employers Liability

standard also was satisfied.

      Persuaded that 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 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.

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      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
      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. Am. Empire Ins.
      Co., 469 A.3d 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 that the language fails to relieve Appellees

from liability.   Further, Appellant ignores the Topps Copy/Employers

Liability standard as well as the language in the agreement relieving

Appellees from liability.    Relying primarily on Beck-Hummel v. Ski

Shawnee, Inc., 902 A.2d 1266 (Pa. Super. 2006), Appellant contends the

waiver is invalid because the waiver language 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


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she was aware of the clause and its contents.       Id.   However, 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

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.”

Schilachi 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).

      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, and a straightforward statement that the

agreement constitutes the entire agreement between the parties, the signed

Gold’s Gym membership agreement cannot be compared in any way to the

unread and unsigned disclaimer on a ski facility ticket in Beck-Hummel.




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     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

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


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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 1274 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

user/purchaser 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


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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 Appellant, but also, as previously stated, the contract

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 discern if assent to an agreement had been reached.

       Appellant also looks to Beck-Hummel for its discussion of conspicuity.

Appellant’s Amended Brief at 18-19.                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,2 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

____________________________________________


2
  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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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 release was a part of the quid pro quo for use of

the ski facility. The existence of a valid written contract, however, cannot be

supplanted by imposing undefined conspicuity requirements as essential

elements to all contract formations. To do so would substantially alter the

landscape of contract formation and allow 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.

      Here, without reading it, Appellant signed the membership agreement,

which included an unambiguous directive not to sign before 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. Viewing the record in

the light most favorable to Appellant, as we are constrained to do, we find

no genuine issue as to any material fact or any error in the lower court’s


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determination that the waiver was valid and enforceable.     Appellant is not

entitled to relief based on her second issue.

      In the third issue set forth in Appellant’s amended brief, she 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

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).




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      Clearly, Appellant’s claims of recklessness are waived, unless the

allegations of her pleadings or assertions in opposition to Appellees’

summary judgment motion can be read to encompass recklessness.             Our

review of the pleadings, Appellant’s deposition, and her brief in opposition to

the motion for summary judgment leads us to conclude recklessness was not

raised prior to the filing of Appellant’s brief on appeal.   All of Appellant’s

claims are centered on mere negligence.

      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:

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         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,
         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, 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, we affirm the grant of

summary judgment.




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      Order affirmed.

      P.J. Gantman, P.J.E. Bender, J. Bowes, J. Shogan, J. Ott, and J.

Jenkins join this Opinion.

      J. Lazarus files a Dissenting Opinion, in which J. Panella joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016




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