J. A11016/15


                             2015 PA Super 273

MICHELE VALENTINO, AS                   :     IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF         :           PENNSYLVANIA
DEREK VALENTINO, DECEASED, AND          :
MICHELE VALENTINO, IN HER OWN           :
RIGHT,                                  :
                                        :
                        Appellant       :
                                        :
                   v.                   :         No. 3049 EDA 2013
                                        :
PHILADELPHIA TRIATHLON, LLC             :


             Appeal from the Order Entered September 30, 2013,
             in the Court of Common Pleas of Philadelphia County
                 Civil Division at No. April Term, 2012 No. 1417


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.


OPINION BY FORD ELLIOTT, P.J.E.:               FILED DECEMBER 30, 2015

      Appellant, Michele Valentino (in her own right and as administratrix of

the estate of Derek Valentino), appeals from an order entered on

September 30, 2013, in the Civil Division of the Court of Common Pleas of

Philadelphia County granting summary judgment on behalf of Philadelphia

Triathlon, LLC (appellee).   After careful consideration, we affirm in part,

reverse in part, and remand for further proceedings.

      In 2010, appellee organized an event known as the Philadelphia

Insurance Triathlon Sprint (the Triathlon).    Three events comprised the

Triathlon:   a one-half mile swim, a 15.7 mile bicycle race, and a 3.1 mile
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run.    (Trial court opinion, 8/14/14 at 2.)   The swimming portion of the

competition occurred in the Schuylkill River in Philadelphia, Pennsylvania.

        To compete in the Triathlon, each participant was required to register

for the event. As part of the registration process, participants paid a fee and

executed a waiver and release form. Each participant had to complete and

submit a registration form in order to obtain a number and bib that would be

worn on the day of the race. Derek Valentino registered as a participant in

the Triathlon on January 24, 2010.

        On June 26, 2010, at approximately 8:30 a.m., Derek Valentino

entered the Schuylkill River to begin the first part of the Triathlon. He never

completed the swimming portion of the competition or any other part of the

race. Tragically, the following day, on June 27, 2010, his body was retrieved

from the Schuylkill River.

        Appellant (Derek Valentino’s widow) filed her original complaint on

April 12, 2012, asserting wrongful death and survival claims against various

defendants, including appellee. Thereafter, she amended her complaint on

June 22, 2012. All of the defendants filed preliminary objections on June 22,

2012.      On July 27, 2012, the trial court sustained the defendants’

preliminary objections and struck all references in appellant’s amended

complaint that referred to outrageous acts, gross negligence, recklessness,

and punitive damages.        The court concluded that these allegations were

legally insufficient since the alleged facts showed only ordinary negligence.



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In addition, the court struck paragraphs 22(a), (c), (e), and (m) in the

amended complaint on grounds that those averments lacked sufficient

specificity.   The defendants answered the amended complaint and raised

new matter on August 9, 2012.

      Shortly after discovery commenced, the defendants moved for

summary judgment in December 2012. The trial court denied that motion

on January 29, 2013. Eventually, appellant stipulated to the dismissal of all

defendants except appellee. At the completion of discovery, appellee again

moved for summary judgment on August 5, 2013. The trial court granted

appellee’s motion on September 30, 2013. Appellant sought reconsideration

but the trial court denied her request.     Appellant filed a timely notice of

appeal on October 23, 2013. Pursuant to an order of court, appellant filed a

concise statement of errors complained of on appeal in accordance with

Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.         Subsequently, the trial court

explained its reasons for sustaining the preliminary objections in an opinion

issued on March 18, 2014. In a separate opinion issued on August 14, 2014,

the trial court set forth its rationale for granting appellee’s motion for

summary judgment.

      Appellant’s brief raises the following questions for our review:

               1.   Whether the [trial c]ourt erred in sustaining
                    the [p]reliminary [o]bjections [] where, when
                    the material facts set forth in the [a]mended
                    [c]omplaint, as well as all reasonable
                    inferences deducible therefrom, are accepted
                    as true, it cannot be said with certainty that


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                  [appellee’s] actions were not sufficiently
                  reckless, outrageous and/or egregious to
                  warrant an award of punitive damages?

            2.    Whether the [trial c]ourt erred in sustaining
                  the [p]reliminary [o]bjections [] and striking
                  paragraph 22(a), (c), (e), and (m) of the
                  [a]mended       [c]omplaint    where     these
                  averments, and the [a]mended [c]omplaint in
                  general, were sufficiently specific to enable
                  [appellee] to respond and prepare a defense?

            3.    Whether the [trial c]ourt erred in granting
                  [appellee’s] second [m]otion for [s]ummary
                  [j]udgment where the issue of waiver and
                  release was previously decided in the [o]rder
                  of January 29, 2013 that denied its first
                  [m]otion for [s]ummary [j]udgment, and the
                  [c]ourt was precluded by the coordinate
                  jurisdiction rule from revisiting the question?

            4.    Whether the [trial c]ourt erred in granting
                  [appellee’s]    [m]otion    for  [s]ummary
                  [j]udgment where, when the record is viewed
                  in the light most favorable to [appellant],
                  questions of fact remain as to whether the
                  purported release in question was effectively
                  executed by the decedent and, if it was,
                  whether it was enforceable?

            5.    Whether the [trial c]ourt erred in granting
                  [appellee’s]     [m]otion      for    [s]ummary
                  [j]udgment where the report issued by
                  Mark Mico fully and adequately addressed the
                  questions of duty, breach of duty and
                  causation and, in addition, he was fully
                  qualified to render opinions in these regards?

Appellant’s brief at 7-8.

      Appellant’s first claim asserts that the trial court erred in sustaining

the preliminary objections and striking all references to outrageous acts,



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gross negligence, and reckless conduct. Appellant also asserts that the trial

court erred in dismissing her claims for punitive damages.         The basis for

these contentions is that, when the allegations set forth in the amended

complaint are taken as true, the pleading asserts a claim that, “[Appellee]

intentionally created a situation where swimmers [went] into a river with

inadequate supervision and no reasonable means of rescue if they got into

trouble.” (Appellant’s brief at 22 (emphasis in original).)

      The standard of review we apply when considering a trial court’s order

sustaining preliminary objections is well settled:

            [O]ur standard of review of an order of the trial court
            overruling or granting preliminary objections is to
            determine whether the trial court committed an error
            of law. When considering the appropriateness of a
            ruling on preliminary objections, the appellate court
            must apply the same standard as the trial court.

            Preliminary objections in the nature of a demurrer
            test the legal sufficiency of the complaint. When
            considering preliminary objections, all material facts
            set forth in the challenged pleadings are admitted as
            true, as well as all inferences reasonably deducible
            therefrom. Preliminary objections which seek the
            dismissal of a cause of action should be sustained
            only in cases in which it is clear and free from doubt
            that the pleader will be unable to prove facts legally
            sufficient to establish the right to relief. If any doubt
            exists as to whether a demurrer should be sustained,
            it should be resolved in favor of overruling the
            preliminary objections.

HRANEC Sheet Metel, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114,

118 (Pa.Super. 2014).




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      In Pennsylvania, “[p]unitive damages may be awarded for conduct

that is outrageous, because of the defendant’s evil motive or his reckless

indifference to the rights of others.” Hutchison v. Luddy, 870 A.2d 766,

770 (Pa. 2005), quoting Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984).

“As the name suggests, punitive damages are penal in nature and are proper

only in cases where the defendant’s actions are so outrageous as to

demonstrate willful, wanton or reckless conduct.” Hutchison, 870 A.2d at

770. To support a claim for punitive damages, the plaintiff must show that

the defendant had a subjective appreciation of the risk of harm to which the

plaintiff was exposed and that the defendant acted, or failed to act, in

conscious disregard of that risk. Id. at 772. “Ordinary negligence, involving

inadvertence, mistake or error of judgment will not support an award of

punitive damages.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d

978, 983-984 (Pa.Super. 2005), affirmed, 922 A.2d 890 (Pa. 2007).

      Appellant’s amended complaint alleges that Derek Valentino died while

swimming in the Schuylkill River during the Triathlon.         The amended

complaint alleges further that appellee was inattentive to the needs of the

contestants, failed to inspect or maintain the event course, failed to warn of

or remove dangerous conditions, failed to properly plan or organize the

event, failed to follow safety standards, and failed to properly train and

supervise its employees. These allegations, however, averred nothing more

than ordinary negligence arising from inadvertence, mistake, or error in



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judgment; they do not support a claim involving outrageous behavior or a

conscious disregard for risks confronted by Triathlon participants.    Hence,

the trial court correctly dismissed appellant’s allegations of outrageous

conduct and properly struck her punitive damage claims.

      Appellant next asserts that the trial court erred in sustaining the

preliminary objections and striking paragraphs 22(a), (c), (e), and (m) from

her amended complaint.       Appellant maintains that these averments are

sufficiently specific to enable appellee to respond to appellant’s allegations

and to formulate a defense in this case.

      Contrary to appellant’s argument, we agree with the trial court’s

assessment that the challenged portions of the amended complaint are too

vague and ambiguous to satisfy the requirements found in Pa.R.C.P. 1019.

Under Rule 1019, “[t]he material facts on which a cause of action or defense

is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019.

“Pennsylvania is a fact-pleading state; a complaint must not only give the

defendant notice of what the plaintiff’s claim is and the grounds upon which

it rests, but the complaint must also formulate the issues by summarizing

those facts essential to support the claim.” Feingold v. Hendrzak, 15 A.3d

937, 942 (Pa.Super. 2011).

      The challenged provisions of appellant’s amended complaint referred

only to “dangerous conditions” (¶ 22(a)), “warnings” (¶ 22(c)), “failures to

reasonably plan, operate, supervise, and organize the event” (¶ 22(e)), and



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“failures    to   employ   adequate   policies,   procedures,   and   protocols   in

conducting the event” (¶ 22(m)) as the basis for her claim. Upon review, we

concur in the trial court’s determination that this boilerplate language was

too indefinite to supply appellee with adequate information to formulate a

defense.

      Appellant cites the decision of the Pennsylvania Commonwealth Court

in Banfield v. Cortes, 922 A.2d 36 (Pa.Cmwlth. 2007), as supportive of her

contention that the amended complaint set forth material facts with

sufficient specificity. Banfield is, however, distinguishable. In that case, a

group of electors filed suit alleging that the Secretary of the Commonwealth,

in certifying the use of certain electronic systems in elections, failed to adopt

uniform testing procedures that addressed the security, reliability, and

accuracy of voting systems. The Secretary requested an order directing the

plaintiffs to re-plead their allegations with greater specificity.     In rejecting

this request, the Commonwealth Court explained that in challenging the

adequacy of the testing features inherent in the newly adopted electronic

voting systems, the plaintiffs provided sufficient facts to enable the

Secretary to prepare a defense. Id. at 50.

      Here, in contrast, appellant referred vaguely, and without elaboration,

to unspecified dangerous conditions, indefinite warnings, and generic failures

to reasonably plan and employ adequate policies in carrying out the

Triathlon.    Moreover, even if appellee possessed some knowledge of the



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facts around which appellant’s allegations centered, this alone would not

relieve appellant of her duty to allege material facts upon which she based

her claims. See Gross v. United Engineers & Constructors, Inc., 302

A.2d 370, 372 (Pa.Super. 1973). Thus, appellant’s reliance on Banfield is

unavailing, and she is not entitled to relief on her second claim.

      Appellant’s final three claims challenge the entry of summary

judgment in favor of appellee. Our standard of review over such claims is

well settled.

              Th[e] scope of review of an order granting summary
              judgment is plenary. Our standard of review is
              clear: the trial court’s order will be reversed only
              where it is established that the court committed an
              error of law or clearly abused its discretion.
              Summary judgment is appropriate only in those
              cases where the record clearly demonstrates that
              there is no genuine issue of material fact and that
              the moving party is entitled to judgment as a matter
              of law. The reviewing court must view the record in
              the light most favorable to the nonmoving party,
              resolving all doubts as to the existence of a genuine
              issue of material fact against the moving party.
              When the facts are so clear that reasonable minds
              cannot differ, a trial court may properly enter
              summary judgment.

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-1222

(Pa. 2002).

      Appellant advances several arguments in support of her contention

that the trial court erred in granting summary judgment.        First, appellant

asserts that the coordinate jurisdiction rule precluded the trial court from

addressing appellee’s motion since a prior summary judgment motion was


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denied.   Second, appellant contends that genuine issues of material fact

regarding whether Derek Valentino actually executed a waiver form barred

the entry of summary judgment in appellee’s favor.             Appellant next

maintains that a plaintiff cannot contractually waive liability for reckless or

intentional conduct and that, as a result, any waiver executed in this case is

invalid. Appellant also asserts that, pursuant to our prior decision in Pisano

v. Extendicare Homes, Inc., 77 A.3d 651 (Pa.Super. 2013), appeal

denied, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S.Ct. 2890,             U.S.

     (2014), a decedent’s waiver is ineffective as to third-party wrongful

death claims. Lastly, appellant claims that the trial court erred in granting

summary judgment because she offered the testimony of a qualified expert

to address lingering questions of appellee’s duty, breach of duty, and injury

causation.

      Upon review, we agree with the trial court that the completion of

discovery and the development of a more complete record defeated

application of the coordinate jurisdiction rule and eliminated any factual

issues surrounding Derek Valentino’s execution of a waiver prior to his

registration for the Triathlon. (See trial court opinion, 8/14/14 at 4 (“In the

second motion for summary judgment, it is undisputed that a waiver was

among the decedent’s possessions, prior to being discovered in the

Schuylkill River.”).)   Moreover, since we determined that appellant did not

state claims involving reckless or intentional conduct, supra, this contention



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cannot serve as a basis for disturbing the trial court’s ruling. However, we

find appellant’s argument regarding Pisano to be dispositive. As discussed

below, we determine that appellant can maintain a wrongful death cause of

action and is not bound by Derek Valentino’s release, of which she was not a

signatory.1

      In Pisano, we addressed a similar issue in the context of an

arbitration agreement.    In that case, at the time of his admission to a

long-term care nursing facility operated by Extendicare, the decedent,

Vincent Pisano, executed an agreement providing that any dispute would be

resolved by binding arbitration. Id. at 653. Extendicare sought to dismiss

the subsequent wrongful death suit based on lack of jurisdiction.          The

agreement stated that “any and all disputes arising out of or in any way

relating to this Agreement or to the Resident’s stay at the center [including]

. . . death or wrongful death” are subject to arbitration. Id. at 655.

      The trial court denied Extendicare’s preliminary objection seeking to

have the case dismissed for lack of subject matter jurisdiction, finding that a




1
   We note that the trial court agrees it erred in dismissing appellant’s
complaint in light of this court’s holding in Pisano. (Trial court opinion,
8/14/14 at 1, 5-6.) In addition, appellee argues the matter is waived for
failure to raise it in appellant’s Rule 1925(b) statement; however, we find
that the issue is subsumed within appellant’s fourth issue, raising the
enforceability of Derek Valentino’s release. See Pa.R.A.P. 1925(b)(4)(v)
(“Each error identified in the Statement will be deemed to include every
subsidiary issue contained therein which was raised in the trial court”).


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wrongful death action is a creature of statute and is independent of the

decedent estate’s right of action. Id. at 654.

            The trial court explained that a wrongful death action
            is derivative in only a very limited way: “[T]he right
            to the wrongful death action . . . does not depend
            upon the decedent’s estate’s rights to a survival
            action, but depends only upon the occurrence of the
            tortious act upon which it is based.”

Id., quoting trial court opinion, 7/9/12 at 3. Extendicare appealed, and this

court affirmed, finding that the agreement was not binding on appellee, the

son and administrator of Pisano’s estate, as wrongful death claims are not

derivative of decedents’ rights under Pennsylvania law.

      In so holding, this court noted that in 1911, Pennsylvania’s Wrongful

Death Act, 42 Pa.C.S.A. § 8301, was amended and a wrongful death action

is no longer derivative of the decedent’s claim; rather, the right of action

belongs to the statutory claimants, not the decedent:

            Unlike    its   nineteenth    century     predecessors,
            Pennsylvania’s wrongful death statute, as of 1911,
            distinguished a wrongful death action from a survival
            action, currently providing that “the right of action
            created by this section shall exist only for the benefit
            of the spouse, children or parents of the deceased.”
            42 Pa.C.S.A. § 8301 (1978); Kaczorowski v.
            Kalkosinski, 321 Pa. 438, 184 A. 663, 665 (1936)
            (distinguishing the actions based on the 1911
            version of Pennsylvania’s wrongful death statute, Act
            of June 7, 1911, P.L. 678). Pennsylvania courts
            have consistently interpreted this language to mean
            that two separate and distinct causes of action arise
            from a single injury, one dependent “on the rights of
            action which the decedent possessed at the time of
            her death,” and the other dependent on “the rights
            of action that the [claimants], as named by statute,


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             possess.” Holmes v. Lado, 412 Pa.Super. 218, 602
             A.2d 1389, 1391 n. 2 (1992); see also
             Kaczorowski, 184 A. at 665 (“By the statute there
             is given an explicit and independent right of action to
             recover the damages peculiarly suffered by the
             parties named therein.”); Matharu v. Muir, 29 A.3d
             375, 383 (Pa.Super. 2011) (“[A] cause of action for
             wrongful death is not the deceased’s cause of
             action.”).

Id. at 656-657.

      The Pisano court explained that in Pennsylvania, survival and

wrongful death actions are separate and distinct, and that wrongful death

suits are not merely derivative of the rights of the decedent:

             The current distinction between these two claims, as
             explained by this Court previously, is as follows:

                   The survival action has its genesis in the
                   decedent’s injury, not his death. The
                   recovery of damages stems from the
                   rights of action possessed by the
                   decedent at the time of death. . . . In
                   contrast, wrongful death is not the
                   deceased’s cause of action. An action for
                   wrongful death may be brought only by
                   specified relatives of the decedent to
                   recover damages in their own behalf, and
                   not as beneficiaries of the estate. . . .
                   This action is designed only to deal with
                   the economic effect of the decedent’s
                   death    upon    the   specified    family
                   members.

Id. at 658-659, quoting Moyer v. Rubright, 651 A.2d 1139, 1141

(Pa.Super.   1994)    (in   turn   quoting   Frey   v.   Pennsylvania   Electric

Company, 607 A.2d 796, 798 (Pa.Super. 1992)). See also Amato v. Bell

& Gossett, 116 A.3d 607, 625 (Pa.Super. 2015) (“The purpose of the


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Wrongful Death Statute . . . is to compensate the decedent’s survivors for

the pecuniary losses they have sustained as a result of the decedent’s death.

This includes the value of the services the victim would have rendered to his

family if he had lived.   A wrongful death action does not compensate the

decedent; it compensates the survivors for damages which they have

sustained as a result of the decedent’s death.” (citations omitted)).

      The   Pisano   court   explained    that   a   wrongful   death   action   is

“derivative” of the original tort in the same way that a loss of consortium

claim is derivative, in that both arise from an injury to another person. Id.

at 659.     However, unlike, e.g., a stockholder’s derivative lawsuit or a

subrogation action, loss of consortium and wrongful death claims are

separate and distinct causes of action:

             We conclude that wrongful death actions are
             derivative of decedents’ injuries but are not
             derivative of decedents’ rights.    This conclusion
             aligns with the proper use of the term “derivative
             action” and is consistent with the Supreme Court’s
             pronouncement in Kaczorowski, which explained:

                  We have announced the principle that
                  the statutory action is derivative because
                  it has as its basis the same tortious act
                  which would have supported the injured
                  party’s own cause of action.            Its
                  derivation, however, is from the tortious
                  act, and not from the person of the
                  deceased, so that it comes to the parties
                  named in the statute free from personal
                  disabilities arising from the relationship
                  of the injured party and tort-feasor.




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Id. at 660, quoting Kaczorowski, 184 A. at 664. Ultimately, this court in

Pisano determined that Extendicare’s arbitration agreement was only

between it and the decedent. Id. at 661. The appellee was not a party to

the agreement, and Pennsylvania’s wrongful death statute does not

characterize the appellee and other wrongful death claimants as third-party

beneficiaries.   Id.   Therefore, the trial court properly refused to compel

arbitration. Id.2

      Among other cases, this court in Pisano cited as supporting authority

our supreme court’s decision in Buttermore v. Aliquippa Hospital, 561

A.2d 733 (Pa. 1989).        Pisano, 77 A.3d at 658.        We likewise find

Buttermore to be instructive. In that case, James Buttermore was involved

in an automobile accident, sustaining injuries.   Buttermore, 561 A.2d at

734. He signed a release in settlement of his claim against the tortfeasor for

the sum of $25,000, agreeing to release from liability any and all persons,

known or unknown. Id. Subsequently, Buttermore and his wife instituted

suit against Aliquippa Hospital and the treating physicians alleging that the

treatment he received aggravated the injuries he sustained in the accident,



2
  Following Pisano, in Taylor v. Extendicare Health Facilities, Inc., 113
A.3d 317 (Pa.Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015),
this court held that an arbitration agreement signed by the decedent or his
or her authorized representative is not binding upon non-signatory wrongful
death beneficiaries. Id. at 320-321. The Taylor court further held that
Pa.R.C.P. 213(e) required consolidation of the wrongful death and survival
actions, and since the wrongful death beneficiaries cannot be compelled to
arbitrate the wrongful death actions, both must remain in court.


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worsening his condition.     Id. at 734-735.      The defendants moved for

summary judgment on the basis of Buttermore’s release. Id. at 735.

      After first holding that the release applied to all tortfeasors, including

the defendants, whether specifically named or not, the court in Buttermore

turned to the matter of Buttermore’s wife’s loss of consortium claim: “That

is not to say, however, that parties may bargain away the rights of others

not a party to their agreement. That question rises here because a spouse

not a party to the agreement seeks to sue in her own right for loss of

consortium.” Id. at 735. The Buttermore court held that the wife had an

independent cause of action for loss of consortium regardless of her

husband’s settlement agreement:       “The question is, does the wife, not a

signatory to the agreement, have an independent right to sue for the injury

done her. We answer that she does.” Id. at 736. See also Pisano, 77

A.3d at 658, citing Pennsylvania Railroad Co. v. Henderson, 51 Pa. 315,

317 (1866) (“This suit is brought by the widow, and her right of action

cannot be affected by any discharge or release of [husband] in his

lifetime.”).

      Similarly, in Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert.

denied, 355 U.S. 882 (1957), the plaintiff, the widow and executrix of

George Brown, brought a cause of action under the Wrongful Death Act for

the benefit of herself and her three minor children, as well as a Survival Act

claim.   Id. at 714.   Brown, a neurotic, was admitted to a sanitarium for



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treatment including electrical shock therapy, following which he fell down a

flight of stairs.   Id. at 715.   After the fall, Brown was picked up by his

extremities, with his head hanging down, resulting in paralysis. Id. Brown

had signed a release agreeing to release the sanitarium and its employees

from liability for any injury resulting from his treatment as a neurotic while

at the sanitarium, including electro-shock therapy or treatment of a similar

nature. Id. at 722. After concluding that Brown’s treatment following his

fall down the stairs was unrelated to his treatment as a neurotic by

electro-shock therapy or other similar therapeutic means, the Brown court

stated,

             [W]e point out that even if the release were deemed
             sufficient to relieve the defendants of liability under
             the Pennsylvania Survival Act is [sic] could scarcely
             relieve them of liability under the Pennsylvania
             Wrongful Death Act for that Act provides benefits not
             only for the widow of a deceased person but also for
             his children. Even assuming that the release was
             effective as to the plaintiff, who executed it as did
             Brown, nonetheless Brown’s children would be
             entitled to a recovery.

Id.3


3
  Brown was disapproved of by Grbac v. Reading Fair Co., 688 F.2d 215
(3rd Cir. 1982). However, Grbac was criticized by this court in Pisano:

             In Grbac, the court of appeals held that a liability
             release executed by decedent was binding on the
             widow’s wrongful death claim.     Id. at 217-218.
             Erroneously following the Pennsylvania Supreme
             Court’s holding in [Hill v. Pennsylvania Railroad
             Company, 35 A. 997 (Pa. 1896)], the court of
             appeals misinterpreted Pennsylvania law in holding


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     Relying on California law, appellee argues that even if appellant can

bring the wrongful death action, appellee had no duty to the decedent

because of his complete waiver.     (Appellee’s brief at 38-39.)     Appellee

argues that the decedent agreed to waive liability and assume all risks

inherent to the dangerous activity of sprint triathlon; therefore, appellee

owed the decedent no duty to protect him from injury.           (Id. at 40.)

According to appellee, even assuming appellant can sue for wrongful death,

she cannot possibly recover where appellee has a complete defense. (Id. at

40-41.)

     California state law in this area was recently summarized by the

California court of appeals in Eriksson v. Nunnink, 233 Cal.App.4th 708,

(Cal.App. 4 Dist. 2015):

           Because a wrongful death claim is not derivative of
           the decedent’s claims, an agreement by the
           decedent to release or waive liability for her death
           does not necessarily bar a subsequent wrongful
           death cause of action by her heirs.       (6 Witkin,
           Summary of Cal. Law (10th ed. 2005) Torts, § 1402,
           p. 825.) As explained in Madison v. Superior
           Court (1988) 203 Cal.App.3d 589, 250 Cal.Rptr.
           299, in which the decedent signed an agreement
           purporting to release, discharge, and waive any



           that a “wrongful death action is purely derivative” in
           Pennsylvania. Id. at 217. The Grbac Court cites no
           further cases in support of its holding, and no
           binding Pennsylvania authority exists with a similar
           holding. In fact, the limited authority on this subject
           indicates the opposite conclusion of Grbac.

Pisano, 77 A.3d at 658.


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              cause of action for wrongful death, “it is clear that
              [decedent] had no power or right to waive that cause
              of action on behalf of his heirs. [Citation.] This is a
              right which belongs not to [decedent] but to his
              heirs. ‘The longstanding rule is that a wrongful
              death action is a separate and distinct right
              belonging to the heirs, and it does not arise until the
              death of the decedent.’ [Citation.]” (Id. at p. 596,
              250 Cal.Rptr. 299.)

Id. at 248.

              Although Mia could not release or waive her parents’
              subsequent wrongful death claims, it is well-settled
              that a release of future liability or express
              assumption of the risk by the decedent may be
              asserted as a defense to such claims. (See, e.g.,
              Horwich v. Superior Court, supra, 21 Cal.4th at
              p. 285, 87 Cal.Rptr.2d 222, 980 P.2d 927; Paralift,
              Inc. v. Superior Court (1993) 23 Cal.App.4th 748,
              755, 29 Cal.Rptr.2d 177; Saenz v. Whitewater
              Voyages, Inc. (1990) 226 Cal.App.3d 758, 763–
              764, 276 Cal.Rptr. 672.) As the Madison court
              explained: “[A] distinction must be made between
              the legal ineffectiveness of a decedent’s preinjury
              release of his heirs’s subsequent wrongful death
              action and the legal effectiveness of an express
              release of negligence by a decedent which provides a
              defendant with ‘a complete defense.’ [Citation.]”
              (Madison v. Superior Court, supra, 203
              Cal.App.3d at p. 597, 250 Cal.Rptr. 299; see also
              Ruiz v. Podolsky, supra, 50 Cal.4th [838] at pp.
              851–852, 114 Cal.Rptr.3d 263, 237 P.3d 584
              [(2010)] [“although an individual involved in a
              dangerous activity cannot by signing a release
              extinguish his heirs’ wrongful death claim, the heirs
              will be bound by the decedent’s agreement to waive
              a defendant’s negligence and assume all risk.”].)

Id. at 249 (emphasis in Madison). Appellee in the case sub judice urges

this court to adopt a similar approach. However, we view the Madison line

of cases as creating a distinction without a difference, i.e., a wrongful death


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claimant can bring suit but will inevitably lose on summary judgment

because of the decedent’s waiver of liability, to which the wrongful death

claimant was not a party. Such a holding would effectively eviscerate the

Pennsylvania wrongful death statute which creates an independent and

distinct cause of action, not derivative of the decedent’s rights at time of

death.      We believe the better approach is outlined by the New Jersey

Superior Court in Gershon v. Regency Diving Center, Inc., 845 A.2d 720

(N.J.Super. 2004), which explicitly rejected Madison and its progeny, aptly

describing Madison’s holding as “internally inconsistent.” Id. at 725.4 In

Gershon, the decedent was a scuba diver and signed up for advanced diving

training.      Id. at 723.    As a condition of his participation, he executed a

release agreement. Id. The decedent expressly waived liability, including

for wrongful death, and assumed all risk.            Id.    The lower court held that

while    the    exculpatory    release    signed    by     the   decedent   barred   any

survivorship claim which could have been asserted by his estate, it did not

preclude an independent wrongful death action where the decedent’s heirs

had not signed the agreement.            Id. at 724. Relying on Madison, supra,

the defendant, Regency Diving Center, argued that the release operated as a

complete bar to all claims.              Id.   On appeal, the Superior Court of


4
  “Although we acknowledge that the pronouncements of sister states are
not binding authority on our courts, such decisions may be considered as
persuasive authority.” Shedden v. Anadarko E&P Co., L.P., 88 A.3d 228,
233 n.3 (Pa.Super. 2014), appeal granted on other grounds, 97 A.3d
741 (Pa. 2014) (citation omitted).


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New Jersey, Appellate Division, rejected the Madison line of cases as

against the public interest intended to be protected by the Wrongful Death

Act:

           [T]he intended beneficiaries of the Act are deprived
           of their statutorily authorized remedy merely to
           provide defendants with an environment from which
           to operate their business, apparently free from the
           risk of litigation. Such a prospect would directly
           undermine the remedial purpose of the Act. Stated
           differently, even if decedent had the legal authority
           to bargain away the statutory right of his potential
           heirs, society’s interest in assuring that a decedent’s
           dependents may seek economic compensation in a
           wrongful death action outweighs decedent’s freedom
           to contract.

Id. at 728.5 The Gershon court also noted that until a decedent has died,

there are no heirs; therefore, their rights cannot be extinguished by an

agreement that predates their existence:

           It is well settled that a person’s heirs are not defined
           until the time of his or her death. Reese v. Stires,
           87 N.J. Eq. 32, 35, 103 A. 679 (N.J.Ch.1917); In re
           Bartles, 33 N.J. Eq. 46 (1880). This fundamental
           tenet of the law of wills and estates is best
           expressed by the ancient maxim nemo est haeres
           viventis, “[n]o one can be heir during the life of his
           ancestor.”      Black’s Law Dictionary 936 (5th ed.
           1979).       See also 4 Page on Wills § 34.6
           (Bowe-Parker rev.3d ed.1961). It is therefore legally
           impossible for an exculpatory agreement to bar the
           legal claims of a class of litigants that were not
           legally in existence at the time of its execution.



5
 As in New Jersey, in Pennsylvania, exculpatory agreements are not favored
by the law and must not contravene public policy. Id. at 726-727; Tayar v.
Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012).


                                    - 21 -
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Id.   Appellee argues that allowing third-party claims including loss of

consortium and wrongful death where the decedent expressly assumed the

risk of injury would expose insurers to increased liability. (Appellee’s brief at

35-36.) The court in Gershon addressed those concerns as follows:

            We recognize that our decision today may prevent
            insurance carriers from obtaining complete releases
            from all possible wrongful death claims, except
            perhaps by the inclusion in any such agreement of all
            persons who subsequently are determined to be
            wrongful death beneficiaries under N.J.S.A. 2A:31-4.
            The policy favoring settlement and finality of claims,
            cannot defeat statutory rights created for the
            protection of survivors of one wrongfully killed.

Id. at 728-729, quoting Alfone v. Sarno, 432 A.2d 857 (N.J. 1981)

(citations omitted).

      Following   Pisano,   we   conclude     that   Derek   Valentino’s   release

agreement did not bind appellant and did not preclude her from bringing a

wrongful death action.    Pisano is clear that a wrongful death action is an

independent cause of action, created by statute, and is not derivative of the

decedent’s rights at time of death.         Furthermore, we reject appellee’s

argument that the decedent’s waiver of liability and assumption of the risk

can be used as a complete defense to appellant’s claims.            The release

agreement was only between the decedent and appellee and has no effect

on the decedent’s non-signatory heirs including appellant.

      Finally, we turn to appellant’s issue regarding the expert report of

Mark Mico (“Mico”).    Mico is an experienced triathlete, race director, and



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race management consultant. (Appellant’s brief at 50.) In his report, Mico

stated that, inter alia, appellee did not have enough lifeguards and allowed

too many swimmers in each wave.         (Id. at 51.)    Contestants were not

permitted to wear buoyant wetsuits and there was no safety instruction

provided.   (Id. at 51-52.)    Swimmers were given black swimming caps

which were a poor choice for visibility in the open water.        (Id. at 51.)

Lifeguards were mostly swimming pool lifeguards and were not trained in

open water safety.   (Id. at 52.)   Mico concluded that appellee’s negligent

conduct caused Derek Valentino’s drowning. (Id. at 53.)

      Appellee argues that Mico’s opinion was unsupported by any applicable

industry standard.   (Appellee’s brief at 45.)   According to appellee, Mico’s

report is based on his own personal and retrospective views on how the

event should have been organized. (Id. at 47.) Appellee also argues that

Mico failed to explain how appellee’s alleged breach of duty proximately

caused the decedent’s death.     (Id. at 48.)    Appellee contends that Mico’s

expert report represents a post-hoc, personal opinion and is insufficient to

establish a prima facie case of negligence. (Id. at 49.)

      The trial court granted summary judgment for appellee based on

waiver. As such, the trial court did not consider the issue of Mico’s expert

report, nor is it discussed in the trial court’s Rule 1925(a) opinion. As there

is no ruling on the matter, we decline to address it for the first time on

appeal. The trial court may consider this issue on remand.



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      Affirmed in part and reversed in part.     Case remanded for further

proceedings consistent with this Opinion. Jurisdiction relinquished.



      Wecht, J. joins the Opinion.

      Olson, J. files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2015




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