                             [J-14-2018] [OISA: Baer, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


 MICHELE VALENTINO, AS                         :   No. 17 EAP 2017
 ADMINISTRATRIX OF THE ESTATE OF               :
 DEREK VALENTINO, DECEASED, AND                :   Appeal from the Judgment of Superior
 MICHELE VALENTINO, IN HER OWN                 :   Court entered on November 15, 2016
 RIGHT,                                        :   at No. 3049 EDA 2013 affirming the
                                               :   Order entered on September 30, 2013
                      Appellant                :   in the Court of Common Pleas,
                                               :   Philadelphia County, Civil Division at
                                               :   No. 1417 April Term, 2012
               v.                              :
                                               :   ARGUED: May 15, 2018
                                               :
 PHILADELPHIA TRIATHLON, LLC,                  :
                                               :
                      Appellee                 :


                        OPINION IN SUPPORT OF REVERSAL


JUSTICE DONOHUE                                                DECIDED: June 18, 2019

      I join Justice Dougherty’s Opinion in Support of Reversal (“OISR”) in full. I too

disagree with the Superior Court’s conclusion that the Decedent’s exculpatory agreement

may serve as a complete defense to the wrongful death heir’s claim against the Triathlon.

I write separately to express my view that, in light of the derivative nature of wrongful

death actions, the Superior Court was technically correct in its analysis of the mechanical

operation of the liability waiver in reaching its conclusion. However, when the mechanical

operation of the law works to defeat the purpose of a remedial statute like the Wrongful

Death Act, by way of the broad enforcement of a legally disfavored exculpatory

agreement, the mechanical operation must yield.
          As Justice Dougherty explains, this Court has repeatedly affirmed a requirement

that exculpatory agreements must be narrowly and strictly construed because exculpatory

language, which purports to relieve a person of liability even when he has negligently

caused injury to another, is not favored in the law. OISR (Dougherty, J.) at 10, 13-14

(citing Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 224 A.2d

620, 623 (Pa. 1966); Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa.

2010); Topp Copy Prods. Inc. v. Singletary, 626 A.2d 98 (Pa. 1993); Dilks v. Flohr

Chevrolet, Inc., 192 A.2d 682, 687 (Pa. 1963)). Here, Appellant does not challenge the

validity or the enforceability of the contractual assumption of risk in the survival action she

brought (as administratrix) on behalf of Decedent’s estate. Therefore, for purposes of this

appeal, the liability waiver is valid and enforceable as a complete defense to the survival

action.     As between the Triathlon and Decedent, there is a knowing and voluntary

agreement to extinguish Decedent’s ability to recover for claims of ordinary negligence.

          I believe that we must, however, decline to allow the liability waiver to defeat a

wrongful death action brought by heirs who never agreed, expressly or otherwise, to

eliminate their statutory right to recover for their pecuniary loss resulting from the death

of their loved one that, as alleged, was tortious but for the liability waiver. Allowing the

liability waiver to defeat the wrongful death action, as the Superior Court did, gives the

waiver the broadest possible reading, contrary to our mandate to narrowly construe such

provisions. The tenet of strict construction requires that we limit this liability waiver to its

narrowest effect: a bar to recovery under the survival action.

          Moreover, as noted by Justice Dougherty, for an exculpatory waiver to be valid, it

must meet three conditions: it must not contravene public policy, the contract must be




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between persons relating entirely to their own private affairs, and each party must be a

free bargaining agent to the agreement so that the contract is not one of adhesion. OISR

(Dougherty, J.) at 10-11 (citing Chepkevich, 2 A.3d at 1177). As to these first two prongs,

this Court’s decision in Boyd v. Smith, 94 A.2d 44 (Pa. 1953), is instructive. In Boyd, an

agreement between a property owner and a tenant relieved the property owner from

liability for any injury occasioned by the property owner’s negligence in the maintenance

of the leased building. Boyd, 94 A.2d at 45. However, pursuant to statute, “no building

… shall be used for human habitation unless it is equipped with a fire escape or fire

escapes as required by law.” Id. (quoting 53 P.S. § 3962). The property in question was

not equipped with fire escapes. The building caught fire and, unable to escape the

building by fire escape, the tenant sustained serious injuries and sued. The property

owner attempted to rely on the exculpatory agreement in the lease to avoid liability.

      We declined to find the waiver enforceable, explaining:

             Such a protective clause is undoubtedly valid and enforceable
             if it does not contravene any policy of the law, that is, if it is
             not a matter of interest to the public or the state but merely an
             agreement between persons relating entirely to their private
             affairs. The situation becomes an entirely different one in the
             eye of the law when the legislation in question is, as here, a
             police measure obviously intended for the protection of
             human life; in such event public policy does not permit an
             individual to waive the protection which the statute is designed
             to afford him.
Id. at 46. We further held, “where the legislature has, by definite and unequivocal

language, determined the public policy of this Commonwealth with regard to a particular

subject, that pronouncement cannot be set aside and rendered unenforceable by a

contract between individuals.” Id.




                             [J-14-2018] [OISA: Baer, J.] - 3
        We are tasked here with determining the legal effect of a liability waiver upon a

third party, not the signatory - a far more extreme reach of the waiver of liability than in

Boyd.    However, as in Boyd, the fullest enforcement of the liability waiver would

contravene an unequivocal policy determination by the General Assembly, namely that

wrongful death heirs are entitled to recover pecuniary losses from the party responsible

for their provider’s death. See OISR (Dougherty, J.) at 9-10, 13.

        The Wrongful Death Act, which is remedial in nature and must be construed

liberally, assures that surviving heirs do not need to go without financial support nor look

to public welfare agencies to shoulder the economic burden of the loss of a provider. See

Kaczorowski, 184 A. at 665; see also Gershon v. Regency Diving Center, 845 A.2d 720,

728 (N.J. Super. App. Div. 2004) (observing that, “in many wrongful death cases the

decedent was the ‘breadwinner’ and the heirs are children, incompetents or those

otherwise economically dependent on the decedent”).          Notably, in the case at bar,

Decedent was a forty-year-old husband and father of two who worked full-time for United

Parcel Service and part-time as a licensed realtor.        See Appellant’s Response to

Triathlon’s Motion for Summary Judgment at 2.

        Allowing the Triathlon to use Decedent’s waiver of liability to defeat a wrongful

death claim would require us to ignore clear public policy embedded in the wrongful death

statute and our laws governing decedents more generally. Analogously, the General

Assembly has for centuries prohibited spousal disinheritance by will in order to ensure

the surviving spouse’s financial security after the decedent’s death. See In re Houston's

Estate, 89 A.2d 525, 526 (Pa. 1952); see also 20 Pa.C.S. § 2203 (authorizing a surviving

spouse to take against the will an elective share of one-third of the deceased’s property,




                             [J-14-2018] [OISA: Baer, J.] - 4
subject to certain exceptions, thereby ensuring the surviving spouse’s right to some

inheritance).   Thus, a married individual cannot eliminate his spouse’s statutory

entitlement, even through an attempted disinheritance in a last will and testament. In my

view, it is impossible to reconcile allowing a sporting event participant to eradicate a

statutory claim for wrongful death damages when he could not accomplish a

disinheritance by virtue of a will. For this reason, and because liability waivers are

disfavored, I join Justice Dougherty in narrowly construing the liability waiver so that it is

enforceable only in the survival action brought on behalf of Decedent’s estate, where it

was not challenged. Cf. Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on

public policy grounds). So construed, it has no effect on the wrongful death action. Like

Justice Dougherty, I would decline to give any effect to the Decedent’s contractual waiver

of the Triathlon’s duty of care in the wrongful death action because doing so would

implicate public, not merely private, affairs and would contravene the policy set forth by

our legislature in the Wrongful Death Act which we must liberally construe.             OISR

(Dougherty, J.) at 14; see also Chepkevich, 2 A.3d at 1189; Boyd, 94 A.2d at 46.




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