J-A14010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH BURNS AND DAWN BURNS,                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellees

                    v.

PHILLY TRAMPOLINE PARKS, DELCO,
LLC; D/B/A SKY ZONE INDOOR
TRAMPOLINE PARK,

                         Appellant                   No. 3544 EDA 2016


               Appeal from the Order Entered October 18, 2016
              In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 2016-3064


BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 31, 2017

      Appellant, Philly Trampoline Parks, Delco LLC; d/b/a Sky Zone Indoor

Trampoline Park (“Sky Zone”), appeals from the October 18, 2016 order

overruling its preliminary objections to the complaint filed by Appellees,

Joseph Burns and Dawn Burns. After careful review, we affirm.

      The relevant facts and procedural history of the underlying case were

summarized by the trial court in its Pa.R.A.P. 1925(a) opinion, as follows:

      On May 11, 2014, Joseph Burns and Dawn Burns, husband and
      wife (hereinafter “[Appellees]”), visited the Sky Zone Indoor
      Trampoline Park owned and operated by Philly Trampoline Parks
      Delco, LLC (hereinafter “[Sky Zone]”) in Glen Mills, Delaware
      County, Pennsylvania[,] with their son.         While using the
      trampolines at [Sky Zone’s] facility, [] Joseph Burns[] allegedly
      caught his foot in a trampoline which caused a fracture of his left
      ankle. [Appellees] allege that this injury was caused by the
      negligence of [Sky Zone] in failing to use reasonable care for the
      protection and safety of Joseph Burns, failing to provide safe
J-A14010-17


     facilities, providing trampolines that were unsafe and
     unreasonably dangerous, failing to give proper instructions to
     Joseph Burns on the safe use of the trampolines, failing to give
     proper warnings of the dangers inherent in trampoline use, and
     in providing a trampoline that was defective. Joseph Burns
     asserts a claim for damages for his injuries and Dawn Burns
     asserts a derivative claim for loss of consortium resulting from
     Joseph Burns’ injuries.

           [Appellees] instituted this action by the filing of a
     complaint on April 6, 2016. On May 2, 2016, [Sky Zone] filed
     preliminary objections to [Appellees’] complaint arguing that
     [Appellees’] claims must be submitted to arbitration[,] as Joseph
     Burns executed a Participant Agreement, Release and
     Assumption of Risk (hereinafter “Agreement”) on May 11,
     2014[,] prior to engaging in activities at the trampoline park.
     The Agreement provides that if a dispute arose regarding the
     Agreement, [Joseph Burns] waived a right to trial by jury and
     that such dispute would be brought to arbitration within one year
     of the execution of the Agreement. As the Agreement was
     executed on May 11, 2014[,] and [Appellees] did not bring their
     suit until April 4, 2016, [Sky Zone] argued that [Appellees’]
     claims, which must be submitted to arbitration, are time barred.
     Lastly, [Sky Zone] argued that [Appellees] released [Sky Zone]
     from the claims asserted in the complaint in that there was a
     valid exculpatory clause in the Agreement.

           On May 23, 2016, [Appellees] filed a reply memorandum
     to the preliminary objections of [Sky Zone,] arguing that Joseph
     Burns never signed the Agreement. Further, [Appellees] assert
     that even if Joseph Burns had signed the Agreement, it is
     unenforceable as it is a contract of adhesion and unconscionable.
     Joseph Burns’ declaration attached to the reply states that he did
     not sign the Agreement but that his wife, Dawn Burns, did fill out
     forms on a computer prior to his entry into the park’s facilities.

           On June 29, 2016, this [c]ourt entered an order granting
     the parties sixty (60) days to conduct discovery and supplement
     the record on the issues relating to the validity and enforceability
     of the Agreement. After taking depositions of both [Appellees]
     and [Sky Zone’s] manager of the Glen Mills, Pennsylvania facility
     at the time of the alleged incident, on September 12, 2016, [Sky
     Zone] filed a supplemental memorandum of law in further
     support of [its] preliminary objections to the complaint. [Sky
     Zone] argues again that the Agreement disposes of [Appellees’]

                                    -2-
J-A14010-17


       claims[,] as it requires arbitration of [their] claims, renders
       [their] claims untimely as it provides claims must be brought
       within one year, and precludes [their] claims as it expressly
       disclaims liability for any alleged negligence.

Trial Court Opinion (“TCO”), 2/8/17, at 1-3 (citations to record and

unnecessary capitalization omitted).

       On September 26, 2016, Appellees filed a supplemental reply

memorandum to Sky Zone’s preliminary objections, in which Appellees

argued that Joseph Burns did not sign the Agreement but, rather, that Dawn

Burns signed the Agreement on Joseph Burns’ behalf without his authority.

Id. at 4. On October 18, 2016, the trial court entered an order overruling

Sky Zone’s preliminary objections and directing Sky Zone to file an answer

to Appellees’ complaint.1 Id. at 5. Accordingly, Sky Zone filed an answer

and new matter on November 7, 2016, to which Appellees filed a timely

reply. Id.

       On November 10, 2016, Sky Zone filed a timely notice of appeal,2

followed by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of

____________________________________________


1 The order overruling the preliminary objections was dated October 14,
2016, but was not filed with the Court of Common Pleas of Delaware County
until October 18, 2016, at No. 16-3064. Thus, the order is referred to
herein as the “October 18, 2016 order.”

2  “An order refusing to compel a case to arbitration is a threshold,
jurisdictional question that is appealable as an exception to the general rule
that an order overruling preliminary objections is interlocutory and not
appealable as of right.” MacPherson v. Magee Memorial Hosp. for
Convalescence, 128 A.3d 1209, 1213 n.4 (Pa. Super. 2015) (internal
citation omitted); see also 42 Pa.C.S. § 7320(a)(1).



                                           -3-
J-A14010-17



errors complained of on appeal.3               Sky Zone now presents the following

questions for our review:

       1. Whether the trial court erred by overruling [] Sky Zone’s
          [p]reliminary [o]bjections and failing to compel [Appellees] to
          bring their claims in arbitration, where [] Joseph Burns
          executed the Agreement, as a precondition to gaining access
          to the trampoline activities, the trial court properly found
          [Appellees’] claims to be within the scope of the Agreement,
          and Sky Zone showed the Agreement to be valid and binding?

       2. Whether the trial court erred by allowing [Joseph Burns] to
          avoid the Agreement based upon Dawn Burns’ alleged forgery
          of [Joseph Burns’] signature, as Dawn Burns signed the
          Agreement as [Joseph Burns’] agent with implied authority
          and apparent authority, and, as [Joseph Burns] should be
          estopped from denying that Dawn Burns had implied and
          apparent authority?

       3. Whether the trial court erred because [Joseph Burns] received
          the direct benefits of having a signed Agreement submitted
          for him to Sky Zone as a precondition to enjoying the benefits
          of the Agreement[,] such as participating in the trampoline
          activities, thus [Appellees] are now estopped from not
          incurring the burdens of the Agreement such as requiring
          [Appellees] to arbitrate their claims?

       4. Whether the trial court erred by allowing [Joseph Burns] to
          avoid the Agreement based upon Dawn Burns’ alleged forgery
____________________________________________


3 Additionally, Sky Zone filed a motion for reconsideration on November 17,
2016, requesting the trial court to reconsider its October 18, 2016 order, or
in the alternative, to certify the order for an immediate appeal, pursuant to
42 Pa.C.S. § 702. We note that the trial court was divested of jurisdiction to
rule on the motion for reconsideration since Sky Zone had already filed a
notice of appeal and the time prescribed for the filing of a notice of appeal
had passed; thus, the court deemed the motion moot. See TCO at 5; see
also Pa.R.A.P. 1701(a), (b)(3)(ii); Skonieczny v. Cooper, 37 A.3d 1211,
1212 n.2 (Pa. Super. 2012) (stating that when an order is the subject of an
appeal, a trial court may not reconsider the order once the time prescribed
for the filing of a notice of appeal has run).



                                           -4-
J-A14010-17


         of [Joseph Burns’] signature on the Agreement, where, had
         [Joseph Burns] failed to sign the Agreement, Sky Zone would
         not have permitted him to access its trampoline facilities,
         where the Agreement clearly states that the participant’s
         signature was consideration for participating in Sky Zone
         trampoline games and activities, causing Sky Zone to be
         deprived of the benefit of the bargain in the Agreement and
         allowing [Appellees] to benefit from their deliberate
         dishonesty?

      5. Whether the trial court erred to the extent that it intended
         that its decision to definitively determine that the Agreement
         was invalid and not binding, that Dawn Burns did not have
         implied or apparent authority, there was no agency by
         estoppel, and that direct benefits estoppel did not apply, as
         this was premature and usurped the function of the jury?

Appellant’s Brief at 4-5.

      We begin by noting our standard of review:

      [O]ur review of a claim that the trial court improperly denied
      preliminary objections in the nature of a petition to compel
      arbitration is limited to determining whether the trial court’s
      findings are supported by substantial evidence and whether the
      trial court abused its discretion in denying the petition. Gaffer
      [Ins. Co., Ltd. v. Discover Reinsurance Co.], 936 A.2d
      [1109,] 1112 [(Pa. Super. 2007)]. As contract interpretation is
      a question of law, our review of the trial court’s decision is de
      novo and our scope is plenary. Id. citing Bucks Orthopedic
      Surgery Associates, P.C. v. Ruth, 925 A.2d 868, 871 (Pa.
      Super. 2007).

Peterson v. Kindred Healthcare, Inc., 155 A.3d 641, 644 (Pa. Super.

2017).   “We employ a two-part test to determine whether the trial court

should have compelled arbitration:      1) whether a valid agreement to

arbitrate exists, and 2) whether the dispute is within the scope of the

agreement.”    Washburn v. Northern Health Facilities, Inc., 121 A.3d

1008, 1012 (Pa. Super. 2015).



                                    -5-
J-A14010-17



       Here, Sky Zone asserts that the Agreement to arbitrate any claims is

valid and binding and, thus, the trial court erred in overruling its preliminary

objections and by failing to compel Appellees to bring their claims in

arbitration.   See Sky Zone’s Brief at 25, 32.       There appears to be no

disagreement that Appellees’ claims are within the scope of the Agreement.

TCO at 6.      Thus, the determinative issue on appeal is whether a valid

agreement to arbitrate existed.

       Appellees state that Joseph Burns did not sign the Agreement, but that

Dawn Burns signed the Agreement with his name on it. See TCO at 7. Sky

Zone has produced no evidence to the contrary. Id. Thus, in order for the

Agreement in the instant case to be valid and binding on Joseph Burns, Sky

Zone must establish that an agency relationship existed, at the time of

execution, between Joseph and Dawn Burns.         See Petersen, 155 A.3d at

645.    “Such a relationship cannot be inferred from mere relationship or

family ties unattended by conditions, acts or conduct clearly implying an

agency.” Id. Rather, this Court has held that “an agency relationship may

be created by any of the following: (1) express authority, (2) implied

authority, (3) apparent authority, and/or (4) authority by estoppel.”       Id.

(citing Walton v. Johnson, 66 A.3d 782, 786 (Pa. Super. 2013)).

       Express authority exists where the principal deliberately and
       specifically grants authority to the agent as to certain matters.
       Implied authority exists in situations where the agent’s actions
       are “proper, usual and necessary” to carry out express agency.
       Apparent agency exists where the principal, by word or conduct,
       causes people with whom the alleged agent deals to believe that
       the principal has granted the agent authority to act. Authority

                                     -6-
J-A14010-17


       by estoppel occurs when the principal fails to take reasonable
       steps to disavow the third party of their belief that the purported
       agent was authorized to act on behalf of the principal.[4]

Id. It has been well-established that the party asserting the existence of an

agency relationship bears the burden of proving it by a fair preponderance of

the evidence. See id.; Washburn, 121 A.3d at 1012.

       There is no evidence of record indicating that Joseph Burns expressly

authorized Dawn Burns to enter the Agreement on his behalf. However, Sky

Zone suggests that Dawn Burns had implied authority, as Joseph Burns’

wife, to enter the Agreement on his behalf, because she was normally in

charge of registrations such as this. See TCO at 3. Sky Zone further avers

that Dawn Burns had apparent authority to enter the Agreement, “as the

parties entered the facility together and then Joseph Burns went to use the

restroom[,] leaving Dawn Burns to handle the enrollment process with [Sky

Zone’s] employee.” Id. Sky Zone also argues that the doctrine of agency

by estoppel precludes Appellees from alleging that the Agreement is

unenforceable, because Appellees were “intentionally careless in allowing

[Sky Zone’s] employee to believe that Joseph Burns signed the Agreement



____________________________________________


4 The Petersen Court further explained: “The doctrine requires that the
principal intentionally or carelessly caused a third party to believe an agency
relationship existed, or, knowing that the third party held such a belief, did
not take reasonable steps to clarify the facts. Additionally, there must be
justifiable reliance by the third party.”      Id. at 647 (internal citations
omitted).




                                           -7-
J-A14010-17



and/or in allowing [Sky Zone’s] employee to believe that Dawn Burns had

the authority to sign the Agreement on Joseph Burns’ behalf.” Id. at 3-4.

     The trial court offers the following analysis in response to Sky Zone’s

arguments regarding the existence of an agency relationship:

     Implied authority is an extension of express authority. Neither
     the record nor Joseph Burns’ deposition supports that Joseph
     Burns gave Dawn Burns “authority to complete paperwork and
     enroll her husband in activities” as argued by [Sky Zone]. To
     the contrary, Joseph Burns stated in his deposition that Dawn
     Burns did not normally fill out waivers and forms for him and
     that she had never signed his name to participate in an activity.
     As Dawn Burns did not have express authority to enter any type
     of agreement for Joseph Burns, she could not have had implied
     authority to enter the Agreement.

             For purposes of apparent authority, there were no prior
     dealings between [Sky Zone’s] employee and [Appellees]. [Sky
     Zone’s employee] did not know at the time he/she presented
     Dawn Burns with the Agreement if she had ever executed
     anything on Joseph Burns’ behalf. No facts were presented to
     indicate that Joseph Burns[,] by words or conduct[,] led [Sky
     Zone’s] employee to believe Joseph Burns had granted his wife
     the authority to sign the Agreement.       It is undisputed that
     Joseph Burns’ only interaction with [Sky Zone’s] employees was
     asking where the restroom was located and possibly obtaining
     from an employee the sticker and socks to use the trampoline
     facility. Therefore, Dawn Burns did not have the apparent
     authority to enter the Agreement on Joseph Burns’ behalf.

            For purposes of agency by estoppel, [Sky Zone] must
     show that Joseph Burns knew or should have known that Dawn
     Burns had signed the Agreement. The record is devoid of such a
     showing. Joseph Burns testified in deposition that he did not
     know about the Agreement until after his alleged injury. He
     further testified that he was not aware that waivers needed to be
     signed for activities such as the trampoline park or that Dawn
     Burns had ever signed waivers on behalf of his children for
     activities akin to the trampoline park.




                                   -8-
J-A14010-17



TCO at 7-8 (citations to record omitted). After careful review, we conclude

that the trial court’s findings are substantially supported by the record, and

we ascertain no abuse of discretion by the trial court.

      For the foregoing reasons, we conclude that Dawn Burns lacked the

authority to execute the Agreement on Joseph Burns’ behalf, and that

accordingly, Joseph Burns is not legally bound by the Agreement. “Despite

national and state policies favoring arbitration, a party cannot be compelled

to arbitrate in the absence of a valid agreement to do so….”     Washburn,

121 A.3d at 1016. Having concluded that no valid agreement to arbitrate

exists, we need not address Sky Zone’s remaining claims regarding the

enforceability of the Agreement.

      Finally, Sky Zone asserts that the trial court’s determination that the

Agreement was invalid and not binding, that Joseph Burns did not sign the

Agreement, and that Dawn Burns did not have authority to sign the

Agreement on her husband’s behalf, was “premature and usurped the

function of the jury.” Sky Zone’s Brief at 62. To the contrary, we conclude

that the trial court properly decided the issues raised by Sky Zone in its

preliminary objections regarding the validity of the Agreement.          “Our

decisional law has made clear that the issue of whether a party agreed to

arbitrate a dispute is a threshold, jurisdictional question that must be

decided by the court.” Pisano v. Extendicare Homes, Inc., 77 A.3d 651,

654 (Pa. Super. 2013).




                                     -9-
J-A14010-17


     [A]rbitration is a matter of contract and, as such, it is for the
     court to determine whether an express agreement between the
     parties to arbitrate exists.     Because the construction and
     interpretation of contracts is a question of law, the trial court’s
     conclusion as to whether the parties have agreed to arbitrate is
     reviewable by this Court. Our review is plenary, as it is with any
     review of questions of law.

Midomo Co., Inc. v. Presbyterian Housing Development Co., 739 A.2d

180, 187 (Pa. Super. 1999) (internal citations omitted).

     Moreover, it is well-established:

     Where no issues of fact are raised, the court shall dispose of the
     preliminary objections as a matter of law on the basis of the
     pleadings alone.” Matter of D.L.S., 278 Pa. Super. 446, 420
     A.2d 625, 626 (1980).       Where preliminary objections raise
     issues of fact, however, the Rules of Civil Procedure provide that
     “the court shall consider evidence by depositions or otherwise.”
     Pa.R.C.P. 1028(c)(2); see also Deyarmin v. Consol. Rail
     Corp., 931 A.2d 1, 14 (Pa. Super. 2007) (“If an issue of fact is
     raised by preliminary objections … the [trial] court may not
     reach a determination based upon its view of the controverted
     facts, but must resolve the dispute by receiving evidence
     thereon through interrogatories, depositions or an evidentiary
     hearing.”)

R.M. v. J.S., 20 A.3d 496, 508-09 (Ps. Super. 2011).

     Here, Sky Zone’s preliminary objections raised issues of fact as to who

signed the Agreement and whether an agency relationship existed between

Joseph Burns and Dawn Burns.      As stated supra, the trial court issued an

order on June 29, 2016, providing the parties with sixty (60) days “to

conduct discovery and supplement the record on issues relating to the

validity and enforceability of the Agreement.” TCO at 3. Accordingly, the

parties conducted depositions of Joseph Burns, Dawn Burns, and Ann Nicole

Atkinson, an employee of Sky Zone, and subsequently filed supplemental


                                   - 10 -
J-A14010-17



memorandums of law with the court.          The court properly relied on this

discovery and the supplemental pleadings in concluding that the Agreement

was not valid or binding against Joseph Burns.

     Order affirmed. Case remanded. Jurisdiction relinquished.

     Judge Shogan joins this memorandum.

     Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




                                   - 11 -
