J-S54042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.

                         Appellee                    No. 165 MDA 2014


              Appeal from the Order Entered January 7, 2014
              In the Court of Common Pleas of Union County
                      Civil Division at No(s): 12-0375


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                             FILED APRIL 24, 2015

      Appellant, Melinda Hinkal, appeals from the January 7, 2014 order

granting the motion for summary judgment filed by Gavin Pardoe, Gold’s

Gym, Inc. (Gold’s Gym), Gold’s Gym International, and TRT Holdings, Inc.

(collectively, Appellees). After careful review, we reverse and remand.

      In her second amended complaint, Appellant asserted claims of

negligence against Pardoe, a personal trainer employed by Gold’s Gym, and

respondeat superior against each of the other Appellees. The trial court set

forth the facts and procedural history as follows.

                  [Appellant] alleges she sustained a serious
            neck injury while using a piece of exercise equipment
            under 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
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              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 [m]otion for
              [s]ummary [j]udgment requesting that we dismiss
              all [of] [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, 1/7/14, at 1-2 (footnote omitted). On January 7, 2014,

the trial court issued an order granting Appellees’ motion for summary

judgment and an accompanying opinion explaining its decision. On January

23, 2014, Appellant filed a timely notice of appeal.1

       Appellant raises the following issues on appeal.

              1.     Whether the [g]uest [c]ard signed by the
                     Appellant covering the six[-]day trial period
                     had expired before the Appellant’s injury
                     occurred[?]



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1
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.         In response to Appellant’s Rule 1925(b)
statement, the trial court refers this Court to its January 7, 2014 opinion.


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              2.     Whether the [w]aiver on the back page of the
                     [m]embership [a]greement signed by the
                     Appellant is valid and enforceable[?]

              3.     Whether the [w]aiver encompasses [r]eckless
                     [c]onduct?

Appellant’s Brief at 4.2

       Our standard of review of a grant of summary judgment is as follows.

                    As has been oft declared by [our Supreme]
              Court, “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.” Atcovitz v. Gulph Mills Tennis
              Club, Inc., 812 A.2d 1218, 1221 ([Pa.] 2002); Pa.
              R.C.P. No. 1035.2(1). When considering a motion
              for summary judgment, the trial court must take all
              facts of record and reasonable inferences therefrom
              in a light most favorable to the non-moving party.
              Toy v. Metropolitan Life Ins. Co., 928 A.2d 186,
              195 ([Pa.] 2007). In so doing, the trial court must
              resolve all doubts as to the existence of a genuine
              issue of material fact against the moving party, and,
              thus, may only grant summary judgment “where the
              right to such judgment is clear and free from all
              doubt.” Id. On appellate review, then,

                     an appellate court may reverse a grant of
                     summary judgment if there has been an error
                     of law or an abuse of discretion. But the issue
                     as to whether there are no genuine issues as
                     to any material fact presents a question of law,
                     and therefore, on that question our standard of
                     review is de novo. This means we need not
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2
  We note that Appellant’s application to file an amended brief was granted,
and Appellant filed an amended brief on August 1, 2014. For ease of
discussion, we refer to this as “Appellant’s Brief” throughout. Appellees did
not seek leave to supplement their first brief.


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                     defer to the determinations made by the lower
                     tribunals.

              Weaver v. Lancaster Newspapers, Inc., 926 A.2d
              899, 902-03 ([Pa.] 2007) (internal citations
              omitted). To the extent that this Court must resolve
              a question of law, we shall review the grant of
              summary judgment in the context of the entire
              record. Id. at 903.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (parallel

citations omitted).

       In the statement of questions involved section of her amended brief,

Appellant first argues the guest card covering the six-day trial period had

expired before Appellant’s injury occurred. Appellant’s Brief at 4. Initially,

we note Appellant has waived this issue because she did not present

argument in support of this issue in her brief.3 See id. at 15-22; Harvilla

v. Delcamp, 555 A.2d 763, 765 n.1 (Pa. 1989); Harkins v. Calumet

Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992).

       In her second issue, Appellant contends that the waiver provision on

the reverse side of the membership agreement is not valid and enforceable.

Appellant’s Brief at 19-20. Specifically, Appellant argues that the waiver is
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3
  If this issue was not waived, we would agree with Appellant that the guest
card is not material to this dispute. Appellant received the guest card on
June 20, 2010, and it expired at the end of the six-day trial period.
Thereafter, Appellant signed the membership agreement on July 5, 2010.
The provisions of the membership agreement were in effect on August 24,
2010, the date Appellant alleges she was injured due to Appellees’
negligence. The trial court based its ruling on those provisions. Therefore,
the membership agreement is the contract governing this dispute.


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unenforceable because it is inconspicuous and is insufficient to provide

notice of its contents and legal significance. Id. For the following reasons,

we agree.

       The Gold’s Gym membership agreement is printed on a single, two-

sided page in a carbon copy packet.              Appellees’ Motion for Summary

Judgment, 8/19/13, at Exhibit C. The only signature line is located at the

bottom of the front side. Id. at 1.4 The first line in the paragraph above the

signature line provides, “[d]o not sign this [a]greement until you have read

both sides.      The terms on each side of this form are a part of this

[a]greement.”      Id.    This instruction is not set off from the rest of the

paragraph and is not in bold typeface, capital letters, or larger font, even

though other terms, such as the “buyer’s right to cancel,” appear in bold and

capital letters. Id.

       On the reverse side of the agreement are 13 additional terms printed

in light gray ink on pink carbon paper.          Id. at 2.   All of these terms are

single-spaced and printed in the same font size.             Id.   The “Waiver of

Liability; Assumption of Risk” clause at issue in this case is the 12 th term,

located approximately three-quarters of the way down the page, and is not




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4
 The membership agreement is not paginated. For ease of reference, we
have numbered the front as page 1 and the reverse as page 2.



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differentiated in any manner from the surrounding paragraphs. Id. It reads

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 and Member’s guests and invitees. Member
              voluntarily agrees to assume all risks of personal
              injury to Member, Member’s spouse, children,
              unborn children, other family members, guests of
              invitees 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 for to [sic]
              Member, Member’s spouse, children, unborn
              children, other family members, guests or invitees
              for any such personal injury), including, without
              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, running tracts, swimming pools, hot tubs,
              courts or other areas of any 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, including
              locker rooms, steam room, whirlpools, hot tubs,
              spas, saunas[,] showers and dressing rooms.
              Member acknowledges that (x) Gold’s Gym does not
              manufacture any of the fitness or other equipment at
              its facilities and (y) Gold’s Gym does not
              manufacture any vitamins, food products, sports
              drinks, nutritional supplements or other products
              sold at its facilities; accordingly, neither Gold’s Gym,
              any of its subsidiaries or other affiliates nor any of
              their respective officers, directors, employees,
              agents, successors or assigns shall be held liable for
              any such defective equipment or products. Member
              shall indemnify each of Gold’s Gym, its subsidiaries
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            and other affiliates and each of their respective
            officers, directors, employees, agents, successors
            and assigns (and “Indemnified Party”) and save and
            hold each of them harmless against and pay on
            behalf of or reimburse any such Indemnified Party as
            and when incurred for any Losses which such
            Indemnified Party may suffer, sustain or become
            subject to, as a result of, in connection with, relating
            or incidental to or by virtue of any claim that is the
            subject of the waiver set forth above. The provisions
            of this paragraph shall survive the termination of this
            Agreement and Member’s membership.

Id.   The reverse side of the agreement does not have any space for a

signature or for initials where a signatory may acknowledge the additional

terms. Id. Neither does the front side of the agreement require separate

confirmation that the signatory has read and accepted the additional terms

on the reverse side. Id. at 1. Furthermore, it is undisputed that Appellant

did not read the waiver of liability language on the reverse side of the

agreement, and that no employee of Gold’s Gym verbally informed her that

the terms of the agreement included an exculpatory clause.             Appellant’s

Brief at 19; Appellees’ Brief at 20.

      In Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266 (Pa. Super.

2006), this Court recognized that an unsigned, unread exculpatory clause

may be enforceable as a matter of law if the clause is sufficiently

conspicuous such that a reasonable person would have been put on notice of

its contents.   Beck-Hummel, supra at 1274-1275.           In Beck-Hummel,

Suzanne Beck-Hummel was injured while snow tubing.           Id. at 1267.     Her

snow tubing ticket contained an exculpatory clause. Id. Beck-Hummel and

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her husband filed an action for negligence and loss of consortium. Id. at

1268.    The parties stipulated that Beck-Hummel and her husband neither

signed an agreement nor read the exculpatory language on the snow-tubing

ticket. Id. at 1274. They further stipulated that no employee of the snow-

tubing facility verbally informed either of them “that they were entering into

a contractual agreement, the terms of which included the exculpatory

language on the ticket, by paying for and accepting the ticket.” Id.

        This Court in Beck-Hummel concluded that the unsigned, unread

exculpatory clause would nevertheless be enforceable if the exculpatory

language was sufficiently conspicuous. Id. In other words, the exculpatory

clause would be enforceable if a reasonable person should have noticed it.

Id.   In determining whether a reasonable person should have noticed an

exculpatory clause, a court should analyze the following factors.

             1) The [exculpatory clause’s] placement in the
             document, 2) the size of the [clause’s] print, and 3)
             whether the [clause] was highlighted by being
             printed in all capital letters or in a type style or color
             different from the remainder of the document.

Id.   The Beck-Hummel Court applied this test and ultimately determined

that the language printed on the tubing ticket was not sufficiently

conspicuous and was therefore unenforceable. In reaching this conclusion,

the Beck-Hummel Court stated the following.

             The disclaimer language on the ticket was in a font
             size such that [it] was barely readable. The several
             references to [the snow tubing company] and its
             logo were set forth in the largest text on the ticket.
             Although the ticket stated “• PLEASE READ •” in
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              bold, above the disclaimer, the font size of this
              language was similar to the phrases on the bottom of
              the ticket, “NON-TRANSFERABLE” and “NON-
              REFUNDABLE”.

Id. at 1274-1275.

       Applying the foregoing principles from Beck-Hummel to this case, we

conclude as a matter of law that the exculpatory clause in the Gold’s Gym

membership agreement is unenforceable because it is not sufficiently

conspicuous.     See Appellees’ Motion for Summary Judgment, 8/19/13, at

Exhibit C. As noted above, the exculpatory clause is printed on the reverse

side of the one-page document. The exculpatory clause is not in immediate

proximity to the signature line, as the signature line is on the front side of

the document.       Additionally, the font size of the exculpatory clause is not

distinct from the other 12 terms on the reverse side, nor is the font size of

the sentence advising Appellant to read both sides of the agreement distinct

from the surrounding text. This is in contrast, for example, to the font in the

paragraph explaining the “Buyers Right to Cancel” on the front side.5

Rather, the exculpatory clause is printed in light gray ink on pink carbon

paper and is difficult to read. Further, it is undisputed that Appellant did not

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5
  We note the conspicuous nature of the Buyer’s Right to Cancel clause
pursuant to 73 P.S. § 201-7, which requires, in pertinent part, the clause to
appear “in immediate proximity to the space reserved in the contract for the
signature of the buyer or on the front page of the receipt if a contract is not
used and in bold face type of a minimum size of ten points[.]”



                                           -9-
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read the language of the membership agreement, and the language of the

agreement itself is not so conspicuous as to, without more, put the user on

notice of the exculpatory clause. Notably, the sentence advising Appellant to

read both sides of the agreement does not contain a description of the

additional terms or an indication of their potential significance. Therefore,

we conclude the exculpatory clause in this case is unenforceable as a matter

of law. Beck-Hummel, supra at 1274-1275.

       The trial court found that the Gold’s Gym membership agreement is

valid and enforceable as a written, signed contract, relying on Chepkevich

v. Hidden Valley Resort, L.P., 2 A.3d 1174 (Pa. 2010). Trial Court

Opinion, 1/7/14, at 4-10.             However, the agreement in this case is

distinguishable from the contract at issue in Chepkevich. In Chepkevich,

the appellee claimed she was injured on the ski lift at Hidden Valley Resort

as a result of the negligence of the ski lift operator. Chepkevich, supra at

1175-1176. Our Supreme Court concluded that the ski resort was entitled

to summary judgment based on the terms of the release from liability

included in the parties’ written and signed contract.6     Id. at 1188.   After

determining that this exculpatory clause was facially valid, the Court


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6
  The Court first held that the defendants were entitled to summary
judgment under the Skiers Responsibility Act, which preserved the doctrine
of assumption of the risk as it applies to downhill skiing injuries and
damages. Id. at 1188; 42 Pa.C.S.A. § 7102(c).



                                          - 10 -
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distinguished the release involved in Chepkevich from Beck-Hummel as

follows.

              [T]he [r]elease in this case was a full page titled
              “RELEASE FROM LIABILITY” in capital letters in large
              font at the top. The actual language releasing [the
              ski resort] from liability regardless of its own
              negligence was written in the same font as the rest
              of the [r]elease, and [the appellee] signed that
              [r]elease. … Whether or not [the appellee] availed
              herself of the opportunity to read the [r]elease she
              signed, we cannot agree that a full-page, detailed
              agreement, written in normal font and titled
              “RELEASE      FROM      LIABILITY”   constitutes    an
              insufficient effort on the part of [the ski resort] to
              inform [the appellee] of the fact that, by signing and
              purchasing a lift ticket, she was giving up any right
              she might have to sue for damages arising from
              injuries caused even by negligence.

Id. at 1192.

       The instant case is not analogous to Chepkevich because, unlike the

release in Chepkevich, the exculpatory clause in this case was not on a

separate page, was not clearly titled, and was not signed separately.7

Instead, it was one of 13 terms on the reverse side of the membership

agreement and did not require a separate acknowledgment.               Given that

Appellees in this case took no other steps to alert Appellant that she was
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7
  Similarly, the waiver in the agreement in the case relied on by Appellees is
conspicuous and, therefore, not analogous to the present matter. See
Seaton v. East Windsor Speedway, Inc., 582 A.2d 1380, 1383 (Pa.
Super. 1990) (stating “the bold-typed letters ‘Release and Waiver of Liability
and Indemnity Agreement’ at the top of the sheet quickly notify the signer
that the paper is, in fact, a release[]”).



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waiving her right to initiate personal injury actions against Gold’s Gym by

signing the membership agreement, we cannot conclude as a matter of law

that the exculpatory clause represents the intent of Appellant to waive said

right. Therefore, the exculpatory clause is unenforceable because it was not

read and was not sufficiently conspicuous. Beck-Hummel, supra at 1274-

1275.

        Accordingly, we conclude that the trial court erred in granting

summary judgment.           Therefore, we reverse the January 7, 2014 order

granting summary judgment and remand for further proceedings consistent

with this memorandum.8

        Order reversed. Case remanded. Jurisdiction relinquished.

        Judge Lazarus joins the memorandum.

        Judge Stabile files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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8
  Given our disposition, we do not reach Appellant’s third issue of whether
the waiver in the membership agreement encompasses reckless conduct.


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