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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                         Appellees                     No. 165 MDA 2014


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


BEFORE: LAZARUS, MUNDY, and STABILE, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.:FILED APRIL 24, 2015

      I concur with the Majority’s determination that Appellant has waived

the first issue raised in her brief.   However, because I disagree with the

Majority’s conclusion with respect to Appellant’s second issue, and in

particular because I believe the Majority’s reliance on Beck-Hummel v. Ski

Shawnee, Inc., 902 A.2d 1266 (Pa. Super. 2006), is misplaced and in

effect reshapes established contract law, I respectfully dissent.

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

Membership Agreement was valid and enforceable.            Trial Court Opinion

(T.C.O.), 1/7/14, at 10. The trial court determined:

      By signing the Membership Agreement, [Appellant] executed a
      release and assumed the risk of any and all injuries sustained by
      virtue of her use of the exercise equipment at the [gym]. Thus,
J-S54042-14


       [Appellees] are entitled to the entry of judgment in their favor
       on the basis of the exculpatory release language set forth in the
       Membership Agreement and scrutinized and analyzed at length
       herein. There are simply no genuine issues of material fact to
       warrant a jury trial in this action.

Id.

       In this appeal, Appellant presents three issues for our consideration:

       1. Whether the Guest Card signed by the Appellant covering the
          six day trial period had expired before the Appellant’s injury
          occurred[?]

       2. Whether the Waiver on the back page of the Membership
          Agreement signed by the Appellant is valid and enforceable[?]

       3. Whether the Waiver encompasses Reckless Conduct?

Appellant’s Amended Brief at 4.1

       As noted above, I do not take issue with the Majority’s determination

that Appellant’s failure to develop any argument in support of her first issue
____________________________________________


1
  Our standard and scope of review from the grant of summary judgment
are as follows:

       The overarching question of whether summary judgment is
       appropriate is a question of law, and thus our standard of review
       is de novo and the scope of review is plenary. O'Donoghue v.
       Laurel Sav. Ass'n, 556 Pa. 349, 728 A.2d 914, 916 (1999).
       Summary judgment may be entered only in those cases where
       the record demonstrates that there remain no genuine issues of
       material fact, and that the moving party is entitled to judgment
       as a matter of law.       Dean v. Commonwealth, Dep't of
       Transp., 561 Pa. 503, 751 A.2d 1130, 1132 (2000).

Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1182 (Pa. 2010).




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results in waiver of the issue. See Pa.R.A.P. 2119; Harvilla v. Delcamp,

555 A.2d 763, 764 n.1 (Pa. 1989).       Where I must part company with the

Majority is in its analysis of Appellant’s second issue, in which Appellant

questions the validity and enforceability of the waiver on the back page of

her membership agreement.           The language on the back page of the

agreement reads in pertinent part as follows:

     WAIVER OF LIABILITY; ASSUMPTION OF RISK: Member
     acknowledges that the use of Gold’s Gym’s facilities, equipment,
     services and programs involves an inherent risk of personal
     injury to Member . . . . Member voluntarily agrees to assume all
     risks of personal injury to Member . . . and waives any and all
     claims or actions that Member may have against Gold’s Gym,
     any of its subsidiaries or other affiliates and any of their
     respective officers, directors, employees, agents, successors and
     assigns for any such personal injury (and no such person shall
     be liable to Member . . . for any such injury), including, without
     limitation (i) injuries arising from use of any exercise equipment,
     machines and tanning booths, (ii) injuries arising from
     participation in supervised or unsupervised activities and
     programs in exercise rooms . . . or other areas of Gold’s Gym,
     (iii) injuries or medical disorders resulting from exercising at any
     Gold’s Gym, including heart attacks, strokes, heat stress,
     sprains, broken bones and torn or damaged muscles, ligaments,
     or tendons and (iv) accidental injuries within any Gold’s Gym
     facilities . . . .”

Appellees’ Motion for Summary Judgment, 8/16/13, at Exhibit C.

     In its thorough and well-reasoned opinion, the trial court reviewed the

language of the waiver and conducted a review of case law addressing

exculpatory clauses, recognizing:

     “It is generally accepted that an exculpatory clause is valid
     where three conditions are met. First, the clause must not
     contravene public policy.     Secondly, the contract must be
     between persons relating entirely to their own private affairs and

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       thirdly, each party must be a free bargaining agent to the
       agreement so that the contract is not one of adhesion.”
       [Chepkevich, 2 A.3d at 1189]. “. . . [O]nce an exculpatory
       clause is determined to be valid, it will, nevertheless, still be
       unenforceable unless the language of the parties is clear that a
       person is being relieved of liability for his own acts of negligence.
       In interpreting such clauses we listed as guiding standards that:
       1) the contract language must be construed strictly, since
       exculpatory language is not favored by the law; 2) the contract
       must state the intention of the parties with the greatest
       particularity, beyond doubt, by express stipulation, and no
       inference from words of general import can establish the intent
       of the parties; 3) the language of contract must be construed, in
       cases of ambiguity, against the party seeking immunity from
       liability; and 4) the burden of establishing the immunity is upon
       the party invoking protection under the clauses.” Id., quoting
       Dilks v. Flohr Chevrolet, 192 A.2d 682, 687 (Pa. 1963).

       Moreover, “. . . [c]ontracts against liability, although not favored
       by courts, violate public policy only when they involve a matter
       of interest to the public or the state. Such matters of interest to
       the public or the state include the employer-employee
       relationship, public service, public utilities, common carrier, and
       hospitals.” Seaton v. E. Windsor Speedway, Inc., 582 A.2d
       1380, 1382 (Pa. Super. 1990).

T.C.O., 1/7/14, at 4-5.2

       The trial court concluded that the exculpatory language at issue cannot

be said to violate public policy because it was an agreement between a

private individual and entities, and because it did not address matters of

____________________________________________


2
  The trial court noted that the three-pronged exculpatory clause test applied
in Chepkevich has been identified as the “Topp Copy/Employers
Liability standard” based upon Topp Copy Products Inc. v. Singletary,
626 A.2d 98 (Pa. 1993) and Employers Liability Assurance Corp. v.
Greenville Business Men’s Association, 224 A.2d 620 (Pa. 1966).
T.C.O., 1/7/14, at 5 n.4. I shall refer to the standard as the “Topp
Copy/Employers Liability standard” in this dissent.



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

Topp Copy/Employers Liability standard were satisfied.          Id. at 5.   The

trial court further determined that the membership agreement did not

constitute a contract of adhesion.       Id. at 6.   “[Appellant] was under no

compulsion to join Gold’s Gym as a member and execute the Membership

Agreement. Exercising at a gym with equipment and availing oneself of the

expertise of a personal trainer is a purely voluntary recreational activity.”

Id. at 7.     Therefore, the third prong of the Topp Copy/Employers

Liability standard also was satisfied.

      Having determined all conditions for evaluating the validity of an

exculpatory clause were met, the trial court concluded that the “Waiver of

Liability; Assumption of Risk” provision of the membership agreement was

valid. Id. The trial court then considered whether the provision spelled out

the intention to release Appellee Gavin Pardoe and Gold’s Gym from liability

for negligence. The trial court stated:

      [W]e conclude that the provision at issue expressly states with
      particularity the intention to bar all lawsuits arising out of the
      inherent risk of personal injury in using exercise equipment and
      machines and participating in an exercise program. We do not
      find the language in the waiver to be ambiguous such that we
      need to construe it against [Appellees].       We conclude that
      [Appellees] have satisfied their burden of establishing the
      validity of the waiver provision.

      We note that in response to the summary judgment motion,
      [Appellant] has objected to the font size and the location of the
      language in the Membership Agreement. However, [Appellant]
      testified in her deposition that she did not read the agreement
      prior to signing the same. As [a] result the font size and

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       location of the language is of no consequence. Moreover, “ . . .
       [i]n the absence of fraud or confidential relationship, the fact
       that [a party] may have ‘skimmed’ or ‘somewhat read’ the
       subject releases, does not make them any less enforceable.”
       Seaton v. E. Windsor Speedway, [582 A.2d 1380 (Pa. Super.
       1990)]; Standard Venetian Blind Co. [v. American Emp.
       Ins. Co., 469 A.2d 563 (Pa. 1968)].

Id. at 9-10.

       In her brief, Appellant does not contend that the trial court’s analysis

is legally deficient. Rather, she simply asserts that her claim is not barred

by the “exclusion clause” on the back of the membership agreement.

Appellant’s Amended Brief at 15-20.        Her argument does not focus on

aspects of validity of exculpatory clauses, such as whether the membership

agreement clause contravenes public policy or constitutes a contract of

adhesion. Nor does she contend the language fails to relieve Appellees from

liability.   Instead, Appellant ignores the Topp Copy/Employers Liability

standard and the language relieving Appellees from liability, and contends

the waiver is invalid because it appeared on the back of the agreement, she

never read or was told to read the back of the agreement, and the clause

was not “brought home” to her in a way that could suggest she was aware of

the clause and its contents. Id.

       Appellant’s argument does not have merit. As the trial court

recognized, Appellant admitted she did not read the agreement prior to

signing it. T.C.O., 1/7/14, at 9. She did not allege fraud or a confidential

relationship. Id. Although she was ostensibly attacking the validity of the


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waiver, Appellant did not present any basis for finding the waiver provisions

invalid or unenforceable. Her failure to read her agreement does not render

it either invalid or unenforceable. “The law of Pennsylvania is clear. One

who is about to sign a contract has a duty to read that contract first.”

Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169,

1174 (E.D. Pa. 1990) (citations omitted). As this Court has stated:

     It is well established that, in the absence of fraud, the failure to
     read a contract before signing it is “an unavailing excuse or
     defense and cannot justify an avoidance, modification or
     nullification of the contract”; it is considered “supine negligence.”
     Germantown Sav. Bank v. Talacki, 441 Pa. Super. 513, 657
     A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co.
     v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566
     note (1983)).

In re Estate of Boardman, 80 A.3d 820, 823 (Pa. Super. 2013).

     The Gold’s Gym Membership Agreement signed by Appellant instructs:

     Do not sign this Agreement until you have read both sides. The
     terms on each side of this form are a part of this Agreement.
     Member is entitled to a completely filled in copy of this
     Agreement. By signing this Agreement, Member acknowledges
     that (A) This Agreement is a contract that will become legally
     binding upon its acceptance by Gold’s Gym, (B) Member has
     examined the gym facilities and accepts them in the present
     condition, (C) Gold’s Gym makes no representations or
     warranties to Member, either expressed or implied, except to the
     extent expressly set forth in this Agreement and (D) The
     effective date of membership hereunder shall be within six
     months after the date of Member’s signature below.          This
     Agreement constitutes the entire agreement between the parties
     hereto with respect to the subject matter hereof and supersedes
     any and all prior agreements, whether written or oral, with
     respect to such matter.




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Appellees’ Motion for Summary Judgment, 8/16/13, at Exhibit C.          The

signature line follows immediately and the words “Notice: See other side for

important information” appear in bold typeface below the signature line. Id.

With an unambiguous directive not to sign the agreement until reading both

sides, a clear pronouncement that the terms on both sides of the form are

part of the agreement, a straightforward statement that the agreement

constitutes the entire agreement between the parties, and Appellant’s

signature upon the agreement, I fail to understand how this agreement can

be compared in any way to the unread and unsigned disclaimer on a ski

facility ticket in Beck-Hummel, a case upon which the Appellant and the

Majority principally rely.

      Beck-Hummel concerned the enforceability of a release provision

printed on the back of a tubing ticket purchased at Ski Shawnee, Inc.

(Shawnee). Plaintiff’s husband had purchased four tubing tickets. Neither

the plaintiff nor her husband read the exculpatory language on the tubing

tickets and neither of them was informed by any employee of Shawnee that

they were entering into a contractual agreement with Shawnee. The release

language was printed above a dotted line in the center of the ticket where

the ticket presumably was to be folded. Plaintiff fractured her ankle when

she ran into a wall in the run-out area. She sued Shawnee for negligence.

The issue on appeal was whether the release contained on the tubing ticket




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was enforceable. The resolution of this issue was dependent upon whether

there was a meeting of the minds to establish the existence of a contract.

     On appeal to this Court, we concluded there was no agreement as to

this unsigned and unread disclaimer.    Drawing upon Section 469B of the

Restatement (Second) of Torts, we found that for there to be an effective

express agreement to assume a risk, it must appear the plaintiff had given

assent to the terms of the agreement. In particular, where the agreement

was drawn by the defendant, and the plaintiff’s conduct was merely that of a

recipient of the agreement, it had to appear that the terms of the release

were in fact understood and “brought home” to the plaintiff to find that the

agreement had been accepted. Shawnee attempted to argue the ticket was

so conspicuous that it put plaintiff on notice of the release provision such

that an agreement could be found. In finding that the release on the ticket

was not sufficiently conspicuous we looked to caselaw addressing Article 2 of

Pennsylvania’s Uniform Commercial Code (PUCC), 13 Pa.C.S.A. § 2101 et

seq., relating to enforcement of warranty disclaimers, to determine whether

a reasonable person should have noticed the release provision.         Beck-

Hummel, 902 A.2d at 1274. We were careful to recognize however, that

while Article 2 of the PUCC applied only to the sale of goods, we nonetheless

found it useful for providing guidance in that case.     Id. at n.12. Since

neither the plaintiff nor her husband ever read the ticket’s language and the

language was not so conspicuous as to, without more, put the use/purchaser


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on notice, we could not conclude as a matter of law that the release on the

ticket was enforceable.

      The distinguishing factor between Beck-Hummel and the instant

matter that makes resort to Beck-Hummel inapposite is the nature of the

respective agreements.       In Beck-Hummel, the release provision was

contained on the face of an entry ticket purchased for use of a ski facility.

The ticket did not require a signature or an express acknowledgment that its

terms were read and accepted before using the facility. Nothing about the

ticket ensured that a purchaser would be aware of its release provision. The

purchasers were mere recipients of the document. In short, there was not

sufficient evidence to find conclusively that there was a meeting of the

minds that part of the consideration for use of the facility was acceptance of

a release provision. In stark contrast, here there is a written, signed and

acknowledged agreement between the parties.            Not only is the written

contract signed by the Appellant, but also the contract, as previously stated,

contained an unambiguous directive not to sign the agreement until reading

both sides, a clear pronouncement that the terms on both sides of the form

are part of the agreement, and a straightforward statement that the

agreement     constitutes   the   entire   agreement   between   the   parties.

Accordingly, there is no need here to resort to proof of notice, as in Beck-

Hummel, to attempt to discern if assent to an agreement had been

reached.


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       I also take issue with the Appellant’s and Majority’s almost exclusive

resort to principles of conspicuity to find no agreement existed between the

parties.    As a general principle, minimum conspicuity standards are not a

requirement to establish the formation of a contract.                 While it is true the

legislature has prescribed conspicuity requirements for certain types of

contracts,3 conspicuity per se is not an essential element of contract

formation.     See Restatement (Second) of Contracts § 17(1) (a contract

requires a bargain in which there is a manifestation of mutual assent to the

exchange and a consideration).          Sufficient proof of this exists by virtue of

the   law    recognizing     and    enforcing      oral   contracts    between    parties.

Nonetheless, in cases where the existence of a contract, or a meeting of the

minds, cannot be determined as a matter of law, conspicuity has been

resorted to as a means of proving the existence or lack of a contract. Such

was the case in Beck-Hummel where there was no signed agreement

between the parties. Conspicuity principles were borrowed from the PUCC in

aid of determining whether the plaintiff was put on sufficient notice that a

____________________________________________


3
  See, e.g., 13 Pa.C.S.A. § 2316(b) (exclusion of implied warranties of
merchantability and fitness to be conspicuous), 73 P.S. § 201-7 (consumer
goods or services contract cancellation clause and notice to be minimum
ten-point boldface), 73 P.S. § 2163(b) (buyer’s right to cancel in health club
contract to be boldface and minimum ten-point font), 73 P.S. § 500-201
(home improvement contract to be at least eight-point type), 73 P.S. §
1970.3(c) (motor vehicle disclosure to be boldface and minimum size of ten
points), 73 P.S. § 2186(a) (credit services contract to be conspicuous in ten-
point bold type), 73 P.S. § 2205 (test of readability in consumer contracts).



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release was a part of the quid pro quo for use of the ski facility.       The

Majority here essentially uses Beck-Hummel to supplant the existence of a

valid written contract by imposing undefined conspicuity requirements as

essential elements to all contract formations.        In my view, this is

unwarranted and without precedent. The Majority impermissibly has taken

conspicuity, as means of proving the existence of a contract, and made it a

general   requirement   of   contract   formation.   The   Majority   decision

substantially alters the landscape of contract formation and allows a properly

executed contract to be set aside through one party’s failure to do what the

law requires: to read the contract before signing. The Majority now places

the burden and risk of this failure upon the performing party.     Therefore,

viewing the record in the light most favorable to Appellant, as we are

constrained to do, I find no genuine issue as to any material fact or any

error in the lower court’s determination that the waiver was valid and

enforceable.    I conclude Appellant is not entitled to relief based on her

second issue.

      The Majority did not address Appellant’s third issue in light of its

disposition of the second issue.    In the third issue, Appellant questions

whether the membership agreement waiver encompasses reckless conduct.

She suggests that Pardoe’s actions, adding so much weight to a piece of

exercise equipment, constituted indifference to the consequences of his

actions rising to a level of recklessness outside the purview of the


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membership agreement waiver.          Appellant’s Amended Brief at 21-22.

Appellees counter that the issue is waived because it was never raised

before the trial court, either in response to the motion for summary

judgment or at any other time. Appellees’ Brief at 23. Further, Appellant

did not allege reckless conduct as a basis for liability in her Second Amended

Complaint. Appellees’ Brief at 25.

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”   Pa.R.A.P. 302(a).    Raising the issue in her

1925(b) statement does not cure that defect.        “A party cannot rectify the

failure to preserve an issue by proffering it in response to a Rule 1925(b)

order. A Rule 1925(b) statement of matters complained of on appeal is not

a vehicle in which issues not previously asserted may be raised for the first

time.”   Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 444 (Pa.

Super. 2003) (internal citations omitted).

      Clearly, Appellant’s claims of recklessness on appeal are waived,

unless the allegations of her pleading or assertions in opposition to

Appellees’   summary    judgment     motion   can    be   read   to   encompass

recklessness.   My review of the pleadings, Appellant’s deposition, and her

brief in opposition to the motion for summary judgment leads me to

conclude recklessness was not raised prior to the filing of Appellant’s briefs

on appeal. All of Appellant’s claims are centered on mere negligence.




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     In Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012),

our Supreme Court explained:

     Recklessness is distinguishable from negligence on the basis that
     recklessness requires conscious action or inaction which creates
     a substantial risk of harm to others, whereas negligence
     suggests    unconscious      inadvertence.    In    Fitsko     v.
     Gaughenbaugh, 363 Pa. 132, 69 A.2d 76 (1949), we cited with
     approval the Restatement (Second) of Torts definition of
     “reckless disregard” and its explanation of the distinction
     between ordinary negligence and recklessness. Specifically, the
     Restatement (Second) of Torts defines “reckless disregard” as
     follows:

        The actor’s conduct is in reckless disregard of the safety of
        another if he does an act or intentionally fails to do an act
        which it is his duty to the other to do, knowing or having
        reason to know of facts which would lead a reasonable
        man to realize, not only that his conduct creates an
        unreasonable risk of physical harm to another, but also
        that such risk is substantially greater than that which is
        necessary to make his conduct negligent.

     Restatement (Second) of Torts § 500 (1965). The Commentary
     to this Section emphasizes that “[recklessness] must not only be
     unreasonable, but it must involve a risk of harm to others
     substantially in excess of that necessary to make the conduct
     negligent.” Id., cmt. a. Further, as relied on in Fitsko, the
     Commentary contrasts negligence and recklessness:

        Reckless misconduct differs from negligence in several
        important particulars.     It differs from that form of
        negligence which consists in mere inadvertence,
        incompetence, unskillfulness, or a failure to take
        precautions to enable the actor adequately to cope with a
        possible or probable future emergency, in that reckless
        misconduct requires a conscious choice of a course of
        action, either with knowledge of the serious danger to
        others involved in it or with knowledge of facts which
        would disclose this danger to any reasonable man. . . .
        The difference between reckless misconduct and conduct
        involving only such a quantum of risk as is necessary to
        make it negligent is a difference in the degree of the risk,

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         but this difference of degree is so marked as to amount
         substantially to a difference in kind.

      Id., cmt. g.

Tayar, 47 A.3d at 1200-01.

      Because Appellant did not assert claims of reckless conduct at any

time prior to her appeal and because her claims of negligence cannot be

read to encompass recklessness, I conclude Appellant’s third issue does not

afford her the right to any relief. Finding no error of law in the trial court’s

conclusion that there were no genuine issues as to material fact and that

Appellees were entitled to judgment as a matter of law, I would affirm the

grant of summary judgment.




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