J-A05020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ABIGAIL MULLER,                                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

THE AQUATIC AND FITNESS CENTER
D/B/A AFC JENKINTOWN, AQUA HAB,
L.P. D/B/A THE AQUATIC AND FITNESS
CENTER AT JENKINTOWN, AQUA HAB,
L.P. AND KYLE DONAHUE,

                          Appellees                 No. 1636 EDA 2014


                 Appeal from the Order entered April 15, 2014,
             in the Court of Common Pleas of Philadelphia County,
             Civil Division, at No(s): October Term, 2012 No. 0667


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED MARCH 09, 2015

      Abigail Muller, (“Appellant”), appeals from the trial court’s order

granting summary judgment in favor of The Aquatic and Fitness Center

d/b/a AFC Jenkintown, Aqua Hab, L.P. d/b/a The Aquatic and Fitness Center

at Jenkintown, Aqua Hab, L.P. and Kyle Donahue, (“Gym” and “Donahue”).

We affirm.

      The trial court detailed the factual and procedural background relative

to this action as follows:

      [Appellant] joined [Gym] as a member in 2004 and at that time
      signed a Membership Application/Contract. Directly above the
      signature line, the Contract contained the following language
      under the heading "Notice":
J-A05020-15


        Any holder of this contract or not [sic] is subject to tall
        [sic] claims and defenses which the debtor could assert
        against the seller of goods or services obtained pursuant
        hereto or with the proceeds hereof. Recovery hereunder
        by the debtor shall not exceed amounts paid by the debtor
        shall not exceed amounts paid by the debtor [sic]
        hereunder. l/we accept full responsibility for my/our use
        of any and all apparatus, appliance, facility, privilege, or
        service whatsoever, owned and operated by the Aquatic
        and Fitness Center at Jenkintown, or while engaging in any
        contest, game, function, exercise, either on or off the
        Aquatic and Fitness Center at Jenkintown Premises, shall
        do so at my own risk, and shall hold The Aquatic and
        Fitness Center at Jenkintown, its partners, shareholders,
        directors, officers, employees, representatives, and
        agents, harmless from any and all loss, claim, injury,
        damage, or liability sustained or incurred by me/us,
        resulting from any act or omission of an officer, employee,
        representatives, owners and agents and/or any of the
        affiliated companies hereunder in respect of any such loss,
        cost, claim, injury, damage or liability sustained or
        incurred by using The Aquatic and Fitness Center at
        Jenkintown.

        Despite having signed her name at the bottom of the
     contract, and although she did not suggest that she was forced
     or rushed while signing the contract, [Appellant] did not read the
     contract. [Appellant] remained a member of the Aquatic and
     Fitness Center for the next several years and on May 26, 2011
     entered into an additional contract called a Personal Training
     Agreement for a series of personal training sessions with
     [Donahue]. That contract contained the provision:

        I acknowledge that there are risks involved in any physical
        training program and that some of the equipment used in
        a training program may also have inherent risks. I accept
        full responsibility for any accidents and/or injuries that
        may be a direct or indirect result of the equipment that is
        provided by The Aquatic and Fitness Center or by one of
        the personal trainers operating on its premises. It is my
        choice to participate in a physical training program and I
        release The Aquatic & Fitness Center and any personal
        trainer operating on its premises from all liabilities.



                                   -2-
J-A05020-15


         [Appellant] initialed several paragraphs on this one-page
      document and signed and dated the bottom. [Appellant] does
      not recall having read this contract prior to signing it. On May
      31, 2011, [Appellant], who was at that time 59 years old,
      attended a personal training session with Donahue.          While
      performing a plank exercise under Donahue's direction in which
      she was to rotate her right arm and torso vertically while
      keeping her left arm on a bench, [Appellant’s] shoulder
      dislocated. [Appellant] claims that she is now prone to
      subsequent shoulder dislocation, has needed surgery, and will
      most likely need additional surgery including possibly a joint
      replacement procedure.

Trial Court Opinion, 4/15/14, at 1-2.

      Appellant initiated her action against Gym and Donahue on October 4,

2012. In due course, following the resolution of preliminary objections, the

trial court’s denial of Gym’s and Donahue’s motion for judgment on the

pleadings, and at the conclusion of discovery, Gym and Donahue filed a

motion for summary judgment on February 3, 2014.          On March 6, 2014,

Appellant filed her answer in opposition to Gym and Donahue’s motion for

summary judgment. On April 9, 2014, the trial court issued an order and

memorandum opinion granting summary judgment in favor of Gym and

Donahue. The trial court’s April 9, 2014 order was entered on the docket on

April 15, 2014.    On May 2, 2014, Appellant moved for reconsideration,

claiming for the first time that the contracts violated the Pennsylvania Health

Club Act, (“HCA”), and the Pennsylvania Plain Language Consumer Contract

Act (“PLCCA”). On May 14, 2014, the trial court denied Appellant’s motion

for reconsideration.   On May 14, 2014, Appellant filed a notice of appeal.

The trial court did not order compliance with Pa.R.A.P. 1925(b).


                                     -3-
J-A05020-15



      Appellant presents the following issues for our review:

      QUESTION NO. 1: Did the trial court err as a matter of law
      when it concluded the exculpatory clauses, drafted by [Gym],
      spelled out the intention of the parties with the greatest of
      particularity and put it beyond doubt, by express stipulation, the
      intention of [Appellant] that [Gym] would be exculpated from
      responsibility for their own negligence?

      QUESTION NO. 2: Did the trial court err as a matter of law
      when it failed to view the evidence and the reasonable
      inferences therefrom in a light most favorable to [Appellant] and
      failed to conclude there was an issue of fact as to whether the
      exculpatory clauses were conspicuous and obvious such that
      they should have engaged the attention of a reasonable person
      that she was waiving important legal rights when she signed her
      gym membership and personal training agreement?

      QUESTION NO. 3:        Did the trial court err as a matter of law
      when it concluded       the exculpatory clauses were valid and
      enforceable even       though the terms of the Membership
      Application/Contract   violated the Pennsylvania Health Club Act?

      QUESTION NO. 4: Did the trial court err as a matter of law
      when it concluded that the exculpatory clauses were valid and
      enforceable even though they violated Pennsylvania public policy
      as expressed by the General Assembly in the Pennsylvania Plain
      Language Consumer Contract Act?

      QUESTION NO. 5: Did the trial court err as a matter of law and
      fail to consider the record evidence in a light most favorable to
      [Appellant] when it concluded that the contracts containing the
      exculpatory clauses were not contracts of adhesion in the face of
      record evidence that [Gym] had never negotiated, modified, or
      altered the exculpatory clauses in the Membership Application?

Appellant’s Brief at 3-4.

      All of Appellant’s issues challenge the trial court’s grant of summary

judgment in favor of Gym and Donahue based on the trial court’s

interpretation of the agreements between the parties, including the



                                      -4-
J-A05020-15



exculpatory   language    contained therein.      We     will   therefore   address

Appellant’s issues together.

      We recognize:

             Our scope of review … [of summary judgment orders] … is
      plenary.    We apply the same standard as the trial court,
      reviewing all the evidence of record to determine whether there
      exists a genuine issue of material fact. We view the record in
      the light most favorable to the non-moving party, and all doubts
      as to the existence of a genuine issue of material fact must be
      resolved against the moving party. Only where there is no
      genuine issue as to any material fact and it is clear that the
      moving party is entitled to judgment as a matter of law will
      summary judgment be entered.

            Motions for summary judgment necessarily and directly
      implicate the plaintiff’s proof of the elements of his cause of
      action. Summary judgment is proper if, after the completion of
      discovery relevant to the motion, including the production of
      expert reports, an adverse party who will bear the burden of
      proof at trial has failed to produce evidence of facts essential to
      the cause of action or defense which in a jury trial would require
      the issues to be submitted to a jury. Thus a record that
      supports summary judgment will either (1) show the material
      facts are undisputed or (2) contain insufficient evidence of facts
      to make out a prima facie cause of action or defense and,
      therefore, there is no issue to be submitted to the jury. Upon
      appellate review we are not bound by the trial court’s
      conclusions of law, but may reach our own conclusions. The
      appellate Court may disturb the trial court’s order only upon an
      error of law or an abuse of discretion.

Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa. Super. 2012)

(internal citation omitted).

      Here, the trial court explained in great detail:

            When evaluating exculpatory clauses, which are not
      favored in the law, courts construe the clauses strictly and
      against the party asserting their validity. Zimmer v. Mitchell &


                                      -5-
J-A05020-15


     Ness, 385 A.2d 437, 439 (Pa. Super. 1978) aff’d 416 A.2d 1010
     (1980). The enforceability of exculpatory clauses in contracts
     has been addressed by the Pennsylvania Supreme Court:

       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 thirdly, each party must be a free bargaining
       agent to the agreement so that the contract is not one of
       adhesion ... once 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
       the 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 clause.

     Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d
     1174, 1189 (Pa. 2010). At no point does [Appellant] appear to
     argue that enforcing an exculpatory clause in this situation would
     contravene public policy, nor does [Appellant] suggest that this
     matter is not entirely between private parties. [FN2: On Page
     15 of [Appellant’s] Memorandum of Law, [Appellant] notes that
     the clauses violate public policy, but does not unpack this
     assertion except to argue that the clauses are contracts of
     adhesion.]

           As a preliminary matter, this Court notes that [Appellant]
     did not read either of the contracts that she signed (or, at the
     very least, does not remember having read them). Pennsylvania
     courts have consistently held that one about to sign a contract is
     duty bound to read it. Leuten Brick Co. v. Killen, 83 A. 576
     (1912). Failure to read a contract before signing it cannot be
     used to justify avoidance, modification, or nullification of any
     part of a contract. In re Estate of Olson, 291 A.2d 95, 97 (Pa.


                                   -6-
J-A05020-15


     1972). Therefore, to the extent [Appellant] seeks to be deemed
     exempt from the terms of the contract she signed on the basis of
     her failure to read the contract, she may not do so. [FN3:
     Although [Appellant] notes that she was not specifically given
     time to read the contract, at no point does she argue that she
     signed the contract under duress, or that her feeling of being
     rushed could be the basis for invalidating the exculpatory
     clause.]

            First, [Appellant] argues that whether or not the contracts
     are ones of adhesion, they are ambiguous and fail to meet the
     drafting requirements outlined in Beck-Hummel v. Ski Shawnee,
     Inc., 902 A.2d 1266 (Pa. Super. 2006). Finding guidance in the
     case law relating to warranty disclaimers under Pennsylvania's
     Uniform Commercial Code, the Superior Court held that the
     following factors are relevant in determining whether a
     reasonable person should have noticed a disclaimer: (1) the
     disclaimer's physical placement in the document; (2) the size of
     the disclaimer's print; and (3) whether the disclaimer was
     highlighted by being printed in all capital letters or in a type or
     size or color different from the remainder of the document.
     Beck-Hummel at 1274.

           This Court first observes that the clause at issue in the
     Membership Agreement is near the end of the document, directly
     above where a new member is expected to sign and date.
     Therefore, a new member’s eyes, by definition, must fall at or
     near the disclaimer. This is directly distinguishable from the
     clause at issue in Beck-Hummel, which was printed on the back
     of a ski lift ticket. Here, [Appellant] was presented with two
     documents, each of which serves no other purpose than to be a
     contract between the parties; the documents are clearly labeled
     "Contract" and "Agreement." [Appellant] therefore was aware
     that a contract existed, and that a contract is what she was
     signing. This Court therefore finds that the placement of the
     clause in this case is such that a reasonable person ought to
     notice it, as it is mere inches from the space where a new
     member expressly indicates his or her assent to the contract.
     [FN4: This Court also notes that the paragraph before the
     exculpatory clause, relating to the Buyer's Right to Cancel, is
     required by law to be "in immediate proximity to the space
     reserved in the contract for the signature of the buyer" and in
     ten point font. 73 P.S. §201-7. Even with this requirement in
     mind, [Gym and Donahue] placed the exculpatory clause even
     closer to the signature line than the Right to Cancel notice. This

                                    -7-
J-A05020-15


     requirement reflects the Legislature’s recognition that the space
     immediately above the signature line is a space where a
     reasonable person ought to be looking when they are reading
     and signing the contract.]

            Similarly, the placement of the exculpatory clause in the
     Personal Training Agreement is placed inches above the
     signature line, and is placed such that it falls directly under a set
     of bullet points that are indented. The entire document is one
     page, and in bold italics at the top is the statement "The
     following details are important guidelines, which will allow you to
     get the most out of your Personal Training Sessions."
     [Appellant] signed her name and dated the document in a space
     right below the sentence. [Appellant] argues that the font size
     of the disclaimer here is not sufficiently large to pass the drafting
     requirements of Beck-Hummel. This Court disagrees. Even
     using the images [Appellant] has clearly shrunken, copied, and
     pasted into the body of her Memorandum of Law, the language
     is readable. The text at issue is neither bigger nor substantially
     smaller than the language in the rest of the contracts, and this
     Court is unaware of any case that renders an exculpatory clause
     unenforceable solely on the basis of font size.           [FN5: The
     Membership Agreement, when presented as an exhibit, is a little
     less than the size of a standard piece of paper. The image of the
     contract as it appears in the body of [Appellant’s] Memorandum
     of Law (in the section of the Memorandum in which font size is
     discussed) is 5.75" by 5.3, and appears to be a poor quality
     image with visual background noise.            [Appellant] has also
     reduced the size of the Personal Training Agreement to 5.5" by
     4.3" in the body of her memorandum, where the actual size of
     the document is that of a standard sheet of paper. The language
     of both clauses is still readable.]

           As to whether the disclaimer is highlighted, this Court
     notes that the Membership Contract, as a whole, is divided into
     several sections, and that the exculpatory clause is under the
     heading “Notice”, which in bold font, and is the only bold font
     center-justified heading in the document. This Court also finds
     that the word “Notice”, in bold font, is sufficiently clear such that
     it would inform a reader of a Contract she was about to sign that
     she was being put on notice of something.

           The clause in the Personal Training Agreement is also
     prominent enough such that a reasonable person would see and
     read the language. It is the first paragraph in the document that

                                     -8-
J-A05020-15


     is not part of the bullet-point list and thus appears to be visually
     distinguishable from the remainder of the document.             The
     paragraph contains only sentences that have to do with the fact
     that the reader is releasing "The Aquatic and Fitness Center and
     any personal trainer” from all liabilities.

             [Appellant] cites Brown v. Raquetball Centers, Inc., 534
     A.2d 842 (Pa. Super. 1987) in support of her position that the
     clause at issue is ambiguous. [Appellant’s] reliance on Brown is
     misplaced. In that case, the plaintiff, while exiting the shower
     facility, slipped on a wet floor. The plaintiff had signed a waiver
     indicating that he "assume[d] all risks of injury to my person and
     property that may be sustained in connection with the stated
     and associated activities in and about those premises." Id. The
     Superior Court in Brown held that the clear import of the above
     language was to relieve the defendant of liability for things that
     happened while the Plaintiff was participating in the "stated and
     associated activities" of the racquetball club, and not while
     simply present on the defendant's property. No such ambiguity
     exists here. The clause results in [Appellant] holding the [Gym
     and Donahue] harmless for "any and all" loss resulting from
     "any" act or omission []. Furthermore, [Appellant] in this case
     did injure herself while exercising — an activity that clearly falls
     within the language of both the Membership Contract and the
     Personal Training Agreement.

                                   ***

            [Appellant] also argues that the contract is insufficiently
     particular as to who was being released from liability because
     the Membership Agreement only uses the name “The Aquatic
     and Fitness Center at Jenkintown” in the exculpatory clause,
     where this is merely a corporate name of [Gym], the defendant
     in this case. This fact is not disputed. [Appellant’s] suggestion
     that the relationship between [Gym] and The Aquatic and Fitness
     Center at Jenkintown is never addressed in the membership
     agreement is refuted by the language of the Agreement itself:
     the first column of the agreement contains the phrase "Aqua Hab
     d/b/a "The Aquatic and Fitness Center at Jenkintown."            A
     reasonable person reading the contract she is about to sign,
     therefore, would be on notice as to the relationship between
     these two names and would understand that that clear import of
     the language is to relieve defendants of liability.




                                    -9-
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           This Court also agrees with [Gym and Donahue] that
     because The Aquatic and Fitness Center at Jenkintown is merely
     a corporate name of Aqua Hab, L.P., and because a corporation
     operating under a corporate or fictitious name may validly enter
     into contracts, the Membership Agreement clearly relieves [Gym
     and Donahue] of liability, both under the law and under the
     terms of the contact.

           As to the Personal Training Agreement, [Appellant]
     presents a list of nine reasons why she feels the language of the
     contract is not sufficiently precise. For example, [Appellant]
     suggests that it is "not clear that the contract refers to the
     Aquatic and Fitness Center", despite the contract having been
     presented to [Appellant] on letterhead bearing that exact name,
     and despite the fact that the last words of the exculpatory clause
     are "I release The Aquatic & Fitness Center and any personal
     trainer operating on its premises from all liability."

            [Appellant] also suggests that a plain reading of the
     contract would leave one with the impression that the
     exculpatory clause only applies [to] injuries connected to use of
     equipment. To support this suggestion, [Appellant] cites the
     second sentence of the clause, which does relate to equipment
     use. [Appellant] neglects to note that this sentence begins with
     the word "Furthermore" and comes after the sentence that reads
     "I accept responsibility for any accidents and/or injuries that
     may be a direct or indirect result of participating in a training
     program." [Appellant] is therefore correct that the sentence she
     cites relates to equipment, there being a separate sentence
     relating to incidents "directly or indirectly" related to personal
     training.

           [Appellant’s] reasons as to why she feels the contract is
     unclear, many of which are directly refuted by the record, are
     not a sufficient basis for this Court to invalidate the exculpatory
     clauses at issue on the basis of drafting ambiguities.

           [Appellant] also argues that the contracts at issue are
     contracts of adhesion because they unreasonably favor the
     drafter and because she had no meaningful choice with regard to
     acceptance of the contractual provisions. This Court disagrees.

            Courts have consistently held that an exculpatory
     agreement between private parties for a voluntary, recreational
     activity is not a contract of adhesion under Pennsylvania law.
     Where each party is free to participate or not participate in an

                                   - 10 -
J-A05020-15


     activity, and where a plaintiff is under no obligation, economic or
     otherwise, to engage in a particular activity, a contract that has
     "all the hallmarks" of one of adhesion is nonetheless enforceable.
     Chepkevich, 2. A.3d at 1190. [FN6: [Appellant] argues that
     because only three Justices participated in the majority opinion,
     it is not binding on this Court. Even if this were true, it is
     instructive and consistent with the numerous other trial and
     appellate court decisions relating to contracts for recreational
     activities.]

            This Court certainly appreciates that a regular fitness
     routine is an admirable habit and is probably personally
     satisfying to many people. However, [Appellant] makes no
     attempt to argue that attendance at a fitness facility falls closer
     to employment or housing than skiing or other sports on the
     spectrum of life's necessities. [Appellant] had the choice to
     participate in personal training sessions or not. [Appellant] also
     testified at her deposition that there were "several" other gyms
     or workout facilities in Jenkintown and the surrounding area that
     she could have driven to in under 20 minutes. This Court must
     therefore conclude that a session with a personal trainer is
     essentially a recreational activity, and one from which
     [Appellant] could have simply walked away if she were
     unsatisfied with the terms of the contract presented to her.

Trial Court Opinion, 4/15/14, at 3-10.      Based on applicable jurisprudence

and our careful scrutiny of the record viewed in the light most favorable to

Appellant, we find that the record supports the trial court’s determination

that Gym and Donahue are entitled to judgment as a matter of law.

     Initially, Appellant contends that the agreements violate public policy

because they contravene the HCA and the PLCCA. However, our review of

the record reflects that Appellant has failed to properly present and develop

these arguments, such that we find them waived for appellate review.

Appellant did not assert violations of the HCA and the PLCCA within her

original or amended complaints.    See generally Complaint, 1/16/13; see


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also generally Amended Complaint, 2/15/13. Indeed, Appellant concedes

as much in her reply brief. See Reply Brief of [Appellant], at 7-8 (“[Gym

and Donahue are] correct in that [Appellant’s] complaint sounds in

negligence.    [Gym and Donahue are] also correct that ‘[A]ppellant raises

these new claims not in an amendment to her complaint.’”) (emphasis

supplied). More importantly, Appellant did not raise the alleged HCA and

PLCCA violations within her answer in opposition to Appellant’s motion for

summary judgment, as required by our rules of civil procedure governing

motions for summary judgments. See Pa.R.C.P. Rule 1035; See Walsh v.

Borczon, 881 A.2d 1, 5 (Pa. Super. 2005) (“Because, under [Pa.R.C.P.]

Rule 1035.3, the non-moving party must respond to a motion for summary

judgment, he or she bears the same responsibility as in any proceeding, to

raise all defenses or grounds for relief at the first opportunity.           A

party who fails to raise such defenses or grounds for relief may not assert

that the trial court erred in failing to address them[.]”) (emphasis supplied).

Indeed, the trial court remarked that while Appellant asserted generally

“that the clauses violate public policy,” Appellant did not “unpack this

assertion     except   to   argue   that   the   clauses   are   contracts   of

adhesion.” Trial Court Opinion, 4/15/14, at 4 n.2 (emphasis supplied).

      Significantly, within her appellate brief, Appellant fails to support her

PLCCA argument with any PLCCA related jurisprudence, relying instead on

citations to the PLCCA and the PLCCA’s preamble. See Appellant’s Brief at

24-31; 42-43.      Moreover, Appellant’s citations to a 1993 non-binding

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Eastern District of Pennsylvania case, and to a 2009 Pennsylvania Supreme

Court case, are deficient because they only assert general propositions of

law. See id. at 30 and 42. Likewise, Appellant’s HCA discussion fails for

lack of development. Appellant only cites to the HCA and a common pleas

action which does not pertain to the HCA. See Appellant’s Brief at 40-41;

see also Giant Food Stores, LLC v. THF Silver Spring Development,

L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (finding waiver where appellant

failed to cite jurisprudence in support of its argument).

      Waiver    notwithstanding,    Appellant’s   contentions     fail    because

“[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 carriers, and

hospitals.”   Seaton v. East Windsor Speedway, Inc., 582 A.2d 1380,

1383 (Pa. Super. 1990).       The instant contracts do not pertain to such

relationships or matters, and we do not find that they violate public policy.

      We further find that the contracts, and the exculpatory language

contained therein, were executed between private entities regarding their

own affairs, and while each party was a free bargaining agent.           We agree

with the trial court’s rationale that the contracts between Appellant, Gym,

and Donahue did not constitute contracts of adhesion.           See Trial Court

Opinion, 4/15/14, at 9-10.      Appellant was “free to participate or not to

participate” in fitness activities at Gym’s facilities and in personal training

                                     - 13 -
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with Donahue, and Appellant was “under no compulsion, economic or

otherwise, to engage” in those activities or to execute the agreements with

Gym or Donahue. Valeo v. Pocono Intern. Raceway, Inc., 500 A.2d 492,

493 (Pa. Super. 1985); see also Chepkevich, 2 A.3d at 1190 (noting

“contracts executed in the course of voluntary participation in recreational

activities have not been declared unenforceable” as contracts of adhesion).

      Moreover, Appellant concedes that “[u]nder Pennsylvania law, the

exculpatory language must meet the high burden of spelling out the

intentions of the parties with the ‘greatest’ of particularity.” Appellant’s Brief

at 16, citing Topp Copy Products, Inc., 626 A.2d 98, 99 (Pa. 1993). We

find that the agreements between Appellant, Gym, and Donahue met this

requirement.          The   exculpatory        language      in   the      membership

application/contract, which Appellant signed, stated Appellant “accept[ed]

full responsibility” for her “use of any and all … facility … or service

whatsoever, owned and operated by the Aquatic Fitness Center                          at

Jenkintown, or while engaging in any … exercise,” and doing “so at

[Appellant’s] own risk.”     Membership Application/Contract, 5/26/04, at 1.

Appellant   further    specifically   agreed     to   hold    Gym,      “its   partners,

shareholders, directors, officers, employees, representatives, and agents,

harmless from any and all loss, claim, injury, damage, or liability sustained

or incurred by [Appellant], resulting from any act or omission of an officer,

employee, representatives, owners and agents and/or any of the affiliated

companies hereunder[.]”         Id.    The agreement expressly stated that

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Appellant had “read the agreement including the terms and conditions on

the   reverse   side   of   this   application.”      Id.    Appellant’s   signature

“constitute[d] full acceptance of this agreement including the terms and

agreements set forth here[.]”        Id.   The language in the personal training

contract, which Appellant executed, “acknowledge[d] that there are risks

involved in any physical training program”, and Appellant agreed that she

“accept[ed] full responsibility for any accidents and/or injuries that may be a

direct or indirect result of participating in a training program.”         Personal

Training Contract, 5/26/11, at 1.                Significantly, Appellant expressly

“release[d] The Aquatic & Fitness Center and any personal trainer operating

on its premises from all liabilities.” Id. The foregoing agreements, including

the exculpatory language set forth therein, support the trial court’s grant of

summary judgment in favor of Gym and Donahue.

      Contrary to Appellant’s arguments, the record and applicable case law

viewed in the light most favorable to Appellant, reflects that the contracts

which Appellant executed include exculpatory language which expressed

with the greatest of particularity, and in clear and unambiguous terms, that

Appellant was relieving Gym and Donahue of any and all liability regarding

any acts or omissions. The contracts are not against public policy, involve

private parties regarding their own affairs, and are not contracts of

adhesions. Accordingly, we find that the trial court did not err or abuse its

discretion in determining that Gym and Donahue were entitled to judgment

as a matter of law.     Zimmer v. Mitchell and Ness, 385 A.2d 437 (Pa.

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J-A05020-15



Super. 1978) (exculpatory clause with broad language of “any liability”

deemed valid, not ambiguous, and to include negligence); see also Beck-

Hummel, supra, at 1274; Nissley v. Candytown Motorcycle Club, Inc.,

913 A.2d 887, 890 (Pa. Super. 2006) (exculpatory clause deemed valid

where upon acknowledging the risks inherent in the defendant’s business,

appellant signed waiver releasing defendant of liability).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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