J.A22040/14


                               2015 PA Super 104

ERIN MCDONALD,                    :               IN THE SUPERIOR COURT OF
                                  :                    PENNSYLVANIA
                   Appellee       :
                                  :
              v.                  :
                                  :
                                  :
WHITEWATER CHALLENGERS, INC., AND :
WHITEWATER CHALLENGERS OUTDOOR :
ADVENTURE CENTER, T/D/B/A         :
WHITEWATER CHALLENGERS, INC.,     :
                                  :
                   Appellants     :               No. 1221 MDA 2013


                 Appeal from the Order Entered March 28, 2013
                In the Court of Common Pleas of Luzerne County
                       Civil Division No(s).: 6750-CV-2008

ERIN MCDONALD,                    :               IN THE SUPERIOR COURT OF
                                  :                    PENNSYLVANIA
                   Appellant      :
                                  :
              v.                  :
                                  :
                                  :
WHITEWATER CHALLENGERS, INC., AND :
WHITEWATER CHALLENGERS OUTDOOR :
ADVENTURE CENTER, T/D/B/A         :
WHITEWATER CHALLENGERS, INC.,     :
                                  :
                   Appellees      :               No. 1400 MDA 2013

                 Appeal from the Order Entered March 28, 2013
                In the Court of Common Pleas of Luzerne County
                       Civil Division No(s).: 6750-CV-2008

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.


*
    Former Justice specially assigned to the Superior Court.
J. A22040/14


OPINION BY FITZGERALD, J.:                             FILED APRIL 29, 2015

      Appellant/Cross-Appellee, Erin McDonald, appeals from the order

entered in the Luzerne County Court of Common Pleas denying her motion

for partial summary judgment adverse to Appellees/Cross-Appellants,

Whitewater Challengers, Inc., a Pennsylvania corporation, and Whitewater

Challengers Outdoor Adventure Center, trading or doing business as

Whitewater Challengers, Inc. (collectively, “Whitewater”). McDonald, a New

York resident, suggests the trial court erred by holding Pennsylvania law—

and not New York law—applies to this case. Whitewater also appeals from

the order denying their motion for summary judgment.              Whitewater

contends the trial court erred by concluding material issues of fact existed

regarding whether McDonald was economically compelled to sign the

contract at issue.    We hold that when a New York resident signs an

exculpatory release with a Pennsylvania corporation engaged in the business

of whitewater rafting in Pennsylvania and is injured while whitewater rafting,

Pennsylvania law applies.     We further hold that McDonald cannot invoke

economic compulsion against Whitewater and that judgment should be

entered in Whitewater’s favor on liability.      Thus, we affirm in part and

reverse in part.

      We state the facts as set forth by the trial court:

             [McDonald] filed a complaint on [July] 24, 2008[,]
         alleging that on May 19, 2006, she was a school teacher
         employed by [t]he School of [the] Holy Child in Rye, New
         York.


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            She alleges that on [May 19, 2006], she and other
         School faculty members chaperoned seventy-two (72)
         seventh and eighth grade school children on a whitewater
         rafting “field trip” down a portion of the Lehigh River
         conducted by [Whitewater].

             [McDonald’s] raft struck a large rock situated in the
         river bed, ejecting [her] from the raft onto the rock,
         allegedly causing her the injuries alleged in her complaint.

            [McDonald’s] allegations of negligence, in paragraph 40
         of her complaint, are as follows:

               40. [Whitewater’s] negligence consisted of but
                  was not limited to the following:

                  a. Failing to provide a river guide / instructor
                  in [McDonald’s] boat;

                  b. Failing to provide a properly inflated raft;

                  c. Failing to advise [McDonald] on the grade
                  and / or class of the whitewater rapids;

                  d. Failing to properly instruct [McDonald] on
                  how to safely and effectively maneuver fast
                  and difficult rapids; and

                  e. Allowing   an     unsafe     number        of
                  inexperienced rafters to operate a raft.

         [McDonald’s Compl., 7/24/08, at 9-10.]

            At her place of employment, two (2) days before the
         excursion, [McDonald] signed [Whitewater’s] form
         “RELEASE OF LIABILITY” . . . .

Trial Ct. Op., 9/15/10, at 1-2.

      We reproduce the release in pertinent part:

           RELEASE OF LIABILITY – READ BEFORE SIGNING



                                     -3-
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       In consideration of being allowed to participate in any way
       in the Whitewater Challengers program, its related events
       and activities, I (print name) Erin L. McDonald the
       undersigned, acknowledge, appreciate, and agree, that:

       1. The risk of injury from the activities involved in this
          program is significant, including the potential for
          permanent paralysis and death, and while particular
          skills, equipment, and personal discipline may reduce
          this risk, the risk of serious injury does exist; and,

       2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS,
          both known and unknown, EVEN IF ARISING FROM THE
          NEGLIGENCE OF THE RELEASEES or others, and I
          assume full responsibility for my participation; and

                               *    *    *

       5. I, for myself and on behalf of my heirs, assigns,
          personal representatives and next of kin, HEREBY
          RELEASE,      INDEMNIFY,     AND     HOLD   HARMLESS,
          WHITEWATER CHALLENGERS, their officers, officials,
          agents     and/or    employees,     other  participants,
          sponsoring agencies, sponsors, advertisers, and, if
          applicable, owners and lessors of premises used for the
          activities (“Releasees”), WITH RESPECT TO ANY AND
          ALL INJURY, DISABILITY, DEATH, or loss or damage to
          person or property associated with my presence or
          participation,    WHETHER      ARISING    FROM      THE
          NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to
          the fullest extent permitted by law; and,

       6. Any claims or disputes arising from my participation in
          this program shall be venued in the Luzerne County
          Court in the town of Wilkes-Barre, PA, or in the
          Supreme Court of the State of Pennsylvania.

       I HAVE READ THIS RELEASE OF LIABILITY AND
       ASSUMPTION    OF   RISK    AGREEMENT. I   FULLY
       UNDERSTAND ITS TERMS AND UNDERSTAND THAT I HAVE
       GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND
       SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY
       INDUCEMENT.



                                   -4-
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Ex. D to Whitewater’s Mot. for Summ. J., 12/14/12.

        On June 6, 2010, Whitewater filed a motion for summary judgment,

which the court denied on September 15, 2010. Further discovery ensued,

and a few years later, McDonald filed her motion for partial summary

judgment and Whitewater filed a second motion for summary judgment.

McDonald requested that the court void the release based on New York law.

Whitewater asked the court to hold the release was valid under Pennsylvania

law and to enforce the release, thus absolving it of liability.

        On April 3, 2013,1 the trial court denied McDonald’s motion for partial

summary judgment and Whitewater’s motion for summary judgment.

Order, 4/3/13. With respect to its holding that Pennsylvania law applied, the

court reasoned that our Supreme Court affirmed the validity of such

exculpatory releases in inherently dangerous recreational activities, such as

downhill skiing. Trial Ct. Op., 4/3/14, at 2-3.2 The trial court also refused to

permit out-of-state customers of Pennsylvania recreational facilities “to bring

their   law   with   them,”   because    of   the   increased     “financial/liability

uncertainty.” Id. at 3.    The court, however, refused to enforce the release

against McDonald, finding material issues of fact existed regarding whether


1
 The order was served on this date pursuant to Pa.R.C.P. 236; the order
was time-stamped on March 28, 2013.
2
  On March 13, 2014, this Court ordered the trial court to file a Pa.R.A.P.
1925(a) decision explaining the basis for its ruling. Order, 3/13/14. The
trial court complied, and this matter is now ripe for disposition.



                                        -5-
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she was economically compelled to sign the release by the School of the

Holy Child. Trial Ct. Op., 9/15/10, at 5.

      On April 18, 2013, Whitewater filed a brief in support of their motion

for reconsideration or appellate certification.3 On April 25, 2013, McDonald

filed a motion for reconsideration or appellate certification.      The court

granted Whitewater’s motion on May 2, 2013,4 and granted McDonald’s

motion on May 28, 2013.5

      On May 28, 2013, Whitewater filed a petition for permission to file an

interlocutory appeal per Pa.R.A.P. 1311. McDonald, on June 21, 2013, filed

a petition to file an interlocutory appeal from the trial court’s May 28, 2013

order.   This Court granted Whitewater’s petition on July 11, 2013, and

McDonald’s petition on August 5, 2013.6

      We address McDonald’s appeal first, which raises one issue:

         Whether New York law should be applied to the facts of
         this case thereby rendering Whitewater’s Release as void

3
  The docket and certified record do not reflect the actual motion, although
Whitewater’s certificate of service avers they filed it. The certificate of
service, which did not include a date of service, was time-stamped on April
18, 2013.
4
  The order was time-stamped on April 30, 2013, but the trial court did not
serve notice until May 2, 2013.
5
 The order was time-stamped on May 23, 2013, and the trial court served
notice on May 28, 2013.
6
  This Court consolidated both appeals sua sponte on March 12, 2014.
Further, because the parties filed numerous briefs in both appeals, for ease
of comprehension, we denote the parties’ briefs by docket number.




                                     -6-
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         and unenforceable under New York’s statutory and
         decisional law, where this case poses a legitimate conflict-
         of-law question, and New York has a more significant
         relationship to this controversy and the outcome of this
         case?

McDonald’s Brief, 1400 MDA 2013, at 6.

      In support of her sole issue, McDonald argues the trial court erred by

incorrectly applying the standard set forth in Griffith v. United Air Lines,

Inc., 416 Pa. 1, 203 A.2d 796 (1964).       She maintains that because she

signed the release in New York, the contract was formed in New York. As a

New York resident, McDonald asserts she is entitled to the benefit of New

York law. McDonald claims that if Whitewater intended for Pennsylvania law

to apply, then it should have included such a clause in its release.     She

points out that most of her medical treatment occurred in New York and that

the New York State Insurance Fund has an interest in recouping her lost

wages and medical expenses.        We hold McDonald has not established

entitlement to relief.

      Initially, an order denying summary judgment is ordinarily a non-

appealable interlocutory order. See Stewart v. Precision Airmotive, LLC,

7 A.3d 266, 272 (Pa. Super. 2010). As noted above, however, the parties

requested, and this Court granted, permission to file interlocutory appeals.7

Order, 3/12/14.


7
  We acknowledge that generally, when the issue is a question of law, an
appellant may be entitled to review of an order denying summary judgment.



                                    -7-
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     The standard and scope of review is well-settled:

        Pennsylvania law provides that summary judgment may be
        granted only in those cases in which the record clearly
        shows that no genuine issues of material fact exist and
        that the moving party is entitled to judgment as a matter
        of law. The moving party has the burden of proving that
        no genuine issues of material fact exist. In determining
        whether to grant summary judgment, the trial court must
        view the record in the light most favorable to the non-
        moving party and must resolve all doubts as to the
        existence of a genuine issue of material fact against the
        moving party. Thus, summary judgment is proper only
        when the uncontroverted allegations in the pleadings,
        depositions, answers to interrogatories, admissions of
        record, and submitted affidavits demonstrate that no
        genuine issue of material fact exists, and that the moving
        party is entitled to judgment as a matter of law. In sum,
        only when the facts are so clear that reasonable minds
        cannot differ, may a trial court properly enter summary
        judgment. With regard to questions of law, an appellate
        court’s scope of review is plenary. The Superior Court will
        reverse a grant of summary judgment only if the trial court
        has committed an error of law or abused its discretion.

Charlie v. Erie Ins. Exchange, 100 A.3d 244, 250 (Pa. Super. 2014)

(punctuation and citation omitted).




Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 421-22, 905 A.2d 422,
432-33 (2006) (holding collateral order doctrine applied to order denying
summary judgment because party raised defense of statutory immunity).
When the issue is a question of fact, appellate jurisdiction is lacking. See
Stewart, 7 A.3d at 272. Thus, if an appellate court grants permission to
appeal an order denying summary judgment, see 42 Pa.C.S. § 702, but
later determines that the underlying issue is a question of fact, appellate
jurisdiction is arguably lacking. See generally id.




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        As a prefatory matter, we must ascertain whether to apply a tort or

contract choice of law framework.8       Two cases are instructive: McCabe v.

Prudential Prop. & Cas. Ins. Co., 356 Pa. Super. 223, 514 A.2d 582

(1986), and Nationwide Mut. Ins. Co. v. Walter, 290 Pa. Super. 129, 434

A.2d 164 (1981). In Walter, this Court addressed an exclusionary provision

in an insurance policy issued to a New Jersey resident for a car involved in a

Pennsylvania accident. Walter, 290 Pa. Super. at 133-34, 434 A.2d at 166.

The car’s driver and passenger were both Pennsylvania residents.         Id.   at

137, 434 A.2d at 168.       The exclusionary provision was invalid under New

Jersey law and valid under Pennsylvania law.        Id. at 135-36, 434 A.2d at

167. The Walter Court rejected the appellant’s argument that Pennsylvania

law should apply because the accident occurred in Pennsylvania and the

injured occupants of the car were Pennsylvania residents:

           [The a]ppellant argues that Pennsylvania had the most
           significant contacts as the car was located in Pennsylvania
           when the accident occurred having been previously
           delivered to Bucks County Imports by [the insured], the
           accident occurred in Pennsylvania, and both occupants of
           the car at the time of the accident were Pennsylvania
           residents. [The a]ppellant overlooks the fact that these
           points of contact with Pennsylvania pertained to the
           alleged tort involved. We are concerned with the contract
           of insurance and as to the insurance policy New Jersey had
           the most significant contacts.

Id. at 137-38, 434 A.2d at 168.


8
    A statutory choice of law analysis does not apply to this case.




                                       -9-
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      In McCabe, this Court similarly addressed which state’s law applied in

construing a Connecticut automobile insurance policy issued to a Connecticut

resident.   McCabe, 356 Pa. Super. at 225, 514 A.2d at 582.        While in

Pennsylvania, the Connecticut resident was involved in a car accident that

injured a Pennsylvania resident.   Id.   The McCabe appellees argued that

Pennsylvania law applied because, inter alia, the “victim is a resident of

Pennsylvania, and the accident occurred there. Both [insurers] are licensed

to do business in Pennsylvania.” Id. at 232, 514 A.2d at 586. The McCabe

Court rejected that argument based upon the Walter Court’s reasoning. Id.

      Both Walter and McCabe stand for the proposition that in a contract

action involving an underlying tort and in which an insurance policy is at

issue, the court will apply a contract law—and not a tort law—choice of law

framework. Id.; Walter, 290 Pa. Super. at 137-38, 434 A.2d at 168; see

also Tayar v. Camelback Ski Corp., 616 Pa. 385, 394, 47 A.3d 1190,

1196 (2012) (applying contract law to interpret clause exculpating defendant

ski resort from liability in negligence action); Chepkevich v. Hidden Valley

Resort, L.P., 607 Pa. 1, 26, 2 A.3d 1174, 1189 (2010) (same).       Neither

Chepkevich nor Tayar engaged in a choice of law analysis, but neither case

looked beyond contract law in construing the clause.   Thus, in the instant

tort action involving a contractual exculpatory clause, but not involving an

automobile insurance policy, we apply a contract choice of law framework.

See Tayar, 616 Pa. at 394, 47 A.3d at 1196; Chepkevich, 607 Pa. at 26, 2



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A.3d at 1189; McCabe, 356 Pa. Super. at 232, 514 A.2d at 586; Walter,

290 Pa. Super. at 137-38, 434 A.2d at 168; cf. Lahey v. Covington, 964 F.

Supp. 1440, 1445 (D. Colo. 1996) (construing exculpatory agreement as

barring   plaintiff’s   negligence   claims   for   injuries   that   occurred   while

whitewater rafting); Bauer v. Aspen Highlands Skiing Corp., 788 F.

Supp. 472, 474 (D. Colo. 1992) (invoking contractual standard of review in

ascertaining whether exculpatory clause barred negligence claims).9

     Having ascertained a contract choice of law framework applies, we set

forth the following as background10 with respect to choice of law principles

applicable to cases not involving an explicit statutory 11 or a contractual


9
  In Budtel Assocs., LP v. Cont’l Cas. Co., 915 A.2d 640 (Pa. Super.
2006), our Court held that the Griffith rule applies to contract cases. Id. at
643-44. Budtel, however, did not involve a negligence claim.
10
   See Gregory E. Smith, Choice of Law in the United States, 38 Hastings
L.J. 1041, 1131 (1987) (“No state has a more convoluted, eclectic approach
to choice of law than Pennsylvania. On various occasions, its courts have
applied the First and Second Restatements, the center of gravity approach,
interest analysis and Professor Cavers’ ‘principles of preference.’”); accord
Melville v. Am. Home Assurance Co., 443 F. Supp. 1064, 1076 (E.D. Pa.
1977) (“The opinions of the Pennsylvania courts both state and federal have
left Pennsylvania’s choice of law rules and methodology with respect to
contract cases in utter disarray; indeed, the courts have used facially
inconsistent legal standards without acknowledging apparently conflicting
precedent.”), rev’d, 584 F.2d 1306, 1313 (3d Cir. 1978) (predicting
Pennsylvania would apply the Griffith choice of law framework to contract
actions).
11
   See, e.g., 42 Pa.C.S. § 5521(b) (“The period of limitation applicable to a
claim accruing outside this Commonwealth shall be either that provided or
prescribed by the law of the place where the claim accrued or by the law of
this Commonwealth, whichever first bars the claim.”).




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choice of law provision:12 “the first step in a choice of law analysis under

Pennsylvania law is to determine whether [an actual] conflict exists between

the laws of the competing states.        If no [actual] conflict exists, further

analysis is unnecessary.” Budtel, 915 A.2d at 643 (citation omitted). An

actual conflict exists if “there are relevant differences between the laws.”

Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir. 2007).13

        If an actual conflict exists, then we classify it as “true,” “false,” or

“unprovided-for.” Cipolla v. Shaposka, 439 Pa. 563, 565, 267 A.2d 854,

855-56 (1970); Miller v. Gay, 323 Pa. Super. 466, 470, 470 A.2d 1353,

1355 (1983). A “true conflict” occurs “when the governmental interests of



12
   Synthes USA Sales, LLC v. Harrison, 83 A.3d 242, 252 (Pa. Super.
2013) (“Choice of law provisions in contracts will generally be given effect.”
(citation omitted)); Nationwide Mut. Ins. Co. v. West, 807 A.2d 916, 920
(Pa. Super. 2002) (same).
13
     With respect to federal decisions, we acknowledge the following:

           [F]ederal court decisions do not control the determinations
           of the Superior Court. Our law clearly states that, absent
           a United States Supreme Court pronouncement, the
           decisions of federal courts are not binding on Pennsylvania
           state courts, even when a federal question is involved. . . .
           Whenever possible, Pennsylvania state courts follow the
           Third Circuit so that litigants do not improperly “walk
           across the street” to achieve a different result in federal
           court than would be obtained in state court.

NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 303 (Pa.
Super. 2012) (citations omitted); accord Parr v. Ford Motor Co., 109 A.3d
682, 693 n.8 (Pa. Super. 2014) (en banc) (citations and punctuation
omitted).




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both jurisdictions would be impaired if their law were not applied.” Garcia

v. Plaza Oldsmobile, Ltd., 421 F.3d 216, 220 (3d Cir. 2005).               “A ‘false

conflict’ exists if only one jurisdiction’s governmental interests would be

impaired by the application of the other jurisdiction’s law.         In such a

situation, the court must apply the law of the state whose interests would be

harmed if its law were not applied.”14 Lacey v. Cessna Aircraft Co., 932

F.2d 170, 187 (3d Cir. 1991) (footnote omitted); Kuchinic v. McCrory, 422

Pa. 620, 624, 222 A.2d 897, 899 (1966).            In “unprovided-for” cases,

“neither jurisdiction’s interests would be impaired if its laws are not




14
   We are aware that Pennsylvania federal and state courts have defined
“false conflict” inconsistently. Upon reflection, we agree with the rationale
advanced by the United States Court of Appeals for the Third Circuit in
Hammersmith:

            We think it is incorrect to use the term “false conflict” to
        describe the situation where the laws of two states do not
        differ. If two jurisdictions’ laws are the same, then there is
        no conflict at all, and a choice of law analysis is
        unnecessary. Thus, the first part of the choice of law
        inquiry is best understood as determining if there is an
        actual or real conflict between the potentially applicable
        laws. See, e.g., [Air Prods. & Chems., Inc. v. Eaton
        Metal Prods. Co., 272 F. Supp. 2d 482, 490 n.9 (E.D. Pa.
        2003)] (“Before we even reach the ‘false conflict’ question,
        we must determine whether, for lack of better
        terminology, a ‘real conflict’ as opposed to ‘no conflict’
        exists; that is, we must determine whether these states
        would actually treat this issue any differently.”).

Hammersmith, 480 F.3d at 230.




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applied.”15 Garcia, 421 F.3d at 220 (footnote omitted). If a true conflict is

found, then we must determine “which state has the greater interest in the

application of its law.”16 Cipolla, 439 Pa. at 566, 267 A.2d at 856.

      In Cipolla, our Supreme Court examined whether a true conflict

existed between the tort laws of Delaware and Pennsylvania.        Id. at 564,

267 A.2d at 855. The defendant was a Delaware resident and the plaintiff

was a Pennsylvania resident.    Id.    The defendant, who was driving a car

registered in Delaware, was driving the plaintiff home to Pennsylvania when

they collided with another vehicle in Delaware. Id. The plaintiff sued the



15
   We leave for another day a determination of which state’s law applies in
an “unprovided-for conflict” in contract cases. In tort cases, generally, the
law of the state where the injury occurred is applied. See Miller, 323 Pa.
Super. at 470-72, 470 A.2d at 1355-56.
16
   If there is more than one issue, then Pennsylvania applies dépeçage, i.e.,
“different states’ laws may apply to different issues in a single case . . . .”
Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006)
(citation omitted); Broome v. Antlers’ Hunting Club, 595 F.2d 921, 924
(3d Cir. 1979) (predicting Pennsylvania Supreme Court would apply law of
different states to separate issues).           Although no court in this
Commonwealth has explicitly held that Pennsylvania applies dépeçage,
Pennsylvania federal courts have consistently applied the doctrine.
Furthermore, the doctrine is arguably suggested by, if not harmonious with,
the Griffith Court’s flexible choice of law framework. See Griffith, 416 Pa.
at 21, 203 A.2d at 805. The United States Court of Appeals for the Third
Circuit observed that dépeçage was implicit in Professor Cavers’ choice of
law analysis, which our Supreme Court approvingly quoted in Cipolla. See
Reyno v. Piper Aircraft Co., 630 F.2d 149, 167 n.73 (3d Cir. 1980)
(holding dépeçage is “implicit in the analysis of Professor Cavers” (citing
David Cavers, The Choice-of-Law Process 40-43 (1965))), rev’d on other
grounds, 454 U.S. 235 (1981); Cipolla, 439 Pa. at 567, 267 A.2d at 856-57
(quoting Cavers’ treatise, supra, extensively).




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defendant for negligence only, and our Supreme Court examined which

state’s law applied. Id. If Delaware law applied, then the plaintiff could not

recover under a Delaware statute preventing a guest from recovering for the

negligence of the host. Id. If Pennsylvania law applied, then the plaintiff

could recover if he could establish the defendant’s negligence. Id. at 564-

65, 267 A.2d at 855. The Cipolla Court reasoned that a true conflict existed

because the plaintiff “is a resident of Pennsylvania which has adopted a

plaintiff-protecting rule and [the defendant] is a resident of Delaware which

has adopted a defendant-protecting rule” and thus a “deeper analysis” was

required to determine “which state has the greater interest in the application

of its law.” Id. at 565-66, 267 A.2d at 856.

      Similarly, in Rosen v. Tesoro Petroleum Corp., 399 Pa. Super. 226,

582 A.2d 27 (1990), the Superior Court ascertained whether a true conflict

existed between the laws of Pennsylvania and Texas regarding a malicious

prosecution claim. Id. at 231, 582 A.2d at 30. In Pennsylvania, seizure of

the plaintiff’s person or property is not a necessary element for malicious

prosecution. Id. Texas, however, requires that a party alleging malicious

prosecution suffer physical detention of the claimant’s person or property.

Id. The Rosen Court held there was a true conflict because Texas wished

“to assure every potential litigant free and open access to the judicial system

without fear of a countersuit for malicious prosecution.”    Id. at 232, 582

A.2d at 30. Pennsylvania, in contrast, provided “greater protection to those



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individuals and entities who may be forced to defend a baseless suit.” Id. at

233, 582 A.2d at 31.           Thus, having concluded a true conflict existed, the

Rosen Court then determined which state had “the greater interest in the

application of its law on malicious prosecution to the instant matter.” Id. at

233, 582 A.2d at 31.

      In sum, in Pennsylvania, a conflict-of-law analysis not involving a

statutory or contractual choice of law clause, first requires determining

whether the laws in question actually conflict.        E.g., Budtel, 915 A.2d at

643. If relevant differences between the laws exist, then we next classify

the actual conflict as a “true conflict,” “false conflict,” or “unprovided-for

conflict.”    Cipolla, 439 Pa. at 565, 267 A.2d at 855-56; Miller, 323 Pa.

Super. at 470, 470 A.2d at 1355.

      Instantly, a New York statute voids clauses immunizing recreational

facilities from liability for negligence because they violate New York’s public

policy.17     N.Y. Gen. Oblig. Law § 5-326 (McKinney 2014).              Pennsylvania,

however, recognizes the validity of such exculpatory clauses when they

govern       voluntary   and    hazardous   recreational   activities.    See,   e.g.,

Chepkevich, 607 Pa. at 36, 2 A.3d at 1195. Because relevant differences

17
   No party has suggested the statute applies outside of New York. Cf.
Garcia, 421 F.3d at 220 (noting, “In our conflicts-of-law analysis[,] the first
issue that we must address is whether New York’s . . . [l]aw with respect to
the issue at hand has extraterritorial application, and, accordingly, whether
that law by its terms can be applied to determine liability for the
Pennsylvania accident underlying this appeal.”)




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exist    between     New     York    and       Pennsylvania      jurisprudence,       see

Hammersmith, 480 F.3d at 230, there is an actual conflict that we must

classify as a “true conflict,” “false conflict,” or “unprovided-for conflict.”

        Akin   to   Rosen,   which   identified       a   true   conflict   because    of

Pennsylvania’s and Texas’s diametrically opposing views on malicious

prosecution,    Pennsylvania    provides       greater    protection   to   recreational

facilities, unlike New York, which favors protecting participants injured at

such facilities. See Rosen, 399 Pa. Super. at 232-33, 582 A.2d at 30-32.

To paraphrase our Supreme Court in Cipolla, the fact that McDonald is a

resident of New York, which has adopted a plaintiff-protecting rule, and

Whitewater is a resident of Pennsylvania, which has adopted a defendant-

protecting rule, demonstrates a true conflict. See Cipolla, 439 Pa. at 565-

66, 267 A.2d at 856.

        We thus ascertain whether New York “or Pennsylvania has the greater

interest in the application of its law to the question now before us.” See id.

at 565, 267 A.2d at 855.

             In determining which state has the greater interest in
          the application of its law, one method is to see what
          contacts each state has with the accident, the contacts
          being relevant only if they relate to the “policies and
          interest underlying the particular issue before the court.”
          [Griffith, 416 Pa. at 21, 203 A.2d at 805]. When doing
          this it must be remembered that a mere counting of
          contacts is not what is involved. The weight of a particular
          state’s contacts must be measured on a qualitative rather
          than quantitative scale.

                                     *     *      *


                                         - 17 -
J. A22040/14



           Also, it seems only fair to permit a defendant to rely on
        his home state law when he is acting within that state.

               Consider the response that would be accorded a
               proposal that was the opposite of this principle if
               it were advanced against a person living in the
               state of injury on behalf of a person coming
               there from a state having a higher standard of
               care or of financial protection. The proposal
               thus advanced would require the community the
               visitor entered to step up its standard of
               behavior for his greater safety or lift its financial
               protection to the level to which he was
               accustomed. Such a proposal would be rejected
               as unfair. By entering the state or nation, the
               visitor has exposed himself to the risk of the
               territory and should not subject persons living
               there to a financial hazard that their law had not
               created.

        Inhabitants of a state should not be put in jeopardy of
        liability exceeding that created by their state’s laws just
        because a visitor from a state offering higher protection
        decides to visit there.

Id. at 566-67, 267 A.2d at 856-57 (citations, punctuation, and footnote

omitted); accord Myers v. Commercial Union Assurance Cos., 506 Pa.

492, 496, 485 A.2d 1113, 1115-16 (1984).18


18
   We acknowledge that other Pennsylvania state and federal courts have
construed the Griffith interest analysis differently. In Gillan v. Gillan, 236
Pa. Super. 147, 345 A.2d 742 (1975), and Knauer v. Knauer, 323 Pa.
Super. 206, 470 A.2d 553 (1983), the Superior Court interpreted Griffith as
adopting the Restatement (Second) of Conflicts of Law § 188, and applied
the Restatement to the contracts at issue. Knauer, 323 Pa. Super. at 215,
470 A.2d at 558; Gillan, 236 Pa. Super. at 150, 345 A.2d at 744. Our
Commonwealth Court in Ario v. Underwriting Members of Lloyd’s of
London Syndicates 33, 205 & 506, 996 A.2d 588 (Pa. Commw. 2010),
similarly opined in an insurance contract case that Griffith “adopted the



                                      - 18 -
J. A22040/14


      For example, the Walter Court ascertained whether Pennsylvania or

New Jersey law should apply to an automobile insurance policy.          Walter,

290 Pa. Super. at 136, 434 A.2d at 167. The Walter Court reviewed each

state’s contacts with the contract:

            In this contract case, the state having the most vital
         contacts with the policy of insurance involved was New
         Jersey. The policy was issued in New Jersey by the
         appellant in June, 1972, to Mr. Walter, a resident of New
         Jersey. It was issued for the twofold purpose of giving
         insurance protection to Mr. Walter and others as set forth
         in the policy, and to comply with the requirements set
         forth in the New Jersey Motor Vehicle Security


approach of the Restatement of Conflict of Laws, Second to resolving choice
of law questions.” Id. at 595 (citations omitted). “We of course recognize
that a decision of the Commonwealth Court is not binding precedent upon
this Court; however, it may be considered for its persuasive value.”
Holland v. Marcy, 817 A.2d 1082, 1083 n.1 (Pa. Super. 2002) (en banc)
(citation and punctuation omitted). Section 188 identifies several factors in
resolving choice of law:

         (a) the place of contracting,

         (b) the place of negotiation of the contract,

         (c) the place of performance,

         (d) the location of the subject matter of the contract, and

         (e) the domicil, residence, nationality, place            of
         incorporation and place of business of the parties.

Restatement (Second) of Contracts § 188 (1971). In contrast, the Third
Circuit has consistently opined that Griffith combined “the ‘approaches of
both the Restatement II (contacts establishing significant relationships) and
interests analysis (qualitative appraisal of the relevant States’ policies with
respect to the controversy).’” Hammersmith, 480 F.3d at 231 (punctuation
omitted) (quoting Melville, 584 F.2d at 1311).




                                      - 19 -
J. A22040/14


        Responsibility Statute . . . . No matter where [Mr. Walter’s
        agent] drove [Mr. Walter’s] car or gave consent to others
        to operate his vehicle, [Mr. Walter] had the right to expect
        that his policy conformed to New Jersey law and that the
        laws of New Jersey would apply in interpreting the policy.
        Pennsylvania had no contact with the transaction involving
        the insurance policy. It was by mere happenstance that
        the automobile was involved in an accident while located in
        Pennsylvania. As noted in Griffith v. United Airlines,
        Inc., 416 Pa. 24, 203 A.2d 806: “(T)he site of the accident
        purely fortuitous.”

Id. at 137, 434 A.2d at 167-68. Because, inter alia, the appellant “issued

an insurance policy to [Mr. Walter] to cover an automobile located in New

Jersey,” and he obtained the policy to comply with New Jersey laws, the

Walter Court held New Jersey law applied. Id. at 138, 434 A.2d at 168.

     In McCabe, this Court likewise examined each state’s contacts to a

Connecticut insurance contract:

           In the instant case, [the insurer] argues that
        Connecticut law would apply since [the insured] lived in
        Connecticut, and the . . . policy of Insurance was executed
        there. It also contends that “underlying these contacts are
        Connecticut’s sovereign interests that the rights of its
        residents and those who do business in its state are
        governed by Connecticut law and that its insurance law, as
        applied to the insurance policy, will be given full faith and
        credit by a sister state.” Finally, [the insurer] alleges that
        Connecticut has an interest in minimizing insurance
        premiums for its residents. . . .

        Pennsylvania had no contact with the transaction involving
        the insurance policy. It was by mere happenstance that
        the Connecticut automobile owned and operated by [the
        insured] was involved in an accident while located in
        Pennsylvania. . . . At this time, we are concerned with
        contract of insurance, and, as to the insurance policy,
        Connecticut had the most significant contacts.



                                    - 20 -
J. A22040/14


McCabe, 356 Pa. Super. at 232, 514 A.2d at 586.

     Instantly, similar to McCabe and Walter, whose contracts were

executed outside of Pennsylvania, the exculpatory clause was executed in

New York by McDonald, a New York resident.            See id.; Walter, 290 Pa.

Super. at 137, 434 A.2d at 167-68.         New York certainly has a sovereign

interest in protecting McDonald and may wish, as she averred, to recoup the

costs of her medical treatment. See McCabe, 356 Pa. Super. at 232, 514

A.2d at 586. But, comparable to the insurance policy in Walter, the instant

release   was   executed   for   the   purpose   of   protecting   Whitewater,   a

Pennsylvania business that “had the right to expect that [the release]

conformed to [Pennsylvania] law and that the laws of [Pennsylvania] would

apply in interpreting the [release].”     See Walter, 290 Pa. Super. at 137,

434 A.2d at 167-68. “[I]t seems only fair to permit” Whitewater to rely on

Pennsylvania law when it acted within Pennsylvania. See Cipolla, 439 Pa.

at 567, 267 A.2d at 856. Whitewater should not be placed in jeopardy of

liability exceeding that created by Pennsylvania law just because McDonald

is a visitor from New York, a state offering higher protection.          See id.

Unlike McCabe and Walter, the site of the accident was not fortuitous, as

the underlying accident occurred at Whitewater’s place of business in

Pennsylvania on a preplanned outing for which McDonald signed a contract.

Cf. McCabe, 356 Pa. Super. at 232, 514 A.2d at 586; Walter, 290 Pa.

Super. at 137, 434 A.2d at 167-68. After carefully weighing the sovereign



                                       - 21 -
J. A22040/14


interests at stake, which include contacts establishing the significant

relationships with each sovereign, we hold that Pennsylvania has the greater

interest in the application of its law to this case. See Cipolla, 439 Pa. at

566, 267 A.2d at 856.     Accordingly, we discern no basis for reversing the

trial court’s order on this point. See Charlie, 100 A.3d at 250.

     We next address Whitewater’s appeal, which raised the following

issues:

          Whether the trial court erred by denying summary
          judgment on the basis of [McDonald’s] alleged, and mere
          belief, that she was “economically compelled” to sign the
          release by her employer?

          Whether [Whitewater] was entitled to summary judgment
          because the “Release of Liability” is a valid and enforceable
          exculpatory clause involving a recreational activity as a
          matter of well-established Pennsylvania law?

          Whether [McDonald’s] claims against Whitewater are
          barred by the valid and enforceable Release, which
          [McDonald] signed knowingly and fully conscious of its
          meaning, and which contains clear and unambiguous
          language expressly releasing [Whitewater] from any
          liability for negligent conduct and shows [McDonald’s]
          express waiver of her right to bring any such negligence
          claims?

Whitewater’s Brief, 1221 MDA 2013, at 5 (reordered to facilitate resolution).

     We set forth the following as background.

          [McDonald] had testified in her deposition that on May 17,
          2006, the Headmaster of the School of the Holy Child
          handed the Release form to [McDonald], while she was
          between classes and walking through the school hallway
          and told her to sign it, since she would be one of the
          chaperones for the students on the rafting trip.



                                     - 22 -
J. A22040/14


         [McDonald] alleges she signed the Release form without
         reading it.

Trial Ct. Op., 9/15/10, at 2. McDonald explained “that she did not read the

Release because she had previously been on a whitewater trip in 2004.”

McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ.

J., 1/14/13, at 6 (citation omitted).

      At her deposition, McDonald testified about the circumstances of her

departure from the School of the Holy Child:

         [Whitewater’s counsel]. Why did you leave School of the
         Holy Child to go [elsewhere]?

         A. Well, due to the accident, I was only able to work part-
         time and after—

                                  *       *      *

         A.   And when [teaching] contracts were renewed [in
         February 2007], I was given a contract, but I only received
         a one percent increase and—

                                  *       *      *

         A. . . . despite the fact that I had, you know, superior
         evaluation and the fact that I had been hurt on the job, I
         was insulted by the one percent increase.

         Q. Were you told by one of your supervisors that the
         reason you got a one percent increase was because of your
         reduced work and the fact that you were injured on the
         job?

         A. No.

         Q. Did anyone tell you that?

         A. No.



                                        - 23 -
J. A22040/14


       Q. That’s something that you surmised—

       A. Yes.

       Q. —based on the circumstances?

       A. Yes, sir.

       Q. Well, it carried [sic] $5,000. I can’t do the math very
       quickly, but.

       A. Okay, all right, and this one percent raise turned out to
       be what?

       A. Approximately $610.

       Q. Okay, and your raises, while you were at School of the
       Holy Child, were they always consistent with approximately
       the $5,000 increase?

       A. Three years previous to that, I’d gotten a $20,000
       boost because I was seen as being a master teacher.

       Q. Okay, all right. And this $600 . . . you didn’t expect
       another $20,000 bump, but you thought you might get
       something closer to the 5 grand that you had gotten the
       previous year.

       A. Yes.

       Q. And when you didn’t, you surmised it was because of
       your injury.

       A. Yes, and I wasn’t going to be able to do all the extras
       that are pretty much inherent in working in an
       independent school.

       Q. Extras, such as what?

       A. Chaperoning trips to Europe, did that. Attending
       trustees, board of trustees and faculty dinners.
       Participating in faulty/student games. All the extras that
       are just read into our contract.



                                  - 24 -
J. A22040/14


        Q. Okay, and those are things that you did prior to the
        accident.

        A. Yeah.

        Q. And you did not do them after the accident.

        A. No.

        Q. Okay, so when you got your one percent raise, is that
        when you quit, you resigned?

        A. No, I looked for a job first.

Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for

Summ. J., at 11-14.

     We reproduce the following exchange from the deposition testimony of

Ann Sullivan, the head of the School of the Holy Child, regarding its annual

job evaluations:

        [McDonald’s counsel].       And in terms of conducting
        evaluations of employees, and in particular teachers, was
        participation in afterschool extracurriculars or school trips,
        was that a factor looked at in terms of doing the
        evaluation?

        A. I think it’s discussed during the evaluation. If you look
        at the evaluation forms, which are very idiosyncratic, there
        are four buckets. One is professional competence, one is
        commitment—

        Q. I’m going to ask you—

        A. Let me give you the background—one is commitment
        to the community, the third is leadership, and the fourth is
        congruence with the mission. There was a lot of discussion
        as to what percent each of those buckets was taken into
        consideration, and, frankly, it varies, and there was no
        answer to that. And I have to say it was all of those ways,
        but to varying degrees. Some people are great community


                                    - 25 -
J. A22040/14


       people and not so great in the classroom, some people are
       great in the classroom and not so great in the community
       life. So, you know, it wasn’t meant to be punitive. It was
       to recognize different contributions.

       Q. All right, I understand. But I just want to make sure I
       understand correctly. Even though there were different
       ways—you indicated there were different wings [sic]
       attached to different factors, you are saying, if I
       understand correctly—I’m not trying to put words in your
       mouth—that       participation    in    school    trips and
       extracurricular activities was at least a factor?

       A. I’m going to go back to that that it is a broader
       discussion of community than going on school trips.
       Sometimes it is class trips, sometimes it is attending
       events. You know, it’s broader than that. It’s not a quid
       pro quo. You don’t get an extra $500 added to your salary
       because you are a chaperon [sic].

       Q. Right, I understand there wasn’t a specific dollar
       amount that was attached for any particular factor
       indicated on the evaluation form, but it was at least a
       factor that was put into the overall mix in conducting
       evaluations of faculty, is that fair to say?

       A. But it could be something quite different. It could be
       being the moderator of the yearbook or the Model UN.
       You are a making this assumption that going on
       extracurricular trips was part of your evaluation. It’s only
       one of many, many possible factors. I want you to know
       many people did not go on trips. There are a lot of young
       parents in the school and they are not able to go away
       overnight because—

       [Sullivan’s counsel]: Parents or teachers?

       A. Parents who are teachers. There are teachers who are
       young parents, have infants and toddlers and couldn’t do
       those trips, and certainly it was great if they would go to a
       concert and they would show up at field hockey games.

       [McDonald’s counsel]. I understand.         No one was
       compelled to go on any particular trip, but participation in


                                  - 26 -
J. A22040/14


        things was at least a factor identified in her evaluation, is
        that correct?

        A.   I read [in McDonald’s employment file] that her
        supervisor thanked her for going on trips and going to
        athletic events.

        Q. Hum-hum.

        A. But, you know, I could say that there were wonderful
        people who declined to go on the trips and there were no
        financial repercussions.

        Q. Okay. No one was ever terminated for not going on
        any extracurricular trips?

        A. Never. And they were not—their salaries were not
        reduced for not going on trips.

        Q. And there was never an employee who was penalized
        in his or her paycheck for not going on a school
        extracurricular or participating in afterschool projects.

        A. Right.

Ex. I to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for

Summ. J., at 38-41.

     In support of their first issue, Whitewater contends that economic

compulsion   does   not   apply   because      McDonald’s     employer—and   not

Whitewater—compelled      McDonald    to      sign   the   release.   Regardless,

Whitewater argues that McDonald failed to present evidence establishing her

employer compelled her to sign.      Whitewater asserts that the undisputed




                                     - 27 -
J. A22040/14


record demonstrated McDonald would have suffered no repercussions by not

participating in rafting.19 We hold Whitewater is entitled to relief.

      It is well-settled that the standard of review for an order resolving

summary judgment is abuse of discretion or error of law. Charlie, 100 A.3d

at 250. Our Supreme Court defined duress as follows:

         The formation of a valid contract requires the mutual
         assent of the contracting parties. Mutual assent to a
         contract does not exist, however, when one of the
         contracting parties elicits the assent of the other
         contracting party by means of duress. Duress has been
         defined as:

               That degree of restraint or danger, either
               actually inflicted or threatened and impending,
               which is sufficient in severity or apprehension to
               overcome the mind of a person of ordinary
               firmness . . . .      The quality of firmness is
               assumed to exist in every person competent to
               contract, unless it appears that by reason of old
               age or other sufficient cause he is weak or
               infirm . . . . Where persons deal with each
               other on equal terms and at arm’s length, there

19
    Whitewater also contends McDonald waived her defense of duress by
failing to raise it in her answer to Whitewater’s new matter invoking the
release as a defense. Whitewater’s Brief, 1221 MDA 2013, at 28 (citing only
Tri-State Roofing Co. of Uniontown v. Simon, 187 Pa. Super. 17, 19,
142 A.2d 333, 334 (1958) [hereinafter “Tri-State”]). The Tri-State Court
did not hold that when the defendant invokes a contract as a defense in a
new matter, the plaintiff is bound to raise all affirmative defenses in its reply
to the new matter.        Rather, the Court was merely summarizing the
procedural posture in which the defendant filed a reply alleging duress in
response to the plaintiff’s new matter. See id. at 19, 142 A.2d at 335.
Whitewater did not articulate any other basis for waiver, and it is well-
settled that we may not reverse on an argument not raised. See generally
Pa.R.A.P. 302.      Accordingly, we decline to hold McDonald waived her
defense.




                                     - 28 -
J. A22040/14


               is a presumption that the person alleging duress
               possesses ordinary firmness . . . . Moreover, in
               the absence of threats of actual bodily
               harm there can be no duress where the
               contracting party is free to consult with
               counsel . . . .

Degenhardt v. Dillon Co., 543 Pa. 146, 153-54, 669 A.2d 946, 950 (1996)

(citations and punctuation omitted).

      Economic duress, i.e., business or economic compulsion, is a form of

duress. Tri-State, 187 Pa. Super. at 20, 142 A.2d at 335. The Tri-State

Court defined economic duress as follows:

         To constitute duress or business compulsion there must be
         more than a mere threat which might possibly result in
         injury at some future time, such as a threat of injury to
         credit in the indefinite future. It must be such a threat
         that, in conjunction with other circumstances and business
         necessity, the party so coerced fears a loss of business
         unless he does so enter into the contract as demanded.

Id. at 20-21, 142 A.2d at 335 (citation and punctuation omitted). The Court

applied the above principles in ascertaining “whether [the] plaintiff’s threat

to breach its contract with the defendant, if defendant did not sign the

release . . . , constituted duress.” Id. at 18, 142 A.2d at 334.

      In Litten v. Jonathan Logan, Inc., 220 Pa. Super. 274, 286 A.2d

913 (1971), this Court addressed whether a prior, favorable oral contract or

a subsequent, unfavorable written contract controlled. Id. at 276-77, 286

A.2d at 914. “Plaintiffs contend they were compelled under the duress and

coercion of the defendant to enter into the written contract because

defendant had maneuvered plaintiffs into an untenable economic crisis from


                                    - 29 -
J. A22040/14


which they could extricate themselves only by signing the agreement

prepared by defendant.” Id. at 277, 286 A.2d at 914-15. The jury agreed

with the plaintiffs, and the defendant appealed, arguing, inter alia, the court

failed to instruct the jury properly regarding duress. Id. at 277, 286 A.2d at

915. This Court affirmed, holding the defendant economically compelled the

plaintiff to execute the subsequent written contract.      Id. at 281-82, 286

A.2d at 917. In affirming the jury verdict, this Court approvingly quoted the

trial court’s jury charge, which identified the elements of economic duress:

         (1) there exists such pressure of circumstances which
         compels the injured party to involuntarily or against his
         will execute an agreement which results in economic loss,
         and (2) the injured party does not have an immediate
         legal remedy. The cases cited by defendant on this point .
         . . are inapplicable because in those cases the defendants
         did not bring about the state of financial distress in which
         plaintiffs found themselves at the time of signing. In the
         instant case, the final and potentially fatal blow was
         prepared by defendant, which by its actions created the
         situation which left plaintiffs with no alternative but to sign
         the contract as written.

                                  *     *      *

         Business compulsion is not establish[ed] merely by proof
         that consent was secured by the pressure of financial
         circumstances, but a threat of serious financial loss may be
         sufficient to constitute duress and to be ground for relief
         where an ordinary suit at law or equity might not be an
         adequate remedy. . . .

Id. at 282-83, 286 A.2d at 917 (citations, punctuation, and footnote

omitted).




                                      - 30 -
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     In Chepkevich, our Supreme Court adverted to economic duress in

resolving whether an exculpatory agreement should be construed as a

contract of adhesion:

        [D]ownhill skiing—like auto racing—is a voluntary and
        hazardous activity . . . .       Moreover, an exculpatory
        agreement conditioning use of a commercial facility for
        such activities has not been construed as a typical contract
        of adhesion. The signer is under no compulsion, economic
        or otherwise, to participate, much less to sign the
        exculpatory agreement, because it does not relate to
        essential services, but merely governs a voluntary
        recreational activity.       See [Schillachi v. Flying
        Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D. Pa.
        1990)] (exculpatory clause valid under Pennsylvania law
        where activity is purely recreational); Grbac v. Reading
        Fair Co., 521 F. Supp. 1351, 1355 (W.D. Pa. 1981), aff’d,
        688 F.2d 215 (3d Cir. 1982) (exculpatory clause releasing
        stock car racing company from liability for death arising
        out of recreational race not invalid contract of adhesion
        under Pennsylvania law). The signer is a free agent who
        can simply walk away without signing the release and
        participating in the activity, and thus the contract signed
        under such circumstances is not unconscionable. . . .

        It is also apparent that the Release here is valid under the
        other elements of the [standard governing validity of
        exculpatory provisions set forth in Topp Copy Prods.,
        Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993), and
        Emp’rs Liab. Assurance Corp. v. Greenville Bus.
        Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966) (referred
        to as the Topp Copy/Employers Liability standard)],
        aside from adhesion contract concerns. First, the Release
        cannot be said to contravene any policy of the law.
        Indeed, the clear policy of this Commonwealth, as
        embodied by the [Skier’s Responsibility] Act, is to
        encourage the sport and to place the risks of skiing
        squarely on the skier.         42 Pa.C.S. § 7102(c)(2).
        Furthermore, Pennsylvania courts have upheld similar
        releases respecting skiing and other inherently dangerous
        sporting activities.    See, e.g., Wang v. Whitetail
        Mountain Resort, 933 A.2d 110 (Pa. Super. 2007) (citing


                                   - 31 -
J. A22040/14


         Superior Court panel’s decision in instant case, but
         upholding release as applied to snow tubing accident);
         [Nissley v. Candytown Motorcycle Club, 913 A.2d 887
         (Pa. Super. 2006)] (upholding exculpatory agreement that
         released defendant motorcycle club from “all liability”);
         [Zimmer v. Mitchell & Ness, 253 Pa. Super. 474, 385
         A.2d 437 (1978)] (upholding exculpatory clause releasing
         ski rental shop from liability for injury suffered when
         skier’s bindings failed to release during fall). And, finally,
         the Release [the appellee] signed is a contract between
         the ski resort and [the appellee] relating to their private
         affairs, specifically [the appellee’s] voluntary use of the
         resort’s facilities.

Chepkevich, 607 Pa. at 28-30, 2 A.3d at 1190-91. Thus, an exculpatory

clause is not typically analyzed within the framework of whether it is an

contract of adhesion.   Id. at 29, 2 A.3d at 1191 (“The signer is under no

compulsion, economic or otherwise, to participate, much less to sign the

exculpatory agreement, because it does not relate to essential services, but

merely governs a voluntary recreational activity.”).

      The case of Gillingham v. Consol Energy, Inc., 51 A.3d 841 (Pa.

Super. 2012), appeal denied, 621 Pa. 679, 75 A.3d 1282 (2013), is also

instructive. Technical Solutions contractually employed Gillingham to work

full-time on a software development project located at one of Consol

Energy’s properties; Gillingham was considered an independent contractor of

Consol. Id. at 853-54. A few weeks later, Consol asked Gillingham to sign

“a stack of documents,” which included

         a waiver of his right to sue Consol in the event he was
         injured due to its negligence. He felt that he had to sign
         the pages in question since he was contractually obligated
         to provide his services on the project through Technical


                                     - 32 -
J. A22040/14


         Solutions. Mr. Gillingham believed that he was not in a
         position to refuse to sign the documents presented to him
         by Consol, and he stated, “If I would have not signed
         them, I would have to leave the site . . . because it’s like
         saying, No, I’m not going to honor your agreement and
         protect this technology.” He also would have violated his
         contract with Technical Solutions.

Id. at 854 (citation omitted). While exiting a Consol building via an exterior

metal stairway, Gillingham was injured when the stairway collapsed. Id. at

847.

       Gillingham successfully sued Consol.       Id.    On appeal, Consol

contended the trial court should have granted its request for judgment

notwithstanding the verdict because of the release Gillingham signed. Id. at

852. Gillingham countered that he felt compelled to sign the Consol release

because (1) “he was contractually obligated to provide his services on the

project through Technical Solutions,” and (2) he would have violated his

employment contract with Technical Solutions, i.e., his employer.       Id. at

854.   The Gillingham Court held the record was sufficient to have a jury

ascertain whether “Gillingham, who was under contract to provide services

on the project, was compelled to execute the documents due to Consol’s

superior bargaining position.” Id. The Court thus affirmed the jury’s verdict

in favor of Gillingham. Id.

       Instantly, we frame Whitewater’s question as whether one party to a

contract can invoke duress when that duress was allegedly imposed by a

non-party and not by the other party to the contract.     More precisely, we



                                    - 33 -
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examine whether McDonald can void the release by claiming the School of

the Holy Child economically compelled her to sign the release with

Whitewater.      McDonald’s presumption is that economic compulsion, i.e.,

duress, by a non-party to a contract can be “transferred.”

      Under these unique facts, we decline McDonald’s apparent invitation to

expand a doctrine traditionally invoked between contracting parties.      Our

Supreme Court held that mutual assent is a prerequisite to contract

formation and that such mutual assent is absent “when one of the

contracting parties elicits the assent of the other contracting party by means

of duress.” See Degenhardt, 543 Pa. at 153, 669 A.2d at 950. McDonald

and Whitewater are the contracting parties to the release; the School of the

Holy Child is not a contracting party. It follows that the School of the Holy

Child could not elicit the assent of McDonald by duress. See id.

      Further, McDonald does not claim Whitewater economically compelled

her to sign the release.    Unlike the plaintiff in Litten, McDonald has not

alleged   that   Whitewater—a    contracting   party—maneuvered     her   into

economic distress and compelled her to sign the contract. Cf. Litten, 220

Pa. Super. at 281-82, 286 A.2d at 917; Tri-State, 187 Pa. Super. at 18,

142 A.2d at 334 (resolving allegation of duress between contracting parties).

Whitewater, which provided recreational services similar to the ski resort in

Chepkevich, did not compel McDonald to participate, “much less . . . sign

the exculpatory agreement.”     See Chepkevich, 607 Pa. at 29, 2 A.3d at



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1191.     In contrast to Gillingham, in which the plaintiff was contractually

obligated to work for Consol, the other contracting party, McDonald was not

contractually obligated to participate in recreational activities at Whitewater.

Cf. Gillingham, 51 A.3d at 854.        Nor did she allege that she would have

violated her contract with the School of the Holy Child if she did not sign the

Whitewater release.       Cf. id. (stating plaintiff would have violated his

employment contract with Technical Solutions, his direct employer, if he did

not sign Consol release). In sum, given the predicate condition of a threat

by one contracting party against another contracting party, economic duress

by a non-party to a contract does not appear easily amenable to concepts of

“transference” in this case.20

        Assuming, however, duress by a non-contracting party could be

invoked to negate mutual assent between contracting parties, and assuming

that the possibility of not receiving a raise greater than 1% is a cognizable

economic loss, McDonald’s suggestion that unless she signed the release,

she could potentially not receive such a raise is, on this record, too

conjectural.    See Litten, 220 Pa. Super. at 282, 286 A.2d at 917; Tri-

State, 187 Pa. Super. at 20-21, 142 A.2d at 335 (holding duress is “more

than a mere threat” of possible economic injury in indefinite future).

McDonald notes she received only a 1% raise in February of 2007.       See Ex.


20
     We do not foreclose the possibility, however, in other cases.




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C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for

Summ. J., at 13.          But a minimal raise, after the fact, does not alone

demonstrate that when McDonald signed the release in May 2006, she did so

because she feared economic injury, i.e., not receiving a raise greater than

1%.

      Having       resolved that economic compulsion is            not   available   to

McDonald, we address Whitewater’s last two issues together: whether the

release    is    valid   and   enforceable   and   thus   bars   McDonald’s   claims.

Whitewater asserts the release met all the elements of the                      Topp

Copy/Employers Liability standard governing the validity of exculpatory

clauses.        Whitewater thus contends the trial court erred by denying

summary judgment on liability. Whitewater, we hold, is entitled to relief.

      In Chepkevich, our Supreme Court resolved “whether a skier may

maintain a negligence action against a ski resort for injuries sustained while

skiing or whether suit is barred by statute and/or a release signed by the

skier.” Chepkevich, 607 Pa. at 3, 2 A.3d at 1175.

              The Release, printed on a single page and titled
           “RELEASE FROM LIABILITY,” stated:

                  Skiing,    Snowboarding,      and   Snowblading,
                  including the use of lifts, is a dangerous sport
                  with inherent and other risks which include but
                  are not limited to variations in snow and terrain,
                  ice and icy conditions, moguls, rocks, debris
                  (above and below the surface), bare spots, lift
                  towers,     poles,    snowmaking       equipment
                  (including pipes, hydrants, and component
                  parts), fences and the absence of fences and


                                         - 36 -
J. A22040/14


               other natural and manmade objects, visible or
               hidden, as well as collisions with equipment,
               obstacles or other skiers. . . . All the risks of
               skiing and boarding present the risk of serious
               or fatal injury. By accepting this Season Pass I
               agree to accept all these risks and agree not to
               sue Hidden Valley Resort or their employees if
               injured while using their facilities regardless of
               any negligence on their part.

Id. at 5, 2 A.3d at 1176.

      The Chepkevich Court set forth the three elements of the Topp

Copy/Employers Liability standard for determining the validity and

enforceability of an exculpatory clause:

         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. In Dilks v. Flohr Chevrolet, 411 Pa. 425, 192
         A.2d 682 (1963), we noted that 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.




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J. A22040/14


Chepkevich, 607 Pa. at 26, 2 A.3d at 1189 (citations omitted).           Our

Supreme Court held the release was valid and enforceable, and concluded

the release barred the skier’s negligence lawsuit.21 Id. at 3, 31, 35, 2 A.3d

at 1175, 1192, 1195.

      In Tayar, the plaintiff was injured while snow tubing at a ski resort.

Tayar, 616 Pa. at 390, 47 A.3d at 1193. She raised claims of negligence

and reckless conduct against the ski resort and one of its employees. Id. at

391, 47 A.3d at 1194 (summarizing trial court’s decision). In response, the

defendants asserted the plaintiff’s claims were barred because she signed

the following release:

                          CAMELBACK SNOW TUBING

          ACKNOWLEDGMENT OF RISKS AND AGREEMENT NOT TO
                              SUE

                         THIS IS A CONTRACT–READ IT

         I understand and acknowledge that snow tubing, including
         the use of lifts, is a dangerous, risk sport and that there
         are inherent and other risks associated with the sport and
         that all of these risks can cause serious and even fatal
         injuries. I understand that part of the thrill, excitement
         and risk of snow tubing is that the snow tubes all end up in
         a common, runout area and counter slope at various times
         and speeds and that it is my responsibility to try to avoid
         hitting another snowtuber and it is my responsibility to try
         to avoid being hit by another snowtuber, but that,


21
  The Chepkevich Court also held that the skier’s lawsuit was alternatively
barred by the Skier’s Responsibility Act, 42 Pa.C.S. § 7102.           See
Chepkevich, 607 Pa. at 25, 2 A.3d at 1188.




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J. A22040/14


         notwithstanding these efforts by myself          and   other
         snowtubers, there is a risk of collisions.

                                 *     *      *

         IN CONSIDERATION OF THE ABOVE AND OF BEING
         ALLOWED     TO  PARTICIPATE  IN  THE  SPORT OF
         SNOWTUBING, I AGREE THAT I WILL NOT SUE AND WILL
         RELEASE FROM ANY AND ALL LIABILITY CAMELBACK SKI
         CORPORATION IF I OR ANY MEMBER OF MY FAMILY IS
         INJURED WHILE USING ANY OF THE SNOWTUBING
         FACILITIES OR WHILE BEING PRESENT AT THE
         FACILITIES, EVEN IF I CONTEND THAT SUCH INJURIES
         ARE THE RESULT OF NEGLIGENCE OR ANY OTHER
         IMPROPER CONDUCT ON THE PART OF THE SNOWTUBING
         FACILITY.

Id. at 388-89, 47 A.3d at 1192-93.            The trial court agreed with the

defendants that the release absolved them of liability.     Id. at 390-91, 47

A.3d at 1194.   The plaintiff appealed to the Superior Court on, inter alia,

whether the release exculpated defendants from reckless conduct.        Id. at

391, 47 A.3d at 1194. The Superior Court, in an en banc decision, held that

the release was limited to negligent conduct only.          Id. (summarizing

Superior Court’s holding).

      The Tayar Court granted allowance of appeal to address, among other

issues, whether the release barred the plaintiff’s claim for reckless conduct.

Id. at 392, 47 A.3d at 1194.     Our Supreme Court initially observed that

“exculpatory clauses releasing a party from negligence generally are not

against public policy.” Id. at 401, 47 A.3d at 1200. The Tayar Court held

that the above release did not exculpate the defendants from reckless

conduct because of the fundamental differences between negligence and


                                     - 39 -
J. A22040/14


recklessness. Id. at 403, 47 A.3d at 1201. Thus, our Supreme Court held

that the plaintiff’s claim for reckless conduct could proceed. Id. at 406, 47

A.3d at 1203.

     Regarding the first element needed for a valid exculpatory clause,

Pennsylvania courts have affirmed exculpatory releases for “skiing and other

inherently   dangerous   sporting   activities,”   such   as   snowtubing   and

motorcycle racing. See Chepkevich, 607 Pa. at 30, 2 A.3d at 1191 (citing

Wang, supra, and Nissley, supra).         Other activities include automobile

racing,22 paintballing,23 and whitewater rafting.24 Thus, Pennsylvania courts

have held exculpatory clauses pertaining to inherently dangerous sporting

activities do not “contravene any policy of the law.”25 Chepkevich, 607 Pa.

at 29, 2 A.3d at 1191.



22
  Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 140, 582
A.2d 1380, 1383 (1990) (affirming summary judgment in favor of defendant
based on valid and enforceable exculpatory agreement signed by plaintiff).
23
    Martinez v. Skirmish, U.S.A., Inc., Civ. No. 07-5003, 2009 WL
1676144, *12, 2009 U.S. Dist. LEXIS 51628, *34 (E.D. Pa. June 15, 2009)
(holding release was valid and enforceable against plaintiff’s negligence
claim).
24
  Wroblewski v. Ohiopyle Trading Post, Civ. No. 12-0780, 2013 WL
4504448, at *9, 2013 U.S. Dist. LEXIS 119206, at *30 (W.D. Pa. Aug. 22,
2013) (concluding release signed by plaintiff exculpated whitewater rafting
company for plaintiff’s negligence claim).
25
  Courts have held invalid exculpatory clauses involving bailees, banks, and
common carriers. Dilks, 411 Pa. at 434 n.9, 192 A.2d at 687 n.9 (citing
cases).




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J. A22040/14


      With respect to the second element, our Supreme Court held “[t]he

validity of a contractual provision which exculpates a person from liability

for his own acts of negligence is well settled if the contract is between

persons relating entirely to their own private affairs.” Dilks, 411 Pa. at 433,

192 A.2d at 687.       Lastly, the third element’s reference to “contracts of

adhesion” may be problematic given different facts, as the Chepkevich

Court acknowledged.        Chepkevich, 607 Pa. at 28 n.18, 2 A.3d at 1190

n.18. The Chepkevich Court conceded that if the plaintiff “could not dicker

over the terms of the form contract,” the release could have been a contract

of adhesion.     Id.   But our Supreme Court emphasized, “such contracts

executed in the course of voluntary participation in recreational activities

have not been declared unenforceable on these grounds, presumably

because    we   recognize    an   inherent     policy-based   distinction   between

‘essential’ activities (such as signing a residential lease) and voluntary, non-

essential ones (such as engaging in dangerous sports).” Id. Finally, absent

fraud, “failure to read [the contract] is an unavailing excuse or defense and

cannot justify an avoidance, modification or nullification of the contract or

any provision thereof.” Standard Venetian Blind Co. v. Am. Empire Ins.

Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (citations omitted and

alteration in original).

      Instantly, Whitewater’s exculpatory clause addressing negligence does

not contravene Pennsylvania’s public policy. See Tayar, 616 Pa. at 401, 47



                                      - 41 -
J. A22040/14


A.3d at 1200; Chepkevich, 607 Pa. at 29, 2 A.3d at 1191. Pennsylvania

state and federal courts have affirmed substantively identical clauses in

other dangerous sporting activities, including whitewater rafting.       See

Chepkevich, 607 Pa. at 30, 2 A.3d at 1191 (collecting cases); see also

Wroblewski, 2013 WL 4504448, at *9, 2013 U.S. Dist. LEXIS 119206, at

*30.   Second, the release between McDonald and Whitewater related

entirely to her participation in a hazardous recreational activity. See Dilks,

411 Pa. at 433, 192 A.2d at 687.             We acknowledge that McDonald

chaperoned this trip and that, in general, chaperoning field trips, among

other duties, was an “extra” duty inherent to working at the School of the

Holy Child. See Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s

Second Mot. for Summ. J., at 14.        But McDonald did not identify any

materials issues of fact contradicting Sullivan’s deposition testimony that no

teacher was compelled to chaperone any particular trip.        See Ex. I to

McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ.

J., at 40-41. Indeed, McDonald did not dispute that an employee was not

required to participate in extracurricular trips to demonstrate commitment to

the community—one of four areas employees are evaluated in each year.

See id.     Lastly, identical to the plaintiff in Chepkevich, McDonald

voluntarily engaged in a non-essential activity. See Chepkevich, 607 Pa. at

28 n.18, 2 A.3d at 1190 n.18.           Accordingly, we hold Whitewater’s

exculpatory clause is valid. See id. at 26, 2 A.3d at 1189.



                                    - 42 -
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      As for the clause’s enforceability, we examine whether the clause

“spells out the intention of the parties with particularity and shows the intent

to release [Whitewater] from liability by express stipulation.” See id. at 30,

2 A.3d at 1191. The instant clause was titled “RELEASE OF LIABILITY –

READ BEFORE SIGNING” “in capital letters in large font at the top,”

identical to the Chepkevich release. See id. at 31, 2 A.3d at 1192. The

language releasing Whitewater from liability was written in the same size

font as the body of the release and required McDonald’s signature. See id.

          Whether or not [McDonald] availed herself of the
          opportunity to read the Release she signed, we cannot
          agree that a full-page, detailed agreement, written in
          normal font and titled “RELEASE [OF] LIABILITY”
          constitutes an insufficient effort on the part of
          [Whitewater] to inform [McDonald] of the fact that, by
          signing [the release], she was giving up any right she
          might have to sue for damages arising from injuries
          caused even by negligence.

See id.    Further, McDonald voluntarily engaged in whitewater rafting and

Whitewater did not compel her to sign the release.                 See id.          McDonald

admittedly did not attempt to negotiate the terms of the release. See id.

Accordingly, we conclude the release is enforceable. See id. Because the

release   is   valid   and    enforceable,   the   trial   court   erred       by    denying

Whitewater’s     motion      for   summary    judgment      on     liability    and    thus,

Whitewater is due relief. See Charlie, 100 A.3d at 250. The order below is

affirmed with respect to its holding that Pennsylvania law applies and




                                        - 43 -
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reversed to the extent it held material issues of fact existed regarding

Whitewater’s liability.

      Order affirmed in part and reversed in part.   Case remanded with

instructions to grant judgment in favor of Whitewater and adverse to

McDonald and for further proceedings, as deemed necessary.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015




                                 - 44 -
