J-A12042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WAYNE E. MANKOWSKI, AND HIS WIFE,                 IN THE SUPERIOR COURT OF
TRACIE MANKOWSKI                                        PENNSYLVANIA

                         Appellants

                    v.

SEVEN SPRINGS MOUNTAIN RESORT,
INC.

                         Appellee                       No. 1653 WDA 2016


                  Appeal from the Order September 29, 2016
              In the Court of Common Pleas of Somerset County
                     Civil Division at No(s): 62 Civil 2016

BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                                FILED AUGUST 7, 2017

      Wayne E. and Tracie Mankowski (“Appellants”) appeal from the order

entered on September 29, 2016. We affirm.

      As the trial court disposed of this case on preliminary objections, the

following factual background is taken from Appellants’ complaint.           On

February 28, 2015, Mr. Mankowski and his son were boarding a chairlift at

Seven Springs Mountain Resort, Inc. (“Seven Springs”). The son was having

difficulty boarding the chairlift. When Mr. Mankowski attempted to help his

son, his son fell to the ground and Mr. Mankowski fell from the chairlift. Mr.

Mankowski landed on a bolt on the base of the chairlift tower.              Mr.

Mankowski suffered injuries as a result of this fall.
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       The procedural history of this case is as follows. On February 4, 2016,

Appellants instituted the instant action by filing a complaint against Seven

Springs. On March 10, 2016, Seven Springs filed preliminary objections in

the nature of a demurrer. On September 29, 2016, the trial court sustained

the preliminary objections and dismissed Appellants’ complaint. This timely

appeal followed.1

       Appellants present three issues for our review:

    1. Whether the [t]rial [c]ourt erred in failing to adhere to the
       applicable standard for determining preliminary objections when
       it disregarded the well-pled facts of [Appellants’ c]omplaint
       which support claims of negligence and recklessness due to
       [Seven Springs’] actions and/or omissions in failing to protect
       patrons from a dangerous condition, which is not inherent in the
       sport of skiing and which was the direct and proximate cause of
       the injuries suffered by [Mr. Mankowski]?

    2. Whether the [t]rial [c]ourt erred in applying the “no duty” rule of
       the Skiers’ Responsibility Act[(“the Act”), 42 Pa.C.S.A.
       § 7102(c)], which bars recovery for injuries that arise from risks
       inherent in the sport of skiing, to a case where [Appellants pled]
       injuries which did not occur due to an inherent risk of the sport
       but instead[] due to a foreseeably dangerous condition, an
       unprotected chairlift tower and bolt on the tower?

    3. Whether the [t]rial [c]ourt erred . . . when it ruled on
       preliminary objections that no duty was owed by [Seven
       Springs] to protect a patron from a foreseeably dangerous
       condition not inherent in the sport of skiing?

Appellants’ Brief at 4.

1
  On October 31, 2016, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On November 17, 2016, Appellants filed their concise
statement. On December 20, 2016, the trial court issued its Rule 1925(a)
opinion. Appellants’ lone substantive issue was included in their concise
statement.


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      Although     phrased   as   three   separate   issues,   Appellants’   only

substantive argument is that the trial court erred in finding that their suit

was barred by the Act. “Our standard of review of an order of the trial court

[sustaining] preliminary objections is to determine whether the trial court

committed an error of law. When considering the appropriateness of a ruling

on preliminary objections, the appellate court must apply the same standard

as the trial court.”   Freundlich & Littman, LLC v. Feierstein, 157 A.3d

526, 530 (Pa. Super. 2017) (internal alteration and citation omitted).

“Preliminary objections in the nature of a demurrer test the legal sufficiency

of the complaint. When considering preliminary objections, all material facts

set forth in the challenged pleadings are admitted as true, as well as all

inferences reasonably deducible therefrom.”      P.J.A. v. H.C.N., 156 A.3d

284, 287 (Pa. Super. 2017) (per curiam) (citation omitted).         “Preliminary

objections which seek the dismissal of a cause of action should be sustained

only in cases in which it is clear and free from doubt that the pleader will be

unable to prove facts legally sufficient to establish the right to relief.”

Martin v. Holy Spirit Hosp., 154 A.3d 359, 362 (Pa. Super. 2017) (citation

omitted).      “If any doubt exists as to whether a demurrer should be

sustained, it should be resolved in favor of overruling the preliminary

objections.”    Khawaja v. RE/MAX Cent., 151 A.3d 626, 630 (Pa. Super.

2016) (citation omitted).




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      The trial court found that Appellants’ complaint was barred by the Act,

which provides that:

      (1) The General Assembly finds that the sport of downhill skiing
      is practiced by a large number of citizens of this Commonwealth
      and also attracts to this Commonwealth large numbers of
      nonresidents significantly contributing to the economy of this
      Commonwealth. It is recognized that as in some other sports,
      there are inherent risks in the sport of downhill skiing.

      (2) The doctrine of voluntary assumption of risk as it applies to
      downhill skiing injuries and damages is not modified by
      [Pennsylvania’s general comparative negligence rule].

42 Pa.C.S.A. § 7102(c).

      As our Supreme Court explained:

      [T]he Act explicitly preserved the common law assumption of
      risk defense as applied to injuries suffered while engaged in
      downhill skiing. Because the Act did not create a new or special
      defense for the exclusive use of ski resorts, but instead kept in
      place longstanding principles of common law, a review of those
      principles is instructive. The assumption of the risk defense, as
      applied to sports and places of amusement, has also been
      described as a “no-duty” rule, i.e., as the principle that an owner
      or operator of a place of amusement has no duty to protect the
      user from any hazards inherent in the activity.

Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1185–1186 (Pa.

2010) (internal citations omitted). Therefore, in order for a suit to be barred

by the Act (1) the injury must have occurred while engaged in the sport of

downhill skiing and (2) the injury must have arisen out of a risk inherent in

the sport of downhill skiing. Hughes v. Seven Springs Farm, Inc., 762

A.2d 339, 344 (Pa. 2000); see Jones v. Three Rivers Mgmt. Corp., 394

A.2d 546, 551 (Pa. 1978) (internal quotation marks and citation omitted)



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(“[N]o-duty rules[] apply only to risks which are common, frequent[,] and

expected, and in no way affect the duty of theatres, amusement parks[,]

and   sports   facilities   to   protect   patrons   from   foreseeably   dangerous

conditions not inherent in the amusement activity.”).

       Appellants concede that Mr. Mankowski was engaged in the sport of

downhill skiing. They contend, however, that their suit is not barred by the

Act because his injuries were not the result of a risk inherent with the sport

of downhill skiing.         We disagree.         Our Supreme Court’s decision in

Chepkevich controls this issue. In that case, our Supreme Court held “that

boarding and riding a [chairlift] are inherent to the sport of downhill skiing

and inherently dangerous activities, the most obvious danger of which—a

risk that is common, frequent[,] and expected—is undoubtedly falling from

the lift.”   Chepkevich, 2 A.3d at 1187.           In this case, Mr. Mankowski was

injured when he fell from a chairlift. As this risk is inherent in the sport of

downhill skiing, Appellants’ suit is barred by the Act.

       Appellants attempt to distinguish Chepkevich by arguing that it did

not involve an individual falling from a chairlift and striking an unprotected

bolt on the chairlift tower. This argument fails because our Supreme Court’s

decision in Chepkevich was not based upon what the skier fell on, e.g., the

chairlift tower   or snow.         Instead, our      Supreme Court’s holding in

Chepkevich was broad and encompasses the situation in the present case.

Our Supreme Court held that falls from chairlifts are risks inherent in the



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sport of downhill skiing. Thus, Chepkevich is not distinguishable from the

case at bar.

        Appellants also cite Crews v. Seven Springs Mountain Resort, 874

A.2d 100 (Pa. Super. 2005), appeal denied, 890 A.2d 1059 (Pa. 2005), in

support of their argument that the risk in this case was not inherent in the

sport of downhill skiing. Specifically, they contend that Seven Springs could

have protected the bolt and eliminated the risk of injury.       Our Supreme

Court in Chepkevich, however, rejected the interpretation of Crews

advanced by Appellants. Our Supreme Court stated:

        [B]y defining an inherent risk only as one that “could be
        removed without altering the fundamental nature of skiing,”
        Crews encourages plaintiffs to plead cases to define the risks
        that led to their injuries in a narrow, hypertechnical manner.
        Crews invites the argument that an allegation of negligence by
        a ski resort will always negate any defense of the assumption of
        the risk, as the “risk of negligence” can always be removed
        without altering the nature of skiing. Such an approach fails to
        account for the “no-duty” rule and is contrary to the legislative
        intent to preserve the assumption of risk defense for downhill
        skiing. Neither the common law assumption of the risk doctrine,
        nor our decision in Hughes, suggested such an interpretation of
        inherent risks. Instead, those authorities direct that inherent
        risks are those that are “common, frequent, or expected” when
        one is engaged in a dangerous activity, and against which the
        defendant owes no duty to protect.

Chepkevich, 2 A.3d at 1187 n.14 (emphasis in original). Thus, Crews was

limited to the specific facts of that case based upon public policy concerns.

See id.    There are no such public policy concerns in the case sub judice.

Thus, Crews is not instructive when evaluating the issue presented in this

case.


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      Finally, Appellants rely on Tayar v. Camelback Corp., 47 A.3d 1190

(Pa. 2012).    Tayar, however, did not address the assumption of risk

doctrine. Instead, Tayar addressed whether a release relieving a party of

liability for reckless conduct violated this Commonwealth’s public policy.

See id. at 1190. In this case, there was no release which relieved Seven

Springs of liability for reckless conduct.   Instead, this case involves a

straightforward application of the Act and a controlling decision of our

Supreme Court. Under Chepkevich, Appellants’ suit is barred by the Act.

Accordingly, we conclude that the trial court properly sustained Seven

Springs’ preliminary objections.2

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2017




2
  Appellants also cite to an unpublished memorandum issued by this Court in
another unrelated case in January, 2017. Appellants’ Brief at 14-17. We
remind Appellants of the Superior Court’s Operating Procedure § 65.37.A.
which prohibits a party from relying upon or citing to unpublished
memorandum decisions of this Court. In light of this Operating Procedure,
we are constrained not to consider the unpublished memorandum decision
cited by Appellants in deciding this case.


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