                             J-14-2018 [OISA: Baer, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


 MICHELE VALENTINO, AS                        :   No. 17 EAP 2017
 ADMINISTRATRIX OF THE ESTATE OF              :
 DEREK VALENTINO, DECEASED, AND               :   Appeal from the Judgment of Superior
 MICHELE VALENTINO, IN HER OWN                :   Court entered on November 15, 2016 at
 RIGHT,                                       :   No. 3049 EDA 2013 affirming the Order
                                              :   entered on September 30, 2013 in the
                      Appellant               :   Court of Common Pleas, Philadelphia
                                              :   County, Civil Division at No. 1417 April
                                              :   Term, 2012.
               v.                             :
                                              :   ARGUED: May 15, 2018
                                              :
 PHILADELPHIA TRIATHLON, LLC,                 :
                                              :
                      Appellee                :



                        OPINION IN SUPPORT OF REVERSAL

JUSTICE DOUGHERTY                                               DECIDED: June 18, 2019
       The question before the Court is whether the Superior Court erred when it

determined a pre-injury exculpatory waiver signed by a triathlon participant provides a

complete defense to claims brought by the participant’s non-signatory heirs pursuant to

the Wrongful Death Act, 42 Pa.C.S. §8301. We would find the waiver is unenforceable

against the heirs and does not preclude their wrongful death action. We would therefore

reverse the Superior Court’s decision and remand to the trial court for further proceedings.

       In 2010, appellee Philadelphia Triathlon, LLC, organized the Philadelphia

Insurance Triathlon Sprint (the Triathlon). The Triathlon consisted of three events: (1) a

0.5 mile swim; (2) a 15.7 mile bicycle race; and (3) a 3.1 mile run. The swim portion of

the Triathlon took place in the Schuylkill River in Philadelphia, Pennsylvania.       As a
participant in the Triathlon, Decedent, Derek Valentino, registered as a participant for the

Triathlon and executed a Waiver and Release of Liability (the Waiver) by affixing his

electronic signature to an online registration form.

       On race day, at approximately 8:30 a.m., Decedent entered the Schuylkill River for

the swim portion of the Triathlon, but he did not complete the swim and, on the following

day, his body was recovered from the Schuylkill River. There is no dispute Decedent

drowned in the river while participating in the Triathlon. See Valentino v. Phila. Ins. Co.,

No. 120401417, 2014 WL 4796614, at *1 (Pa. Com. Pl. Aug. 26, 2014).

       Appellant Michele Valentino filed a lawsuit in her individual capacity and as

Administratrix of the Estate of Derek Valentino, against several defendants, including

appellee, asserting survival claims on Decedent’s behalf and wrongful death claims on

her own behalf and that of her children.1 See Amended Complaint at ¶¶ 26-28, 34-36,

citing 42 Pa.C.S. §8302 (Survival Act provides “[a]ll causes of action or proceedings, real

or personal, shall survive the death of the plaintiff or of the defendant . . .”); Amended

Complaint at ¶¶29-33, 37-41, citing 42 Pa.C.S. §8301(a), (b) (Wrongful Death Act

provides spouse, children or parents of decedent can bring action “to recover damages

for the death of an individual caused by the wrongful act or neglect or unlawful violence

or negligence of another”).2 In response to preliminary objections, the trial court entered

1Appellant stipulated to the dismissal of all defendants other than appellee on January
29, 2013, and they are not involved in this appeal. See Stipulation of Dismissal Without
Prejudice.
2 In Pennsylvania, wrongful death claims are separate and distinct from survival claims,
although both involve allegations of negligence against the defendant. See Dubose v.
Quinlan, 173 A.3d 634, 637 (Pa. 2017); Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994)
(discussing differences between survival and wrongful death claims); Tulewicz v. Se. Pa.
Transp. Auth., 606 A.2d 427, 431 (Pa. 1992); (“the two actions are designed to
compensate two different categories of claimants”); Pisano v. Extendicare Homes, Inc.,
77 A.3d 651, 654 (Pa. Super. 2013), appeal denied, 86 A.3d 233 (Pa. 2014)
(“Pennsylvania courts have repeatedly distinguished wrongful death claims from survival



                              [J-14-2018] [OISA: Baer, J] - 2
orders striking from the complaint all references to outrageous acts, gross negligence and

recklessness.     The trial court also struck appellant’s claim for punitive damages.

Remaining in the case were several allegations of ordinary negligence, specifically, that

appellee failed to: make a reasonable inspection of the premises and event course;

remove or take measures to prevent dangerous conditions; follow rules, regulations,

policies and procedures governing safety standards; properly train the Triathlon’s agents,

servants and employees with respect to safety rules, regulations, policies and

procedures; properly supervise the Triathlon’s employees to ensure the Triathlon was

conducted in a reasonable and safe manner; properly construct or design a safe event

route to avoid dangerous conditions; regulate or control the number of individuals

participating in each phase of the race simultaneously; have proper rules, regulations,

policies and procedures for the timely recognition and response of event participants in

distress and need of rescue; and have adequate safety personnel on hand for each

aspect of the event. See id. at ¶ 22(b), (d) & (f) - (l).

       Thereafter, appellee filed an answer with new matter, claiming Decedent was

sufficiently negligent himself to completely bar appellant’s recovery, or alternatively, to

reduce appellant’s recovery in accordance with the amount of comparative negligence

attributed to Decedent.      See Answer with New Matter at ¶43, citing Comparative

Negligence Act, 42 Pa.C.S. §7102. In addition, appellee asserted the complete defense

of assumption of risk, claiming it owed no duty to Decedent or his survivors based on

Decedent’s execution of the Waiver. Id. at ¶¶44, 46.


claims”). The survival claim is the “continuation of a cause of action that accrued to the
plaintiff’s decedent while the decedent was alive . . .. On the other hand, a wrongful death
action accrues to the decedent’s heirs when the decedent dies of such an injury . . ..”
Dubose, 173 A.3d at 637. As explained more fully infra, a wrongful death claim is an
independent action which belongs to the decedent’s heirs for damages aimed to
compensate members of a decedent’s family for their loss. Tulewicz, 606 A.2d at 431.


                                [J-14-2018] [OISA: Baer, J] - 3
                                    a. Summary Judgment

       On September 30, 2013, the trial court granted appellee’s motion for summary

judgment and dismissed all of appellant’s remaining claims with prejudice. On appellant’s

motion for reconsideration, the court opined summary judgment on the survival action

was proper based on the Waiver. Valentino, 2014 WL 4796614, at *2. The court reversed

itself regarding appellant’s wrongful death action, and opined that claim should be

remanded for further proceedings based on the Superior Court’s decision in Pisano v.

Extendicare Homes, Inc., 77 A.3d 651, 663 (Pa. Super. 2013), appeal denied, 86 A.3d

233 (Pa. 2014) (resident-decedent’s contractual agreement with nursing home to arbitrate

all claims was not binding on non-signatory wrongful death claimants). Id. at *3. In

recommending the wrongful death action be remanded, the trial court observed “a

decedent can contract away his own right to recover in court under a survival action, [but]

he cannot similarly alienate the rights of third parties to recover in their own wrongful

death actions.” Id.



                                       b. Superior Court

       A divided en banc panel of the Superior Court subsequently affirmed summary

judgment on all claims. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super.

2016).3 The majority reasoned that, for a decedent’s heirs to recover damages in a

wrongful death action, there must be an underlying tortious act by the defendant. See id.

at 492-93, quoting Kaczorowski v. Kalkosinski, 184 A. 663, 664 (Pa. 1936) (“. . . a right to

recover must exist in the party injured when he died in order to entitle[] those named in


3Judge Olson authored the majority opinion joined by P.J. Gantman, P.J.E. Bender, and
Judges Bowes, Shogun and Ott.


                              [J-14-2018] [OISA: Baer, J] - 4
the act to sue. . . . [W]here the deceased would have been barred by contributory

negligence, or by the statute of limitations, the parties suing for his death are likewise

barred.”) (internal citations omitted). The majority further held its own decision in Pisano,

which allowed non-signatory wrongful death claimants to file a court action despite their

decedent’s execution of an arbitration agreement, is limited to the facts of that case. Id.

at 493. The majority opined an heir’s right to recover for her decedent’s wrongful death

is dependent upon the existence of a tortious act that caused the death, stating “while a

third party’s wrongful death claim is not derivative of the decedent’s right of action, a

wrongful death claim still requires a tortious injury to succeed.” Id. Underpinning the en

banc majority’s analysis was its position that arbitration and settlement agreements “bind[]

only the parties to the agreement while the [liability waiver] extends to non-signatory third-

parties.” Id. at 497 n.9. The en banc majority considered the Waiver to be an express

assumption of all risks which eliminated any legal duty otherwise owed to anyone by

appellee, creating a complete bar to tort liability.4 Id.

       Appellant filed a petition for allowance of appeal and this Court granted review of

two questions:

          Whether the Superior Court erred when it determined that a waiver of
          liability form, executed solely by the decedent, and stating the signer

4 In a concurring and dissenting opinion joined by Judges Panella and Lazarus, P.J.E.
Ford Elliott determined Buttermore v. Aliquippa Hospital, 561 A.2d 733 (Pa. 1989) was
instructive on the analysis of the Waiver, despite the majority’s effort to distinguish it.
Valentino, 150 A.3d at 501-02 (Ford Elliott, P.J.E., concurring and dissenting). Judge
Ford Elliott noted the Waiver is similar to the release in Buttermore, and the non-signatory
heir in that case had an independent right to sue for the injury she suffered as a result of
her decedent’s death. Id. Judge Ford Elliott stated the majority’s holding the Decedent’s
own assumption of risk created a complete defense to his heirs’ wrongful death action
would “eviscerate the Pennsylvania wrongful death statute which creates an independent
and distinct cause of action, not derivative of the decedent’s rights at time of death.” Id.
at 502. Judge Ford Elliott would also have relied on Pisano to reverse summary
judgment. Id. at 504.



                               [J-14-2018] [OISA: Baer, J] - 5
         assumes all risks of participation in a triathlon, also binds his heirs,
         thereby precluding them from bringing a wrongful death action?

         Whether the defense of assumption of risk should be abolished except
         in those situations where it is specifically permitted by the Comparative
         Negligence Act?5

Valentino v. Phila. Triathlon, LLC, 168 A.3d 1283 (Pa. 2017) (per curiam).

       Our standard and scope of review on appeal from summary judgment are well-

established. “[A]n appellate court may reverse the entry of summary judgment only where

it finds that the trial court erred in concluding that the matter presented no genuine issue

as to any material fact and that it is clear that the moving party was entitled to judgment

as a matter of law.” Phillips v. Cricket Lighters, 841 A.2d 1000, 1004 (Pa. 2003), citing

Pappas v. Asbel, 768 A.2d 1089 (Pa. 2001). In determining whether the lower court erred

in granting summary judgment, the standard of review is de novo and the scope of review

is plenary. Liss & Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 657 (Pa.

2009), citing LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009).

We consider the parties’ arguments with these standards in mind.


                                             II.

       Appellant argues the Superior Court erred in determining the Waiver, which was

executed solely by Decedent, barred his heirs’ wrongful death action. Appellant first notes

wrongful death actions are statutorily authorized in Pennsylvania:

           (a) General rule.--An action may be brought, under procedures
           prescribed by general rules, to recover damages for the death of an

5This Court granted review of this second issue and ordered supplemental briefing via a
per curiam order dated January 26, 2018. As acknowledged by the Opinion in Support
of Affirmance (OISA), although appellant challenged the effectiveness of the Waiver as it
applied to Decedent, she never questioned the overall viability of the doctrine of
assumption of the risk below, and the issue is therefore waived. See OISA at 1, n.1.


                              [J-14-2018] [OISA: Baer, J] - 6
            individual caused by the wrongful act or neglect or unlawful violence
            or negligence of another if no recovery for the same damages
            claimed in the wrongful death action was obtained by the injured
            individual during his lifetime and any prior actions for the same
            injuries are consolidated with the wrongful death claim so as to avoid
            a duplicate recovery.

42 Pa.C.S. §8301(a).      Relying on Pennsylvania jurisprudence, appellant argues a

wrongful death action is derivative of the victim’s fatal injuries, but is nevertheless meant

to compensate a decedent’s survivors “for the pecuniary loss they have sustained by the

denial of future contributions decedent would have made in his or her lifetime.”

Appellant’s Brief at 13-15, quoting Frey v. Pa. Elec. Comp., 607 A.2d 796, 798 (Pa. Super.

1992), and citing Tulewicz v. Se. Pa. Transp. Auth. 606 A.2d 427, 431 (Pa. 1992),

Kaczorowski, 184 A. at 664 (wrongful death claim is “derivative” because “it has as its

basis the same tortious act which would have supported the injured party’s own cause of

action”).

       Appellant relies on Buttermore v. Aliquippa Hospital, 561 A.2d 733 (Pa. 1989),

where the tort-victim husband executed a general release and settlement agreement after

a car accident which purported to waive recovery by “any and all other persons

associations and/or corporations[.]” Appellant’s Brief at 15-16, quoting Buttermore, 561

A.2d at 734. Plaintiff’s wife did not sign the release agreement. The Buttermores filed a

suit against medical professionals who treated him after the accident, including a claim

brought by wife for loss of consortium. See id. at 16. On appeal from summary judgment,

this Court ruled husband’s claim was barred by the release he executed, but wife’s claim

was not because she herself had not signed it. Id., citing Buttermore, 561 A.2d at 736.

Appellant argues the lower courts’ ruling the Waiver in this case, which only Decedent




                              [J-14-2018] [OISA: Baer, J] - 7
signed, bars his heirs’ wrongful death claims is in direct contravention of Buttermore. Id.

at 17-18, citing Buttermore, 561 A.2d at 735.

       In response, appellee contends summary judgment was properly entered and

dismissal of appellant’s wrongful death claims should be affirmed. Appellee argues a

wrongful death action is derivative of, and dependent upon, a tortious act that results in

decedent’s death. Appellee’s Brief at 13, citing Centofanti v. Pa. R. Co., 90 A. 558, 561

(Pa. 1914) (additional citations omitted). Appellee insists the Superior Court correctly

determined Decedent’s execution of the Waiver meant appellee’s conduct was rendered

non-tortious in all respects because appellee no longer owed Decedent any duty of care.

Id. at 16-17, citing Montagazzi v. Crisci, 994 A.2d 626, 635 (Pa. Super. 2010) (plaintiff

knowingly and voluntarily encountering an obvious and dangerous risk relieves those

“who may have otherwise had a duty”); Staub v. Toy Factory, Inc., 749 A.2d 522, 526

(Pa. Super. 2000) (en banc) (“Our [S]upreme [C]ourt appears to have concluded that in

a negligence action, the question whether a litigant has assumed the risk is a question of

law as part of the court’s duty analysis . . ..”) (additional citations omitted). Appellee also

argues Pisano is not applicable here. Appellee contends Pisano determined only the

narrow issue of whether a wrongful death plaintiff is bound by an arbitration agreement

which she did not sign, and is not relevant to questions regarding the exculpatory Waiver

signed by Decedent. See id. at 24.

                                              III.

       The Wrongful Death Act (the Act), provides an independent statutory cause of

action that belongs to specific claimants, i.e. the surviving spouse, children or parents of

the deceased. 42 Pa.C.S. §8301 (Act provides spouse, children or parents of decedent




                               [J-14-2018] [OISA: Baer, J] - 8
can bring action “to recover damages for the death of an individual caused by the wrongful

act or neglect or unlawful violence or negligence of another”). See Kaczorowski, 184 A.

at 665 (“By the statute there is given an explicit and independent right of action to recover

the damages peculiarly suffered by the parties named therein.”). This statutory claim for

wrongful death “is derivative because it has as its basis the same tortious act which would

have supported the injured party’s own cause of action. Its derivation, however, is from

the tortious act and not from the person of the deceased, so that it comes to the parties

named in the statute free from personal disabilities arising from the relationship of the

injured party and tort-feasor.”     Id. at 664 (internal citations omitted). Accordingly,

Pennsylvania courts recognize that while wrongful death actions seek damages for losses

to heirs arising from their relative’s wrongful death, the claims are not derivative of — or

limited by — the decedent’s own rights. See Pisano, 77 A.3d at 660.

       It is clear the General Assembly intended the Act to compensate the decedent’s

surviving heirs, not the decedent himself, whose own losses are encompassed in a

survival action. Compare 42 Pa.C.S. §8301(wrongful death) with 42 Pa.C.S. §8302

(survival); see also Amato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015), quoting

Hatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1235 (Pa. Super. 2012) (“The

purpose of the Wrongful Death Statute . . . is to compensate the decedent’s survivors for

the pecuniary losses they have sustained as a result of the decedent’s death. . . . A

wrongful death action does not compensate the decedent; it compensates the survivors

for damages which they have sustained as a result of the decedent’s death.”) (additional

citations omitted). The Act is thus designed to assure a decedent’s heirs may seek

compensation “for the loss of pecuniary benefits which [they] would have received from




                              [J-14-2018] [OISA: Baer, J] - 9
the deceased had death not intervened.” Kaczorowski, 184 A. at 665. Also, the Act is a

remedial statute, and as such it must be liberally interpreted to effect its purpose and

promote justice. 1 Pa.C.S. §1928(c); Amadio v. Levin, 501 A.2d 1085, 1087 (Pa. 1985)

(wrongful death statute is “remedial in nature and purpose, and as such should be liberally

construed to accomplish the objective of the act”); see also O’Rourke v. Commonwealth,

778 A.2d 1194, 1203 (Pa. 2001) (noting remedial statutes are to be liberally construed to

effect objectives).

       With these principles and the legislative purpose of the Act in mind, we must

determine whether the Waiver provides a complete defense to a wrongful death claim

brought by non-signatory heirs. A liability waiver is, at its core, a contract, and must be

construed and interpreted in the same manner as other contracts — such as arbitration

clauses or settlement agreements and releases — when determining whether it is

effective against a non-signatory third party. The Waiver purports to be an exculpatory

contract, and such contracts are generally disfavored by the law. See Employers Liability

Assur. Corp. v. Greenville Business Men’s Ass’n., 224 A.2d 620, 623 (Pa. 1966)

(“contracts providing for immunity from liability for negligence must be construed strictly

since they are not favorites of the law”); see also Soxman v. Goodge, 539 A.2d 826, 828

(Pa. Super. 1988) (“the law . . . recognized that lying behind [exculpatory] contracts is a

residuum of public policy which is antagonistic to carte blanche exculpation from liability

and thus developed the rule that these provisions would be strictly construed with every

intendment against the party seeking their protection”), quoting Phillips Home Furnishing,

Inc. v. Continental Bank, 331 A.2d 840, 843 (Pa. Super. 1974). Accordingly, a pre-injury

exculpatory agreement is valid only when “it does not contravene public policy, is between




                             [J-14-2018] [OISA: Baer, J] - 10
parties relating entirely to their private affairs, and where each party is a free bargaining

agent so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort,

L.P., 2 A.3d 1174, 1177 (Pa. 2010), citing Topp Copy Prods., Inc. v. Singletary, 626 A.2d

98, 99 (Pa. 1993). This Court has consistently recognized the exculpatory contract is an

agreement that is “intended to diminish legal rights which normally accrue as a result of

a given legal relationship or transaction . . . [which must be] construed strictly against the

party seeking [its] protection.” Dilks v. Flohr Chevrolet, Inc., 192 A.2d 682, 687 (Pa.

1963), quoting Morton v. Ambridge Borough, 101 A.2d 661, 663 (Pa. 1954).

       Thus, in determining whether the Waiver provides a defense to appellant’s

wrongful death action, we must liberally apply the remedial Act while we simultaneously

construe the Waiver strictly against appellee as the party seeking protection from the

contract. We would hold the Superior Court did the opposite in its decision below: the

court erroneously gave the Waiver the broadest application possible while disregarding

the remedial nature of the Act and the public policy considerations underpinning it.6

       First, we note the Waiver is a contract between Decedent and appellee involving

their own private affairs. Chepkevich, 2 A.3d at 1177. The Waiver includes broad



6 The OISA suggests our view of the case ignores the question before the Court. See
OISA at 2. Respectfully, the OISA’s position reveals an overly narrow reading of the issue
on appeal, i.e., whether an exculpatory contract can be enforced against non-signatory
heirs in a claim made pursuant to the Wrongful Death Act. See supra at 6-7. In answering
that question, we examine the terms of the Waiver within the context in which it is to be
enforced. We cannot disregard the nature of the underlying suit and our jurisprudence
guiding our interpretation of exculpatory contracts, which specifically includes a
consideration of public policy. See Chepkevich, 2 A.3d at 1177 (exculpatory agreement
is valid only when “it does not contravene public policy . . .”). Although the question
granted on appeal did not include the term “public policy,” we must surely consider public
policy when determining whether an exculpatory agreement is valid and enforceable
under the given circumstances.


                              [J-14-2018] [OISA: Baer, J] - 11
language barring Triathlon participants from filing suit to recover damages for injuries

or death “which may arise out of, result from, or relate to my participation in the [Triathlon],

including claims for Liability caused in whole or in part by the negligence of” appellees.

See Waiver attached as Exhibit A to appellee’s Answer and New Matter.            However, the

Waiver is plainly not an agreement between Triathlon participants’ wrongful death heirs

and appellee. We emphasize a wrongful death action belongs solely to a decedent’s

heirs, is intended to compensate them, and does not accrue to the decedent. See

Hatwood, 55 A.3d at 1235, quoting Machado v. Kunkel, 804 A.2d 1238, 1246 (Pa. Super.

2002) (“Under the wrongful death act the widow or family is entitled, in addition to costs,

to compensation for the loss of the contributions decedent would have made . . .”). Thus,

while a pre-injury exculpatory waiver might indeed be effective to bar a survival claim by

a decedent’s estate, it is quite another thing to conclude the decedent’s agreement acts

as a complete defense to statutory claims that are specifically available to his non-

signatory heirs. Appellee argues the Waiver provides a complete defense to appellant’s

wrongful death claim, but in our considered view, allowing the Waiver to have this effect

would require us to ignore the purpose of the Act and the public policy concerns it was

specifically enacted to protect.7

       Our conclusion is consistent with prior Pennsylvania case law arising from wrongful

death actions. As this Court has stated, such lawsuits are meant to compensate the


7 The OISA accurately observes an exculpatory agreement would “generally be valid to
preclude a participant’s ordinary negligence claims against the purveyor of an inherently
dangerous sport or activity,” but nevertheless rejects our view that the same waiver could
be ineffective as a defense in a wrongful death claim while providing a viable defense in
a survival action. See OISA at 10. We consider the disparate treatment of the Waiver in
the two causes of action to be the direct result of the different goals and purposes served
by the relevant statutes. See supra at 3, n.2.


                              [J-14-2018] [OISA: Baer, J] - 12
statutory beneficiaries, i.e. the spouse, children or parents of the decedent for the

pecuniary losses they sustained as a result of their relative’s death. See Tulewicz, 606

A.2d at 431. Accordingly, our courts have recognized the distinct nature of these claims

and have declined to enforce a decedent’s own agreements and obligations against his

heirs. See Buttermore, 561 A.2d at 736 (release signed by husband barred his own action

against hospital but not the independent action of wife, who did not sign release); Pisano,

77 A.3d at 660, citing Kaczorowski, 184 A. at 664 (wrongful death claim is derived from

injury to decedent but it is independent and distinct cause of action; decedent’s

agreement to arbitrate not binding on non-signatory heirs); see also Rickard v. Am. Nat’l

Prop. & Cas. Co., 173 A.3d 299 (Pa. Super. 2017) (decedent’s agreement to accept

insurance benefits in exchange for allowing subrogation by insurer not binding on non-

signatory heirs who recovered damages in subsequent wrongful death action against

tortfeasor).   The Waiver in this regard is analogous to the settlement and release

agreement at issue in Buttermore, or the arbitration agreement in Pisano.

       We observe that the undisputed purpose of the Act is “to provide a cause of action

against one whose tortious conduct caused the death of another.” Amadio 501 A.2d at

1087. And, as we have stated, exculpatory contracts must be read narrowly. See Dilks,

192 A.2d at 687; see also Tayar v. Camelback Ski Corp. Inc., 47 A.3d 1190, 1196 (Pa.

2012) (for exculpatory clause to be enforceable “contract language must be construed

strictly”), quoting Topp Copy, 626 A.2d at 99.     Allowing the Waiver to have a broad

exculpatory effect with respect to non-signatory wrongful death claimants would

essentially make the right the General Assembly created for certain heirs through the Act

an illusory one. Abrogation of an express statutory right to recovery in this way violates




                             [J-14-2018] [OISA: Baer, J] - 13
public policy, and a pre-injury exculpatory waiver that contravenes public policy is invalid

and unenforceable. Chepkevich, 2 A.3d at 1177. Cf. Tayar, 47 A.3d at 1203 (curtailing

purported effect of waiver on public policy grounds).        Moreover, our recognition of

relevant public policy concerns in this regard does not constitute “creation” of public

policy. See OISA at 10. Our law is clear that determination of whether contract terms

may be avoided on public policy grounds “requires a showing of overriding public policy

from legal precedents [or] governmental practice . . ..” Tayer, 47 A.3d at 1199. The public

policy we recognize here is well-established in both judicial precedents and statutory

enactment. This Court has declined to enforce exculpatory contracts            “[w]here the

legislature has, by definite and unequivocal language, determined the public policy of this

Commonwealth with regard to a particular subject, [because] that pronouncement cannot

be set aside and rendered unenforceable by a contract between individuals.” Boyd v.

Smith, 94 A.2d 44, 46 (Pa. 1953) (exculpatory waiver of liability unenforceable on public

policy grounds due to conflict with statute). Precluding the use of the Waiver as a carte

blanche automatic defense to wrongful death actions comports with the remedial purpose

and protection expressed in the Act. A contrary holding elevates a private contract above

public policy embodied in a statutory enactment, and overrides our jurisprudence directing

a narrow and strict construction of exculpatory waivers.

       Accordingly, we would hold the Waiver is void and unenforceable with respect to

appellant’s wrongful death claims and, as such, the Waiver should not be available to

appellee as a defense in the underlying wrongful death litigation.8 We would hold the



8 Importantly, our holding would not render appellee defenseless in that litigation, despite
the OISA statement our reading means appellant’s right to relief is “absolute”. See OISA



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Superior Court erred in affirming summary judgment in favor of appellee on that basis,

and reverse and remand to the trial court for further proceedings on appellant’s wrongful

death claim.

      Justice Donohue and Justice Mundy join this opinion in support of reversal.




at 10. We recognize a wrongful death action is a tort claim arising from the alleged
“wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. §8301.
Appellant must still prove the elements of her case, including causation, before any
recovery would be assured. See, e.g., Phillips v. Cricket Lighters, 841 A.2d 1000, 1008
(Pa. 2003) (to maintain negligence action, plaintiff must show defendant had duty to
conform to standard of conduct, breach of duty, the breach caused the injury, and the
injury resulted in damages).


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