J-A14010-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH BURNS AND DAWN BURNS,                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                    v.

PHILLY TRAMPOLINE PARKS, DELCO,
LLC; D/B/A SKY ZONE INDOOR
TRAMPOLINE PARK,

                         Appellant                 No. 3544 EDA 2016


               Appeal from the Order Entered October 18, 2016
              In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 2016-3064


BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

DISSENTING MEMORANDUM BY BOWES, J.:             FILED OCTOBER 31, 2017

     As I believe that the admissions of Appellants establish that agency by

implication applies herein, I would enforce the participation agreement that

Dawn Burns signed on behalf of her husband Joseph Burns and would

remand this matter to arbitration.

     On May 11, 2014, Joseph and Dawn Burns and their son Shamus,

entered the Sky Zone Indoor Trampoline Park (“Sky Zone”), which is owned

and operated by Philly Trampoline Parks Delco, LLC.         Mr. Burns was

allegedly injured on a trampoline that day. In order to access Sky Zone and

play on the trampolines, everyone was required to execute a participant

agreement, which included an arbitration clause. Mr. Burns claimed that he
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did not sign the agreement in question and that it is therefore unenforceable

against him. It was established that Ms. Burns completed the information

on her husband’s participation agreement and then affixed his name to it. I

believe that she was operating as his agent when she performed these

activities and that Mr. Burns’ participation agreement is enforceable against

him.

       In Petersen v. Kindred Healthcare, Inc., 155 A.3d 641, 645

(Pa.Super. 2017), we noted the “party asserting the existence of an agency

relationship bears the burden of proving it by a fair preponderance of the

evidence.” As this Court outlined in Walton v. Johnson, 66 A.3d 782, 786

(Pa.Super. 2013), “An agency relationship may be created by any of the

following: (1) express authority, (2) implied authority, (3) apparent

authority, and/or (4) authority by estoppel.” Accord Washburn v. N.

Health Facilities, Inc., 121 A.3d 1008 (Pa.Super. 2015). The “creation of

an agency relationship requires no special formalities,” and its existence is a

question of fact. Walton, supra at 787. “In establishing agency, one need

not furnish direct proof of specific authority, provided it can be inferred from

the facts that at least an implied intention to create the relationship of

principal and agent existed.” Id.    Comment b to Restatement (Second) of

Agency § 1 (emphasis added) sets forth, “To constitute the relation, there

must be an agreement, but not necessarily a contract, between the parties;

if the agreement results in the factual relation between them to which are

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attached the legal consequences of agency, an agency exists although the

parties did not call it agency and did not intend the legal consequences of

the relation to follow.”     Accordingly, the relationship can be inferred from

the circumstances of the case by looking at factors such as the relationship

of the parties and their conduct.      Scott v. Purcell, 415 A.2d 56, 60 n. 8

(Pa. 1980). Accord Wisler v. Manor Care of Lancaster PA, LLC, 124

A.3d 317, 323 (Pa.Super. 2015) (“we look to facts to determine whether the

principal expressly or impliedly intended to create an agency relationship”).

“To that end, family ties may be relevant when considered with other factors

evincing agency.” Id. (citing Sidle v. Kaufman, 29 A.2d 77, 81 (Pa. 1942)).

Moreover, “While the marital status in itself does not give rise to an agency

relationship,   it   is   competent   evidence   when   considered   with   other

circumstances as tending to establish that one spouse was agent for the

other. Croft v. Malli, 105 A.2d 372, 376 (Pa. 1954) (quoting Restatement

of Agency, § 22, comment (b),

        In my view, the facts, the relationship between the parties, and the

circumstances establish that Ms. Burns operated as an agent for her

husband when she signed the agreement in question.             On the date in

question, Mr. Burns, together with his wife and son Shamus, entered Sky

Zone.     He asked an employee where the bathroom was located, and he

promptly proceeded to that facility. Supplemental Memorandum of Law in

Further Support of Preliminary Objections to the Complaint, 9/12/16, at

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Exhibit A (Deposition of Joseph Bums) at 19-20 (“Exhibit A”).         Ms. Burns

remained at the counter and was informed by the Sky Zone employee that,

in order to enjoy the trampoline facilities, all participants were required to

execute a participation agreement.      Supplemental Memorandum of Law in

Further Support of Preliminary Objections to the Complaint, 9/12/16, at

Exhibit B (Deposition of Dawn Bums) at 19-20 (“Exhibit B”).

     Agreements were completed and executed at kiosks near the counter,

but the employees at the counter could not view the completion of the forms

from their location.   Ms. Burns went to the kiosk, read and filled out Mr.

Burns’ participation agreement, as well as the one pertaining to Shamus,

and executed the agreements for them.           The language in the relevant

agreement    stated    that   Joseph   Burns   had   read   and   completed   the

agreement.

     Ms. Burns returned to the counter, and the Sky Zone employee asked

her for the names on the agreement; Ms. Burns told the employee that

Joseph Burns and Shamus Burns had signed the agreement. Exhibit B at 17.

The employee then typed the names into the computer. Supplemental

Memorandum of Law in Further Support of Preliminary Objections to the

Complaint, 9/12/16, Exhibit 13 at 12.

     Nothing would have alerted Sky Zone to the fact that Ms. Burns signed

Mr. Burns' name on his participation agreement. While Ms. Burns testified

that the employee behind the counter saw her walk over to the kiosk, Exhibit

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B at 18, Sky Zone established that an employee working behind the counter

cannot observe what a guest is typing due to the distance between the

counter and the fact that the kiosk computer screens faced away from the

counter.    Supplemental Memorandum of Law in Further Support of

Preliminary Objections to the Complaint, 9/12/16, Exhibit D (Deposition of

Ann Nicole Atkinson) at 21-22.

      At his deposition, Mr. Burns reported that he was unaware that his

wife had signed the participation agreement for him. Exhibit A, at 25. He

did admit that she “usually handles that stuff." Id. at 13. Additionally, Mr.

Burns understood that his participation agreement was completed and

executed so that he could participate in Sky Zone trampoline activities, he

was not upset with his wife for signing the agreement, and he admitted that,

if Ms. Burns had not signed the agreement for him, he would have signed it

in order to participate in Sky Zone trampoline activities. Id. at 34, 26. Mr.

Burns voluntarily decided to utilize the trampoline at the Sky Zone

establishment, and readily could have refused to enjoy that activity if he did

not like the participation agreement. Exhibit A at 27.

      Mr. Burns openly admitted that, when the family engaged in

recreational activities, Ms. Burns “normally handles that stuff.” Exhibit A at

13. Thus, in connection with the allocation of the marital duties, Ms. Burns

had the authority to handle paperwork and take care of ensuring her

husband’s participation in recreational events.   In this case, that process

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included reviewing and signing the participation agreement. These facts and

circumstances, as well as the family ties and, specifically, the spousal

relationship between Mr. and Ms. Burns, establish that Ms. Burns had

implied authority. This authority was a component of her express authority,

delegated to her by Mr. Burns, to perform the actions necessary to schedule

and ensure the family could enjoy recreational activities together. Hence, I

respectfully dissent from the Majority’s disposition of this matter.




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