Belliconish, J. v. Fun Slides Carpet Skate

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
JOSEPH M. BELLICONISH, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
FUN SLIDES CARPET SKATE PARK AND :
PARTY CENTER, LLC, SIMTEC, CO., :
AND DONALD V. EDWARDS AND :
LORETTA EDWARDS, ADULT :
INDIVIDUAL PERSON, :
:
Appellees : No. 262 WDA 2014
Appeal from the Order entered October 3, 2013,
Court of Common Pleas, Westmoreland County,
Civil Division at No. 6597 of 2012
BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 26, 2014
Joseph M. Belliconish (“Belliconish”) appeals from the order entered on
October 3, 2013 by the Westmoreland County Court of Common Pleas,
granting summary judgment to Fun Slides Carpet Skate Park (“Fun Slides”),
Simtec Co. (“Simtec”), and Donald and Loretta Edwards (“the Edwards”)
(together “Appellees”). For the reasons set forth herein, we affirm.
A summary of the relevant facts and procedural history are as follows.
On November 19, 2011, Belliconish, his wife, Tracy, and her two children,
visited Fun Slides located in Irwin, Pennsylvania. “Fun Slides […] is an
indoor skate park and party center open to both children and adults where
participants use smooth plastic skates strapped onto their shoes and skate in
*Retired Senior Judge assigned to the Superior Court.
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a black light environment that includes carpeted ramps, jumps, and rails.”
Trial Court Opinion, 10/3/13, at 2. In order to engage in carpet skating at
Fun Slides, participants are required to sign an Assumption of Risk, Waiver
of Liability and Indemnification Agreement. Fun Slides employs two waiver
forms: one form is intended for a parent/guardian to sign on behalf of a
minor child; the other form is intended for adults. Both forms are identical
aside from language in the form intended for minor children, which provides
that the parent is signing on behalf of the minor child and himself or herself.
For reasons unknown, Belliconish signed an Assumption of Risk, Waiver of
Liability and Indemnification Agreement form intended for minor children
(the “Waiver”).
As this was Belliconish’s first visit to Fun Slides, he began skating
down smaller ramps to familiarize himself with the activity. Belliconish, who
had experience with roller skating and skateboarding, did not have any
problems balancing as he skated down the ramps and gradually worked his
way to other, more challenging ramps. After approximately one hour of
skating, Belliconish attempted to skate down a narrow, elevated ramp
positioned between two regular ramps. Belliconish lost control on this ramp,
fell off, and fractured his left patella. As a result, Belliconish required
surgery and physical therapy.
On November 2, 2012, Belliconish filed a complaint against Appellees,
alleging a single cause of action for negligence. He testified at a deposition
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held on April 8, 2013. On June 6, 2013, Appellees filed two nearly identical
motions for summary judgment presenting two arguments: (1) Belliconish
signed [the Waiver], releasing Fun Slides from liability for any injuries, and
(2) Appellees owed “no duty of care to warn, protect or insure against
inherent risks in a voluntary recreational activity such as carpet skating.”
Fun Slides’ Motion for Summary Judgment, 6/4/13, at 2-3; Simtec and the
Edwards’ Motion for Summary Judgment, 6/4/13, at 3.
The trial court held oral argument on the motions for summary
judgment on September 18, 2013. The trial court granted Appellees’
motions for summary judgment in a written opinion filed on October 3,
2013. On February 7, 2014, Belliconish filed a motion for leave to file an
appeal nunc pro tunc. Belliconish argued that the trial court did not mail the
October 3, 2013 order to his counsel, mailing it instead to an address that
counsel had not used for over 10 years. As a result, Belliconish’s counsel did
not receive a copy of the order until December 20, 2013. The trial court
granted Belliconish’s motion on February 7, 2014. Belliconish then filed a
notice of appeal to this Court on February 13, 2014.
On appeal, Belliconish presents the following issues for our review:
1. Whether an [i]ndemnification [a]greement
apparently signed on behalf of an unnamed minor
person should be construed as applying to a claim
filed by an adult [p]laintiff for injuries suffered by
him?
2. Whether a dangerous condition was so open and
obvious that [Belliconish’s] voluntary participation
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in carpet skating would constitute [a] preliminary
and deliberate decision to undertake the specific
risk?
Belliconish’s Brief at 4.
Our standard of review of a trial court’s decision to grant a motion for
summary judgment is well settled:
A reviewing court may disturb the order of the trial
court only where it is established that the court
committed an error of law or abused its discretion.
As with all questions of law, our review is plenary.
In evaluating the trial court's decision to enter
summary judgment, we focus on the legal standard
articulated in the summary judgment rule. Pa.R.C.P.
1035.2. The rule states that where there is no
genuine issue of material fact and the moving party
is entitled to relief as a matter of law, summary
judgment may be entered. Where the non-moving
party bears the burden of proof on an issue, he may
not merely rely on his pleadings or answers in order
to survive summary judgment. Failure of a non[-
]moving party to adduce sufficient evidence on an
issue essential to his case and on which it bears the
burden of proof establishes the entitlement of the
moving party to judgment as a matter of law. Lastly,
we will view the record in the light most favorable to
the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be
resolved against the moving party.
Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citing J.P.
Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa. Super.
2013)).
For his first issue on appeal, Belliconish argues that the Waiver “should
not be construed as a waiver of liability as to his own injuries” because the
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form was intended for minors. Belliconish’s Brief at 9-10. Belliconish
asserts that the contract language must be strictly construed or at least
considered to be ambiguous and construed against Appellees as the parties
seeking immunity from liability. Id. at 10-12.
The trial court found this argument to be meritless. Specifically, the
trial court found that the Waiver, although intended for minors, included
language releasing Belliconish from any claims against Appellees, quoting a
portion of the agreement that states:
In consideration of being permitted to participate in
the sport of carpet skating and activities of Fun
Slides today and on all future dates, I, (the minor
participate [sic] and Parent/Guardian), on behalf of
myself, my minor participant, my spouse, my heirs,
personal representatives, and assigns, hereby
release, discharge, and covenant not to sue Fun
Slides, Simtec Co., …from all liability, claims,
demands, losses, or damages.[]
Trial Court Opinion, 10/3/13, at 6 (emphasis in original) (quoting
Belliconish’s Exhibit A).
The trial court further found that “the signature of [Belliconish] on said
Waiver [] form for a Minor indicates that he was signing for himself.” Id. at
7.
There is no name of a child-participant on the form,
[Belliconish] handwrote his own date of birth and his
own address, and indicated that his emergency
contact was his wife, indicating her name and mobile
phone number. It is clear to the [c]ourt that he was
signing the form for himself and his own participation
in carpet skating on the date of the incident. The
language of the Waiver [] is clear and unambiguous.
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Id. The trial court concluded that the Waiver was valid and enforceable, and
therefore barred Belliconish’s lawsuit. Id.
This Court previously addressed the validity of waivers and releases,
stating:
Exculpatory documents releasing a party in advance
for that party’s own negligence are not favored in
Pennsylvania and are strictly construed. 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.
Gillingham v. Consol Energy, Inc., 51 A.3d 841, 852 (Pa. Super. 2012)
(citations and quotation omitted).
In this case, the Waiver, which was a condition precedent to
Belliconish’s ability to participate in a recreational activity, does not
contravene public policy. This Court has held that exculpatory clauses
“violate public policy only when they involve a matter of interest to the
public or the state.” Seaton v. East Windsor Speedway, Inc., 582 A.2d
1380, 1382 (Pa. Super. 1990) (citing Leidy v. Deseret Enterprises, Inc.,
381 A.2d 164, 167 (Pa. Super. 1977)). “Such matters of interest to the
public or the state include the employer-employee relationship, public
service, public utilities, common carriers, and hospitals.” Id. at 1382-83.
As the Waiver in this case does not involve a matter implicating such broad
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public concern, we find that the Waiver is not a matter of interest to the
public or state and accordingly, does not violate public policy. The second
condition is also satisfied in this instance, as the Waiver constitutes an
agreement between private parties relating to private affairs.
With regard to the third condition, this Court has held that “[a]n
adhesion contract is ‘a standard-form contract prepared by one party, to be
signed by the party in a weaker position, [usually a] consumer, who has
little choice about the terms.’” State Farm Fire & Cas. Co. v. PECO, 54
A.3d 921, 935 (Pa. Super. 2012) (citing BLACK’S LAW DICTIONARY 318-19 (7th
ed. 1999)). Although Fun Slides required Belliconish to sign a standard form
contract that it prepared in order to allow participation in the activity it
offered, Pennsylvania case law establishes that the Waiver was not a
contract of adhesion as the Waiver related to the voluntary participation in a
recreational activity. “[This Court] has cogently expressed why voluntary
sporting or recreational activities may be viewed differently from other
activities that require execution of exculpatory contracts[,]” explaining that
in these instances,
[t]he 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 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.
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Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1190-91 (Pa.
2010) (citations omitted). In this case, Belliconish voluntarily signed the
Waiver in order to participate in the recreational activity of carpet skating.
We therefore conclude that the Waiver does not constitute a contract of
adhesion and is valid.
Belliconish argues that the language in the Waiver is not clear and
“even though signed by Belliconish, should not be construed as a waiver of
liability as to his own injuries.” Belliconish’s Brief at 10. Belliconish instead
asserts that the Waiver, strictly construed, does not apply to his injuries
because the Waiver was intended to apply to liability for injuries to a minor
rather than an adult. Thus, he argues, “it is best understood that the parties
did not intend that he waive liability[,]” and the language in the Waiver
should be construed against Appellees. Id. at 11-12.
Belliconish is correct that a valid exculpatory clause “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.” Id. at
1189 (citing Dilks v. Flohr Chevrolet, 192 A.2d 682, 687 (Pa. 1963)). The
law for interpreting exculpatory agreements provides that an exculpatory
clause must meet the following standards to relieve a party of liability:
(1) the agreement must be construed strictly since it
is not favored by the law; (2) such agreements ‘must
spell out the intention of the parties with the
greatest of particularity’ and show the intent to
release from liability ‘beyond doubt by express
stipulation,’ because ‘(n)o inference from words of
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general import can establish it’; (3) such agreements
‘must be construed with every intendment against
the party who seeks the immunity from liability’; and
(4) ‘the burden to establish immunity from liability is
upon the party who asserts such immunity.’
Nissley v. Candytown Motorcycle Club, Inc., 913 A.2d 887, 890 (Pa.
Super. 2006) (citing Employers Liability Assurance Corp. v. Greenville
Business Men’s Asso., 224 A.2d 620, 623 (Pa. 1966)). With these
standards in mind, we address Belliconish’s argument that the Waiver does
not relieve Appellees of liability.
This Court has held that “[w]hen interpreting the language of a
contract, the intention of the parties is a paramount consideration.” State
Farm Fire & Cas. Co., 54 A.3d at 928 (citing Thomas Rigging & Constr.
Co., Inc. v. Contraves, Inc., 798 A.2d 753, 755 (Pa. Super. 2002)).
In cases of a written contract, the intent of the
parties is the writing itself. If left undefined, the
words of a contract are to be given their ordinary
meaning. When the terms of a contract are clear
and unambiguous, the intent of the parties is to be
ascertained from the document itself. When,
however, an ambiguity exists, parol evidence is
admissible to explain or clarify or resolve the
ambiguity, irrespective of whether the ambiguity is
patent, created by the language of the instrument,
or latent, created by extrinsic or collateral
circumstances. A contract is ambiguous if it is
reasonably susceptible of different constructions and
capable of being understood in more than one sense.
While ambiguous contracts are interpreted by the
court as a matter of law, ambiguous writings are
interpreted by the finder of fact….
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Nissley, 913 A.2d at 889 (citing Kripp v. Kripp, 849 A.2d 1159, 1163-64
(Pa. 2004)).
In this case, we conclude that the language of the Waiver, strictly
construed, is unambiguous and enforceable. Although the form addresses
minor participants and parent/guardians, the language specifically releases
Appellees from liability of claims by the person who signs the Waiver. The
Waiver provides seven separate paragraphs, including one for waiver of
liability for ordinary negligence, which provides:
In consideration of being permitted to
participate in the sport of carpet skating and
activities of Fun Slides today and on all future dates,
I, (the minor participant and Parent/Guardian),
on behalf of myself, my minor participant, my
spouse, my heirs, personal representatives, and
assigns, hereby release, discharge, and covenant
not to sue Fun Slides, SIMTEC CO., its respective
administrators, directors, agents, officers, officials,
agents, employees, volunteers, other participants,
sponsoring agencies, sponsors, advertisers, and if
applicable, the owners and lessors of premises used
to conduct the skating activities, (each considered
one of the “Releasees” herein) from all liability,
claims, demands, losses, or damages caused or
alleged to have been caused in whole or in part by
the ORDINARY NEGLIGENCE of the Releasees
(including negligent rescue operations).
This agreement applies to 1) personal injury
(including death) from incidents or illnesses arising
from participation at Fun Slides (including, but not
limited to active participation, classes, observation,
individual use of facilities or equipment, locker room
area, and all premises including the associated
sidewalks and parking lots; 2) any and all claims
resulting from the damage to, loss of, or theft of
property; and 3) the right to sue for loss suffered by
the participant, the parents, or the guardians.
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Fun Slides’ Brief in Support of Motion for Summary Judgment, 6/4/13,
Exhibit A at 1 (Assumption of Risk, Waiver of Liability, and Indemnification
Agreement) (emphasis in original).
Additionally, the end of the Waiver provides an “Acknowledgement of
Understanding” clause, which provides:
I, (the minor participant and Parent/Guardian), have
read this Assumption of Risk, Waiver of Liability, and
Indemnification Agreement and fully understand its
terms. I understand that I am giving up substantial
rights, including my right to sue. I further
acknowledge that I am signing the agreement freely
and voluntarily, and intend my signature to be a
complete and unconditional release of all liability due
to ordinary negligence by Fun Slides or the inherent
risks of the activity, to the greatest extent allowed
by law in the State of Pennsylvania.
Id. at 2.
Strictly construed, under the language of the Waiver, the signer of the
Waiver agrees to release Appellees from all liability due to ordinary
negligence. Despite the inclusion of the term “minor participant,” there is no
ambiguity in the language of the Waiver that the signer, in his or her
individual capacity, is releasing Appellees “from all liability, claims, demands,
losses, or damages caused or alleged to have been caused in whole or in
part by the ordinary negligence of the [Appellees].”
Contrary to Belliconish’s assertion, there is no support for a finding
that the language only waives liability for injuries the minor participant
might suffer and any claim the parent/guardian may have as a result of an
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injury to the minor participant. See Belliconish’s Brief at 11. Rather, the
language is clear that the waiver of liability applies broadly to “personal
injury (including death) from incidents or illnesses arising from participation
at Fun Slides” incurred by the signer of the waiver and the minor child. Fun
Slides’ Brief in Support of Motion for Summary Judgment, 6/4/13, Exhibit A
at 1 (Assumption of Risk, Waiver of Liability, and Indemnification
Agreement). As a result, we conclude that the language of the waiver of
liability, strictly construed, is unambiguous and applies to Belliconish’s claim
regarding the injuries he sustained.
Furthermore, even if the language of the Waiver was ambiguous, the
admission of parol evidence, “to explain or clarify or resolve the ambiguity,”
would demonstrate that Belliconish intended to sign the Waiver on his own
behalf and release Appellees from liability. See Nissley, 918 A.2d at 889
(citing Kripp, 849 A.2d at 1163-64) (“When, however, an ambiguity exists,
parol evidence is admissible to explain or clarify or resolve the ambiguity,
irrespective of whether the ambiguity is patent, created by the language of
the instrument, or latent, created by extrinsic or collateral circumstances.”).
When presented with a copy of the Waiver, Belliconish identified the
document as “the contract that I signed.” Fun Slides’ Brief in Support of
Motion for Summary Judgment, 6/4/13, Exhibit B at 76 (Deposition of
Belliconish). Although Belliconish claims that he did not read the Waiver
before he signed it, he admitted that he skimmed through the Waiver,
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recognized it to be a waiver of liability, and understood that a waiver of
liability means that “there may be, you know, some kind of risk.” Id. at 76-
78. Belliconish further admitted that he never had “any reason to believe
that [he] would not be bound by the terms of [the Waiver] when [he] signed
it.” Id. at 166.
Even more demonstrative of Belliconish’s intent to sign the Waiver on
his own behalf, however, is the uncontested evidence that Belliconish
handwrote his name, date of birth, and address on the Waiver, did not
include the name of a child-participant, and indicated that his wife was his
emergency contact. Fun Slides’ Brief in Support of Motion for Summary
Judgment, 6/4/13, Exhibit A at 2 (Assumption of Risk, Waiver of Liability,
and Indemnification Agreement). Moreover, Appellees presented evidence
of signed waivers for Belliconish’s stepson and stepdaughter, establishing
that his wife signed waivers on behalf of the minors. See Fun Slides’ Brief in
Support of Motion for Summary Judgment, 6/4/13, Exhibit B at Exhibit 3.
Thus, there is no evidence that Belliconish intended to sign the Waiver for
anyone but himself.
Viewing the evidence in the light most favorable to Belliconish, we
conclude that the parties understood and intended the Waiver to be a waiver
of liability for any injuries sustained by Belliconish as a result of ordinary
negligence on Appellees’ behalf. We therefore conclude that Belliconish
waived his claim to liability for the injuries he sustained. Accordingly, the
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trial court did not commit an error of law or abuse its discretion in granting
Appellees’ motions for summary judgment.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
1
Because Belliconish waived his claim to seek liability against the Appellees
for their negligence and Belliconish only plead claims based upon their
negligence, we need not address his second claim on appeal that the trial
court erred in granting summary judgment based on the “no-duty” doctrine
or assumption of risk.
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