Belliconish, J. v. Fun Slides Carpet Skate

• Court: Superior Court of Pennsylvania
• Decided: November 26, 2014
• Docket: 262 WDA 2014
• Status: Unpublished

Opinion

J-A29006-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. J-A29006-14

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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