Leidy v. Deseret Enterprises, Inc.

381 A.2d 164, 252 Pa. Super. 162, 1977 Pa. Super. LEXIS 2934

• Court: Superior Court of Pennsylvania
• Decided: December 2, 1977
• Docket: 2217, 2282
• Status: Published

Opinions

SPAETH, Judge:

Mr. and Mrs. Leidy, appellants, commenced an action in trespass and assumpsit against appellee, Deseret Enterprises, Inc., d/b/a Body Shop Health Spa, for injuries sustained by Mrs. Leidy at the Spa. The Spa joined its employee, Kathy Ann Robinson, as an additional defendant on the theory that she acted outside the scope of her employment in her treatment of Mrs. Leidy. (The Spa also joined Mrs. Leidy as an additional defendant on the basis of assumption of the risk, but this joinder has been stricken.)

The complaint alleges that Mrs. Leidy had been referred to the Spa by her doctor as part of post-operative treatment following surgery on the lumbar area of her spine, but that the treatment she was in fact given was directly contrary to her doctor’s instructions to the Spa, and resulted in various injuries. The Spa and Ms. Robinson filed motions for judgment on the pleadings on the basis of a provision in the membership agreement, between Mrs. Leidy and the Spa, purporting to release the Spa from liability for injuries resulting from its negligence or that of its employees. The Spa’s motion was granted, but Ms. Robinson’s motion was denied. This consolidated appeal by the Leidys and Ms. Robinson followed.

Neither motion should have been granted; we therefore sustain the Leidys’ appeal and remand for further proceedings.¹

I

The Leidys contend that the clause purporting to release the Spa from liability for injuries resulting from its negligence is unconscionable.²

In Crew v. Bradstreet, 134 Pa. 161, 169, 19 A. 500 (1890), the Supreme Court stated:

Contracts against liability for negligence are not favored by the law. In some instances, such as common carriers, they are prohibited as against public policy. In all cases, such contracts should be construed strictly, with every intendment against the party seeking their protection.

Although not favored, contracts against liability may nevertheless be valid. Commonwealth v. Monumental Properties, Inc., 10 Pa.Cmwlth. 596, 314 A.2d 333 (1973). Generally stated the contract will be held valid if:

(a) "it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State. . . . (Dilks v. Flohr Chevrolet, 411 Pa. 425, 434, 192 A.2d 682, 687 (1963) and authorities therein cited); (b) the contract is between persons relating entirely to their own private affairs (Dilks v. Flohr Chevrolet, supra, pp. 433, 434, 192 A.2d 682, p. 687); (c) each party is a free bargaining agent and the clause is not in effect a mere contract of adhesion, whereby [one party] simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely. (Galligan v. Arovitch, 421 Pa. 301, 304, 219 A.2d 463, 465 (1966)).

Employers Liab. Assur. Corp. v. Greenville Business Men's Ass'n., 423 Pa. 288, 291-292, 224 A.2d 620, 622-623 (1966).

In Phillips Home Furnishings, Inc. v. Continental Bank, 231 Pa.Super. 174, 331 A.2d 840 (1974), rev'd on other grounds (issue of exculpatory clause held not properly before Superior Court) 467 Pa. 43, 354 A.2d 542 (1976), we enumerated situations where courts have found contracts against liability contrary to public policy:

[I]n the employer-employee relationship, e.g., Tarbell v. Rutland R. Co., 73 Vt. 347, 51 A. 6 (1901); in situations where one party is charged with a duty of public service, e.g., Denver Consol. Elec. Co. v. Lawrence, 31 Colo. 301, 73 P. 39 (1903), Bowman & Bull Co. v. Postal Telegraph-Cable Co., 290 Ill. 155, 124 N.E. 851 (1919), cert. denied, 251 U.S. 562, 40 S.Ct. 342, 64 L.Ed. 415 (1920) (public utilities); Boston & Maine R. Co. v. Piper, 246 U.S. 439, 38 S.Ct. 354, 62 L.Ed. 820 (1918), Turek v. Pa. R.R. Co., 361 Pa. 512, 64 A.2d 779 (1949) (common carriers); Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963); Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955) (carriers); Tunkl v. Regents of U. of Calif., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (1963) (hospitals); Northwest Airlines, Inc. v. Alaska Airlines, Inc., 351 F.2d 253 (9th Cir. 1965), cert. denied, 383 U.S. 936, 86 S.Ct. 1068, 15 L.Ed.2d 853 (1966) (airports); to agreements which attempt to exculpate one from liability for the violation of a statute or regulation designed to protect human life, Boyd v. Smith, 372 Pa. 306, 94 A.2d 44 (1953); Warren City Lines, Inc. v. United Refining Co., 220 Pa.Super. 308, 287 A.2d 149 (1971); and elsewhere, e.g., Uniform Commercial Code § 2-719(3), 12A P.S. § 2-719, provides that the limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable. See generally Restatement (Second) of Torts, § 496 B, comments a-j (1965); Restatement of Contracts, § 575 (1932); W. Prosser, The Law of Torts, § 68, at 442-45 (4th ed. 1971).

Id.

Courts have been particularly sensitive to the public interest in considering contracts that involve health and safety. In Boyd v. Smith, supra, a landlord contended that an exculpatory clause in the lease relieved him from liability for personal injuries sustained by plaintiff in a fire. The injuries resulted from the landlord’s negligence in failing to provide a wire or chain or fire escape as required by a statute. In rejecting the landlord’s contention the Court stated:

Defendant relies, as previously indicated, on the exculpatory clause of the lease relieving him from liability for injury or damage caused by fire even though such injury or damage might result from his own negligence. Such a protective clause is undoubtedly valid and enforceable if it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or the State but merely an agreement between persons relating entirely to their private affairs. Cannon v. Bresch, 307 Pa. 31, 160 A. 595; Jacob Siegal Co. v. Philadelphia Record Co., 348 Pa. 245, 35 A.2d 408; Manius v. Housing Authority of the City of Pittsburgh, 350 Pa. 512, 39 A.2d 614; Wright v. Sterling Land Co., Inc., 157 Pa.Super. 625, 43 A.2d 614. The situation becomes an entirely different one in the eye of the law when the legislation in question is, as here, a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him. It was said in McCurdy's Estate, 303 Pa. 453, 461, 154 A. 707, 709: Statutes grounded on public policy are those which forbid acts having a tendency to be injurious to the public good. The prime question is whether the thing forbidden is inimical to the public interest. Where public policy requires the observance of a statute, it cannot be waived by an individual or denied effect by courts, since the integrity of the rule expressed by the Legislature is necessary for the common welfare. Id. 372 Pa. at 309-310, 94 A.2d at 46.

Here the contract clearly concerned health and safety. The allegation is that a business purporting to provide for the physical health of its members acted directly contrary to a doctor’s orders specifying necessary post-operative treatment, and that serious injuries resulted. The public has an interest in assuring that those claiming to be qualified to follow a doctor’s orders are in fact so qualified, and accept responsibility for their actions.

This interest is manifested by the Physical Therapy Practice Act, Act of October 10, 1975, P.L. 383, No. 110, § 1, 63 P.S. § 1301 et seq., which provides for the examination and licensing of physical therapists. The Act provides: “Any person licensed under this act as a physical therapist shall not treat human ailments by physical therapy or otherwise except by the referral of a person licensed in this State as a physician . . .”63 P.S. 1309. This provision reflects the legislature’s recognition that a physical therapist is in a sense part of the medical profession; the therapist’s expertise lies in the same realm as the doctor’s, and the therapist’s errors may do as much harm as the doctor’s.³ The therapist’s status is comparable to that of a druggist, about whom it has been said:

It is settled that a druggist or manufacturer of drugs or medicines who negligently delivers a deleterious drug when a harmless one is called for is responsible for the harmful consequences to the user of that drug or medicine as being guilty of a breach of duty imposed on him by law to avoid acts dangerous to the lives or health of others. Henderson v. National Drug Company, 343 Pa. 601-605, 23 A.2d 743, 746 (1942).

A physical therapist who as alleged here negligently performs therapy in direct contradiction to a doctor’s orders should likewise be “guilty of a breach of duty imposed on him by law to avoid acts dangerous to the lives or health of others.”

The Leidys should further have the opportunity to address the third requirement that must be met before an exculpatory clause will be upheld, namely, that "`each party is a free bargaining agent' and the clause is not in effect `a mere contract of adhesion, whereby [one party] simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely.'" Employers Liab. Assur. Corp. v. Greenville Business, 423 Pa. at 291-292, 224 A.2d at 623, quoting Galligan v. Arovitch, 421 Pa. 301, 304, 219 A.2d 463 (1966).⁴ Here Mrs. Leidy was told by her doctor that the Spa would provide the necessary post-operative treatment; it is not surprising that she agreed and signed the Spa's printed form, in which the exculpatory clause appears in fine print. It is at least questionable whether Mrs. Leidy was aware of the clause, and whether she had any "alternative other than to reject the transaction entirely."

II

The lower court stated in its opinion:

In the present case, nothing has been presented suggesting that the operation of a health spa involves matters of public policy. The agreement itself relates only to matters of interest to the parties to the agreement.

This statement was at least premature. As already discussed, the agreement does not relate only to matters of private interest. So far as "nothing [having been] presented," it must be remembered that the motion here was under Pa.R.Civ.P. 1034 for judgment on the pleadings, and not under Pa.R.Civ.P. 1035 for summary judgment. In passing on a motion for summary judgment a court may consider affidavits and depositions, but in passing on a motion for judgment on the pleadings it may only consider the pleadings themselves. Phillippe et vir. v. Rhoads, 233 Pa.Super. 503, at 511, 336 A.2d 374, at 377 (dissenting opinion). See Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 243 A.2d 389 (1968).

On the pleadings themselves, the Leidys have alleged that the exculpatory clause was unconscionable. This was sufficient to "suggest [] that the operation of [the Spa] involves matters of public policy." It is well settled that a motion for judgment on the pleadings can only be granted where the moving party's right to prevail is so certain that it is clear that a trial would be a fruitless exercise. Phillippe et vir. v. Jerome H. Rhoads, Inc., supra (dissenting opinion, citing Karns v. Tony Fireworks Corp., 436 Pa. 181, 259 A.2d 687 (1969)); Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966); Bureau for Child Care v. The United Fund of the Philadelphia Area, 416 Pa. 617, 207 A.2d 847 (1965).

In Phillippe et vir. v. Jerome H. Rhoads, Inc., supra, the plaintiff sued for damages caused by gasoline explosions, contending that the explosions were caused by the defendant's negligent construction and installation of fuel storage tanks. The defendant by new matter pleaded an indemnity provision of the contract, and obtained a judgment on the pleadings on that basis. In his dissent from the majority's affirmance, Judge Hoffman stated:

In the present case, appellee's new matter averred that the contract contained an indemnity clause, which, if valid, would be a complete defense to appellants' suit. The existence of the indemnity clause is obviously a factual averment requiring a response: `New matter' pleading is designed to compel a plaintiff to answer the defendant's affirmative defenses during the pleading stage to avoid an unnecessary trial. If the plaintiff answers inadequately, a motion for judgment on the pleadings may be filed. Chivers v. School District of Mt. Lebanon, 6 Pa. Cmwlth. 622, 625, 297 A.2d 187, 189 (1972), quoting Goodrich-Amram, Standard Pennsylvania Practice (1972 Supplement), § 1030-1 at 308. Thus, had appellants failed to reply to appellee's new matter, the lower court's ruling would have been proper because a lawful indemnity clause would be a complete defense and the pleadings would not have indicated any dispute as to its validity. But appellants specifically denied that the indemnity clause was controlling. At this juncture, therefore, it cannot be said that appellants have failed to state a claim upon which relief can be granted: * * * It is difficult to see how the court concluded that appellants failed to state a claim upon which they could possibly prevail at trial. Thus, the lower court erred in granting appellee's motion.

Phillippe, supra, 233 Pa.Super. at 509-510, 336 A.2d at 377.

Here we are presented with a comparable situation.⁵ The Spa’s new matter pleaded that the contract contained an exculpatory clause, which if valid, would be a complete defense to the suit. The Leidys’ reply specifically denied the validity of the clause, asserting that it was unconscionable. This denial should have precluded the entry of judgment on the pleadings.

The Leidys’ appeal is sustained, Ms. Robinson’s is denied, and the case is remanded for further proceedings.

PRICE, J., files a dissenting opinion in which WATKINS, P. J., and VAN der VOORT, J., join.

1 . In addition to contending that the exculpatory clause was invalid — which contention will be considered below — the Leidys contend that the Spa's motion should not have been granted because it was not timely filed under Pa.R.Civ.P. 1034(a). This contention is without merit. Rule 1034(a) provides that the motion may be filed "[a]fter the pleadings are closed, but within such time as not to delay the trial." Here only one trial term passed as a result of the court's consideration of the motion. "[A] lower court will not be reversed either for waiving or refusing to waive non-compliance with the procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party: See Richter v. Mozenter, 356 Pa. 650, 654, 53 A.2d 76." Gagliardi v. Lynn, 446 Pa. 144, 151, 285 A.2d 109, 112 (1971), quoting Templeton Appeal, 399 Pa. 10, 16, 159 A.2d 725 (1960) quoting from Coppage v. Smith, 381 Pa. 400, 404, 113 A.2d 247 (1955). No such showing has been made here.

2 . The clause provides:

Member acknowledges that Body Shop Health Spa has neither made claims as to medical results nor suggested medical treatment to Member. It is expressly agreed that all exercises and use of all facilities shall be undertaken by Member at Member’s sole risk and Body Shop Health Spa shall not be liable for any claims, demands, injuries, damages, actions or causes of action whatsoever, to person or property, arising out of or connected with the use of any of the services or facilities of Body Shop Health Spa or the premises where the same are located, including those arising from acts of active or passive negligence on the part of Body Shop Health Spa, its servants, agents or employees and Member does hereby expressly forever release and discharge Body Shop Health Spa from all such claims, demands, injuries, damages, actions or causes of action.

3 . It should be noted that the Physical Therapy Practice Act provides that it is “not intended to limit the activities of persons legitimately engaged in the nontherapeutic administration of baths, massage, and normal exercise.” 63 P.S. 1304. It is possible that the Spa might fall within this category, but whether that is so cannot be decided on the pleadings.

4 . The Leidys did not specifically raise this issue in their pleadings. They did, however, allege the general invalidity of the clause as unconscionable. The scope to be given this allegation is discussed below.

5 . See Dilks v. Flohr Chevrolet, 411 Pa. 425, 435 n. 11, 192 A.2d 682, 687 n. 11, (1963), in regard to the applicability of decisions dealing with indemnity clauses to those dealing with exculpatory clauses.