J-E03010-15
2016 PA Super 11

MELINDA HINKAL

IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.

GAVIN PARDOE & GOLD'S GYM, INC.,
AND GOLD'S GYM INTERNATIONAL, INC.
AND TRT HOLDINGS, INC.
Appellees

No. 165 MDA 2014

Appeal from the Order Entered January 7, 2014
In the Court of Common Pleas of the 17th Judicial District,
Union County Branch,
Civil Division at No: 12-0375
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OTT, J., STABILE. J., and JENKINS, J.
OPINION BY STABILE, J.:

FILED JANUARY 22, 2016

Melinda Hinkal (“Appellant”) appeals from the January 7, 2014 order
entered in the Court of Common Pleas of Union County granting summary
judgment in favor of Gavin Pardoe (“Pardoe”), Gold’s Gym, Inc. (“Gold’s
Gym”), Gold’s Gym International, Inc. and TRT holdings, Inc. (collectively
“Appellees”). Following review, we affirm.
In this appeal, Appellant challenges whether agreements she signed
for membership at Gold’s Gym released Appellees from liability for injuries
she alleged she sustained while under the direction of Pardoe, a personal
trainer, at Gold’s Gym. In her Second Amended Complaint, Appellant
asserted claims of negligence against Pardoe, and negligence against Gold’s

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Gym premised upon respondeat superior liability. In its 1925(a) opinion, the
trial court explained:
[Appellant] alleges she sustained a serious neck injury while
using a piece of exercise equipment under [personal trainer]
Pardoe’s direction.
[Appellant] alleges that she suffered a
rupture of the C5 disc in her neck requiring two separate
surgeries. [Appellant] alleges that Pardoe’s negligence included,
inter alia, putting too much weight on the piece of equipment
that injured [Appellant] and by instructing [Appellant] to
continue the workout without recognizing that [Appellant] had
sustained a serious injury.
[Appellant’s] allegations of
negligence against the remaining [Appellees] are based upon
vicarious liability for Pardoe’s negligence as well as the
negligence of unidentified employees, agents and servants.
[Appellees] have filed a Motion for Summary Judgment
requesting that we dismiss all [Appellant’s] claims against all
[Appellees] with prejudice.
In support of their motion,
[Appellees] aver that as a member of [Gold’s Gym], [Appellant]
signed a Guest Courtesy Card, a Membership Agreement and a
Personal Training Agreement with Pardoe. [Appellees] assert
that these documents contain legally valid “waiver of liability”
provisions, which in turn, bar [Appellant’s] claims against all
[Appellees].
Trial Court Opinion (“T.C.O.”), 1/7/14, at 1-2.
The trial court concluded that the waiver language set forth in Gold’s
Membership Agreement was valid and enforceable. T.C.O., 1/7/14, at 10.
The trial court determined:
By signing the Membership Agreement, [Appellant] executed a
release and assumed the risk of any and all injuries sustained by
virtue of her use of the exercise equipment at the [gym]. Thus,
[Appellees] are entitled to the entry of judgment in their favor
on the basis of the exculpatory release language set forth in the
Membership Agreement and scrutinized and analyzed at length
herein. There are simply no genuine issues of material fact to
warrant a jury trial in this action.

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Therefore, [Appellees’] Motion for Summary judgment is granted
with prejudice . . . .
Id.
Appellant filed a timely appeal to this Court. A divided panel reversed
the trial court’s grant of summary judgment.

Following the grant of

reargument, the case now comes before this Court en banc.
In her Amended Brief filed with this Court, Appellant presents three
issues for our consideration:
1. Whether the Guest Card signed by the Appellant covering the
six day trial period had expired before the Appellant’s injury
occurred[?]
2. Whether the Waiver on the back page of the Membership
Agreement signed by the Appellant is valid and enforceable[?]
3. Whether the Waiver encompasses Reckless Conduct?
Appellant’s Amended Brief at 4.
Our standard and scope of review from the grant of summary
judgment are as follows:
The overarching question of whether summary judgment is
appropriate is a question of law, and thus our standard of review
is de novo and the scope of review is plenary. O'Donoghue v.
Laurel Sav. Ass'n, 556 Pa. 349, 728 A.2d 914, 916 (1999).
Summary judgment may be entered only in those cases where
the record demonstrates that there remain no genuine issues of
material fact, and that the moving party is entitled to judgment
as a matter of law.
Dean v. Commonwealth, Dep't of
Transp., 561 Pa. 503, 751 A.2d 1130, 1132 (2000).
Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1182 (Pa. 2010).

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With respect to Appellant’s first issue, questioning whether the guest
card covering Appellant’s six-day trial period expired before the Appellant’s
injury occurred, we observe that Appellant did not address this issue in the
Argument section of her brief.

We therefore, may find this issue waived.

Pa.R.A.P. 2119; Harvilla v. Delcamp, 555 A.2d 763, 764, n.1 (Pa. 1989).
Nonetheless, even if this issue were not considered waived, the guest card is
of no consequence in this case. Appellant received the guest card on June
20, 2010 when she first visited Gold’s Gym. At the conclusion of the six-day
guest period, Appellant signed a membership agreement that included the
provisions in effect on August 24, 2010, the date Appellant alleges she was
injured due to Appellees’ negligence. It was those provisions, not any guest
card, which govern the relevant time here, and upon which the trial court
granted summary judgment.
In her second issue, Appellant questions whether the waiver on the
back page of her membership agreement is valid and enforceable.

The

language on the back page of the agreement reads in pertinent part as
follows:
WAIVER OF LIABILITY; ASSUMPTION OF RISK: Member
acknowledges that the use of Gold’s Gym’s facilities, equipment,
services and programs involves an inherent risk of personal
injury to Member . . . . Member voluntarily agrees to assume all
risks of personal injury to Member . . . and waives any and all
claims or actions that Member may have against Gold’s Gym,
any of its subsidiaries or other affiliates and any of their
respective officers, directors, employees, agents, successors and
assigns for any such personal injury (and no such person shall
be liable to Member . . . for any such injury), including, without
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limitation (i) injuries arising from use of any exercise equipment,
machines and tanning booths, (ii) injuries arising from
participation in supervised or unsupervised activities and
programs in exercise rooms . . . or other areas of Gold’s Gym,
(iii) injuries or medical disorders resulting from exercising at any
Gold’s Gym, including heart attacks, strokes, heat stress,
sprains, broken bones and torn or damaged muscles, ligaments,
or tendons and (iv) accidental injuries within any Gold’s Gym
facilities . . . .”
Appellees’ Motion for Summary Judgment, 8/16/13, at Exhibit C. The Gold’s
Gym Membership Agreement signed by Appellant further instructs:
Do not sign this Agreement until you have read both sides. The
terms on each side of this form are a part of this Agreement.
Member is entitled to a completely filled in copy of this
Agreement. By signing this Agreement, Member acknowledges
that (A) This Agreement is a contract that will become legally
binding upon its acceptance by Gold’s Gym, (B) Member has
examined the gym facilities and accepts them in the present
condition, (C) Gold’s Gym makes no representations or
warranties to Member, either expressed or implied, except to the
extent expressly set forth in this Agreement and (D) The
effective date of membership hereunder shall be within six
months after the date of Member’s signature below.
This
Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes
any and all prior agreements, whether written or oral, with
respect to such matter.
Id. The signature line follows immediately and the words “Notice: See other
side for important information” appear in bold typeface below the signature
line. Id.
In its thorough and well-reasoned opinion, the trial court reviewed the
language of the waiver and conducted a review of case law addressing
exculpatory clauses, recognizing:

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“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.”
[Chepkevich, 2 A.3d at 1189] (citations omitted). “. . . [O]nce
an exculpatory clause is determined to be valid, it 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. In interpreting such clauses we listed as
guiding standards that: 1) the contract language must be
construed strictly, since exculpatory language is not favored by
the law; 2) the contract must state the intention of the parties
with the greatest particularity, beyond doubt, by express
stipulation, and no inference from words of general import can
establish the intent of the parties; 3) the language of contract
must be construed, in cases of ambiguity, against the party
seeking immunity from liability; and 4) the burden of
establishing the immunity is upon the party invoking protection
under the clauses.” Id., quoting Dilks v. Flohr Chevrolet, 192
A.2d 682, 687 (Pa. 1963).
Moreover, “. . . [c]ontracts against liability, although not favored
by courts, violate public policy only when they involve a matter
of interest to the public or the state. Such matters of interest to
the public or the state include the employer-employee
relationship, public service, public utilities, common carrier, and
hospitals.” Seaton v. E. Windsor Speedway, Inc., 582 A.2d
1380, 1382 (Pa. Super. 1990).
T.C.O., 1/7/14, at 4-5.1
____________________________________________
1

The trial court noted that the three-pronged exculpatory clause test applied
in Chepkevich has been identified as the “Topp Copy/Employers
Liability standard” based upon Topp Copy Products, Inc. v. Singletary,
626 A.2d 98 (Pa. 1993) and Employers Liability Assurance Corp. v.
Greenville Business Men’s Association, 224 A.2d 620 (Pa. 1966).
T.C.O., 1/7/14, at 5 n.4. We shall refer to the standard as the “Topp
Copy/Employers Liability standard” in this Opinion.

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The trial court concluded that the exculpatory language at issue cannot
be said to violate public policy because it was an agreement between a
private individual and entities, and because it did not address matters of
interest to the public or the state.

Therefore, the first two prongs of the

Topps Copy/Employers Liability standard were satisfied. Id. at 5. The
trial court further determined that the membership agreement did not
constitute a contract of adhesion.

Id. at 6.

“[Appellant] was under no

compulsion to join Gold’s Gym as a member and execute the Membership
Agreement. Exercising at a gym with equipment and availing oneself of the
expertise of a personal trainer is purely voluntary recreational activity.” Id.
at 7. Therefore, the third prong of the Topps Copy/Employers Liability
standard also was satisfied.
Persuaded that all conditions for evaluating the validity of an
exculpatory clause were met, the trial court concluded that the “Waiver of
Liability; Assumption of Risk” provision of the membership agreement was
valid. Id. The trial court then considered whether the provision spelled out
the intention to release Pardoe and Gold’s Gym from liability for negligence.
The trial court stated:
[W]e conclude that the provision at issue expressly states with
particularity the intention to bar all lawsuits arising out of the
inherent risk of personal injury in using exercise equipment and
machines and participating in an exercise program. We do not
find the language in the waiver to be ambiguous such that we
need to construe it against [Appellees].
We conclude that
[Appellees] have satisfied their burden of establishing the
validity of the waiver provision.
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We note that in response to the summary judgment motion,
[Appellant] has objected to the font size and the location of the
language in the Membership Agreement. However, [Appellant]
testified in her deposition that she did not read the agreement
prior to signing the same. As [a] result the font size and
location of the language is of no consequence. Moreover, “ . . .
[i]n the absence of fraud or confidential relationship, the fact
that [a party] may have ‘skimmed’ or ‘somewhat read’ the
subject releases, does not make them any less enforceable.”
Seaton v. E. Windsor Speedway, [582 A.2d 1380 (Pa. Super.
1990)]; Standard Venetian Blind Co. [v. Am. Empire Ins.
Co., 469 A.3d 563 (Pa. 1968)].
Id. at 9-10.
In her brief, Appellant does not contend that the trial court’s analysis
is legally deficient. Rather, she simply asserts that her claim is not barred
by the “exclusion clause” on the back of the membership agreement.
Appellant’s Amended Brief at 15-20.

Her argument does not focus on

aspects of validity of exculpatory clauses, such as whether the membership
agreement clause contravenes public policy or constitutes a contract of
adhesion. Nor does she contend that the language fails to relieve Appellees
from liability.

Further, Appellant ignores the Topps Copy/Employers

Liability standard as well as the language in the agreement relieving
Appellees from liability.

Relying primarily on Beck-Hummel v. Ski

Shawnee, Inc., 902 A.2d 1266 (Pa. Super. 2006), Appellant contends the
waiver is invalid because the waiver language appeared on the back of the
agreement, she never read or was told to read the back of the agreement,
and the clause was not “brought home” to her in a way that could suggest

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she was aware of the clause and its contents.

Id.

However, as the trial

court recognized, Appellant admitted she did not read the agreement prior to
signing it. T.C.O., 1/7/14, at 9. She did not allege fraud or a confidential
relationship. Id. Although she was ostensibly attacking the validity of the
waiver, Appellant did not present any basis for finding the waiver provisions
invalid or unenforceable. Her failure to read her agreement does not render
it either invalid or unenforceable.

“The law of Pennsylvania is clear. One

who is about to sign a contract has a duty to read that contract first.”
Schilachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1174
(E.D. Pa. 1990) (citations omitted). As this Court has stated:
It is well established that, in the absence of fraud, the failure to
read a contract before signing it is “an unavailing excuse or
defense and cannot justify an avoidance, modification or
nullification of the contract”; it is considered “supine negligence.”
Germantown Sav. Bank v. Talacki, 441 Pa. Super. 513, 657
A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co.
v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566
note (1983)).
In re Estate of Boardman, 80 A.3d 820, 823 (Pa. Super. 2013).
With an unambiguous directive not to sign the agreement until reading
both sides, a clear pronouncement that the terms on both sides of the form
are part of the agreement, and a straightforward statement that the
agreement constitutes the entire agreement between the parties, the signed
Gold’s Gym membership agreement cannot be compared in any way to the
unread and unsigned disclaimer on a ski facility ticket in Beck-Hummel.

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Beck-Hummel concerned the enforceability of a release provision
printed on the back of a tubing ticket purchased at Ski Shawnee, Inc.
(Shawnee). Plaintiff’s husband had purchased four tubing tickets. Neither
the plaintiff nor her husband read the exculpatory language on the tubing
tickets and neither of them was informed by any employee of Shawnee that
they were entering into a contractual agreement with Shawnee. The release
language was printed above a dotted line in the center of the ticket where
the ticket presumably was to be folded. Plaintiff fractured her ankle when
she ran into a wall in the run-out area. She sued Shawnee for negligence.
The issue on appeal was whether the release contained on the tubing ticket
was enforceable. The resolution of this issue was dependent upon whether
there was a meeting of the minds to establish the existence of a contract.
On appeal to this Court, we concluded there was no agreement as to
this unsigned and unread disclaimer.

Drawing upon Section 469B of the

Restatement (Second) of Torts, we found that for there to be an effective
express agreement to assume a risk, it must appear the plaintiff had given
assent to the terms of the agreement. In particular, where the agreement
was drawn by the defendant, and the plaintiff’s conduct was merely that of a
recipient of the agreement, it had to appear that the terms of the release
were in fact understood and “brought home” to the plaintiff to find that the
agreement had been accepted. Shawnee attempted to argue the ticket was
so conspicuous that it put plaintiff on notice of the release provision such

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that an agreement could be found. In finding that the release on the ticket
was not sufficiently conspicuous, we looked to caselaw addressing Article 2
of Pennsylvania’s Uniform Commercial Code (PUCC), 13 Pa.C.S.A. § 2101 et
seq., relating to enforcement of warranty disclaimers, to determine whether
a reasonable person should have noticed the release provision.

Beck-

Hummel, 902 A.2d at 1274. We were careful to recognize, however, that
while Article 2 of the PUCC applied only to the sale of goods, we nonetheless
found it useful for providing guidance in that case. Id. at 1274 n.12. Since
neither the plaintiff nor her husband ever read the ticket’s language and the
language

was

not

so

conspicuous

as

to,

without

more,

put

the

user/purchaser on notice, we could not conclude as a matter of law that the
release on the ticket was enforceable.
The distinguishing factor between Beck-Hummel and the instant
matter that makes resort to Beck-Hummel inapposite is the nature of the
respective agreements.

In Beck-Hummel, the release provision was

contained on the face of an entry ticket purchased for use of a ski facility.
The ticket did not require a signature or an express acknowledgment that its
terms were read and accepted before using the facility. Nothing about the
ticket ensured that a purchaser would be aware of its release provision. The
purchasers were mere recipients of the document. In short, there was not
sufficient evidence to find conclusively that there was a meeting of the
minds that part of the consideration for use of the facility was acceptance of

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a release provision. In stark contrast, here there is a written, signed and
acknowledged agreement between the parties.

Not only is the written

contract signed by Appellant, but also, as previously stated, the contract
contained an unambiguous directive not to sign the agreement until reading
both sides, a clear pronouncement that the terms on both sides of the form
are part of the agreement, and a straightforward statement that the
agreement

constitutes

the

entire

agreement

between

the

parties.

Accordingly, there is no need here to resort to proof of notice, as in BeckHummel, to discern if assent to an agreement had been reached.
Appellant also looks to Beck-Hummel for its discussion of conspicuity.
Appellant’s Amended Brief at 18-19.

As a general principle, minimum

conspicuity standards are not a requirement to establish the formation of a
contract.

While it is true the legislature has prescribed conspicuity

requirements for certain types of contracts,2 conspicuity per se is not an
essential element of contract formation.

See Restatement (Second) of

Contracts § 17(1) (a contract requires a bargain in which there is a
____________________________________________
2

See, e.g., 13 Pa.C.S.A. § 2316(b) (exclusion of implied warranties of
merchantability and fitness to be conspicuous), 73 P.S. § 201-7 (consumer
goods or services contract cancellation clause and notice to be minimum
ten-point boldface), 73 P.S. § 2163(b) (buyer’s right to cancel in health club
contract to be boldface and minimum ten-point font), 73 P.S. § 500-201
(home improvement contract to be at least eight-point type), 73 P.S. §
1970.3(c) (motor vehicle disclosure to be boldface and minimum size of ten
points), 73 P.S. § 2186(a) (credit services contract to be conspicuous in tenpoint bold type), 73 P.S. § 2205 (test of readability in consumer contracts).

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manifestation of mutual assent to the exchange and a consideration).
Sufficient proof of this exists by virtue of the law recognizing and enforcing
oral contracts between parties. Nonetheless, in cases where the existence of
a contract, or a meeting of the minds, cannot be determined as a matter of
law, conspicuity has been resorted to as a means of proving the existence or
lack of a contract. Such was the case in Beck-Hummel where there was no
signed agreement between the parties.

Conspicuity principles were

borrowed from the PUCC in aid of determining whether the plaintiff was put
on sufficient notice that a release was a part of the quid pro quo for use of
the ski facility. The existence of a valid written contract, however, cannot be
supplanted by imposing undefined conspicuity requirements as essential
elements to all contract formations. To do so would substantially alter the
landscape of contract formation and allow a properly executed contract to be
set aside through one party’s failure to do what the law requires: to read the
contract before signing.
Here, without reading it, Appellant signed the membership agreement,
which included an unambiguous directive not to sign before reading both
sides, a clear pronouncement that the terms on both sides of the form are
part of the agreement, and a straightforward statement that the agreement
constitutes the entire agreement between the parties. Viewing the record in
the light most favorable to Appellant, as we are constrained to do, we find
no genuine issue as to any material fact or any error in the lower court’s

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determination that the waiver was valid and enforceable.

Appellant is not

entitled to relief based on her second issue.
In the third issue set forth in Appellant’s amended brief, she questions
whether the membership agreement waiver encompasses reckless conduct.
She suggests that Pardoe’s actions, adding so much weight to a piece of
exercise equipment, constituted indifference to the consequences of his
actions rising to a level of recklessness outside the purview of the
membership agreement waiver.

Appellant’s Amended Brief at 21-22.

Appellees counter that the issue is waived because it was never raised
before the trial court, either in response to the motion for summary
judgment or at any other time. Appellees’ Brief at 23. Further, Appellant
did not allege reckless conduct as a basis for liability in her Second Amended
Complaint. Appellees’ Brief at 25.
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”

Pa.R.A.P. 302(a).

1925(b) statement does not cure that defect.

Raising the issue in her

“A party cannot rectify the

failure to preserve an issue by proffering it in response to a Rule 1925(b)
order. A Rule 1925(b) statement of matters complained of on appeal is not
a vehicle in which issues not previously asserted may be raised for the first
time.”

Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 444 (Pa.

Super. 2003) (internal citations omitted).

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Clearly, Appellant’s claims of recklessness are waived, unless the
allegations of her pleadings or assertions in opposition to Appellees’
summary judgment motion can be read to encompass recklessness.

Our

review of the pleadings, Appellant’s deposition, and her brief in opposition to
the motion for summary judgment leads us to conclude recklessness was not
raised prior to the filing of Appellant’s brief on appeal.

All of Appellant’s

claims are centered on mere negligence.
In Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012),
our Supreme Court explained:
Recklessness is distinguishable from negligence on the basis that
recklessness requires conscious action or inaction which creates
a substantial risk of harm to others, whereas negligence
suggests
unconscious
inadvertence.
In
Fitsko
v.
Gaughenbaugh, 363 Pa. 132, 69 A.2d 76 (1949), we cited with
approval the Restatement (Second) of Torts definition of
“reckless disregard” and its explanation of the distinction
between ordinary negligence and recklessness. Specifically, the
Restatement (Second) of Torts defines “reckless disregard” as
follows:
The actor’s conduct is in reckless disregard of the safety of
another if he does an act or intentionally fails to do an act
which it is his duty to the other to do, knowing or having
reason to know of facts which would lead a reasonable
man to realize, not only that his conduct creates an
unreasonable risk of physical harm to another, but also
that such risk is substantially greater than that which is
necessary to make his conduct negligent.
Restatement (Second) of Torts § 500 (1965). The Commentary
to this Section emphasizes that “[recklessness] must not only be
unreasonable, but it must involve a risk of harm to others
substantially in excess of that necessary to make the conduct
negligent.” Id., cmt. a. Further, as relied on in Fitsko, the
Commentary contrasts negligence and recklessness:
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Reckless misconduct differs from negligence in several
important particulars.
It differs from that form of
negligence which consists in mere inadvertence,
incompetence, unskillfulness, or a failure to take
precautions to enable the actor adequately to cope with a
possible or probable future emergency, in that reckless
misconduct requires a conscious choice of a course of
action, either with knowledge of the serious danger to
others involved in it or with knowledge of facts which
would disclose this danger to any reasonable man. . . .
The difference between reckless misconduct and conduct
involving only such a quantum of risk as is necessary to
make it negligent is a difference in the degree of the risk,
but this difference of degree is so marked as to amount
substantially to a difference in kind.
Id., cmt. g.
Tayar, 47 A.3d at 1200-01.
Because Appellant did not assert claims of reckless conduct at any
time prior to her appeal and because her claims of negligence cannot be
read to encompass recklessness, Appellant’s third issue does not afford her
the right to any relief. Finding no error of law in the trial court’s conclusion
that there were no genuine issues as to material fact and that Appellees
were entitled to judgment as a matter of law, we affirm the grant of
summary judgment.

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Order affirmed.
P.J. Gantman, P.J.E. Bender, J. Bowes, J. Shogan, J. Ott, and J.
Jenkins join this Opinion.
J. Lazarus files a Dissenting Opinion, in which J. Panella joins.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2016

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