J-S29003-21
2022 PA Super 30
PETER MILSHTEYN AND MAYA : IN THE SUPERIOR COURT OF
MILSHTEYN : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 452 EDA 2021
FITNESS INTERNATIONAL, LLC F/K/A :
LA FITNESS INTERNATIONAL, LLC :
D/B/A LA FITNESS, FITNESS & :
SPORTS CLUBS, LLC F/K/A FITNESS :
INTERNATIONAL, LLC AND REALTY :
INCOME PENNSYLVANIA :
PROPERTIES TRUST :
Appeal from the Order Entered January 18, 2021
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 190501802
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY PANELLA, P.J.: FILED FEBRUARY 18, 2022
Peter Milshteyn and Maya Milshteyn (“the Milshteyns”) appeal from the
order granting the motions for summary judgment filed by Fitness
International, LLC f/k/a LA Fitness International, LLC d/b/a LA Fitness, Fitness
& Sports Clubs, LLC f/k/a Fitness International, LLC (collectively,
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* Former Justice specially assigned to the Superior Court.
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“Defendants”), and Realty Income Pennsylvania Properties Trust (“Realty
Income”),1 in this premises liability action. We affirm.
The Milshteyns were members of an L.A. Fitness facility in Philadelphia,
Pennsylvania. Relevantly, when they joined the facility in 2011, the Milshteyns
executed a Membership Agreement.
On June 11, 2017, the Milshteyns were in the pool area of the L.A.
Fitness at the time of a power outage. Peter slipped while descending the
stairs from the pool to the locker room in the dark. As a result of his fall, Peter
sustained a fracture to his right elbow.
The Milshteyns filed a complaint on May 16, 2019, which included Peter’s
claim for premises liability – slip and fall, and Maya’s claim for loss of
consortium. The complaint alleged that L.A. Fitness employees were negligent
in, inter alia, creating the dangerous condition of “low or no lighting,” failing
to inspect or repair the area where Peter fell, and failing to warn Peter of the
defective condition. Complaint, 5/16/19, at ¶ 22. On June 5, 2019, the
Milshteyns filed a praecipe to reinstate the complaint.
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1 The Milshteyns named Defendants and Realty Income in the complaint.
Following a successful summary judgment motion, the trial court entered
judgment in favor of Realty Income, as there was no dispute that Realty
Income was a landlord out of possession, and thus, did not owe the Milshteyns
a duty of care. The Milshteyns do not challenge the order granting summary
judgment to Realty Income, and Realty Income is not a party to the instant
appeal.
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Defendants filed an answer and new matter. Specifically, Defendants
asserted, inter alia, that the Milshteyns’ claims were barred by the terms of
their Membership Agreement. See Answer and New Matter, 6/18/19, New
Matter at ¶ 15.2
On November 2, 2020, Defendants filed a motion for summary
judgment, again asserting, inter alia, that the Milshteyns’ Membership
Agreement precluded their claims. See Motion for Summary Judgment,
11/2/20, at ¶¶ 15-26. Defendants attached a copy of the Membership
Agreement, which includes, in relevant part, the following language:
IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND
INDEMNITY. You hereby acknowledge and agree that use by
Member … of L.A. Fitness’ facilities, services, equipment or
premises, involves risks of injury to persons and property,
including those described below, and Member assumes full
responsibility for such risks. In consideration of Member …
being permitted to enter any facility of L.A. Fitness (a “Club”) for
any purpose including, but not limited to, observation, use of
facilities, services or equipment, or participation in any way,
Member agrees to the following: Member hereby releases and
holds L.A. Fitness, its directors, officers, employees, and
agents harmless from all liability to Member … for any loss
or damages, and forever gives up any claim or demands
therefore, on account of injury to Member’s person or
property, including injury leading to the death of Member,
whether caused by active or passive negligence of L.A.
Fitness or otherwise, to the fullest extent permitted by law,
while Member … [is] in, upon, or about L.A. Fitness premises or
using any L.A. Fitness facilities, services or equipment. Member
also hereby agrees to indemnify L.A. Fitness from any loss,
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2 Defendants also filed a cross-claim for indemnification against Simon
Property Group and Franklin Mills Associates, LP a/k/a Franklin Mills Mall.
Ultimately, the parties stipulated to the dismissal of Simon Property Group
and Franklin Mills Associates.
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liability, damage or cost L.A. Fitness may incur due to the
presence of Member … in, upon or about the L.A. Fitness premises
or in any way observing or using any facilities or equipment of
L.A. Fitness whether caused by the negligence of Member(s) or
otherwise. You represent (a) that Member … [is] in good physical
condition and ha[s] no disability, illness, or other condition that
could prevent Member(s) from exercising without injury or
impairment of health, and (b) that Member has consulted a
physician concerning an exercise program that will not risk injury
to Member or impairment of Member’s health. Such risk of injury
includes (but is not limited to): injuries arising from use by
Member or others of exercise equipment and machines; injuries
arising from participation by Member or others in supervised or
unsupervised activities at a Club; injuries and medical disorders
arising from exercising at a Club such as heart attacks, strokes,
heat stress, sprains, broken bones and torn muscles and
ligaments, among others; and accidental injuries occurring
anywhere in Club dressing rooms, shower and other
facilities. Member further expressly agrees that the foregoing
release, waiver and indemnity agreement is intended to be as
broad and inclusive as is permitted by the law of the State of
Pennsylvania and that if any portion thereof is held invalid, it is
agreed that the balance shall, notwithstanding, continue in full
force and effect. Member has read this release and waiver of
liability and indemnity clause, and agrees that no oral
representations, statements or inducement apart from this
Agreement have been made.
Id., Exhibit E (Membership Agreement) at 2 (emphasis added). Additionally,
the line immediately preceding Peter’s signature reads, “By signing this
Agreement, Buyer acknowledges that Buyer is of legal age, has received a
filled-in and completed copy of this Agreement[,] has read and understands
the entire agreement including … the Release and Waiver of Liability….” Id. at
1.
In response, the Milshteyns averred that there was a genuine issue of
material fact “regarding whether [Peter], who speaks and understands only
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basic English, understood the nature of the Membership Agreement.”
Opposition to Motion for Summary Judgment, 12/1/20, at ¶ 8; see also id.,
at ¶¶ 13-16, 19. The Milshteyns also argued that the Membership Agreement
constitutes a contract of adhesion, which is unconscionable, and therefore
unenforceable. See id., at ¶¶ 18-22. Additionally, the Milshteyns’ claim that
Defendants’ conduct was grossly negligent, and that the Membership
Agreement does not apply to such conduct. See id., at ¶¶ 23-26.
The trial court conducted a hearing on Defendants’ motion for summary
judgment on January 12, 2021. By an order dated January 13, 2021,3 the trial
court granted Defendants’ motion for summary judgment. Specifically,
regarding Fitness & Sports Clubs, the trial court concluded that the release
contained in the Membership Agreement foreclosed the Milshteyns’ claims;
the Milshteyns did not establish that the Membership Agreement was a
contract of adhesion; and the Milshteyns could not raise a gross negligence
claim for the first time in response to Defendants’ summary judgment motion,
effectively amending their complaint after the statute of limitations had run.
See Order, 1/13/21, at 1-2 (unnumbered). Regarding Fitness International,
LLC, the trial court granted summary judgment based on undisputed evidence
that “Fitness International, LLC[,] did not own, control, possess, maintain, or
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3 The order was entered on the docket on January 18, 2021.
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manage the [L.A.] Fitness facility where [Peter’s] accident occurred at any
relevant time.” Id. at 3 (unnumbered).
The Milshteyns filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal.4
On appeal, the Milshteyns raise the following issues for our review:
I. Did the trial court abuse its discretion and/or err as a matter of
law when it held there was no genuine issue of material fact as to
whether the Membership Agreement signed by [] Peter
Milshteyn[] was a contract of adhesion?
II. Did the trial court abuse its discretion and/or err as a matter
of law when it held that a claim for gross negligence is a separate
cause of action under Pennsylvania law and, therefore, [the
Milshteyns] were required to plead gross negligence in their
complaint?
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4 Following this appeal, Defendants twice filed applications to quash or dismiss
the appeal based upon the Milshteyns’ failure to timely comply with the
appellate briefing schedule. This Court dismissed both applications, without
prejudice to Defendants’ ability to raise the issue in their appellate brief.
Defendants have renewed their request for dismissal or quashal of the
instant appeal pursuant to Pa.R.A.P. 2188, which provides that, “[i]f an
appellant fails to file his designation of reproduced record, brief or any
required reproduced record within the time prescribed by these rules, or within
the time as extended, an appellee may move for dismissal of the matter.”
Pa.R.A.P. 2188. This Court has discretion to quash or dismiss an appeal if
procedural defects are substantial. See Pa.R.A.P. 2101.
Here, the Milshteyns requested, and were granted, several extensions
of time to comply with the briefing schedule. The most recent extension order
directed the Milshteyns to file their appellate brief by July 12, 2021. The
Milshteyns filed their brief the following day, July 13, 2021. Defendants have
failed to demonstrate that the delay prejudiced them, or otherwise impedes
our review of this case. Accordingly, we decline to dismiss or quash the
Milshteyns’ appeal on this basis.
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III. Did the trial court abuse its discretion and/or err as a matter
of law when it held that a claim for gross negligence is a separate
cause of action under Pennsylvania law[,] and [the Milshteyns]
were precluded from amending their complaint to assert a claim
for gross negligence by the expiration of the statute of limitations
applicable to negligence actions?
IV. Did [] Fitness & Sports Clubs, LLC, engage in grossly negligent
conduct requiring reversal of the granting of summary judgment?
Appellants’ Brief at 10 (some capitalization omitted).
Our review of an order granting summary judgment entails reviewing
the evidence of record to determine if there is a triable issue of fact:
Pennsylvania law provides that summary judgment may be
granted only in those cases in which the record clearly shows that
no genuine issues of material fact exist and that the moving party
is entitled to judgment as a matter of law. The moving party has
the burden of proving that no genuine issues of material fact exist.
In determining whether to grant summary judgment, the trial
court must view the record in the light most favorable to the non-
moving party and must resolve all doubts as to the existence of a
genuine issue of material fact against the moving party. Thus,
summary judgment is proper only when uncontroverted
allegations in the pleadings, depositions, answers to
interrogatories, admissions of record, and submitted affidavits
demonstrate that no genuine issue of material fact exists, and that
the moving party is entitled to judgment as a matter of law. In
sum, only when the facts are so clear that reasonable minds
cannot differ, may a trial court properly enter summary judgment.
On appeal from a grant of summary judgment, we must
examine the record in a light most favorable to the non-moving
party. With regard to questions of law, an appellate court’s scope
of review is plenary. The Superior Court will reverse a grant of
summary judgment only if the trial court has committed an error
of law or abused its discretion. Judicial discretion requires action
in conformity with law based on the facts and circumstances
before the trial court after hearing and consideration.
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Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super. 2008) (citation
and brackets omitted).
The Milshteyns first claim the trial court erred in determining that the
Membership Agreement is not a contract of adhesion. See Appellants’ Brief at
13. The Milshteyns argue that the waiver of liability provision in the
Membership Agreement “overwhelmingly and unreasonably favors”
Defendants by shielding Defendants from liability. Id. at 16-17. According to
the Milshteyns, Peter was incapable of negotiating the terms of the
Membership Agreement and could not reject the waiver of liability provision
without rejecting the entire transaction. See id. at 17.
Exculpatory provisions in contracts are generally enforceable if they are
clear and meet three other conditions:
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. …[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 the
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 clause.
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Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010)
(internal citations omitted).
In Toro v. Fitness Int’l LLC, 150 A.3d 968 (Pa. Super. 2016), this
Court addressed the same exculpatory provision in an L.A. Fitness Membership
Agreement and concluded that the provision was enforceable. See id. at 972.
Toro was a member of an L.A. Fitness facility, and his Membership Agreement
contained a “release and waiver of liability and indemnity” nearly identical to
the provision in the contract signed by Peter. Id. at 970. Toro filed a
negligence action after he slipped and fell on the wet floor of a locker room in
the facility. See id. at 970-71. The facility filed a motion for summary
judgment based, in part, on the terms of the waiver provision. See id. at 970.
The trial court entered judgment in favor of the facility. See id.
On appeal, this Court concluded that the trial court had properly granted
summary judgment in favor of the facility based on the waiver provision. See
id. at 972. First, this Court concluded that the relevant provision was not
against public policy, as “Toro was engaged in a voluntary athletic or
recreational activity: going to the gym.” Id. at 974; see also id. at 973
(stating that “[e]xculpatory provisions violate public policy only when they
involve a matter of interest to the public or the state. Such matters of interest
… include the employer-employee relationship, public service, public utilities,
common carriers, and hospitals.” (citation and quotation marks omitted)).
Additionally, this Court rejected Toro’s contention that the Membership
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Agreement was a contract of adhesion, explaining that “an exculpatory
agreement involving use of a commercial facility for voluntary athletic or
recreational activities is not considered a contract of adhesion because the
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….” Id. at 975 (citation, quotation marks and brackets omitted).
Here, the trial court, relying on Toro, concluded the Membership
Agreement was not unconscionable or a contract of adhesion. See Trial Court
Opinion, 4/12/21, at 7-10. The record confirms the Milshteyns executed the
Membership Agreement for the purpose of participating in a voluntary athletic
activity, and they were under no compulsion to complete an agreement for
this non-essential service. See Toro, 150 A.3d at 974-75; see also
Chepkevich, 2 A.3d at 1191 (concluding that the release from liability signed
by the plaintiff when she purchased a ski pass was not unconscionable, stating
that “[t]he signer is a free agent who can simply walk away without signing
the release and participating in the activity….”). Additionally, in signing the
Membership Agreement, Peter acknowledged he had read and understood the
agreement, including the exculpatory provision. See Motion for Summary
Judgment, 11/2/20, Exhibit E (Membership Agreement), at 1.5 Accordingly,
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5On appeal, the Milshteyns have abandoned their argument that Peter did not
understand the terms of the Membership Agreement due to his difficulty
understanding English. Nevertheless, the trial court noted that Peter did not
(Footnote Continued Next Page)
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the trial court properly granted summary judgment in favor of Defendants on
this basis.
We address the Milshteyns’ remaining claims together.6 The Milshteyns
assert that the trial court erred in concluding that a claim for gross negligence
is a separate cause of action, which Appellants were required to plead in their
complaint. See Appellants’ Brief at 18. The Milshteyns contend that
Pennsylvania courts recognize differing standards of care, rather than
separate causes of action for degrees of negligence. See id. at 19. The
Milshteyns therefore argue that they were not required to separately plead a
claim for gross negligence in their complaint to present evidence of such at
trial. See id. at 20.
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ask his wife to help him translate the document and determined that “the
language difficulties presented by [the Milshteyns] … are not legally material
for determining whether the Membership Agreement is enforceable….” Trial
Court Opinion, 4/12/21, at 9-10; see also Toro, 150 A.3d at 976 (stating
that, where the plaintiff signed a Membership Agreement that included an
express acknowledgement that he read and understood the agreement,
plaintiff was bound by the terms of the agreement); Hinkal v. Pardoe, 133
A.3d 738, 743 (Pa. Super. 2016) (stating that “[o]ne who is about to sign a
contract has a duty to read that contract first.”).
6The Milshteyns do not separately address their fourth claim in the argument
section of their appellate brief. See Pa.R.A.P. 2119(a) (providing that an
appellant’s “argument shall be divided into as many parts as there are
questions to be argued”).
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Further, the Milshteyns argue that a jury could reasonably conclude that
Fitness & Sports Clubs7 engaged in grossly negligent conduct. See id. at 20.
The Milshteyns contend that Fitness & Sports Clubs’ conduct could be deemed
grossly negligent because Fitness & Sports Clubs allowed Peter, unattended,
to descend the steps leading from the pool area to the locker room, despite
the clear dangers associated with a dark, and potentially wet, staircase. See
id. at 23-24.
We conclude the trial court did not err. After the statute of limitations
on a claim has run, a claim cannot be added to a complaint if it is wholly
distinct from the claims originally in the complaint. See Aetna Cas. & Sur.
Co. v. Roe, 650 A.2d 94, 103 (Pa. Super. 1994). “In determining whether a
wholly different cause of action is introduced by [an] amendment, technical
considerations or ancient formulae are not controlling[.]” Id. (citation
omitted). The polestar of the analysis is whether the defendant is improperly
prejudiced by the proposed addition. See id.
One way a defendant can be improperly prejudiced is if the proposed
addition is not subject to the same defenses as the original claim. See id.
Here, it is precisely because a claim for “gross negligence” is not barred by
the Membership Agreement that the Milshteyns seek to add it to the
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7 The Milshteyns concede that Fitness International, LLC, did not control the
premises at the time of Peter’s accident, and therefore restrict their argument
to the entry of summary judgment in favor of Fitness & Sports Clubs. See
Appellants’ Brief at 8 n.1.
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complaint. According to the terms of the Membership Agreement, Fitness &
Sports Clubs cannot be held liable for injuries to patrons arising from its own
negligent conduct. See Motion for Summary Judgment, 11/2/20, Exhibit E
(Membership Agreement), at 2. However, the Membership Agreement does
not preclude liability for injuries arising from grossly negligent conduct. See
generally Feleccia v. Lackawanna Coll., 215 A.3d 3, 21 (Pa. 2019)
(holding that “the same policy concerns that prohibit the application of a
waiver in cases of recklessness—i.e., allowing it would incentivize conduct that
jeopardizes the signer’s health, safety and welfare to an unacceptable
degree[,] requires a similar holding with regard to gross negligence”). As a
result, this circumstance weighs in favor of categorizing their claim for gross
negligence as a wholly new cause of action.
Another circumstance that weighs in favor of treating a claim as a wholly
new cause of action is when “the amendment proposes … a different kind of
negligence than the one previously raised[.]” Aetna, 650 A.2d at 103. “Gross
negligence” is substantively different from ordinary negligence. See Kibler v.
Blue Knob Rec., Inc., 184 A.3d 974, 984-85 (Pa. Super. 2018).
However, the Milshteyns contend that caselaw has established “gross
negligence” as merely a different degree of negligence and not a different
cause of action. We conclude their argument misinterprets the cited cases.
For example, the Milshteyns cite to Ferrick Excavating & Grading Co. v.
Senger Trucking Co. for the proposition that gross negligence is merely a
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differing standard of care and not a distinct cause of action. See id., 484 A.2d
744, 749 (Pa. 1984). However, even Ferrick acknowledged gross negligence
is a distinct standard of care from ordinary negligence. See id., at 749. Nor
does In re Scheidmantel support the Milshteyns’ position. See id., 868 A2d
464 (Pa. Super. 2005). In Scheidmantel, this Court, after acknowledging the
lack of precision in the term “gross negligence,” observed that “when courts
have considered the concept … in various civil contexts, they have concluded
uniformly that there is a substantive difference between ‘ordinary negligence’
and ‘gross negligence.’” See id., at 485.
The Milshteyns’ remaining citations are to Third Circuit and Eastern
District of Pennsylvania decisions. See, e.g., Fialkowski v. Greenwich
Home for Children, Inc., 921 F.2d 459 (3d Cir. 1990). Even if we agreed
with their interpretations of these cases, which we explicitly do not, we note
that they do not constitute binding precedent. See Kleban v. Nat’l Union
Fire Ins. Co. of Pittsburgh, 771 A.2d 39, 43 (Pa. Super. 2001) (noting that
federal court decisions, other than U.S. Supreme Court decisions, are not
binding upon this Court).
Under these circumstances, we conclude that the Milshteyns’ claim for
gross negligence constituted a wholly distinct claim from the claims originally
presented in their complaint. We therefore can find no error in the trial court’s
order granting summary judgment.
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Based upon the foregoing, we affirm the trial court’s order granting
summary judgment in favor of Defendants.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2022
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