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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
SUSAN MADRAK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BLINK FITNESS, BLINK HOLDINGS, : No. 2260 EDA 2022
INC., EQUINOX GROUP, INC., AND :
JOHN DOE CORPORATION 1-10 :
Appeal from the Order Entered September 1, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 201200809
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 30, 2023
Susan Madrak (Appellant) appeals from the order granting summary
judgment in favor of Blink Fitness, Blink Holdings, Inc., Equinox Group, Inc.,
and John Doe Corporations 1-10 (collectively, Appellees). Appellant argues
that the trial court erred or abused its discretion in granting summary
judgment because the exculpatory clause in the membership agreement (the
Agreement) was invalid and did not bar recovery. After review, we affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On September 27, 2018, at a kiosk inside the Blink Fitness gym
located at 5597 Tulip Street Building C 1-4, Philadelphia,
Pennsylvania 19124, [Appellant] entered into a contract with
[Appellees]. First, at the kiosk, [Appellant] selected a gray
membership. [Appellant] then submitted into the kiosk
information such as her first name, last name, and address. Next,
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[Appellant] slid her credit card into the kiosk. The kiosk camera
then photographed [Appellant]. Next, [Appellant] verified her
membership plan, membership information, payment information,
and photograph on the kiosk’s review screen. On that review
screen also appeared a terms and condition button which
presented a clickable link to the full text of the terms and
conditions of the Membership Agreement. Next to that button was
a vacate check-mark box stating: “I have read and agree to the
terms and conditions.” [Appellant] check-marked that box. By
check-marking that box, [Appellant] indicated that she had “READ
[THE MEMBERSHIP] AGREEMENT IN FULL.” [Appellant’s] digital
signature then appeared, among other locations in the
Membership Agreement, immediately following the exculpatory
clause. By digitally signing there, [Appellant] “confirmed her
understanding [of the exculpatory clause].”
At the next kiosk screen, [Appellant] scanned her Blink
membership card. Lastly, [Appellant] saw the final “Thank You”
kiosk screen indicating the creation of her membership.
[Appellees] then emailed a welcome email to [Appellant]
containing a link to her signed Membership Agreement.
The exculpatory clause of the Membership Agreement stated:
WAIVER OF LIABILITY; ASSUMPTION OF RISK: Member
acknowledges that the use of the Club, its facilities,
equipment, services and programs involves an inherent risk
of personal injury to Member (including, without limitation,
heart attacks, strokes, heat stress, broken bones, torn or
damaged muscles, ligaments, or tendons, or even death).
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
Blink, any of its subsidiaries or other affiliates and any
of their respective officers, directors, employees, agents,
successors, and assigns for any such personal injury,
including, without limitation (i) injuries arising from
the use of any exercise equipment or exercise
machines, (ii) injuries arising from participation in
supervised or unsupervised activities and programs
(including, without limitation, participation in a personal
training session or group fitness class) in any area of the
Club, (iii) injuries or medical disorders resulting from
exercising at the Club; and (iv) any other accidental
injuries sustained within the Club. Furthermore,
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Member agrees to indemnify, defend, and hold harmless
Blink from any and all liability, damages, losses, suits,
demands, causes of action, or other claims of any nature
whatsoever, to the extent any of the foregoing arise out of
or relate in any way to Member’s use of the Club, its
facilities, equipment, services and/or programs.
Membership Agreement (emphasis added).
[Appellant] alleged that on January 2, 2019, the malfunction of a
rowing machine at that Blink Fitness gym caused [Appellant] to
fall and sustain injures. On December 15, 2020, [Appellant] filed
a Complaint against [Appellees] alleging negligence. Thereafter,
on December 16, 2020, the trial court scheduled the case to have
an arbitration hearing.
On April 6, 2021, [Appellant] filed her First Amended Complaint
against [Appellees] alleging negligence. On August 25, 2021,
[Appellees] filed Answers to [Appellant’s] First Amended
Complaint.
The arbitration hearing was re-scheduled to June 9, 2022. On
May 3, 2022, [Appellees] filed a Miscellaneous Application
requesting permission from the trial court to file motions for
summary judgment within 45 days of the arbitration hearing date,
which the trial court granted on May 2, 2022, and permitted
[Appellees] to file motions for summary judgment no later than
May 5, 2022. On May 4, 2022, [after the close of discovery,
Appellees] filed motions for summary judgment, which the trial
court granted on September 1, 2022.
Trial Ct. Op., 2/21/23, at 1-3 (citations omitted and some formatting altered).
The trial court concluded that Appellees were entitled to summary
judgment because the exculpatory clause in the Agreement was valid and
enforceable, and the exculpatory clause barred Appellant’s claims against
Appellees. See id. at 12.
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Appellant filed a timely appeal, and both the trial court and Appellant
complied with Pa.R.A.P. 1925. On appeal, Appellant raises three issues, which
we have renumbered as follows:
1. Was the Agreement invalid as a matter of law?
2. Did the conduct of [Appellant] constitute “use” under the terms
of the Agreement?
3. Did the trial court err in granting summary judgment?
Appellant’s Brief at 2 (renumbered and formatting altered).
Our standard of review of an order granting or denying summary
judgment is as follows:
We view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. Our scope of review of
a trial court’s order granting or denying summary judgment is
plenary, and our standard of review is clear: the trial court’s order
will be reversed only where it is established that the court
committed an error of law or abused its discretion.
Matos v. Geisinger Med. Ctr., 291 A.3d 899, 904 (Pa. Super. 2023) (citation
omitted and formatting altered), appeal granted, --- A.3d ---, Nos. 192 MAL
2023, 193 MAL 2023, 2023 WL 6531124 (Pa. filed Oct. 6, 2023).
Validity of Agreement
In her first issue, Appellant argues that the Agreement was invalid as a
matter of law. Appellant’s Brief at 12. Appellant contends that the Agreement
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was unconscionable, and it constituted a contract of adhesion as she had no
choice but to sign the Agreement. Id. at 12-13.
Appellees respond that the trial court correctly concluded that the
Agreement was a valid contract with an enforceable exculpatory clause, and
the Agreement was not a contract of adhesion. Appellees’ Brief at 15-16.
Further, Appellees contend that the contract was not unconscionable. Id. at
17.
The interpretation of a contract is a question of law, and our standard
of review is plenary. Riverview Carpet & Flooring, Inc. v. Presbyterian
Senior Care, 299 A.3d 937, 983 (Pa. Super. 2023).
[Further, w]hen interpreting the language of a contract, the
intention of the parties is a paramount consideration. In
determining the intent of the parties to a written agreement, the
court looks to what they have clearly expressed, for the law does
not assume that the language of the contract was chosen
carelessly.
When interpreting agreements containing clear and unambiguous
terms, we need only examine the writing itself to give effect to
the parties’ intent. The language of a contract is unambiguous if
we can determine its meaning without any guide other than a
knowledge of the simple facts on which, from the nature of the
language in general, its meaning depends. When terms in a
contract are not defined, we must construe the words in
accordance with their natural, plain, and ordinary meaning. As
the parties have the right to make their own contract, we will not
modify the plain meaning of the words under the guise of
interpretation or give the language a construction in conflict with
the accepted meaning of the language used.
On the contrary, the terms of a contract are ambiguous if the
terms are reasonably or fairly susceptible of different
constructions and are capable of being understood in more than
one sense. Additionally, we will determine that the language is
ambiguous if the language is obscure in meaning through
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indefiniteness of expression or has a double meaning. Where the
language of the contract is ambiguous, the provision is to be
construed against the drafter.
Id. at 983-84 (citation omitted and some formatting altered).
In general, exculpatory clauses are valid if they satisfy the following
criteria: (1) the clause must not contravene public policy; (2) the agreement
must be between persons relating entirely to their own private affairs; and (3)
each party must be a free bargaining agent to the agreement so that the
contract is not one of adhesion. Milshteyn v. Fitness Int’l, LLC, 271 A.3d
498, 503 (Pa. Super. 2022). “[E]xculpatory provisions 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 carriers, and hospitals.”
Vinson v. Fitness & Sports Clubs, LLC, 187 A.3d 253, 257 (Pa. Super.
2018) (citation and quotation marks omitted).
Our Supreme Court has set a high bar that a party must clear
before a court may invalidate a contract on public policy grounds:
It is only when a given policy is so obviously for or against
the public health, safety, morals or welfare that there is a
virtual unanimity of opinion in regard to it, that a court may
constitute itself the voice of the community in so declaring
[that the contract is against public policy].
Id. (quoting Williams v. GEICO Gov’t Employees Ins. Co., 32 A.3d 1195,
1200 (Pa. 2011)).
Whether a contract is unconscionable is a matter of law. This
Court has explained that unconscionability is a defensive
contractual remedy that relieves a party from an unfair contract
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or an unfair portion of a contract. Further, in general,
unconscionability has been recognized to include an absence of a
meaningful choice on the part of one of the parties together with
contract terms that are unreasonably favorable to the other party.
Unconscionability does nothing more than reaffirm the most basic
tenet of the law of contracts—that parties must be free to choose
the terms to which they will be bound.
Centric Bank v. Sciore, 263 A.3d 31, 39 (Pa. Super. 2021) (citations omitted
and formatting altered). Moreover, a contract of adhesion is typically a
“standard-form contract prepared by one party, to be signed by the party in
a weaker position, usu[ally] a consumer, who adheres to the contract with
little choice about the terms.” Chepkevich v. Hidden Valley Resort, L.P.,
2 A.3d 1174, 1190 (Pa. 2010) (quoting BLACK’S LAW DICTIONARY 342 (8th
Ed. 2004)).
However, “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[.]” Milshteyn, 271 A.3d at
504 (quoting Toro v. Fitness Int’l LLC, 150 A.3d 968, 975 (Pa. Super.
2016)) (emphasis added).
Here, the trial court addressed Appellant’s challenge to the validity of
the agreement as follows:
In Vinson[,] the Superior Court affirmed the trial court’s order
granting summary judgment against a plaintiff and in favor of a
gym. In that case, a plaintiff had tripped on a wet floor mat at
the gym, fell, and injured herself. She later filed a complaint
against the gym. The trial court granted the gym’s motion for
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summary judgment because the exculpatory clause in the
membership agreement with the plaintiff precluded the plaintiff’s
claims against the gym. The Superior Court affirmed the trial
court’s order because the exculpatory clause was valid. It did not
violate public policy as it governed a private individual’s use of a
facility for a recreational activity which the Superior Court affirmed
is not a matter of public or state interest.
Here, the trial court properly found that the exculpatory clause did
not violate public policy. Following Vinson and Toro, the trial
court properly found that [Appellant’s] use of [Appellees’] facilities
for the athletic or recreational activity of exercising at the gym
with equipment was entirely a private affair between [Appellant]
and [Appellees]. Since the Superior Court has repeatedly found
such activity not to be a matter of public or state interest, the trial
court properly found that the exculpatory clause did not violate
public policy.
* * *
Pennsylvania law considers exercising at a gym with equipment a
voluntary athletic or recreational activity. Hinkal v. Pardoe,
133 A.3d 738, 742 ([Pa. Super.] 2016) [(en banc)] (emphasis
added). Therefore, Pennsylvania law generally considers
contracts containing exculpatory clauses governing the use of
commercial facilities for voluntary athletic and recreational
activities (even inherently dangerous recreational activities) not
contracts of adhesion. Chepkevich[,] 2 A.3d [at] 1190. This is
because (1) the signer is under no compulsion, economic or
otherwise, to participate in the activity much less sign the
agreement since the agreement relates to non-essential services;
and (2) the signer is free to refuse to sign or participate. [Id.];
Milshteyn[,] 271 A.3d [at] 504[.]
In Milshteyn[,] the Superior Court affirmed a trial court’s order
granting summary judgment against a plaintiff and in favor of [the
defendant gym]. In that case, a plaintiff had slipped, [fallen], and
injured himself on the stairs leading from the pool to the locker
room during a power outage when the stairwell was dark at the
gym. He later filed a complaint against the [defendant gym]. The
trial court granted the . . . motion for summary judgment because
the exculpatory clause in the membership agreement with the
plaintiff precluded the plaintiff’s claims against the [defendant
gym]. The Superior Court affirmed the trial court’s order because
the exculpatory clause was valid. The Superior Court found that
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it was not part of a contract of adhesion because (1) using a
commercial facility for a voluntary athletic or recreational activity
such as exercising at the gym with equipment was a non-essential
service; and (2) the plaintiff was under no compulsion, economic
or otherwise, to sign the membership agreement and/or
participate in that voluntary athletic or recreational activity at that
facility.
Here, like in Milshteyn and Toro, the trial court properly found
that [the] Agreement was not a contract of adhesion. [The]
Agreement] governed a non-essential service, namely
[Appellant’s] use of [Appellees’] commercial facility for voluntary
athletic and recreational activity (i.e. exercising at the gym).
Additionally, [Appellant] was under no compulsion, economic or
otherwise, to sign the . . . Agreement and/or participate in that
voluntary athletic and recreational activity at that facility.
[Appellant] specifically testified that no one forced her to become
a member of this gym. [Appellant] was free to become a member
of [Appellees’] gym or a member of another gym if [Appellant]
wished. As such, the trial court properly found that [the]
Agreement was not a contract of adhesion.
* * *
[The Milshteyn Court also] found that a gym’s exculpatory clause
was not unconscionable because (1) using a commercial facility
for athletic or recreational activity such as exercising at the gym
with equipment was a non-essential service; and (2) the plaintiff
was under no compulsion, economic or otherwise, to sign the
membership agreement and/or participate in that voluntary
athletic or recreational activity at that facility.
Here, like in Milshteyn, the trial court properly found that the
exculpatory clause in [the] Agreement was not unconscionable.
The exculpatory clause was not unconscionable because (1) using
a commercial facility for athletic or recreational activity such as
exercising at the gym with equipment was a non-essential service;
and (2) [Appellant] was under no compulsion, economic or
otherwise, to sign [the] Agreement and/or participate in that
voluntary athletic or recreational activity at [Appellees’] facility.
[Appellant] specifically testified that no one forced her to become
a member of this gym. [Appellant] was free to become a member
of [Appellees’] gym or a member of another gym if [Appellant]
wished. . . .
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Trial Ct. Op., 2/21/23, at 7-12 (some citations omitted and formatting
altered).
After review, we discern no error of law in the trial court’s conclusion
that the Agreement did not violate public policy, did not constitute a contract
of adhesion, and was not unconscionable. See Milshteyn, 271 A.3d at 504;
Centric Bank, 263 A.3d at 39; Vinson, 187 A.3d at 257. Appellees’ gym
provided a non-essential service, and Appellant’s membership and use of
Appellees’ gym was a voluntary and recreational activity. See Chepkevich,
2 A.3d at 1190; Milshteyn, 271 A.3d at 504; Toro, 150 A.3d at 975. On this
record, we agree with the trial court’s conclusion that Appellant was under no
compulsion to join Appellees’ gym, and that she was free to join Appellees’
gym or any other gym, which she admitted in her deposition testimony. Trial
Ct. Op., 2/21/23, at 10-12 (citing Appellant’s Dep., 3/14/22, at 34); see also
Milshteyn, 271 A.3d at 504. Accordingly, Appellant is not entitled to relief
on this claim.
Bar to Recovery
In her second issue, Appellant argues that the trial court erred in
concluding that she was not entitled to recovery for her injuries under the
Agreement. In support, Appellant argues that although the Agreement barred
relief from injuries involving the “use” of Appellees’ gym equipment, Appellant
was not “using” the equipment at the time she was injured because the rowing
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machine she used was broken. See Appellant’s Brief at 10-11.1 Specifically,
Appellant asserts that “it is difficult to see how sitting on a piece of broken
equipment and having it tip over due to the fact that it was not welded is
considered ‘use’” and that “the injuries did not result from exercise, they
resulted from a defective machine.” Id. at 11. Therefore, Appellant argues
that her claims are not barred by the exculpatory clause in the Agreement.
See id. at 10-12.
Appellees respond that Appellant’s argument is meritless, as the record
reflects that Appellant repeatedly stated that she was “using” the machine
when she was injured. Appellees’ Brief at 13 (citing Appellant’s Am. Compl.;
Appellant’s Mem. of Law in Response to Appellees’ Mot. for Summ. Jud.).
Moreover, Appellees note that contract interpretation is a question of law,2
and the trial court correctly concluded that, as a matter of law, Appellant was
using the rowing machine when she was injured, and therefore her claimed
injuries are barred by the exculpatory clause in the Agreement. See id. at
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1 In her Rule 1925(b) statement, Appellant did not assert that the term “use”
or any other portion of the Agreement were ambiguous. Accordingly,
Appellant waived any claim concerning ambiguity for failing to raise it in her
Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (providing that any
issue not included in a Rule 1925(b) statement will be deemed waived on
appeal); see also Greater Erie Indus. Dev. Corp. v. Presque Isle Downs,
Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en banc) (stating that an
appellant’s failure to include an issue in a Rule 1925(b) statement results in
waiver).
2 We reiterate that Appellant has not claimed that any terms of the Agreement
were ambiguous.
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14. Further, the exculpatory clause includes injuries “arising from the use of
any exercise equipment or exercise machines,” and it “does not distinguish
between broken or unbroken exercise machines, and [it] encompasses the
use of any exercise machines.” Id. (emphasis in original).
The trial court addressed this issue as follows:
Here, the trial court properly found that the term “use” in
subsection (i) of the exculpatory clause as well as other
subsections in [the] Agreement covered the cause of [Appellant’s]
injury. In particular, the following sections of the exculpatory
clause applied:
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 Blink, any of its subsidiaries
or other affiliates . . . for any such personal injury, including,
without limitation (i) injuries arising from the use of any
exercise equipment or exercise machines, . . . (iii) injuries
. . . resulting from exercising at the Club; and (iv) any other
accidental injuries sustained within the Club.
Membership Agreement (emphasis added).
[Appellant] argues that the term “use” in subsection (i) of the
exculpatory clause does not cover [Appellant’s] injury because the
cause of [Appellant’s] injury was not [Appellant’s] use of an
unbroken and intact rowing machine, but a broken rowing
machine. The exculpatory clause, however, makes no distinction
between the use of an unbroken and intact exercise machine and
a broken exercise machine. Subsection (i) of the exculpatory
clause states “ the use of any . . . exercise machines.”
Membership Agreement (emphasis added).
As such, the trial court properly found the term “use” in subsection
(i) of the exculpatory clause as well as other subsections in [the]
Agreement covered the cause of [Appellant’s] injury.
Trial Ct. Op., 2/21/23, at 5-6.
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The Agreement expressly provides that Appellant waived damages for
“injuries arising from the use of any exercise equipment or exercise
machines, . . . injuries . . . resulting from exercising at the Club; and . . .
any other accidental injuries sustained within the Club.” Agreement,
8/24/17, at 4 (emphases added). Appellant alleged that “[o]n or about
January 2, 2019, [she] used a rowing machine located at [Appellees’] gym.
Appellant’s Am. Compl., 4/6/21, at ¶10 (emphasis added). Additionally, the
record further reflects that in her response to Appellees’ motion for summary
judgment, Appellant stated that she “went to the gym on January 2, 2019.
She checked in, then went to use a rowing machine. Seeing one open, she
sat on it, and began rowing. Without warning, the machine fell over,
causing her to fall to the ground.” Appellant’s Mem. of Law in Response to
Appellees’ Mot. for Summ. Jud., 6/3/22, at ¶III (emphases added). By her
own declaration, Appellant was engaged in the “use” of the machine in
Appellees’ gym when she sustained an injury. Accordingly, we agree with the
trial court’s conclusion that Appellant’s injury arose while she was using
Appellees’ equipment and that the clear terms of the Agreement precluded
recovery. See Riverview Carpet & Flooring, Inc., 299 A.3d at 983-84;
Milshteyn, 271 A.3d at 504.
Reckless Conduct
In her third issue, Appellant argues that the trial court erred in granting
summary judgment because, although the Agreement released Appellees
from claims of ordinary negligence, it was against public policy for the
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Agreement to bar recovery from injuries caused by Appellees’ recklessness.
Appellant’s Brief at 8-10.
Appellees respond that Appellant waived this claim because she failed
to include it in her Rule 1925(b) statement or raise it in her response in
opposition to Appellees’ motion for summary judgment. Appellees’ Brief at 9,
10-11.
Here, the record confirms that Appellant failed to include this issue in
her Rule 1925(b) statement.3 See Appellant’s Rule 1925(b) Statement,
10/17/22. Accordingly, Appellant waived this issue. See Pa.R.A.P.
1925(b)(4)(vii); Greater Erie Indus. Dev. Corp., 88 A.3d at 224. In any
event, even if Appellant had included the claim concerning recklessness in the
Rule 1925(b) statement, we would agree with Appellees that Appellant waived
the issue by failing to include it in her response to Appellees’ motion for
summary judgment. Our review confirms that although Appellant alleged
recklessness in her amended complaint, she did not raise it in her Pa.R.C.P.
1035.3 response to Appellees’ motion for summary judgment. See McHugh
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3 To the extent that Appellant alleges on appeal that her injuries may have
been caused by Appellees’ gross negligence, we conclude that claim is waived
because Appellant did not plead gross negligence in the amended complaint.
See Pa.R.A.P. 302(a) (stating “[i]ssues not raised in the trial court are waived
and cannot be raised for the first time on appeal”); Milshteyn, 271 A.3d at
505 (providing that where an exculpatory clause bars claims for negligence,
gross negligence is a distinct cause of action from negligence that must be
pleaded separately); see also Monroe v. CBH20, LP, 286 A.3d 785, 799 n.5
(Pa. Super. 2022) (en banc) (explaining that pleading a claim of negligence
does not include the separate claim of gross negligence).
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v. Proctor & Gamble, 875 A.2d 1148, 1151 (Pa. Super. 2005) (explaining
that the failure to raise an argument in opposition to a motion for summary
judgment waives that claim, and it may not be raised for the first time on
appeal); see also Pa.R.C.P. 1035.3(a) (providing that when a motion for
summary judgment is filed, the responding party may not rest upon the
allegations or denials in the pleadings).
On this record, for the reasons set forth herein, we discern no error of
law nor abuse of discretion in the trial court’s decision granting Appellees’
motion for summary judgment. See Matos, 291 A.3d at 904. Accordingly,
we affirm.
Order affirmed. Jurisdiction relinquished.
Date: 10/30/2023
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