author: PICCIONE, J,

text:
    First Energy/Pennsylvania Power Co. v. Waller
    C.P. of Lawrence County,
    no. 11549 of 2008, C.A.

      Owen Katz and Donald S. Mazzota, for plaintiff.

      Jamie L. Lenzi, for defendants.

      September 7, 2010
   PICCIONE, J,

Before this court for disposition is defendants’ petition to open and/or strike default judgment. The current action arises out of an incident that took place on September 24, 2007 in which a 1997 Ford Expedition Sports Utility Vehicle owned by defendant Orlando Waller and operated by defendant Kia M. Waller struck and severed a utility pole owned by First Energy/Pennsylvania Power Company (plaintiff). On September 16,2008, plaintiff filed a complaint alleging that defendants Orlando and Kia M. Waller were negligent and seeking $16,732.50 in damages plus 6 percent interest from the date of the accident. Service was attempted but unsuccessful at both defendants’ residences on September 16,2008 and October 8,2008.

During the following year, plaintiff was in communication with defendants’ insurance carrier, Ohio Casualty, regarding a potential agreement involving Ohio Casualty paying plaintiff $8,617.52 under defendants’ auto policy in exchange for a release of the claims. Under the potential agreement, the defendants were to pay the amount in excess of the policy limits in the amount of $8,115,00. After Ohio Casualty and plaintiff failed to enter into the agreement, plaintiff filed a praecipe to reinstate complaint on March 15,2010. Plaintiff successfully served both defendants on March 22, 2010. On April 12, 2010, plaintiff sent defendants notice of its intent to seek default judgment in this case if defendants did not take appropriate action within 10 days. Defendants took no action in response to the notice, and on May 7, 2010, plaintiff filed a praecipe for default judgment, requesting that judgment be entered against defendants for their failure to file an answer to plaintiff’s complaint. On that same date, judgment was entered against defendants in the amount of $19,582.47.

On June 9, 2010, defendants filed the instant petition to open and/or strike default judgment. In the petition, defendants claim that Ohio Casualty did not learn of the default judgment until June 2,2010 and that defendants were not aware of the effect of the 10-day notice and filing of default judgment. Defendants request that the court open or strike the default judgment and allow the claim to proceed on the merits. Plaintiff filed an answer to defendants’ petition on June 30,2010. The court heard oral argument regarding defendants’ petition on August 30, 2010.

In considering a petition to open a default judgment, a court must determine whether equitable considerations exist which justify granting a defendant, against whom a default judgment has been entered, an opportunity to have the case decided on the merits. Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340, 343 (Pa. Super. 2003).

“Generally speaking, a default judgment may be opened if the moving party has (1) promptly filed a petition to open the default judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the complaint.” Myers v. Wells Fargo Bank N.A., 986 A.2d 171, 175-76 (Pa. Super. 2009). (footnote omitted)

All three criteria must be met in order to open a default judgment. Id. at 176.

With respect to the first requirement:

“The timeliness of a petition to open a judgment is measured from the date that notice of the entry of the default judgment is received. The law does not establish a specific time period within which a petition to open a judgment must be filed to qualify as timeliness. Instead, the court must consider the length of time between discovery of the entry of the default judgment and the reason for delay....
“In cases where the appellate courts have found a ‘prompt’ and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month.” U.S. Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009) (quoting Castings Condominium Association Inc. v. Klein, 444 Pa. Super. 68, 73, 663 A.2d 220, 223 (1995). (citations omitted)).

Whether the second requirement is met depends on the specific circumstances of the case. Myers, 986 A.2d at 176. Where the failure to file a responsive pleading “was due to an oversight, an unintentional omission to act, or a mistake of the rights and duties of the appellant, the default judgment may be opened.” Flynn v. American West Airlines, 742 A 2d 695, 699 (Pa. Super. 1999). However, “[ejxcusable negligence must establish an oversight rather than a deliberate decision not to defend.” Seeger v. First Union National Bank, 836 A.2d 163, 167 (Pa. Super. 2003). Finally, in order to satisfy the third requirement and state a meritorious defense, “a petitioner need only allege a defense that entitles him to a judgment in his favor, if proven at trial.” Boatin v. Miller, 955 A.2d 424, 429 (Pa. Super. 2008).

In the case sub judice, 33 days passed between the entry of default judgment on May 7, 2010 and the filing of the instant petition on June 9,2010. However, timeliness of a petition is measured from the date that notice of the default judgment was received and not from the entry date. Mallory, 982 A.2d at 995. While it is not known when defendants received actual notice of the entry of the default judgment, it is clear that the time period between the receipt of notice and the filing of the petition is sufficiently close to the general month-long delay standard cited in Mallory to permit a finding that the petition was timely or a finding that it was untimely. Because the Superior Court has previously determined that a similar month-long delay did not render a petition untimely, this court also finds that defendants’ petition was promptly filed. Reid v. Boohar, 856 A.2d 156, 162 (Pa. Super. 2004).

Defendants claim that their failure to file a responsive pleading to plaintiff’s complaint was due to confusion and misinformation created by ongoing settlement negotiations between defendant and Ohio Casualty. The Superior Court has held that a layperson establishes “a legitimate excuse for not filing a timely response . . . where he entrusted his claim to his insurance carrier and reasonably relied on its representation, and the insurer mistakenly failed to file an answer. Id. at 157. In so holding, the court in Reid distinguished cases involving “a sophisticated insured with some procedure in place for monitoring claims” and indicated that it would not hold “a layperson, strictly liable for his failure to seek reassurance from his insurer after he received notice . . . intent to enter default judgment.” Id. at 160-61 (citing Duckson v. Wee Wheelers Inc., 423 Pa. Super. 251, 260, 620 A.2d 1206, 1211-12 (1993)). Similarly, defendants are laypersons and should not be held strictly liable for believing that Ohio Casualty was representing their interests and that Ohio Casualty was involved in settlement negotiations with plaintiff. Therefore, defendants’ reliance on Ohio Casualty constitutes a reasonable explanation for not filing a responsive pleading.

Defendants must also state a meritorious defense to the allegations in plaintiff’s complaint in order to open the default judgment. Defendants raise several defenses in their proposed answer and new matter, including comparative and contributory negligence as well as violation of the applicable statute of limitations. Def.’s exhibit D. Similar averments have been upheld as meritorious defenses. Attix v. Lehman, 925 A.2d 864, 867 (Pa. Super. 2007) (holding that broad averments of contributory negligence in answer and new matter are sufficient to plead a meritorious defense). As stated above, “a petitioner need only allege a defense that entitles him to a judgment in his favor, if proven at trial.” Boatin, 955 A.2d 424 at 429. Assuming that defendants can prove that plaintiff was wholly or partially responsible for the accident, they will be entitled to a judgment in their favor. Therefore, defendants sufficiently stated a meritorious defense. Because defendants have satisfied all three elements necessary to open a default judgment, defendants’ petition to open default judgment is granted.

Although the court grants defendants’ petition to open default judgment, “a petition to strike and a petition to open are two distinct forms of relief, each with separate remedies.” Resolution Trust Corp. v. Copley Qu-Wayne Associates, 546 Pa. 98, 105, 683 A.2d 269, 273 (1996). Accordingly, the merits of defendants’ petition to strike default judgment must also be addressed.

Unlike a petition to open, a petition to strike does not involve the discretion of the court. Cintas Corp. v. Lee’s Cleaning Services Inc., 549 Pa. 84, 91, 700 A.2d 915, 918 (1997). Instead, it operates as a demurrer, where the court may only look at the facts of record at the time the judgment was entered. Id. at 93, 700 A.2d at 919. “A petition to strike the judgment may be granted only for a fatal defect or irregularity appearing on the face of the record.” Mallory, 982 A.2d at 991. Where a fatal defect or irregularity is apparent from a review of the record, the prothonotary will be held to have lacked the authority to enter default judgment, and it will be considered void. Id.

Defendants identify two aspects surrounding the entry of the default judgment that they claim to be fatal defects. First, defendants argue that the prothonotary was without authority under Pa.R.C.P. 1037 to assess damages and enter judgment in the amount of $19,582.47. Rule 1037 states, in pertinent part, that “the prothonotary shall assess damages for the amount to which the plaintiff is entitled if it is a sum certain or which can be made certain by computation[.]” Pa.R.C.P. 1037(b)(1). Defendants argue that plaintiff’s complaint does not specify a sum certain. A review of the record does not support defendants’ claim. Plaintiff requested $19,582.47 in damages. This figure is derived from $16,732.50 for repairs to the utility pole, $2,599.17 for interest at the statutory rate of 6 percent from the date of the accident and $250.80 for costs. Therefore, plaintiff’s request for damages does not violate Rule 1037. Defendants also argue that plaintiff’s form of notice of praecipe to enter judgment by default is facially defective. A review of the notice provided by plaintiff and the form suggested by Pa.R.C.P. 237.5 reveals that they are substantially similar. Therefore, the court finds that plaintiff complied with the requirements of Rules 237.1 and 237.5. Accordingly, defendants’ petition to strike default judgment is denied.

ORDER

And now, September 7, 2010, the court having held oral argument on August 30,2010 regarding defendants’ petition to open and/or strike default judgment, with Owen Katz, Esquire, appearing and representing the plaintiff, and Jamie L. Lenzi, appearing and representing the defendants, the court finds and it is hereby ordered and decreed as follows:

(1) Defendants’ petition to strike default judgment is hereby denied pursuant to the attached opinion.

(2) Defendants’ petition to open default judgment is hereby granted pursuant to the attached opinion.

(3) Defendants shall file an answer to plaintiff’s complaint within 10 days of the date of this order.

(4) The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record.


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Grudis v. Roaring Brook Township

      C.P. of Lackawanna County,
    no. 1997 CV 4903.

      Joseph A. Murphy, for plaintiffs.

      Robert J. Murphy, for defendants.
    August 30, 2010
   MINORA, J.,

Before the court is defendant’s, Roaring Brook Township, preliminary objections to plaintiff’s third amended complaint.

I. BACKGROUND

The plaintiffs reside at 11 Beechwood Drive and 9 Beechwood Drive, Roaring Brook Township, Lackawanna County, Pennsylvania. These two homes are located on adjoining lots, and between the two homes is an easement owned by the defendant. Within the defendant’s easement is a surface water drainage system. In the plaintiffs’ third amended complaint they have alleged the defendant owned, maintained, utilized, repaired and controlled the drainage easement which ran between the plaintiffs’ properties. Plaintiffs have further alleged that the installation of the water drainage system, specifically a 16-inch diameter drainage pipe, has been inadequate to contain the surface water run off flowing down Beechwood Drive toward the intersection of Beechwood and Sunset Drive, where the plaintiffs’ home is located.

The drainage pipe which is located on the drainage easement extends from a catch basin on Beechwood Drive to a catch basin on Reída Road. Plaintiffs have alleged defendant has allowed this drainage pipe to fall into a state of disrepair, that the pipe is broken, and the pipe is totally inadequate to control the flow of water. Due to the state of disrepair of the drainage pipe, the plaintiffs have asserted their property has been inundated and flooded by surface water since 1995 to the present. Plaintiffs alleged that each moderate to heavy rainfall from October 1995 to the present has caused the plaintiffs to suffer damage to their property in the form of erosion, damage to lawns, trees, shrubs, pools, deposits of sediment, debris and garbage and pooling of water. Plaintiffs further allege that surface water run off entered their homes, damaging their homes and furnishings in October of 1995, January of 1996, summer of 2001, September of 2003, September 18 and 19 of 2004, June 27 of 2006 and July of 2007.

Defendants have filed seven preliminary objections to the third amended complaint. These preliminary objections are: (1) lack of specificity to paragraphs 6(a), 6(xv) and 7 through 13; (2) the third amended complaint is deficient for failing to comply with the notice requirements of 42 P.S. §5522(a); (3) the real property exception to immunity set forth in 42 Pa.C.S. §8542(b)(3) is inapplicable to plaintiffs’ claims; (4) failure to follow the recommendations of a former municipal engineer is not an immunity exception and in any event does not state a cause of action for negligence; (5) plaintiffs do not have a cause of action for willful misconduct; (6) the utility service facilities immunity exception does not apply; and (7) an unknown family member who has not filed a lawsuit cannot recover against a defendant.

Plaintiffs have filed new matter to the defendant’s preliminary objections which asserts that defendants failed to provide a notice to plead with their preliminary objections as required by the Pennsylvania Rules of Civil Procedure and that defendant’s preliminary objections are malicious and vexatious and therefore plaintiffs should be awarded attorney’s fees in the amount of $2,000.

An oral argument was held before this court on May 25, 2010 on defendant’s latest set of preliminary objections to the third amended complaint and plaintiffs’ new matter to the preliminary objections. This matter is now ripe for disposition. Plaintiffs’ new matter to the preliminary objections and each of defendant’s preliminary objections to the third amended complaint will be discussed separately below.

II. DISCUSSION

A. Plaintiffs ’New Matter to Defendant’s Preliminary Objections

Plaintiffs have asserted two issues in their new matter to defendant’s preliminary objections to the third amended complaint. These issues are that defendant’s preliminary objections should be deemed automatically denied because they failed to contain a notice to plead as required by Pa.R.C.P. 1026, and that plaintiffs are entitled to attorney’s fees under 42 Pa.C.S. §2503 for the filing of vexatious, arbitrary, dilatory, frivolous or bad faith actions.

Pa.R.C.P 1026(a) states:

“Except as provided by Rule 1042.4 or by subdivision (b) of this rule, every pleading subsequent to the complaint shall be filed within 20 days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.” (emphasis added)

All allegations contained within preliminary objections, which lack a notice to plead, are considered denied by operation of law by the express mandates of the Pennsylvania Rules of Civil Procedure. Cooper v. Church of St. Benedict, 954 A.2d 1216 (Pa. Super. 2008).

Pa.R.C.P. 1026(a) simply states that when a notice to plead is not attached to a preliminary objection the opposing party is relieved of their duty to file a responsive pleading because the allegations contained in the preliminary objections are deemed denied by the opposing party. While a failure to attach a notice to plead relieves the opposing party of their obligation to file a responsive pleading, this court is aware of no case law or rule which mandates an automatic dismissal of the pleading by the court when a party fails to attach a notice to plead. Nor does plaintiffs’ counsel cite to authority granting the specific type of relief requested.

The Superior Court in Van Mastrigt v. Delta Tau Delta, 393 Pa. Super. 142, 148, 573 A.2d 1128, 1131 (1990), held that when preliminary objections fail to contain a notice to plead an answer is not required and the answering party is not required to respond. The Superior Court went on to hold that the lower court did not prematurely dismiss the appellant’s complaint and that the lower court was under no obligation to allow appellant to respond to the preliminary objections. Id. The Superior Court’s ruling in Van Mastrigt illustrates the rule that a court still must dispose of preliminary objections on their merits even when a notice to plead is lacking.

Further, the proper method for challenging the propriety of preliminary objection is by preliminary objection to the preliminary objection. Chester Upland School District v. Yesavage, 653 A.2d 1319, 1324 n.8 (Pa. Commw. 1994). When a defendant files an improper preliminary objection the proper challenge is to file a preliminary objection to strike the defendant’s preliminary obj ection for failure of a pleading to conform to law or rule of court. Devine v. Hutt, 863 A.2d 1160, 1167 (Pa. Super. 2004).

The Commonwealth Court in Borough of Nanty Glo v. Fatula, 826 A.2d 58, 64 (Pa. Commw. 2003), held “[wjhere a party erroneously asserts substantive defenses in preliminary objections rather than . . . raise these defenses by answer or in new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections.”

In the instant case the plaintiffs have failed to file preliminary objections to the defendant’s preliminary objections. Therefore, the plaintiffs have waived their claim to challenge the substantive or procedural defects of the defendant’s preliminary objections. As such, plaintiffs’ new matter to defendant’s preliminary objections to the third amended complaint is denied.

Further, as laid out by the reasoning and analysis below plaintiffs’ request for attorney’s fees based on defendant filing vexatious, arbitrary, dilatory, frivolous or bad faith actions is likewise denied. This court has found merit to some of defendant’s preliminary objections and therefore plaintiffs’ request must be denied. It is the burden of the party seeking counsel fees under statute permitting fees when opponent acted arbitrarily, vexatiously or in bad faith, to prove the existence of one of the statutory conditions. Berg v. Georgetown Builders Inc., 822 A.2d 810 (Pa. Super. 2003). Such cannot be done here where defendant prevails on some objections.

B. Preliminary Objections Standard

Preliminary objections are governed by Pa.R.C.P. 1028, “(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: ... (3) insufficient specificity in a pleading.” The Superior Court of Pennsylvania notes that the question presented by Pa.R.C.P. 1028(a)(3) is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense or [if it] informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006) (citing Ammlung v. City of Chester, 224 Pa. Super. 47, 59 n.36, 302 A.2d 491, 498 n.36 (1973) (quoting 1 GoodrichAmram §1017(b)-9)).

The trial court has broad discretion in determining the amount of detail that must be pleaded since this is not something capable of precise measurement. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 134, 396 A.2d 677, 681 (1978), 2 Goodrich-Amram 2d §1019(a):9 (database updated May 2010). A complaint is sufficiently specific if it provides enough facts to enable the defendant to frame a proper answer and prepare a defense. Boyd v. Rockwood Area School District, 907 A.2d 1157, 1167-68 n.20 (Pa. Commw. 2006). In determining whether a particular paragraph in a complaint is stated with the necessary specificity, such paragraph must be read in context with all the allegations in the complaint. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission (PGC), 950 A.2d 1120 (Pa. Commw. 2008).

“Preliminary obj ections in the form of motions to strike items in a complaint under Pa.R.C.P. 1028(a)(3) can be for lack of specificity of pleading pursuant to Pa.R.C.P. 1019(a).” Moore v. Dozwonczyk, no. 07 CV 2074, Minora,./, (Oct. 10,2008) (Lacka. Cty.). Pa.R.C.P. 1019(a) states “the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” “The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. The pleading must be sufficiently specific so that the defending party will know how to prepare his defense.” Commonwealth ex rel. Pappert v. TAP Pharmaceutical Products Inc., 868 A.2d 624, 635 (Pa. Commw. 2005).

The complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim. Cardenas v. Schober, 783 A.2d 317, 325 (Pa. Super. 2001). It is not necessary that the plaintiff identify the specific legal theory underlying the complaint, as it is the court’s duty to discover from the facts alleged in a complaint the cause of action, if any, stated therein. Id. Further, the Rules of Civil Procedure are to be liberally interpreted. See Pa.R.C.P. 126.

Pa.R.C.P. 1028(a) provides the standard for preliminary objections. As stated by the Commonwealth Court in Richardson v. Beard, 942 A.2d 911, 913 (Pa. Commw. 2008):

“In considering preliminary objections, we must consider as true all well-pleaded material facts set forth in the petition and all reasonable inferences that may be drawn from those facts. Sheffield v. Dept. of Corrections, 894 A.2d 836 (Pa. Commw. 2006). Preliminary objections will be sustained only where it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Id. We need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. Myers v. Ridge, 712 A.2d 791 (Pa. Commw. 1998).”
“Preliminary objections in the nature of [a] demurrer test the legal sufficiency of the [Lackawanna’s] complaint.” Sexton v. PNC Bank, 792 A.2d 602, 604 (Pa. Super. 2002) (citation omitted), appeal denied, 572 Pa. 725, 814 A.2d 678 (2002). “The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Mistick Inc. v. Northwestern National Casualty Company, 806 A.2d 39, 42 (Pa. Super. 2002). (citation omitted) Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. Cooper v. Frankford Health Care System Inc., 960 A.2d 134 (Pa. Super. 2008). (citation omitted) Any doubt as to the legal sufficiency of the complaint should be resolved in favor of overruling the demurrer. Kane v. State Farm Fire and Casualty Company, 841 A.2d 1038 (Pa. Super. 2003).

C. Defendant’s Preliminary Objections to the Third Amended Complaint

1. Lack of Specificity to Paragraphs 6(a), 6(a)(xv), and 7 Through 13.

The section of paragraph 6(a) which defendants have objected to states “Plaintiffs suffered damage to property, erosion, damage to lawn, trees, shrubs, pools, deposits of sediment, debris, garbage and pooling of water which include, but are not limited to the following:....” Plaintiffs’ third amended complaint, (emphasis added) Paragraph 6(a)(xv) states: “Plaintiff, Grudis, replace driveway and drainage systems.” Id.

The phrase “but are not limited to the following” in paragraph 6(a) is too vague and ambiguous to give any reasonable notice to defendant as to what is included but “not limited”. While absolute specificity is not required, the court is required to eliminate broad ambiguous allegations from the complaint. See Rambo, supra, 906 A.2d at 1236 (the complaint should inform the targeted defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense). This open, ended language states no claim whatsoever and could act as an open door for an unlimited amount of future claims to be introduced by the plaintiff, by ambush, at a later date. Pennsylvania is a fact-pleading state and the above emphasized quoted language of paragraph 6(a) makes a broad ambiguous allegation with insufficient notice to defendant on how to prepare their defense. McShea v. City of Philadelphia, 995 A.2d 334 (Pa. 2010).

Paragraph 6(a)(xv) is sufficiently plead. It simply states that “Plaintiff, Grudis, replace driveway and drainage system.” Plaintiff’s third amended complaint. This language is sufficiently specific, and supported by Grudis’ sworn affidavit, to notify defendant of the plaintiffs’ claim and to allow the defendant to formulate a defense. Plaintiff does not need to plead absolute specificity, just the material facts needed for the defendant to prepare and answer and proper defense.

Defendant asserts that paragraphs 7 thru 12 are insufficiently specific because they fail to state specific dates relating to plaintiffs’ allegations that the drainage easement and pipe has caused damage to their properties. Defendant asserts paragraph 13 is insufficiently specific because it fails to plead dates and times of when the plaintiffs allegedly made requests to Roaring Brook Township regarding the flooding problem.

An examination of these paragraphs illustrates they are sufficiently specific. While paragraphs 7 thru 13 do not state specific dates and time relating to plaintiffs’ cause of action, they are sufficiently specific to put defendant on notice of the claim being asserted and the defense they should prepare. Further dates and times that defendant asserts are lacking in the third amended complaint can potentially be information within the present control of the defendant or information which can later be ascertained through discovery. Therefore, this court concludes paragraphs 7 thru 13 are sufficiently specific.

2. The Third Amended Complaint Is Deficient for Failing To Comply With the Notice Requirements of 42 Pa.C.S. §5522(a)

42 Pa.C.S. §5522(a) states:

“(1) Within six months from the date that any injury was sustained or a cause of action accrued, any person who is about to commence any civil action or proceeding within this Commonwealth or elsewhere against a government unit for damages on account of any injury to his person or property under chapter 85 (relating to matters affecting government units) or otherwise shall file in the office of the government unit, and if the action is against a Commonwealth agency for damages, then also file in the office of the attorney general, a statement in writing, signed by or in his behalf, setting forth:
“(i) The name and residence address of the person to whom the cause of action has accrued, (ii) The name and residence address of the person injured, (iii) The date and hour of the accident, (iv) The approximate location where the accident occurred, (v) The name and residence or office address of any attending physician.
“(3) In the case of a civil action or proceeding against a government unit other than the Commonwealth government:
“(i) The time for giving such written notice does not include the time during which an individual injured is unable, due to incapacitation or disability from the injury, to give notice, not exceeding 90 days of incapacity, (ii) if the injuries to an individual result in death, the time for giving notice shall commence with such death, (iii) Failure to comply with this subsection shall not be a bar if the government unit had actual or constructive notice of the incident or condition giving rise to the claim of a person.” (emphasis added)

Plaintiffs have asserted that they gave formal written notice to the defendant within six months of the date of the first flooding which caused damage to the plaintiffs’ properties, which would represent when “any cause of action accrued” per 42 Pa.C.S.§5522(a). Plaintiffs attached a correspondence, sent from their attorney at the time, to plaintiffs’ response to defendant’s preliminary objections. This correspondence specifically stated it was to give the defendant formal written notice of the plaintiffs’ intent to file a claim for damages sustained on October 21, 1995. The correspondence was dated November 22, 1995.

Taking as true all well-pled facts, it is the conclusion of this court the plaintiffs provided the defendants with sufficient notice. Attorney Povanda’s correspondence dated November 22,1995 would be sufficient to constitute formal written notice under 42 Pa.C.S. §5522(a)(l). Further, pursuant to 42 Pa.C.S. §5522(a)(3)(iii) failure to provide the six-month notice will not be a bar to filing suit against a government unit which is not the Commonwealth if the governmental unit had actual notice. In the present case the plaintiffs have plead the defendant had actual notice of the suit and the defendant is a govemment unit which is not the Commonwealth. Therefore, notice would be sufficient under 42 Pa.C.S. §5522(a)(3) (iii) as well as under §5522(a)(l). The statute does not require a new six month notice after each and every near actionable rain storm which results in further damage to the plaintiffs.

3. The Real Property Exception to Immunity Set Forth in 42 Pa.C.S. §8542(b)(3) Is Inapplicable to Plaintiffs’ Claims

“Local government agencies are generally immune from tort liability under the Tort Claims Act. (citation omitted) There are limited exceptions to such immunity and an injured party may recover in tort from a local governmental agency if: (1) damages would be otherwise recoverable under common law or statute; (2) the injury was caused by the negligent act of the local agency or an employee acting within the scope of his official duties; and (3) the negligent act of the local agency falls within one of eight enumerated categories.” Repko v. Chichester School District, 904 A.2d 1036, 1040 (Pa. Commw. 2006).

42 Pa.C.S. §8542(b)(3) provides an exception to immunity for the “care, custody or control of real property in the possession of the local agency,” except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. Because the legislature intended to insulate government agencies from liability, the exceptions to immunity are to be narrowly construed against injured plaintiffs. Wilson v. Norristown Area School District, 783 A.2d 871, 875 (Pa. Commw. 2001).

The Commonwealth Court in the Repko case stated “there are two approaches that can be used to determine whether to apply the real estate exception to immunity under the Tort Claims Act, and that, at times, deciding which approach to apply under a given set of facts is challenging. Under the Blocker approach, the determinative inquiry is whether the injury is caused by personalty, which is not attached to the real estate, or by a fixture, which is attached. Under the Grieff approach, the determinative inquiry is whether the injury is caused by the care, custody or control of the real property itself. Both approaches have been applied by the courts.” Repko, supra.

The Commonwealth Court in Staffaroni v. City of Scranton, 153 Pa. Commw. 188, 620 A.2d 676, 679 (1993), determined that the city’s placement of a drainage pipe negligently caused damage to the plaintiff’s property, that the damage was a foreseeable consequence of the city’s action, and that the plaintiff’s claim would be recoverable at common law. The Commonwealth Court went on to state that the real property exception to government immunity of 42 Pa.C.S. §8542(b)(3) provides a remedy for injuries caused by artificial conditions or defects of the land itself, and that the drainage pipe is an artificial condition of the city’s real property. Staffaroni, supra.

Applying the reasoning of the Staffaroni case to the present case leaves this court to conclude that the real property exception of 42 Pa.C.S. §8542(b)(3) to the Political Subdivision Tort Claims Act is applicable to the present case, and removes immunity from the defendant. At this stage of the proceedings we must accept as true all well-pled material facts and all reasonable inferences drawn front the facts. In the present case the defendant installed a drainage pipe and grate system on their right of way lying between the plaintiffs’ two properties. The plaintiffs have alleged that the drainage pipe, an artificial condition, was under the care, custody and control of the defendant and that the defendant allowed the drainage pipe to fall into disrepair, causing the damage to their property.

Therefore, defendant’s preliminary objection that the real property exception to immunity set forth in 42 Pa.C.S. §8542(b)(3) is inapplicable to plaintiffs’ claims is denied.

4. Failure To Follow the Recommendations of a Former Municipal Engineer Is Not an Immunity Exception and in Any Event Does Not State a Cause of Action for Negligence

Defendant has requested the court dismiss all of the allegations in the plaintiffs’ third amended complaint concerning the prior recommendations of the Frederick C. Spott and Associates Engineering Firm. The defendant asserts they have discretionary authority to determine what drainage system should be established inside the municipality, and that they cannot be liable for damage caused by the alleged insufficiency of the drainage system.

The plaintiffs have asserted the prior report of Frederick C. Spott and Associates Engineering Firm goes to the notice requirements of 42 Pa.C.S. §8542(b)(5), and that liability can be established when a municipality improperly constructs a drainage system and allows a drainage system to fall into disrepair.

42 Pa.C.S. §8542(b)(5) is the utility service facilities exception to immunity under the Political Subdivision Tort Claims Act. Section 8542(1)(5) states

“a dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency and located within rights of way, except that the claimant to recover must establish that the dangerous condition created a reasonable foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” (emphasis added)

Under this section 8542(b)(5) the prior report of Frederick C. Spott and Associates Engineering Firm could be found by a jury to constitute notice to the defendant. For this reason alone the references to the prior report of Frederick C. Spott and Associates Engineering Firm were properly pled in the complaint.

Further, the issue of whether or not the defendant has the discretion to establish a drainage system has not been challenged. The plaintiffs have challenged the defendant’s care, custody, control, maintenance and construction of a drainage system. The Commonwealth Court in Pastore v. Commonwealth State System of Higher Education for Use of Edinboro University of Pennsylvania, 152 Pa. Commw. 111, 124, 618 A.2d 1118, 1125 (1992), denied a township’s motion for summary judgment on the ground that inadequacy, of a storm water system was a proper cause of action under 42 Pa.C.S. §8542(b)(5). Therefore, defendant’s preliminary objection to the prior report of Frederick C. Spott and Associates is denied.

5. Plaintiffs Do Not Have a Cause of Action for Willful Misconduct

The defendant has asserted that under the Political Subdivision Tort Claims Act a township can only be liable for the negligent acts and not willful misconduct. 42 Pa.C.S. §8542(a)(2) states “as used in this paragraph, ‘negligent acts’ shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.” Plaintiffs conceded at oral argument the defendant cannot be liable for willful misconduct. Therefore, defendant’s preliminary objection that plaintiffs do not have a cause of action for willful misconduct is granted, paragraph 16 of the third amended complaint shall be stricken.

6. The Utility Service Facilities Exception to Immunity Set Forth in 42 Pa.C.S. §8342(b)(5) Is Inapplicable to Plaintiffs’ Claims

As stated previously the utility service facilities exception applies to dangerous conditions owned by the local agency located within rights of way, which created a reasonable foreseeable risk of the kind of injury which occurred and which the local agency had actual notice or could reasonably charged with notice under the circumstances. 42 Pa.C.S. §8542(b)(5).

The defendant relies on the case of Leggieri v. Township of Haverford, 98 Pa. Commw. 646, 511 A.2d 955 (1986), for the assertion that the township is immune from liability. The Leggieri case stands for the proposition that a township is immune, and the utility service facilities immunity does not apply, from liability for the governmental unit’s approval of a subdivision. However, per the Pastore case Leggieri does not apply to liability based on ownership and operation of a storm sewer system. Pastore, supra at 124, 618 A.2d at 1125. (Leggier v. Haverford Township, 98 Pa. Commw. 646, 511 A.2d 955 (1986), provides no authority for township immunity under the allegations present here because that case involved the township only with respect to its action in approving a subdivision, not with respect to its ownership and operation of a storm sewer system.)

The Commonwealth Court determined that to narrowly construe sewer under section 8542(b)(5) to only sanitary sewers would lead to an unreasonable result, because local agencies would be liable for failing to correct dangerous conditions in their sanitary sewers, but would have not incentive to correct such conditions in their storm water drainage systems. City of Washington v. Johns, 81 Pa. Commw. 601, 606, 474 A.2d 1199, 1202-1203 (1984). The City ofWashington v. Johns court went on to state that many sewers are a combination of both storm and sanitary drainage functions, and that often the court has used the word sewer to refer to one or both uses. Id. A storm water management system comprised of culverts, basins, swales and/or drains has been repeatedly held by the Pennsylvania Commonwealth Court to be the equivalent of a “sewer” for purposes of the immunity statute. Rooney v. City of Philadelphia, 623 F. Supp.2d 644, 653 (E.D. Pa. 2009); see e.g, Staffaroni v. City of Scranton, 153 Pa. Commw. 188, 620 A.2d 676 (1993); DeTurk v. South Lebanon Township, 116 Pa. Commw. 557, 542 A.2d 213 (1988); Medicus v. Upper Merion Township, 82 Pa. Commw. 303, 475 A.2d 918 (1984).

Whether the sewer system was negligently maintainéd, creating a dangerous condition, whether that dangerous condition creates a reasonably foreseeable risk of injury and whether the township had notice of the dangerous condition are all questions of fact for the jury to decide. McCarthy v. City of Bethlehem, 962 A.2d 1276, 1279-80 (Pa. Commw. 2008). Liability does attach if a plaintiff can prove damages resulted from the negligence in the construction or maintenance of the sewer system. Rooney, supra, 623 F. Supp.2d at 654 (E.D. Pa. 2009); McCarthy, supra; LaForm v. Bethlehem Township, 346 Pa. Super. 512, 530, 499 A.2d 1373, 1382 (1985); City of Washington, supra.

In the present case the plaintiffs have alleged that the defendant allowed the drainage pipe to fall into disrepair, become broken in certain areas, and is totally inadequate to contain the flow of water. Taking as true all of these factual allegations the plaintiffs have properly plead the necessary requirements of the utility services facilities exception to the Political Subdivision Tort Claims Act. Therefore, defendant’s preliminary objection the utility service facilities exception to immunity set forth in 42 Pa.C.S. §8542(b)(5) is inapplicable to plaintiffs’ claims is denied.

7. An Unknown Family Member Who Has Not Filed a Lawsuit Cannot Recover Against a Defendant

Defendant asserts that paragraphs 20 and 26 of the third amended complaint should be stricken because there is no identification of the family members to whom the plaintiffs have alleged there is a significant and dangerous condition. The defendant argues that an unnamed person not a party to the lawsuit cannot recover damages for an unspecified injury. Paragraphs 20 and 26 state “As a direct, proximate and foreseeable result of the negligence of the defendant, Township of Roaring Brook, as enumerated herein, the plaintiffs aver and believe that the continued flooding of their property poses a significant and dangerous condition to the members of their families at their residence.”

The plaintiffs argue that paragraphs 20 and 26 go to the utilities service facilities exception to governmental immunity, and that the allegations in these paragraphs go to the interruption to the quiet enjoyment of their property.

Pennsylvania Rules of Civil Procedure requires all actions to be prosecuted in the name of the real party in interest. Pa.R.C.P. 2002. While paragraphs 20 and 26 when read in isolation could be interpreted as trying to assert a cause of action for unidentified individuals, when reading the third amended complaint as a whole it is clear paragraphs 20 and 26 are pleading facts relevant to plaintiffs’ causes of action for quiet enjoyment. Therefore, defendant’s preliminary objection that an unknown family member who has not filed a lawsuit cannot recover against a defendant is granted in part, in that paragraphs 20 and 26 are limited to plaintiffs’ causes of action for quiet enjoyment of their property.

An appropriate order follows.

ORDER

And now, August 30, 2010 upon consideration of the pleadings and their supporting briefs, it is hereby ordered as follows:

(1) Plaintiffs’ new matter to defendant’s preliminary objections to the third amended complaint is disposed of as follows:

(a) Plaintiffs’ request to dismissal of the preliminary objections for lack of a notice to plead is denied and dismissed.

(b) Plaintiffs’ request for attorney’s fees is denied and dismissed.

(2) Defendant’s preliminary objection of lack of specificity to paragraphs 6(a), 6(a)(xv), and 7 through 13 is granted in part and denied in part.

(a) Defendant’s preliminary objection for lack of specificity to paragraphs 6(a) and 6(a)(xv) are granted. The language in paragraph 6(a) which states “but are not limited to the following” and paragraph 6(a)(xv) are stricken.

(b) Defendant’s preliminary objection for lack of specificity to paragraphs 7 thru 13 are denied and dismissed.

(3) Defendant’s preliminary objection that the third amended complaint is deficient for failing to comply with the notice requirements of 42 P.S. §5522(a) is denied and dismissed.

(4) The real property exception to immunity set forth in 42 Pa.C.S. §8542(b)(3) is inapplicable to plaintiffs’ claims is denied and dismissed.

(5) Defendant’s preliminary objection to failure to follow the recommendations of a former municipal engineer is not an immunity exception and in any event does not state a cause of action for negligence is denied and dismissed.

(6) Defendant’s preliminary objection that plaintiffs do not have a cause of action for willful misconduct is granted, paragraph 16 of the third amended complaint shall be stricken.

(7) The defendant’s preliminary objection the utility service facilities exception to immunity set forth in 42 Pa.C.S. §8542(b)(5) is inapplicable to plaintiffs’ claims is denied.

(8) Defendant’s preliminary objection that an unknown family member who has not filed a lawsuit cannot recover against a defendant is granted in part, in that paragraphs 20 and 26 are limited to plaintiffs’ causes of action for quiet enjoyment of their property.

(9) Defendant is ordered to file an answer on the merits within 20 days of the date of this order.

      . The correspondence is written by Attorney Peter Povanda and was sent to Roaring Brook Township Supervisors Anthony Jordan, Reed Kennedy and Robert Farischon. The correspondence is attached to plaintiffs’ response to defendant’s preliminary objections filed July 24, 2009.


author: YOUNGE, J,

text:
    Taylor v. L.A. Fitness International LLC

      William J. Fox, for plaintiffs.

      Norman W. Briggs, for defendants.
    August 30, 2010
   YOUNGE, J,

The plaintiffs, Kimberly and Andrew Taylor, filed this appeal from this court’s order that granted a motion for summary judgment filed by the above-captioned defendants.

FACTS AND PROCEDURE

This personal injury action was brought against the defendants by the plaintiff, Kimberly Taylor, who was a member of L.A. Fitness and a client of Body of Change. The plaintiff was seriously injured in June of2007 while exercising at the Fluntingdon Valley location for the defendant, L.A. Fitness. The plaintiff alleged to have hired the defendant, Body of Change, to provide personal trainers to assist her while exercising at L.A. Fitness. At the specific time of her injury, she alleged to have been exercising with the defendant, Dorian Jefferson Hale, a personal trainer and agent of the defendant, Body of Change. In her complaint, she alleged that defendant Hale taught her an improper exercise and failed to properly assist or spot her while exercising. She alleged that the negligence of defendant Hale caused her shoulder injury. She alleged that defendant Hale was an agent of L.A. Fitness and Body of Change. Her claim against defendants, L.A. Fitness and Body of Change, was based on agency and vicarious liability under a theory of respondeat superior.

Following discovery, the defendants filed the motion for summary judgment that is currently at issue in this appeal. In their motion, the defendants asserted immunity from suit based on exculpatory clauses contained in the membership agreement that the plaintiff entered into with L.A. Fitness and the fitness service agreement and release of liability that the plaintiff entered into with Body of Change.

The membership agreement at issue contained an exculpatory clause that read as follows:

“Important: Release and Waiver of Liability and Indemnity
“You hereby acknowledge and agree that member’s use 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 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 and member’s personal representatives, assigns, heirs, and next of kin for any loss or damage and forever gives up any claim or demands therefore, on account of injury to member’s person or property, including injury leading to death of member, whether caused by the 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, 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 or otherwise.
“You represent (a) that member is in good physical condition and has no disability, illness, or other condition that could prevent member from exercising without injury or impairment of member’s 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 or programs at a club; injuries and medical disorders arising from exercising at a club such as heart attacks, strokes, heat stress, sprains, broken bones, and tom muscles and ligaments, among others; and accidental injuries occurring anywhere in club dressing rooms, showers 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 wavier of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this agreement have been made.” (Defendants’ motion for summary judgment, exhibit B (July 6, 2009).)

The fitness service agreement and release of liability with Body of Change contained two clauses that were relevant to the personal injury action brought by the plaintiff. These clauses are entitled “Acknowledgment and assumption of risk” and “Limitation of liability and full release of BOC” and read in relevant part:

“Acknowledgement and assumption of risk: Client acknowledges that the services purchased hereunder include participation in strenuous physical activities, including, but not limited to, aerobic dance, weight training, stationary bicycling, various aerobic conditioning machinery and various nutritional programs offered by BOC (the ‘physical activities’). Client acknowledges these physical activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after client’s participation in the physical activities. Client further acknowledges that such risks include, but are not limited to, injuries caused by the negligence of an instructor or other person, defective or improperly used equipment, over-exertion of client, slip and fall by client, or an unknown health problem of client. Client agrees to assume all risk and responsibility involved with client’s participation in the physical activities. Client affirms that client is in good physical condition and does not suffer from any disability that would prevent or limit participation in the physical activities. Client acknowledges participation will be physically and mentally challenging, and client agrees that it is the responsibility of client to seek competent medical or other professional advice, regarding any concerns or questions involved with the ability of client to take part in the physical activities. By signing this agreement, client asserts that client is capable of participating in the physical activities. Client agrees to assume all risk and responsibility for client’s exceeding her physical limits.
“Limitation of liability andfull release of BOC: Client, his or her heirs, assigns and next of kin, agree to fully release BOC, its owners, employees, any related entities or authorized agents, including independent contractors from any and all liability, claims and/or litigation or other actions that client may have for injuries, disability, or death or other damages of any kind, including but not limited to, direct, special, incidental, indirect, punitive or consequential damages whether arising in tort, contract, breach of warranty or arising out of participation in the services, including, but not limited to the physical activities, even if caused by the negligence or fault of BOC, its owners, employees, any related entities or other authorized agents, including independent contractors. Client is urged to have this agreement reviewed by an attorney before signing.” (Defendants’ motion for summary judgment, exhibit C (July 6, 2009).)

DISCUSSION

This court granted the defendants’ motion for summary judgment and dismissed the plaintiff’s complaint because the agreements that the plaintiff entered into with the defendants contained exculpatory clauses that relieved the defendants from all liability for the injuries suffered by the plaintiff. The defendants went to great lengths to comply with Pennsylvania law when they drafted the exculpatory clauses at issue. The language used in these exculpatory clauses mirrored the language of the two exculpatory clauses that were enforced in Kotovsky Ski liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663 (1992).

In Kotovsky the first exculpatory clause provided, in pertinent part, as follows:

“I agree that I am alone responsible for my safety while participating in competitive events and/or training for competitive events and specifically acknowledge that the following persons or entities including the United States Ski Association, the United States Ski Team, the United States Ski Coaches Association, the ski area, the promoters, the sponsors, the organizers, the promoters, the sponsors, the organizers, the promoter clubs, the officials and any agent, representative, officer, director, employee, member or affiliate of any person or entity named above are not responsible for my safety. I specifically Release and Discharge, in advance, those parties from any and all liability whether, known or unknown, even though that liability may arise out of negligence or carelessness on the part of persons or entities mentioned above, I agree to accept all responsibility for the risks, conditions and hazards which may occur whether they now be known or unknown.
“Being fully aware of the risks, conditions and hazards of the proposed activity as a competitor, coach or official, I Hereby Agree To Waive, Release And Discharge any and all claims for damages for death, personal injury or property damage which I may have or which may hereafter accrue to me as a result of my participation in competitive events or training for competitive events, against any person or entity mentioned above whether such injury or damage was foreseeable.
“I further agree to forever Hold Harmless and Indemnify all persons and entities identified above, generally or specifically, from any and all liability for death and/ or personal injury or property damage resulting] in any way from my participating in competitive events or training for competitive events.
“This acknowledgement of and assumption of risk and release shall be binding upon my heirs and assigns, (emphasis added)” Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 444 n.1, 603 A.2d 663, 664 n.1 (1992).

The second exculpatory clause in Kotovsky provided as follows:

“If you do not accept fully the conditions below do not compete, officiate, coach or in any other way participate in any event. I, the undersigned, know that alpine and nordic skiing are action sports carrying significant risk of personal injury. Racing, jumping or freestyle competition is even more dangerous. I know that there are natural and man-made obstacles or hazards, surfaces and environmental conditions, and risks which in combination with my action can cause me very severe or occasionally fatal injury. I agree that I and not the ski area or its staff or American Ski Racing Alliance Inc. (ASRA) or its staff, am responsible for my safety while I participate in, or train for these events.
“I Hereby Release and discharge, on behalf of myself, my heirs, executors, personal representatives and assigns, ASRA, USSA, their affiliates and subsidiaries and their respective directors, officers, agents, employees, successors and assigns or any of them, from any and all actions, causes of action, claims, damages, demands, injuries and liabilities of any nature whatsoever (including reasonable attorneys fees and interest) arising out of or in any manner connected with their involvement with ski races organized, promoted or operated by ASRA. (emphasis in original).” Id. at 444-45 n.1, 603 A.2d at 664 n.l.

The court in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978), was confronted with an exculpatory clause that was contained in a rental agreement for ski equipment. The exculpatory clause in that rental agreement read, in relevant part, as follows, “I furthermore release Mitchell and Ness from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury.” Id. at 478, 385 A.2d at 439. The court chose to enforce the agreement despite the fact that the language of the agreement did not release the defendant for liability based on its own negligence. A different result was reached in Brown where the Superior Court invalidated an exculpatory agreement because “The release in question [did] not spell out the intention of the parties with the necessary particularity. The language [did] not set forth in an unambiguous manner that the releaser, in signing the agreement, intendfed] to absolve the releasee of liability for the releasee’s own negligence.” Brown v. Racquetball Centers Inc., 369 Pa. Super. 13, 16, 534 A.2d 842, 843 (1987).

In the case sub judice, the defendants made every possible effort to draft exculpatory clauses with language that complied with Pennsylvania precedent. The exculpatory clauses drafted by the defendants are linguistically similar to the exculpatory clauses quoted in Kotovsky; Zimmer and Brown. The defendants specifically attempted to remedy the problem identified by the court in Brown by including language that specifically released liability for injuries caused by the defendants’ own negligence. Unlike the exculpatory agreement in Brown, in the case sub judice, the plaintiff clearly and unequivocally agreed to release the defendant, L.A. Fitness, from any and all claims whether caused “by the active or passive negligence of L.A. Fitness or otherwise.” (Defendants’ motion for summary judgment, membership agreement exhibit B (July 6, 2009).) Under the terms of the fitness service agreement and release of liability, the plaintiff clearly and unequivocally agreed to release the defendants from any and all claims “even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors.” (Id, exhibit C.) The fitness service agreement and release of liability also provided that the “[plaintiff] further acknowledges that such risks included, but are not limited to, injuries caused by the negligence of an instructor.” (Id)

In accordance with Pennsylvania precedent, the exculpatory clauses at issue were also highly visible and clearly noticeable within the membership agreement and fitness service agreement and release of liability. Beck-Hummel v. Ski Shawnee Inc., 902 A.2d 1266, 1274 (Pa. Super. 2006) (standing for the proposition that an exculpatory clause should be conspicuous on the face of a document and espousing a three-part test for determining whether a reasonable person should have noticed an exculpatory clause contained in a document as follows: (1) the disclaimer’s placement in the document, (2) the size of the disclaimer’s print, and (3) whether the disclaimer was highlighted by being printed in all capital letters or in a type style or color different from the remainder of the document). A plain reading of the membership agreement and the fitness service agreement and release of liability shows that exculpatory clauses were both written in a larger and different type than the type used in the rest of the contracts in which they appeared. The clauses were both separated and sectioned apart from all other contractual provisions and encased within a box. The membership agreement with L.A. Fitness was entitled “Important: Release And Waiver Of Liability And Indemnity.” The exculpatory clauses in the fitness service agreement and release of liability contained the titles, “Limitation of liability and full release of BOC” and “Acknowledgement and assumption of risk.” Both titles were written in bold and in a larger print size than all other material on the page.

The plaintiff was unable to cite a single valid reason for this court to decline to enforce the exculpatory clauses at issue. In her response to the defendants’ motion for summary judgment and her motions to reconsider, the plaintiff cited six arguments in an attempt to persuade this court to allow her to proceed to trial. These arguments were as follows:

“(A) Defendants’ failed to plead, in their answer and new matter, the defense of waiver and release with regard to the exculpatory clauses ...
“(B) The exculpatory clauses are contracts of adhesion and, therefore, are unconscionable and unenforceable
“(C) It is against public policy to enforce a consumer contract that waives negligence on the part of the vendor and its agents and employees ...
“(D) The terms of the exculpatory clauses are ambiguous and, therefore, unenforceable ...
“(E) There is no privity of contract between defendant, Hale, and plaintiff.” (Plaintiffs’ memorandum of law in support of their response to defendants’ motion for summary judgment (August 5,2009) (citing the topic headings to plaintiff’s five arguments against the entry of summary judgment).)
“(F) [Plaintiff] respectfully requests that this honorable court will enter an order amending the record to state that [the plaintiff] did not execute or sign any contract with [the] defendant, L.A. Fitness, LLC, and rescind and reverse the . . . order granting summary judgment.” (Plaintiffs’ motion for reconsideration based on new evidence of the . . . order granting defendants’ motion for summary judgment (September 22,2009) (citing the wherefore clause in said motion).)

(A) The Defendants’ Specifically Pled Waiver and Release in Their Answer and New Matter Filed on September 10, 2009

The defendants filed a late answer with new matter on September 10, 2009. This court allowed the defendants to pursue the exculpatory agreement as a defense despite the late pleading because the plaintiff was unable to show that she suffered prejudice as a result of the defendants’ untimely pleading. In Blumenstock v. Ginson, 811 A.2d 1029 (Pa. Super. 2002), the court wrote:

“It is true that under Pa.R.C.P. 1030, release is an affirmative defense that ordinarily must be pled as new matter. Holmes v. Lankenau Hospital, 426 Pa. Super, 452, 627 A.2d 763, 765 (1993). Under the rule, if release is not pled as new matter, the right to assert the defense has been waived. Id. Nevertheless, our Rules of Civil Procedure must be liberally construed so that actions are resolved in a just, speedy and inexpensive manner consistent with Rule 126. Id. 765-66.
“The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Pa.R.C.P. 126.
“Where the rights of the plaintiff have not been prejudiced through the defendant’s failure to plead the defense of release prior to filing a motion for summary judgment, the trial court is not required to strictly enforce Rule 1030. Holmes, 627 A.2d at 766.” Id. at 1039.

In the case sub judice, the plaintiff could not show prejudice because the defendants’ inadvertent oversight had no influence on the litigation. The defendants mailed a copy of their answer and new matter to the plaintiff on November 13,2008, but failed to file a copy of the same with the prothonotary. The plaintiff did not file a 10-day notice of intent to take a default judgment and a default judgment was never entered. The defendants stated that they produced the membership agreement and the fitness service agreement and release of liability in their response to the plaintiff’s request for production of documents on February 6,2009. At deposition, the defendants specifically questioned the plaintiff about whether she signed the membership agreement and the fitness service agreement and release of liability, and she admitted that she signed both agreements. The defendants then advanced their defense based on the exculpatory clauses at the appropriate stage by motioning for summary judgment at the close of discovery.

(B) This Court’s Order Granting Summary Judgment Should Be Affirmed Because the Exculpatory Clauses at Issue Did Not Constitute Contracts of Adhesion

The plaintiff argued that the membership agreement and the fitness service agreement and release of liability were contracts of adhesion and were, therefore, invalid. In support of this argument, she cited the fact that the defendants openly admitted that the terms of the agreements were nonnegotiable. The plaintiff was presented with standardized boiler plate contracts that contained exculpatory clauses. She was given no opportunity to negotiate the terms of these agreements. If she wanted to exercise at L.A. Fitness under the supervision of personal trainers provided by Body of Change, she had to sign the agreements as presented.

The membership agreement and fitness service agreement and release of liability were not contracts of adhesion because the plaintiff had the ability to seek other forms of exercise. Pennington v. Lorpbardi-Martelli, 42 D.&C.4th 425 (1999) (affirming a trial court’s grant of summary judgments in favor of a stable owner and stating that the exculpatory agreement entered into prior to taking horse riding lessons was not a contract of adhesion because the plaintiff was free to select another riding school.). The plaintiff chose to exercise at L.A. Fitness under the guidance of a personal trainer who worked for Body of Change. The plaintiff could have exercised independently at home or at a variety of other locations including L.A. Fitness. The plaintiff’s ability to choose the form of exercise that she would practice defeats her argument based on a theory of adhesion. For example, the court enforced an exculpatory agreement against a plaintiff who was injured in a downhill ski race in Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663 (1992). In Kotov sky, the court stated that the exculpatory agreement was not one of adhesion because the plaintiff “was not required to enter the contract, but did so voluntarily in order to participate in the downhill ski race.” Id. at 447, 603 A.2d at 665.

(C) This Court’s Order Granting Summary Judgment Should Be Affirmed Because Pennsylvania Has a Public Policy of Enforcing Exculpatory Agreements

Exculpatory agreements in the context of athletic events and fitness club memberships have previously been the subject of litigation in Pennsylvania. However, the plaintiff is completely unable to cite to precedent to establish that exculpatory clauses in the nature of the type at issue in the case sub judice are invalid based on public policy grounds. Courts located in California and Kansas have enforced exculpatory agreements in personal injury actions where the plaintiff was a member of a fitness club and signed contract that contained an exculpatory clause. Fata v. L.A. Fitness International LLC, 2008 Cal. App. Unpub. Lexis 7926 (2008); and Ko v. Bally Total Fitness Corp., 2003 U.S. Dist. Lexis 19378. In both Fata and Ko, there was no mention of public policy being violated by the enforcement of the exculpatory clauses contained in either membership agreement with the health club defendants in those cases. In Zipusch v. L.A. Workout Inc., 155 Cal. App. 4th 1281 (2007), the court chose to not enforce an exculpatory agreement; however, it did not base its decision on public policy grounds. The plaintiff failed to support her argument that public policy prevents the enforcement of exculpatory agreements when the plaintiff engages in athletic activities at a health club where the plaintiff is a member.

This court would like to call attention to the fact that its analysis would have been entirely different if the plaintiff had been working under the supervision of a licensed physical therapist. In Leidy v. Deseret Enterprises Inc., 252 Pa. Super. 162, 361 A.2d 164 (1977), the court reversed a trial court order that granted a motion for judgment on the pleadings filed by the defendant (health spa) based on an exculpatory clause in a membership agreement entered into between the parties. In Leidy, the plaintiff alleged to have 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.” Id. at 166, 381 A.2d at 166. In reversing, the court discussed both public policy and public interest in the context of the potential pit falls of allowing physical therapists to limit liability by entering into exculpatory agreements. The court stated, “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.” Id. 170, 381 A.2d at 168.

The reasoning and logic of Leidy is inapplicable to the sub judice because no recognized statewide standard of care exists for health clubs like L.A. Fitness or health club employees like defendant Hale. The legislature created the Board of Physical Therapy to establish rules and procedures to regulate physical therapy throughout the state of Pennsylvania. See 63 P.S. §1302.1. The Physical Therapy Practice Act, 63 PS. §1301 et seq., provides conclusive evidence of the public interest in protecting the health, safety and welfare of those who seek the services of a physical therapist. Therefore, this court would have to be presented with an extremely unusual fact pattern before it would allow a physical therapist to escape liability based on an exculpatory agreement executed by his or her patient. It would be hard to believe that such an agreement truly regulated private interests. Yet at the same time, services provided by a personal trainer are substantially similar to the services provided by a physical therapist.

The fact pattern of the case sub judice highlights just one of the problems presented by the lack of legislative oversight of the health club and fitness industry in Pennsylvania. This court would like to refer this matter on the legislature so that it can establish a system for regulation. The clear effect of this lack of legislative oversight means that national health club chains, like the defendants, can be sued for negligence based upon a breach of an ordinary standard of care that could vary from county to county. Since an ordinary standard of care is applicable, the defendants need the protection provided by the exculpatory agreement. Clearly, the establishment of a uniform standard of care is necessary. It would then be possible to establish a statewide standard of care that would subject entities and individuals involved in the fitness industry to liability. Legislative oversight would also bolster any argument that an exculpatory agreement should be invalid based on public policy grounds.

(D) The Terms of the Exculpatory Clauses Are Not Ambiguous and Are Therefore Enforceable

As previously discussed, plaintiff clearly and unequivocally agreed to release the defendants from liability for personal injury. There was nothing ambiguous about the terms of either exculpatory clause. Both clauses specifically identified the types of personal injuries contemplated by the parties when they entered into the agreement. Under the terms of the membership agreement, the plaintiff released L.A. Fitness from any risk of injury and agreed that:

“Such risk of injury include[d] (but is not limited to): injuries arising from use by member or others of exercises equipment and machines; injuries arising from participation by member or others in supervised or unsupervised activities or programs 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

The terms of the fitness service agreement and release of liability, clearly stated that the,

“Client acknowledges these physical activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after client’s participation in the physical activities.”

The plaintiff suffered injuries that were specifically encompassed within the description of injuries contemplated in the exculpatory clauses offered by the defendants. The plaintiff’s medical records state that she suffered an anteroinferior dislocation of the left shoulder that led to post-traumatic arthritis and contractures. The plaintiff was a registered nurse at Magee Rehabilitation. She should have read and comprehended the ramifications of entering into the membership agreement and fitness service agreement and release of liability. As a nurse, the plaintiff should have also understood inherent danger in any exercise routine.

(E) This Court’s Order Granting Summary Judgment Should Be Affirmed Because Privity of Contract Between the Plaintiff and the Defendant, Dorian Jefferson Hale, Is a Completely Irrelevant Issue

There was no dispute as to the fact that the plaintiff entered into the fitness service agreement and release of liability with Body of Change. This agreement specifically states,

“Client, his or her heirs, and next of kin, agree to fully release BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors from any and all liability, claims and/or litigation or other actions that client may have for injuries, . . . even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors.”

There was no dispute as to the fact that defendant, Dorian Jefferson Hale, was an agent of Body of Change. Under the specific terms of the fitness service agreement and release of liability, all agents of Body of Change were released from liability over to the plaintiff. As with any other contract, the specific terms of this exculpatory clause should be enforced in accordance with the plain meaning of its language. For example, the court in Maloney v. Valley Medical Facilities Inc., 603 Pa. 399, 984 A.2d 478 (2009), permitted a plaintiff to maintain an action against an agent of a principal despite the fact that the plaintiff had released the agent’s principal. In Maloney, the release that the plaintiff entered into with the principal specifically contained a reservation of rights clause that permitted the plaintiff to proceed against the agent. The court discussed the application of traditional contract principles and the need to effectuate the intent of the parties who enter into contracts.

The case sub judice is factually distinguishable from Maloney; yet, the reasoning and logic used in Maloney clearly favored the entry of summary judgment in favor of defendant Hale. The exculpatory clause found in the fitness service agreement and release of liability did not contain a reservation of rights clause whereby the plaintiff retained the right to sue defendant Hale. To the contrary, the specific language of the exculpatory clause released defendant Hale from all liability. Based on the reasoning contained in Maloney, this court placed great emphasis on the specific language of the exculpatory clause and decided to enforce the agreement as to defendant Hale as well as the other defendants.

(F) Whether the Plaintiff Signed the Membership Agreement With the Defendant, L.A. Fitness, Is Not Relevant to the Question of Whether This Court’s Order Granting Summary Judgment Should Be Affirmed

After this court granted the defendants’ motion for summary judgment, the plaintiff filed a motion to reconsider based on new evidence. She argued that this court should vacate its order granting summary judgment in favor of the defendant, L.A. Fitness, because she did not sign the membership agreement that contained the exculpatory clause that it offered as an affirmative defense. A brief review of the pleadings and procedural history of this case illustrates the irrelevant and meritless nature of this issue.

Originally the plaintiff filed a response to the defendants’ motion for summary judgment that contained an affidavit wherein she admitted that she signed both the membership agreement and the fitness service agreement and release of liability. After this court granted the defendants’ motion for summary judgment, the plaintiff filed a motion for reconsideration that contained a second affidavit that contradicted her previous affidavit. In her second affidavit, she averred that she did not sign the membership agreement.

The inconsistencies in the plaintiff’s case could have created a legal issue that would have required judicial attention. However, the plaintiff did not attempt to establish a direct claim of liability against L.A. Fitness. The plaintiff did not bring an independent cause of action against L.A. Fitness on a theory like negligent hiring or supervision. The plaintiff’s claim against L.A. Fitness was based on agency or vicarious liability for the actions or omissions of defendant Hale. L.A. Fitness could only be held liable if defendant Hale was held liable. The action against defendant Hale was barred based on the exculpatory clauses in the fitness service agreement and release of liability. The plaintiff openly admitted that she signed fitness service agreement and release of liability which states:

“Client, his or her heirs, assigns and next of kin, agree to fully release BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors from any and all liability, claims and/or litigation or other actions that client may have for injuries... even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors.”

In reality, the plaintiff’s signature on the membership agreement was really a mere technicality. A plain reading of both affidavits illustrates that the plaintiff was aware that she had entered into an agreement that had been reduced to writing when she joined L.A. Fitness. She then proceeded to use the facilities provided by L.A. Fitness on multiple occasions prior to her accident. She should have read the membership agreement and her use of the facility was akin to accepting the terms of the membership agreement.

CONCLUSION

The defendants went to great lengths to draft exculpatory clauses that would comply with Pennsylvania law; therefore, this court was required to enforce the exculpatory clauses contained in the membership agreement and fitness service agreement and release of liability.

      . The plaintiffs, Kimberly and Andrew Taylor, will be referred to collectively as the plaintiff throughout the remainder of this opinion because Andrew Taylor does not assert an independent cause of action against the defendants. His claim is based on loss of consortium.

      . After this court granted the defendants’ motion for summary judgment, the plaintiff filed two motions to reconsider this court’s order that granted summary judgment. In one of her motions to reconsider, she argued for the first time that she did not sign the membership agreement with L.A. Fitness, For a complete discussion of why her motion for reconsideration was without merit and a discussion of the procedural history surrounding that motion see section F of this opinion.

      . The plaintiff in Kotovsky was injured while participating in a downhill ski race. He specifically collided with a fence post along the outside of the race course. The court in Kotovsky affirmed a trial court order that granted a motion for judgment on the pleadings based on an exculpatory agreement entered into between the parties prior to the competition.

      . The plaintiff in Zimmer alleged to have been injured when the bindings on the ski equipment that he had rented from the defendant failed to properly release him. The court in Zimmer affirmed an order that granted summary judgment based on an exculpatory clause contained in a rental agreement.

      . The plaintiff in Brown was a member of a health club who slipped when exiting the club’s shower facilities. The court reversed a trial court order that granted summary judgment in favor of the health club based on an exculpatory clause contained in the application form signed by the plaintiff upon joining the health club. The exculpatory clause read, in relevant, part:
      “I, LeRoy R Brown, voluntarily enter the Westend Racquet Club, ..., to participate in the athletic, physical and social activities therein. I have inspected the premises and know of the risks and dangers involved in such activities as are conducted therein and that unanticipated and unexpected dangers may arise during such activities. I hereby and do assume all risks of injury to my person and property that may be sustained in connection with the stated and associated activities in and about those premises, (emphasis added)
      “In consideration of the permission granted to me to enter the premises and participate in the stated activities, I hereby, for myself, my heirs, administrators and assigns, release, remise and discharge the owners, operators and sponsors of the premises and its activities and equipment and their respective servants, agents, officers, and all other participants in those activities of and from all claims, demands, actions and causes of action of any sort, for injury sustained to my person and/ or property during my presence on the premises and my participation in those activities due to negligence or any other fault.” Id. at 14-15, 534 A.2d at 842.

      . See section F herein discussing the plaintiff’s motion to reconsider based on new evidence wherein she claims that she never signed the membership agreement with L.A. Fitness.


author: CARRAFIELLO, J.,

text:
    Albright v. Weinig Inc.

      Kenneth F. Fulginiti, Thomas J. Duffy Jr. and Patrick J. Keenan, for plaintiff.

      Brian J. Madden, John J. Hare, Warren E. Voter and James H. Rohlfing, for defendants.
    August 17, 2010
   CARRAFIELLO, J.,

Defendant, T. Baird Mcllvaine Inc. d/b/a TBM Hardwoods Inc., employer of plaintiff Albright, appeals from an order of the Philadelphia Court of Common Pleas dated April 26, 2010 and entered April 30, 2010, denying appellant’s post-trial motion for judgment n.o.v. in the above captioned matter.

FACTUAL AND PROCEDURAL HISTORY

On May 14, 2007, the plaintiff, Jason Albright, commenced an action against defendants, Michael Weinig Inc. (Weinig) and Michael Weinig AG (Weinig AG) after sustaining injuries while operating a Unimat 1000 Moulder machine (U1000). Weinig is a Mooresville, North Carolina based sales and service corporation that sold, installed and serviced the U1000. Weinig AG is a German corporation and manufacturer of the U1000. Plaintiff’s employer and purchaser ofthe U1000, T. Baird Mcllvain Inc. d/b/a TBM Hardwoods Inc. (TBM), was also joined as a defendant based on an indemnity provision in the purchase order. Before trial, plaintiff settled with Weinig for $1,950,000.

The purchase order between TBM and Weinig, dated November 21,2002, contained an indemnification provision in which TBM agreed to “hold harmless, defend, and indemnify [Weinig] ... if [TBM], its agents, employees, successors or assigns have been contributorily negligent or have failed to implement and abide by all applicable operating instructions, safety instructions, training recommendations, manuals, warnings, laws or regulations.” The parties agreed that the purchase order is governed by North Carolina law.

The parties stipulated that the U1000 did not contain adequate warning labels when it left the Weinig AG manufacturing plant or when Weinig sold it to TBM and that both Weinig and Weinig AG were negligent and their negligence was a legal cause of plaintiff’s injury. N.T. 6/30/09, pp. 53-54.

When the U1000 arrived at TBM’s plant, TBM employees removed it from its packaging and set up the machine’s electrical and dust collection systems. Between April 7 and 10,2003, Rob Scaffe, a Weinig technician, installed the U1000 at TBM’s facility in Hanover, Pennsylvania, Scaffe spent a few hours cleaning, leveling, and calibrating the U1000. He spent the remainder of his time at TBM training employees to use the U1000. TBM did not provide plaintiff with safety training related to the use of the U1000.

Plaintiff’s injuries occurred on October 7,2006 when, following the instructions of a TBM supervisor, plaintiff inserted a “push stick” into the U1000 to clear wood lodged inside the machine. The push stick was a smaller size than the blank stock for which the U1000 was set up. Because the first push stick did not clear the machine, plaintiff’s supervisor instructed him to insert a second push stick. When plaintiff did so, the first push stick ejected from the U1000 and struck plaintiff in the groin, causing his injuries.

Immediately preceding trial, Weinig settled its claim against plaintiff. On June 29 and 30,2009, a bench trial commenced on Weinig’s indemnification claim against TBM and on TBM’s claims for contribution and indemnification against Weinig AG. On December 12, 2009, after permitting the parties an opportunity to review the trial notes of testimony and file proposed findings and conclusions with the court, the court found for Weinig on its claim for indemnification against TBM in the amount of $1,950,000 and against TBM on its claims for contribution and indemnification against Weinig AG.

TBM then filed a timely post-trial motion requesting judgment n.o.v. After submissions of briefs and a hearing, the court denied TBM’s motion for judgment n.o.v. and TBM’s appeal followed.

STATEMENT OF ISSUES

Pursuant to the court’s order to file a concise statement of errors complained of on appeal, defendant TBM stated three issues that have been restated so we may facilitate their discussion. They are as follows:

“(1) Did the court err in granting Weinig’s contractual claim for indemnity against TBM where Weinig installed the U1000 at TBM’s facility?
“(2) Did the court err in granting Weinig’s contractual claim for indemnity against TBM where the purchase order specifically indemnified Weinig against claims brought by TBM employees?
“(3) Did the court err in denying TBM’s claim for contribution against Weinig AG where both Weinig AG and TBM were at fault for plaintiff’s injuries?
“(4) Did the court err in denying TBM’s claim for common-law indemnity against Weinig AG?”

LEGAL DISCUSSION

Each of defendant TBM’s issues raised in its Pa.R. A.P. 1925(b) statement as restated, is discussed below:

(1) Did the Court Err in Granting Weinig’s Contractual Claim for Indemnity Against TBM Where Weinig Installed the Ul000 at TBM’s Facility?

The purchase order contained a choice of law provision mandating that its terms and conditions were to be governed by the laws of North Carolina. Weinig and TBM agreed that the choice of law provision was valid. The purchase order was duly executed by the parties and has been accepted as a binding contract between them.

Under North Carolina General Statute §22B-1, indemnity provisions are not permitted “in connection with, a contract or agreement relative to the design, planning, construction, alteration, repair or maintenance of a building, highway, road, appurtenance or appliance, including moving, demolition and excavating connected therewith ....” Under North Carolina law, whether a contract is. a construction contract is determined by the fact-finder’s review of the actions taken by the party seeking protection of the indemnity provision. See Miller Brewing Co. v. Morgan Mech. Contractors Inc., 368 S.E.2d 438, 440-41 (N.C. Ct. App. 1988) (discussing factors in determining whether the contract was a construction contract).

In Miller, the contract required that the defendant “install” a new conveyor at the plaintiff’s facility to connect two separate depalletizers. Id. at 441. Work performed by the defendant included adjoining 10-foot sections of the conveyor and drilling and anchoring them to the concrete floor of the plant. Id. Defendant’s employees also had to erect and install the conveyor and install the conveyor’s driving motors, chain, and side guards. Id. To join the two pre-existing systems, the defendant had to cut into the old existing conveyor and cut some of the new conveyor sections. Id. The Miller court concluded that an indemnification provision in a purchase order was not valid under N.C.G.S. §22B-1 because the work performed by the defendant amounted to both the construction of a new appliance and the alteration of an existing appliance. Id.

Unlike the work performed by the defendant in Miller, Weinig did not construct, alter, or repair the U1000. Weinig AG, a separate entity who was not a party to the contract, designed and manufactured the U1000. The U1000 arrived at TBM’s plant fully constructed where TBM employees removed it from its packaging and installed electrical and dust collection systems. Weinig’s technician merely cleaned, leveled, and calibrated the U1000 — work that did not amount to changing the machine’s original characteristics.

Further, N.C.G.S. §22B-1 does not include the word or concept of “installation” as an activity for which indemnity provisions are prohibited. If the North Carolina legislature had intended to void indemnity provisions in contracts including installations, it would have used the word “installation” or enunciated a concept which has a similar meaning. It did neither.

Therefore, the work actually performed by Weinig to “install” the U1000 does not constitute the construction, alteration, or repair required to void the indemnity pro vision under N.C.G.S. §22B-1.

(2) Did the Court Err in Granting Weinig’s Contractual Claim for Indemnity Against TBM Where the Purchase Order Specifically Indemnified Weinig Against Claims Brought by TBM Employees?

The Pennsylvania Workers’ Compensation Act, 77 P.S. §481(b), contains an exclusivity provision, giving employers immunity from suits brought by their employees against third parties. The Act states that if “injury or death to an employe is caused by a third party, then such employe ... may bring their action at law against such third party, but the employer ... shall not be liable to a third party for damage contribution, or indemnity.” 77 P.S. §481(b). Employers will, however, be liable for damages, contribution, or indemnity for suits brought by their employees against third parties when it is “expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.” Id.

Pennsylvania courts have found that general indemnity language in a contract does not remove the bar to recovery created by the Act’s exclusivity provision. Bethlehem Steel Corp. v. MATX Inc., 703 A.2d 39, 43 (Pa. Super. 1997) (citing Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 184, 619 Aid 304, 307 (1993), appeal denied, 539 Pa. 641, 651 A.2d 530 (1994)). Additionally, “[t]he intent to indemnify against claims by employees of the alleged indemnitor must clearly appear from the terms of the agreement.” Id. But, “if the indemnification agreement is clear and includes indemnification in the event of either the indemnitee’s or the employer’s own negligence, its enforceability does not require that the employer, in addition, expressly and in haec verba waive the immunity provided by section 481(b) of the Workmen’s Compensation Act.” Bester, 422 Pa. Super, at 185, 619 A.2d at 307 (citing Szymanski-Gallagher v. Chestnut Realty, 409 Pa. Super. 323, 597 A.2d 1225 (1991)).

TBM maintains that the indemnity language in the purchase order neither clearly indemnifies Weinig for claims brought by TBM’s employees nor expressly waives immunity under 77 P.S. §481(b). The purchase order, however, specifically indicates that TBM will indemnify Weinig for “claims, causes of action, suits, proceedings, costs, fees, damages . ..” brought “by the [TBM] or its agents, employees, insurance carriers____” The purchase order also states that:

“[TBM] further agrees that it shall be solely liable for and will hold harmless, defend, and indemnify [Weinig] ... if [TBM], its agents, employees, successors or assigns have been contributorily negligent or have failed to implement and abide by all applicable operating instructions, safety instructions, training recommendations, manuals, warnings, laws or regulations.”

Therefore, although the purchase order did not contain specific verbiage waiving the Workers’ Compensation Act immunity by name, the terms clearly indicate that TBM agreed to indemnify Weinig against claims brought by TBM employees — especially those claims where TBM and/or its employees were contributorily negligent.

(3) Did the Court Err in Denying TBM’s Claim for Contribution Against Weinig AG Where Both Weinig AG and TBM Were at Fault for Plaintiff’s Injuries?

Under Pennsylvania law, the right to contribution only exists among joint tort-feasors. 42 Pa.C.S. §8324. The term “joint tort-feasors” is defined as “two or more persons jointly or severally liable in tort for the same injury to persons or property . . . .” 42 Pa.C.S. §8322. (emphasis added)

TBM argues that, because the court found that TBM was contributorily negligent, it is entitled to contribution from Weinig AG. But, Weinig’s claim for indemnification against TBM is contractual, not a tort. The court found only that TBM was “contributorily negligent,” not that it was a “joint tort-feasor.” Therefore, because TBM has not been found liable in tort, is not entitled to contribution.

(4) Did the Court Err in Denying TBM’s Claim for Common-Law Indemnity Against Weinig AG?

Common-law indemnity is an equitable doctrine giving relief to a party without active fault who has made a payment of damages because of a legal obligation. Builders Supply v. McCabe, 366 Pa. 322, 325, 77 A.2d 368, 370 (1951). Pennsylvania courts have held that an employer’s immunity from legal liability in tort does not prevent the finder-of-fact from determining that the employer was “at fault” for the injuries of its employees. See e.g., Tsarnas v. Jones & Laughlin Steel Corp., 262 Pa. Super. 417, 425, 396 A.2d 1241, 1244 (1978) (“[N]othing in [77 P.S. §481(b)] precludes a defendant from defending at trial on the theory that the conduct of the plaintiff’s employer was the legal cause of the injury.”).

TBM failed to provide plaintiff with safety training before he operated theUlOOO. Also, in clear violation of oral and written safety warnings, plaintiff’s supervisor instructed that plaintiff clear the U1000 of lodged wood by inserting “push sticks” of a smaller size than the blank lumber meant for the U1000, thereby greatly increasing plaintiff’s risk of grievous bodily injury. After considering these factors, the court ultimately determined that TBM was negligent in its operation of the U1000 and that its negligence was a cause of plaintiff’s injuries.

TBM insists that it is entitled to indemnification from Weinig AG, whose negligence was also a cause of plaintiff’s injury, because it “cannot be both actively negligent and immune from liability.” (TBM’s statement of errors complained of on appeal 2.) TBM contends that, if it is immune from suit under Pennsylvania Workers’ Compensation Act, it cannot be found actively negligent for plaintiff’s injuries and, thus, is entitled to indemnification from Weinig AG. However, as previously discussed the Pennsylvania Workers’ Compensation Act does not protect TBM from a contractual claim such as that contained in the indemnity provision of the purchase order which specifically indemnifies Weinig for suits such as the one brought here.

As an additional or alternative ground for denying TBM’s indemnity claim, Weinig has suggested that, because TBM has not paid on the judgment, any claim for indemnity is not ripe. We would agree because, under Pennsylvania law, a party can only bring a common-law indemnity claim after it has paid the judgment. McClure v. Deerland Corp., 401 Pa. Super. 226, 232, 585 A.2d 19, 23 (1991). This court’s decision, however, was based upon the factual decision that TBM was at fault for plaintiff’s injuries.

CONCLUSION

It is understandable that TBM feels that it should not have to bear the full weight of plaintiff’s recovery, especially because there is no contest that all parties were to some degree and in some fashion at fault.

However, there is also no contest that TBM, as a sophisticated purchaser, agreed to assume that full liability when it executed the purchase order. The court was obliged to give due deference to this contract entered into at arms length by these sophisticated parties.

Therefore, the trial court appropriately denied defendant TBM’s motion for judgment n.o.v.