Burns, J. v. Philly Trampoline Parks ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH BURNS AND DAWN BURNS, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellees
v.
PHILLY TRAMPOLINE PARKS, DELCO,
LLC; D/B/A SKY ZONE INDOOR
TRAMPOLINE PARK,
Appellant No. 3544 EDA 2016
Appeal from the Order Entered October 18, 2016
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2016-3064
BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 31, 2017
Appellant, Philly Trampoline Parks, Delco LLC; d/b/a Sky Zone Indoor
Trampoline Park (“Sky Zone”), appeals from the October 18, 2016 order
overruling its preliminary objections to the complaint filed by Appellees,
Joseph Burns and Dawn Burns. After careful review, we affirm.
The relevant facts and procedural history of the underlying case were
summarized by the trial court in its Pa.R.A.P. 1925(a) opinion, as follows:
On May 11, 2014, Joseph Burns and Dawn Burns, husband and
wife (hereinafter “[Appellees]”), visited the Sky Zone Indoor
Trampoline Park owned and operated by Philly Trampoline Parks
Delco, LLC (hereinafter “[Sky Zone]”) in Glen Mills, Delaware
County, Pennsylvania[,] with their son. While using the
trampolines at [Sky Zone’s] facility, [] Joseph Burns[] allegedly
caught his foot in a trampoline which caused a fracture of his left
ankle. [Appellees] allege that this injury was caused by the
negligence of [Sky Zone] in failing to use reasonable care for the
protection and safety of Joseph Burns, failing to provide safe
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facilities, providing trampolines that were unsafe and
unreasonably dangerous, failing to give proper instructions to
Joseph Burns on the safe use of the trampolines, failing to give
proper warnings of the dangers inherent in trampoline use, and
in providing a trampoline that was defective. Joseph Burns
asserts a claim for damages for his injuries and Dawn Burns
asserts a derivative claim for loss of consortium resulting from
Joseph Burns’ injuries.
[Appellees] instituted this action by the filing of a
complaint on April 6, 2016. On May 2, 2016, [Sky Zone] filed
preliminary objections to [Appellees’] complaint arguing that
[Appellees’] claims must be submitted to arbitration[,] as Joseph
Burns executed a Participant Agreement, Release and
Assumption of Risk (hereinafter “Agreement”) on May 11,
2014[,] prior to engaging in activities at the trampoline park.
The Agreement provides that if a dispute arose regarding the
Agreement, [Joseph Burns] waived a right to trial by jury and
that such dispute would be brought to arbitration within one year
of the execution of the Agreement. As the Agreement was
executed on May 11, 2014[,] and [Appellees] did not bring their
suit until April 4, 2016, [Sky Zone] argued that [Appellees’]
claims, which must be submitted to arbitration, are time barred.
Lastly, [Sky Zone] argued that [Appellees] released [Sky Zone]
from the claims asserted in the complaint in that there was a
valid exculpatory clause in the Agreement.
On May 23, 2016, [Appellees] filed a reply memorandum
to the preliminary objections of [Sky Zone,] arguing that Joseph
Burns never signed the Agreement. Further, [Appellees] assert
that even if Joseph Burns had signed the Agreement, it is
unenforceable as it is a contract of adhesion and unconscionable.
Joseph Burns’ declaration attached to the reply states that he did
not sign the Agreement but that his wife, Dawn Burns, did fill out
forms on a computer prior to his entry into the park’s facilities.
On June 29, 2016, this [c]ourt entered an order granting
the parties sixty (60) days to conduct discovery and supplement
the record on the issues relating to the validity and enforceability
of the Agreement. After taking depositions of both [Appellees]
and [Sky Zone’s] manager of the Glen Mills, Pennsylvania facility
at the time of the alleged incident, on September 12, 2016, [Sky
Zone] filed a supplemental memorandum of law in further
support of [its] preliminary objections to the complaint. [Sky
Zone] argues again that the Agreement disposes of [Appellees’]
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claims[,] as it requires arbitration of [their] claims, renders
[their] claims untimely as it provides claims must be brought
within one year, and precludes [their] claims as it expressly
disclaims liability for any alleged negligence.
Trial Court Opinion (“TCO”), 2/8/17, at 1-3 (citations to record and
unnecessary capitalization omitted).
On September 26, 2016, Appellees filed a supplemental reply
memorandum to Sky Zone’s preliminary objections, in which Appellees
argued that Joseph Burns did not sign the Agreement but, rather, that Dawn
Burns signed the Agreement on Joseph Burns’ behalf without his authority.
Id. at 4. On October 18, 2016, the trial court entered an order overruling
Sky Zone’s preliminary objections and directing Sky Zone to file an answer
to Appellees’ complaint.1 Id. at 5. Accordingly, Sky Zone filed an answer
and new matter on November 7, 2016, to which Appellees filed a timely
reply. Id.
On November 10, 2016, Sky Zone filed a timely notice of appeal,2
followed by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of
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1 The order overruling the preliminary objections was dated October 14,
2016, but was not filed with the Court of Common Pleas of Delaware County
until October 18, 2016, at No. 16-3064. Thus, the order is referred to
herein as the “October 18, 2016 order.”
2 “An order refusing to compel a case to arbitration is a threshold,
jurisdictional question that is appealable as an exception to the general rule
that an order overruling preliminary objections is interlocutory and not
appealable as of right.” MacPherson v. Magee Memorial Hosp. for
Convalescence, 128 A.3d 1209, 1213 n.4 (Pa. Super. 2015) (internal
citation omitted); see also 42 Pa.C.S. § 7320(a)(1).
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errors complained of on appeal.3 Sky Zone now presents the following
questions for our review:
1. Whether the trial court erred by overruling [] Sky Zone’s
[p]reliminary [o]bjections and failing to compel [Appellees] to
bring their claims in arbitration, where [] Joseph Burns
executed the Agreement, as a precondition to gaining access
to the trampoline activities, the trial court properly found
[Appellees’] claims to be within the scope of the Agreement,
and Sky Zone showed the Agreement to be valid and binding?
2. Whether the trial court erred by allowing [Joseph Burns] to
avoid the Agreement based upon Dawn Burns’ alleged forgery
of [Joseph Burns’] signature, as Dawn Burns signed the
Agreement as [Joseph Burns’] agent with implied authority
and apparent authority, and, as [Joseph Burns] should be
estopped from denying that Dawn Burns had implied and
apparent authority?
3. Whether the trial court erred because [Joseph Burns] received
the direct benefits of having a signed Agreement submitted
for him to Sky Zone as a precondition to enjoying the benefits
of the Agreement[,] such as participating in the trampoline
activities, thus [Appellees] are now estopped from not
incurring the burdens of the Agreement such as requiring
[Appellees] to arbitrate their claims?
4. Whether the trial court erred by allowing [Joseph Burns] to
avoid the Agreement based upon Dawn Burns’ alleged forgery
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3 Additionally, Sky Zone filed a motion for reconsideration on November 17,
2016, requesting the trial court to reconsider its October 18, 2016 order, or
in the alternative, to certify the order for an immediate appeal, pursuant to
42 Pa.C.S. § 702. We note that the trial court was divested of jurisdiction to
rule on the motion for reconsideration since Sky Zone had already filed a
notice of appeal and the time prescribed for the filing of a notice of appeal
had passed; thus, the court deemed the motion moot. See TCO at 5; see
also Pa.R.A.P. 1701(a), (b)(3)(ii); Skonieczny v. Cooper, 37 A.3d 1211,
1212 n.2 (Pa. Super. 2012) (stating that when an order is the subject of an
appeal, a trial court may not reconsider the order once the time prescribed
for the filing of a notice of appeal has run).
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of [Joseph Burns’] signature on the Agreement, where, had
[Joseph Burns] failed to sign the Agreement, Sky Zone would
not have permitted him to access its trampoline facilities,
where the Agreement clearly states that the participant’s
signature was consideration for participating in Sky Zone
trampoline games and activities, causing Sky Zone to be
deprived of the benefit of the bargain in the Agreement and
allowing [Appellees] to benefit from their deliberate
dishonesty?
5. Whether the trial court erred to the extent that it intended
that its decision to definitively determine that the Agreement
was invalid and not binding, that Dawn Burns did not have
implied or apparent authority, there was no agency by
estoppel, and that direct benefits estoppel did not apply, as
this was premature and usurped the function of the jury?
Appellant’s Brief at 4-5.
We begin by noting our standard of review:
[O]ur review of a claim that the trial court improperly denied
preliminary objections in the nature of a petition to compel
arbitration is limited to determining whether the trial court’s
findings are supported by substantial evidence and whether the
trial court abused its discretion in denying the petition. Gaffer
[Ins. Co., Ltd. v. Discover Reinsurance Co.], 936 A.2d
[1109,] 1112 [(Pa. Super. 2007)]. As contract interpretation is
a question of law, our review of the trial court’s decision is de
novo and our scope is plenary. Id. citing Bucks Orthopedic
Surgery Associates, P.C. v. Ruth, 925 A.2d 868, 871 (Pa.
Super. 2007).
Peterson v. Kindred Healthcare, Inc., 155 A.3d 641, 644 (Pa. Super.
2017). “We employ a two-part test to determine whether the trial court
should have compelled arbitration: 1) whether a valid agreement to
arbitrate exists, and 2) whether the dispute is within the scope of the
agreement.” Washburn v. Northern Health Facilities, Inc., 121 A.3d
1008, 1012 (Pa. Super. 2015).
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Here, Sky Zone asserts that the Agreement to arbitrate any claims is
valid and binding and, thus, the trial court erred in overruling its preliminary
objections and by failing to compel Appellees to bring their claims in
arbitration. See Sky Zone’s Brief at 25, 32. There appears to be no
disagreement that Appellees’ claims are within the scope of the Agreement.
TCO at 6. Thus, the determinative issue on appeal is whether a valid
agreement to arbitrate existed.
Appellees state that Joseph Burns did not sign the Agreement, but that
Dawn Burns signed the Agreement with his name on it. See TCO at 7. Sky
Zone has produced no evidence to the contrary. Id. Thus, in order for the
Agreement in the instant case to be valid and binding on Joseph Burns, Sky
Zone must establish that an agency relationship existed, at the time of
execution, between Joseph and Dawn Burns. See Petersen, 155 A.3d at
645. “Such a relationship cannot be inferred from mere relationship or
family ties unattended by conditions, acts or conduct clearly implying an
agency.” Id. Rather, this Court has held that “an agency relationship may
be created by any of the following: (1) express authority, (2) implied
authority, (3) apparent authority, and/or (4) authority by estoppel.” Id.
(citing Walton v. Johnson, 66 A.3d 782, 786 (Pa. Super. 2013)).
Express authority exists where the principal deliberately and
specifically grants authority to the agent as to certain matters.
Implied authority exists in situations where the agent’s actions
are “proper, usual and necessary” to carry out express agency.
Apparent agency exists where the principal, by word or conduct,
causes people with whom the alleged agent deals to believe that
the principal has granted the agent authority to act. Authority
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by estoppel occurs when the principal fails to take reasonable
steps to disavow the third party of their belief that the purported
agent was authorized to act on behalf of the principal.[4]
Id. It has been well-established that the party asserting the existence of an
agency relationship bears the burden of proving it by a fair preponderance of
the evidence. See id.; Washburn, 121 A.3d at 1012.
There is no evidence of record indicating that Joseph Burns expressly
authorized Dawn Burns to enter the Agreement on his behalf. However, Sky
Zone suggests that Dawn Burns had implied authority, as Joseph Burns’
wife, to enter the Agreement on his behalf, because she was normally in
charge of registrations such as this. See TCO at 3. Sky Zone further avers
that Dawn Burns had apparent authority to enter the Agreement, “as the
parties entered the facility together and then Joseph Burns went to use the
restroom[,] leaving Dawn Burns to handle the enrollment process with [Sky
Zone’s] employee.” Id. Sky Zone also argues that the doctrine of agency
by estoppel precludes Appellees from alleging that the Agreement is
unenforceable, because Appellees were “intentionally careless in allowing
[Sky Zone’s] employee to believe that Joseph Burns signed the Agreement
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4 The Petersen Court further explained: “The doctrine requires that the
principal intentionally or carelessly caused a third party to believe an agency
relationship existed, or, knowing that the third party held such a belief, did
not take reasonable steps to clarify the facts. Additionally, there must be
justifiable reliance by the third party.” Id. at 647 (internal citations
omitted).
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and/or in allowing [Sky Zone’s] employee to believe that Dawn Burns had
the authority to sign the Agreement on Joseph Burns’ behalf.” Id. at 3-4.
The trial court offers the following analysis in response to Sky Zone’s
arguments regarding the existence of an agency relationship:
Implied authority is an extension of express authority. Neither
the record nor Joseph Burns’ deposition supports that Joseph
Burns gave Dawn Burns “authority to complete paperwork and
enroll her husband in activities” as argued by [Sky Zone]. To
the contrary, Joseph Burns stated in his deposition that Dawn
Burns did not normally fill out waivers and forms for him and
that she had never signed his name to participate in an activity.
As Dawn Burns did not have express authority to enter any type
of agreement for Joseph Burns, she could not have had implied
authority to enter the Agreement.
For purposes of apparent authority, there were no prior
dealings between [Sky Zone’s] employee and [Appellees]. [Sky
Zone’s employee] did not know at the time he/she presented
Dawn Burns with the Agreement if she had ever executed
anything on Joseph Burns’ behalf. No facts were presented to
indicate that Joseph Burns[,] by words or conduct[,] led [Sky
Zone’s] employee to believe Joseph Burns had granted his wife
the authority to sign the Agreement. It is undisputed that
Joseph Burns’ only interaction with [Sky Zone’s] employees was
asking where the restroom was located and possibly obtaining
from an employee the sticker and socks to use the trampoline
facility. Therefore, Dawn Burns did not have the apparent
authority to enter the Agreement on Joseph Burns’ behalf.
For purposes of agency by estoppel, [Sky Zone] must
show that Joseph Burns knew or should have known that Dawn
Burns had signed the Agreement. The record is devoid of such a
showing. Joseph Burns testified in deposition that he did not
know about the Agreement until after his alleged injury. He
further testified that he was not aware that waivers needed to be
signed for activities such as the trampoline park or that Dawn
Burns had ever signed waivers on behalf of his children for
activities akin to the trampoline park.
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TCO at 7-8 (citations to record omitted). After careful review, we conclude
that the trial court’s findings are substantially supported by the record, and
we ascertain no abuse of discretion by the trial court.
For the foregoing reasons, we conclude that Dawn Burns lacked the
authority to execute the Agreement on Joseph Burns’ behalf, and that
accordingly, Joseph Burns is not legally bound by the Agreement. “Despite
national and state policies favoring arbitration, a party cannot be compelled
to arbitrate in the absence of a valid agreement to do so….” Washburn,
121 A.3d at 1016. Having concluded that no valid agreement to arbitrate
exists, we need not address Sky Zone’s remaining claims regarding the
enforceability of the Agreement.
Finally, Sky Zone asserts that the trial court’s determination that the
Agreement was invalid and not binding, that Joseph Burns did not sign the
Agreement, and that Dawn Burns did not have authority to sign the
Agreement on her husband’s behalf, was “premature and usurped the
function of the jury.” Sky Zone’s Brief at 62. To the contrary, we conclude
that the trial court properly decided the issues raised by Sky Zone in its
preliminary objections regarding the validity of the Agreement. “Our
decisional law has made clear that the issue of whether a party agreed to
arbitrate a dispute is a threshold, jurisdictional question that must be
decided by the court.” Pisano v. Extendicare Homes, Inc., 77 A.3d 651,
654 (Pa. Super. 2013).
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[A]rbitration is a matter of contract and, as such, it is for the
court to determine whether an express agreement between the
parties to arbitrate exists. Because the construction and
interpretation of contracts is a question of law, the trial court’s
conclusion as to whether the parties have agreed to arbitrate is
reviewable by this Court. Our review is plenary, as it is with any
review of questions of law.
Midomo Co., Inc. v. Presbyterian Housing Development Co., 739 A.2d
180, 187 (Pa. Super. 1999) (internal citations omitted).
Moreover, it is well-established:
Where no issues of fact are raised, the court shall dispose of the
preliminary objections as a matter of law on the basis of the
pleadings alone.” Matter of D.L.S., 278 Pa. Super. 446, 420
A.2d 625, 626 (1980). Where preliminary objections raise
issues of fact, however, the Rules of Civil Procedure provide that
“the court shall consider evidence by depositions or otherwise.”
Pa.R.C.P. 1028(c)(2); see also Deyarmin v. Consol. Rail
Corp., 931 A.2d 1, 14 (Pa. Super. 2007) (“If an issue of fact is
raised by preliminary objections … the [trial] court may not
reach a determination based upon its view of the controverted
facts, but must resolve the dispute by receiving evidence
thereon through interrogatories, depositions or an evidentiary
hearing.”)
R.M. v. J.S., 20 A.3d 496, 508-09 (Ps. Super. 2011).
Here, Sky Zone’s preliminary objections raised issues of fact as to who
signed the Agreement and whether an agency relationship existed between
Joseph Burns and Dawn Burns. As stated supra, the trial court issued an
order on June 29, 2016, providing the parties with sixty (60) days “to
conduct discovery and supplement the record on issues relating to the
validity and enforceability of the Agreement.” TCO at 3. Accordingly, the
parties conducted depositions of Joseph Burns, Dawn Burns, and Ann Nicole
Atkinson, an employee of Sky Zone, and subsequently filed supplemental
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memorandums of law with the court. The court properly relied on this
discovery and the supplemental pleadings in concluding that the Agreement
was not valid or binding against Joseph Burns.
Order affirmed. Case remanded. Jurisdiction relinquished.
Judge Shogan joins this memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
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