Valentino v. Phila. Triathlon, LLC

150 A.3d 483

Michele VALENTINO, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in her own right, Appellant

v.PHILADELPHIA TRIATHLON, LLC, Appellee

No. 3049 EDA 2013

Superior Court of Pennsylvania.

Argued August 2, 2016

Filed November 15, 2016

Craig A. Falcone, Media, for appellant.

Heather M. Eichenbaum, Philadelphia, for appellee.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON and OTT, JJ.

OPINION BY OLSON, J.:

Appellant, Michele Valentino (in her own right and as administratrix of the estate of Derek Valentino), appeals from an order entered on September 30, 2013 in the Civil Division of the Court of Common Pleas of Philadelphia County granting summary judgment on behalf of Philadelphia Triathlon, LLC (Appellee). After careful consideration, we affirm.

In 2010, Appellee organized an event known as the Philadelphia Insurance Triathlon Sprint (the Triathlon). Three events comprised the Triathlon: a one-half mile swim, a 15.7 mile bicycle race, and a three and one-tenth mile run. Trial Court Opinion, 8/14/14, at 2. The swimming portion of the competition occurred in the Schuylkill River in Philadelphia, Pennsylvania.

To compete in the Triathlon, each participant was required to register for the event. As part of the registration process, participants paid a fee and electronically executed a liability waiver form.¹ Each participant also completed and submitted a registration form to obtain a number and a bib to wear on the day of the race. Mr. Valentino electronically registered as a participant in the Triathlon on January 24, 2010.

On June 26, 2010, at approximately 8:30 a.m., Mr. Valentino entered the Schuylkill River to begin the first part of the Triathlon. He never completed the swimming portion of the competition or any other part of the race. The following day, on June 27, 2010, divers retrieved his body from the Schuylkill River.

Appellant (Mr. Valentino's widow) filed her original complaint on April 12, 2012, asserting wrongful death and survival claims against various defendants, including Appellee. Thereafter, she amended her complaint on June 22, 2012. All of the defendants filed preliminary objections on June 22, 2012. On July 27, 2012, the trial court sustained the defendants' preliminary objections and struck all references in Appellant's amended complaint that referred to outrageous acts, gross negligence, recklessness, and punitive damages. The court concluded that these allegations were legally insufficient since the alleged facts showed only ordinary negligence. In addition, the court struck paragraphs 22(a), (c), (e), and (m) in the amended complaint on grounds that those averments lacked sufficient specificity. The defendants answered the amended complaint and raised new matter on August 9, 2012.

Shortly after discovery commenced, the defendants moved for summary judgment in December 2012. The trial court denied that motion on January 29, 2013. Eventually, Appellant stipulated to the dismissal of all defendants except Appellee. At the completion of discovery, Appellee again moved for summary judgment on August 5, 2013. The trial court granted Appellee's motion on September 30, 2013.² Appellant sought reconsideration but the trial court denied her request. Appellant then filed a timely notice of appeal on October 23, 2013. Pursuant to an order of court, Appellant filed a concise statement of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b). Subsequently, the trial court explained its reasons for sustaining Appellee's preliminary objections in an opinion issued on March 18, 2014. In a separate opinion issued on August 14, 2014, the trial court set forth its rationale for granting Appellee's motion for summary judgment.³

On December 30, 2015, a divided three-judge panel of this Court affirmed, in part, and reversed, in part, the rulings issued by the trial court. Specifically, the panel unanimously affirmed the trial court's order sustaining Appellee's preliminary objections. In addition, the panel unanimously agreed that: (1) the completion of discovery and the further development of the factual record defeated application of the coordinate jurisdiction rule and eliminated factual issues surrounding Mr. Valentino's execution of the liability waiver; (2) Appellant's failure to state viable claims involving recklessness, outrageousness, and intentional misconduct on the part of Appellee mooted Appellant's argument that a contractual waiver of such claims would be ineffective; and, (3) there was no basis to consider the sufficiency of the testimony of Appellant's expert since the trial court did not address that issue. Citing Pisano , however, two of the three members of the petite panel concluded that the liability waiver executed by Mr. Valentino did not apply to Appellant because she was not a signatory to the agreement.⁴ Consequently, this Court vacated summary judgment in favor of Appellee as to Appellant's wrongful death claims.⁵ Thereafter, both Appellant and Appellee requested reargument en banc . By order filed on March 11, 2016, this Court granted en banc reargument and withdrew our opinions of December 30, 2015. We now address the following questions:

1. Whether the [trial c]ourt erred in sustaining the [p]reliminary [o]bjections [ ] where, when the material facts set forth in the [a]mended [c]omplaint, as well as all reasonable inferences deducible therefrom, are accepted as true, it cannot be said with certainty that [Appellee's] actions were not sufficiently reckless, outrageous and/or egregious to warrant an award of punitive damages?

2. Whether the [trial c]ourt erred in sustaining the [p]reliminary [o]bjections [ ] and striking paragraph[s] 22(a), (c), (e), and (m) of the [a]mended [c]omplaint where these averments, and the [a]mended [c]omplaint in general, were sufficiently specific to enable [Appellee] to respond and prepare a defense?

3. Whether the [trial c]ourt erred in granting [Appellee's] second [m]otion for [s]ummary [j]udgment where the issue of waiver and release was previously decided in the [o]rder of January 29, 2013 that denied [Appellee's] first [m]otion for [s]ummary [j]udgment, and the [c]ourt was precluded by the coordinate jurisdiction rule from revisiting the question?

4. Whether the [trial c]ourt erred in granting [Appellee's] [m]otion for [s]ummary [j]udgment where, when the record is viewed in the light most favorable to [Appellant], questions of fact remain as to whether the purported release in question was effectively executed by the decedent and, if it was, whether it was enforceable?

5. Whether the [trial c]ourt erred in granting [Appellee's] [m]otion for [s]ummary [j]udgment where the report issued by Mark Mico fully and adequately addressed the questions of duty, breach of duty and causation and, in addition, he was fully qualified to render opinions in these regards?

Appellant's Substituted Brief at 7–8.

In the first issue, Appellant asserts that the trial court erred in sustaining the preliminary objections and striking all references to outrageous acts, gross negligence, and reckless conduct. Appellant also asserts that the trial court erred in dismissing her claims for punitive damages. The basis for these contentions is that, when the allegations set forth in the amended complaint are taken as true, the pleading asserts a claim that, "[Appellee] intentionally created a situation where swimmers [went] into a river with inadequate supervision and no reasonable means of rescue if they got into trouble." Appellant's Substituted Brief at 22 (emphasis in original).

The standard of review we apply when considering a trial court's order sustaining preliminary objections is well settled:

[O]ur standard of review of an order of the trial court overruling or [sustaining] preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc. , 107 A.3d 114, 118 (Pa. Super. 2014).

In Pennsylvania, "[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Hutchison v. Luddy , 582 Pa. 114, 870 A.2d 766, 770 (2005), quoting , Feld v. Merriam , 506 Pa. 383, 485 A.2d 742, 747 (1984). "As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant's actions are so outrageous as to demonstrate willful, wanton or reckless conduct." Hutchison , 870 A.2d at 770. To support a claim for punitive damages, the plaintiff must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that the defendant acted, or failed to act, in conscious disregard of that risk. Id . at 772. "Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages." Hutchinson v. Penske Truck Leasing Co. , 876 A.2d 978, 983–984 (Pa. Super. 2005), aff'd , 592 Pa. 38, 922 A.2d 890 (2007).

Appellant's amended complaint alleges that Mr. Valentino died while swimming in the Schuylkill River during the...