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FRANKLIN W. LEIDY AND ELIZABETH S. LEIDY v. DESERET ENTERPRISES (12/02/77)

decided: December 2, 1977.

FRANKLIN W. LEIDY AND ELIZABETH S. LEIDY, APPELLANTS,
v.
DESERET ENTERPRISES, INC., D/B/A BODY SHOP HEALTH SPA, DEFENDANT, AND KATHY ANN ROBINSON AND ELIZABETH S. LEIDY, ADDITIONAL DEFENDANTS. APPEAL OF KATHY ANN ROBINSON



No. 2217 October Term 1976; No. 2282 October Term 1976, Appeals from the Judgment of the Court of Common Pleas, Civil Action - Law of Lancaster County at No. 1 October Term, 1974.

COUNSEL

James P. Coho, Lancaster, for appellants at No. 2217, and appellees at No. 2282.

Andrew F. Lucarelli, Lancaster, with him John S. May, Lancaster, for appellant at No. 2282, and additional defendant, Robinson, at No. 2217.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion in which Watkins, P. J., and Van der Voort, J., join.

Author: Spaeth

[ 252 Pa. Super. Page 166]

Mr. and Mrs. Leidy, appellants, commenced an action in trespass and assumpsit against appellee, Deseret Enterprises, Inc., d/b/a Body Shop Health Spa, for injuries sustained by Mrs. Leidy at the Spa. The Spa joined its employee, Kathy Ann Robinson, as an additional defendant on the theory that she acted outside the scope of her employment in her treatment of Mrs. Leidy. (The Spa also joined Mrs. Leidy as an additional defendant on the basis of assumption of the risk, but this joinder has been stricken.)

The complaint alleges that Mrs. Leidy had 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, and resulted in various injuries. The Spa and Ms. Robinson filed motions for judgment on the pleadings on the basis of a provision in the membership agreement, between Mrs. Leidy and the Spa, purporting to release the Spa from liability for injuries resulting from its negligence or that of its employees. The Spa's motion was granted, but Ms. Robinson's motion was denied. This consolidated appeal by the Leidys and Ms. Robinson followed.

Neither motion should have been granted; we therefore sustain the Leidys' appeal and remand for further proceedings.*fn1

[ 252 Pa. Super. Page 167]

I

The Leidys contend that the clause purporting to release the Spa from liability for injuries resulting from its negligence is unconscionable.*fn2

In Crew v. Bradstreet, 134 Pa. 161, 169, 19 A. 500 (1890), the Supreme Court stated:

Contracts against liability for negligence are not favored by the law. In some instances, such as common carriers, they are prohibited as against public policy. In all cases, such contracts should be construed strictly, with every intendment against the party seeking their protection.

Although not favored, contracts against liability may nevertheless be valid. Commonwealth v. Monumental Properties, Inc., 10 Pa. Commw. 596, 314 A.2d 333 (1973). Generally stated the contract will be held valid if:

(a) "it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State . . . ." (Dilks v. Flohr Chevrolet, 411 Pa. 425, 434, 192 A.2d 682, 687 (1963) and authorities therein cited); (b) "the contract is between persons relating entirely to their own private affairs" (Dilks v. Flohr Chevrolet, supra, pp. 433, 434, 192 A.2d 682, p. 687); (c) "each party is a free

[ 252 Pa. Super. Page 168]

    bargaining agent" and the clause is not in effect "a mere contract of adhesion, whereby [one party] simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely." (Galligan v. Arovitch, 421 Pa. 301, 304, 219 A.2d 463, 465 (1966)).

Employers Liab. Assur. Corp. v. Greenville Business Men's Ass'n., 423 Pa. 288, 291-292, 224 ...


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