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DONNA M. PINO v. BIG BOULDER SKI SHOP (02/05/82)

SUPERIOR COURT OF PENNSYLVANIA


February 5, 1982

DONNA M. PINO, APPELLANT
v.
BIG BOULDER SKI SHOP, INC., AND RICHARD G. SPADEMAN, T/A SPADEMAN RELEASE SYSTEMS, AND SALOMON-NORTH AMERICA, INC., ANDERSON & THOMPSON SKI CO., AND RAICHLE MOLITOR, U.S.A., INC., AMERICA SKI CO., AND FRANCOIS SALOMON ET FILS

No. 2953 Philadelphia, 1980, Appeal from the Judgment and Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1861 February Term, 1974.

Before Montemuro, Hoffman, and Van Der Voort, JJ.

MEMORANDUM

Appellant contends that the lower court erred in entering summary judgment because appellee had failed to raise properly the affirmative defense of release. We disagree and, accordingly, affirm the court below.

On March 4, 1972, appellant broke her leg while skiing with skis rented from Big Boulder Ski Shop, Inc. (appellee). On February 14, 1974, she commenced this action against appellee and the manufacturers of her ski equipment. Subsequently, appellee filed an answer and new matter asserting that appellant had released it from liability for her injuries pursuant to her purchase of a "lift ticket." Appellee quoted the pertinent language of the release in its answer and new matter. Appellant averred in response that she lacked sufficient knowledge of the release and asserted that it was invalid as a matter of law.*fn1 She subsequently admitted at her deposition that at the time of renting the skis she had signed a rental agreement and receipt containing the release. Appellee then filed a motion for summary judgment relying upon the release. The lower court granted the motion, prompting this appeal.

Appellant contends that the lower court erred in entering summary judgment because appellee had failed to raise properly the affirmative defense of release. She argues that appellee was derelict in allleging that the release was contained in a "lift ticket" rather than in the ski rental agreement and receipt. We disagree. Appellant is correct in asserting that release is an affirmative defense which must be properly raised in new matter or be deemed waived. Pa.R.Civ.P. 1030, 1032. See generally, Teodori v. Penn Hills School District Authority, 413 Pa. 127, 134, 196 A.2d 306, (1964); Filler Products, Inc. v. Corriere, 381 Pa. 394, 399, 113 A.2d 219, 223 (1955); Lewis v. Spitler, Pa. Superior Ct. , , 403 A.2d 994, 998 (1979); Pugh v. Bankers Mutual Insurance Co. of Adams County, 206 Pa. Superior Ct. 136, 143, A.2d , (1965); Mott v. Fireman's Insurance Co. of Newark, 188 Pa. Superior Ct. 359, 365, A.2d , (1958). However, appellant overlooks the admonition of Pa.R.Civ.P. 126:

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.

"Courts should not be astute in enforcing technicalities to defeat apparently meritorious claims.... The procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered; they are not to be exalted to the status of substantive objectives...." General Mills, Inc. v. Snavely, 203 Pa. Superior Ct. 162, 167, A.2d , (1964). "[O]ur... civil procedural rules provide for broad 'new matter' pleading in order to permit a defendant to compel a plaintiff to answer, during the pleading stage of the action, the defendant's assertions of affirmative defenses which might be conclusive of the action and avoid an unnecessary trial." Ruhe v. Kroger Co., 425 Pa. 213, 216, A.2d , (1967). This is not a case in which a defendant has utterly failed to raise the proferred defense in his answer and new matter. See, e.g., Teodori v. Penn Hills School District Authority, supra. Rather, the issue of the release was asserted in the answer and new matter, albeit the document containing the release was improperly characterized as a "lift ticket." The operative language of the release was quoted in the answer and new matter, and the word "release" was specifically used in referring to that language. Appellant's response reveals no confusion or uncertainty concerning the release; and her deposition testimony unequivocally admits its execution. Under these circumstances, we conclude that the affirmative defense was adequately raised in appellee's answer and new matter. Cf. Bewely v. Aetna Life & Casualty, Pa. Superior Ct. , A.2d (J.1314/1980, filed , 1982) (defense under section 106(c)(1) of the No-Fault Act adequately raised). Accordingly, the lower court did not err in entertaining the profferred defense.*fn2

Affirmed.


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