J-A29006-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

JOSEPH M. BELLICONISH, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

FUN SLIDES CARPET SKATE PARK AND 

PARTY CENTER, LLC, SIMTEC, CO., 

AND DONALD V. EDWARDS AND 

LORETTA EDWARDS, ADULT 

INDIVIDUAL PERSON,

:

:

:

:

:

:

Appellees : No. 262 WDA 2014

Appeal from the Order entered October 3, 2013,

Court of Common Pleas, Westmoreland County,

Civil Division at No. 6597 of 2012

BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 26, 2014

Joseph M. Belliconish (“Belliconish”) appeals from the order entered on 

October 3, 2013 by the Westmoreland County Court of Common Pleas, 

granting summary judgment to Fun Slides Carpet Skate Park (“Fun Slides”), 

Simtec Co. (“Simtec”), and Donald and Loretta Edwards (“the Edwards”) 

(together “Appellees”). For the reasons set forth herein, we affirm.

A summary of the relevant facts and procedural history are as follows. 

On November 19, 2011, Belliconish, his wife, Tracy, and her two children, 

visited Fun Slides located in Irwin, Pennsylvania. “Fun Slides [...] is an 

indoor skate park and party center open to both children and adults where 

participants use smooth plastic skates strapped onto their shoes and skate in 
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a black light environment that includes carpeted ramps, jumps, and rails.” 

Trial Court Opinion, 10/3/13, at 2. In order to engage in carpet skating at 

Fun Slides, participants are required to sign an Assumption of Risk, Waiver 

of Liability and Indemnification Agreement. Fun Slides employs two waiver 

forms: one form is intended for a parent/guardian to sign on behalf of a 

minor child; the other form is intended for adults. Both forms are identical 

aside from language in the form intended for minor children, which provides 

that the parent is signing on behalf of the minor child and himself or herself. 

For reasons unknown, Belliconish signed an Assumption of Risk, Waiver of 

Liability and Indemnification Agreement form intended for minor children 

(the “Waiver”). 

As this was Belliconish’s first visit to Fun Slides, he began skating 

down smaller ramps to familiarize himself with the activity. Belliconish, who 

had experience with roller skating and skateboarding, did not have any 

problems balancing as he skated down the ramps and gradually worked his 

way to other, more challenging ramps. After approximately one hour of 

skating, Belliconish attempted to skate down a narrow, elevated ramp 

positioned between two regular ramps. Belliconish lost control on this ramp, 

fell off, and fractured his left patella. As a result, Belliconish required 

surgery and physical therapy.

On November 2, 2012, Belliconish filed a complaint against Appellees, 

alleging a single cause of action for negligence. He testified at a deposition 
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held on April 8, 2013. On June 6, 2013, Appellees filed two nearly identical 

motions for summary judgment presenting two arguments: (1) Belliconish 

signed [the Waiver], releasing Fun Slides from liability for any injuries, and 

(2) Appellees owed “no duty of care to warn, protect or insure against 

inherent risks in a voluntary recreational activity such as carpet skating.” 

Fun Slides’ Motion for Summary Judgment, 6/4/13, at 2-3; Simtec and the 

Edwards’ Motion for Summary Judgment, 6/4/13, at 3.

The trial court held oral argument on the motions for summary 

judgment on September 18, 2013. The trial court granted Appellees’ 

motions for summary judgment in a written opinion filed on October 3, 

2013. On February 7, 2014, Belliconish filed a motion for leave to file an 

appeal nunc pro tunc. Belliconish argued that the trial court did not mail the 

October 3, 2013 order to his counsel, mailing it instead to an address that 

counsel had not used for over 10 years. As a result, Belliconish’s counsel did 

not receive a copy of the order until December 20, 2013. The trial court 

granted Belliconish’s motion on February 7, 2014. Belliconish then filed a 

notice of appeal to this Court on February 13, 2014. 

On appeal, Belliconish presents the following issues for our review:

1. Whether an [i]ndemnification [a]greement 

apparently signed on behalf of an unnamed minor 

person should be construed as applying to a claim 

filed by an adult [p]laintiff for injuries suffered by 

him?

2. Whether a dangerous condition was so open and 

obvious that [Belliconish’s] voluntary participation 
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in carpet skating would constitute [a] preliminary 

and deliberate decision to undertake the specific 

risk?

Belliconish’s Brief at 4.

Our standard of review of a trial court’s decision to grant a motion for 

summary judgment is well settled:

A reviewing court may disturb the order of the trial 

court only where it is established that the court 

committed an error of law or abused its discretion. 

As with all questions of law, our review is plenary.

In evaluating the trial court's decision to enter 

summary judgment, we focus on the legal standard 

articulated in the summary judgment rule. Pa.R.C.P. 

1035.2. The rule states that where there is no 

genuine issue of material fact and the moving party 

is entitled to relief as a matter of law, summary 

judgment may be entered. Where the non-moving 

party bears the burden of proof on an issue, he may 

not merely rely on his pleadings or answers in order 

to survive summary judgment. Failure of a non[-

]moving party to adduce sufficient evidence on an

issue essential to his case and on which it bears the 

burden of proof establishes the entitlement of the 

moving party to judgment as a matter of law. Lastly, 

we will view the record in the light most favorable to 

the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be 

resolved against the moving party.

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citing J.P. 

Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa. Super. 

2013)). 

For his first issue on appeal, Belliconish argues that the Waiver “should 

not be construed as a waiver of liability as to his own injuries” because the 
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form was intended for minors. Belliconish’s Brief at 9-10. Belliconish 

asserts that the contract language must be strictly construed or at least 

considered to be ambiguous and construed against Appellees as the parties 

seeking immunity from liability. Id. at 10-12.

The trial court found this argument to be meritless. Specifically, the 

trial court found that the Waiver, although intended for minors, included 

language releasing Belliconish from any claims against Appellees, quoting a 

portion of the agreement that states:

In consideration of being permitted to participate in 

the sport of carpet skating and activities of Fun 

Slides today and on all future dates, I, (the minor 

participate [sic] and Parent/Guardian), on behalf of 

myself, my minor participant, my spouse, my heirs, 

personal representatives, and assigns, hereby 

release, discharge, and covenant not to sue Fun 

Slides, Simtec Co., ...from all liability, claims, 

demands, losses, or damages.[]

Trial Court Opinion, 10/3/13, at 6 (emphasis in original) (quoting 

Belliconish’s Exhibit A). 

The trial court further found that “the signature of [Belliconish] on said 

Waiver [] form for a Minor indicates that he was signing for himself.” Id. at 

7. 

There is no name of a child-participant on the form, 

[Belliconish] handwrote his own date of birth and his 

own address, and indicated that his emergency 

contact was his wife, indicating her name and mobile 

phone number. It is clear to the [c]ourt that he was 

signing the form for himself and his own participation 

in carpet skating on the date of the incident. The 

language of the Waiver [] is clear and unambiguous.
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Id. The trial court concluded that the Waiver was valid and enforceable, and 

therefore barred Belliconish’s lawsuit. Id.

This Court previously addressed the validity of waivers and releases, 

stating:

Exculpatory documents releasing a party in advance 

for that party’s own negligence are not favored in 

Pennsylvania and are strictly construed. It is 

generally accepted that an exculpatory clause is valid 

where three conditions are met. First, the clause 

must not contravene public policy. Secondly, the 

contract must be between persons relating entirely 

to their own private affairs and thirdly, each party 

must be a free bargaining agent to the agreement so 

that the contract is not one of adhesion. 

Gillingham v. Consol Energy, Inc., 51 A.3d 841, 852 (Pa. Super. 2012) 

(citations and quotation omitted).

In this case, the Waiver, which was a condition precedent to 

Belliconish’s ability to participate in a recreational activity, does not 

contravene public policy. This Court has held that exculpatory clauses 

“violate public policy only when they involve a matter of interest to the 

public or the state.” Seaton v. East Windsor Speedway, Inc., 582 A.2d 

1380, 1382 (Pa. Super. 1990) (citing Leidy v. Deseret Enterprises, Inc., 

381 A.2d 164, 167 (Pa. Super. 1977)). “Such matters of interest to the 

public or the state include the employer-employee relationship, public 

service, public utilities, common carriers, and hospitals.” Id. at 1382-83. 

As the Waiver in this case does not involve a matter implicating such broad 
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public concern, we find that the Waiver is not a matter of interest to the 

public or state and accordingly, does not violate public policy. The second 

condition is also satisfied in this instance, as the Waiver constitutes an 

agreement between private parties relating to private affairs. 

With regard to the third condition, this Court has held that “[a]n 

adhesion contract is ‘a standard-form contract prepared by one party, to be 

signed by the party in a weaker position, [usually a] consumer, who has 

little choice about the terms.’” State Farm Fire & Cas. Co. v. PECO, 54 

A.3d 921, 935 (Pa. Super. 2012) (citing BLACK’S LAW DICTIONARY 318-19 (7th 

ed. 1999)). Although Fun Slides required Belliconish to sign a standard form 

contract that it prepared in order to allow participation in the activity it 

offered, Pennsylvania case law establishes that the Waiver was not a 

contract of adhesion as the Waiver related to the voluntary participation in a 

recreational activity. “[This Court] has cogently expressed why voluntary 

sporting or recreational activities may be viewed differently from other 

activities that require execution of exculpatory contracts[,]” explaining that 

in these instances, 

[t]he signer is under no compulsion, economic or 

otherwise, to participate, much less to sign the 

exculpatory agreement, because it does not relate to 

essential services, but merely governs a voluntary 

recreational activity. The signer is a free agent who 

can simply walk away without signing the release 

and participating in the activity, and thus the 

contract signed under such circumstances is not 

unconscionable. 
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Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1190-91 (Pa. 

2010) (citations omitted). In this case, Belliconish voluntarily signed the 

Waiver in order to participate in the recreational activity of carpet skating. 

We therefore conclude that the Waiver does not constitute a contract of 

adhesion and is valid. 

Belliconish argues that the language in the Waiver is not clear and 

“even though signed by Belliconish, should not be construed as a waiver of 

liability as to his own injuries.” Belliconish’s Brief at 10. Belliconish instead 

asserts that the Waiver, strictly construed, does not apply to his injuries 

because the Waiver was intended to apply to liability for injuries to a minor 

rather than an adult. Thus, he argues, “it is best understood that the parties 

did not intend that he waive liability[,]” and the language in the Waiver 

should be construed against Appellees. Id. at 11-12.

Belliconish is correct that a valid exculpatory clause “will, nevertheless, 

still be unenforceable unless the language of the parties is clear that a 

person is being relieved of liability for his own acts of negligence.” Id. at 

1189 (citing Dilks v. Flohr Chevrolet, 192 A.2d 682, 687 (Pa. 1963)). The 

law for interpreting exculpatory agreements provides that an exculpatory 

clause must meet the following standards to relieve a party of liability:

(1) the agreement must be construed strictly since it 

is not favored by the law; (2) such agreements ‘must 

spell out the intention of the parties with the 

greatest of particularity’ and show the intent to 

release from liability ‘beyond doubt by express 

stipulation,’ because ‘(n)o inference from words of 
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general import can establish it’; (3) such agreements 

‘must be construed with every intendment against 

the party who seeks the immunity from liability’; and 

(4) ‘the burden to establish immunity from liability is 

upon the party who asserts such immunity.’

Nissley v. Candytown Motorcycle Club, Inc., 913 A.2d 887, 890 (Pa. 

Super. 2006) (citing Employers Liability Assurance Corp. v. Greenville 

Business Men’s Asso., 224 A.2d 620, 623 (Pa. 1966)). With these 

standards in mind, we address Belliconish’s argument that the Waiver does 

not relieve Appellees of liability.

This Court has held that “[w]hen interpreting the language of a 

contract, the intention of the parties is a paramount consideration.” State 

Farm Fire & Cas. Co., 54 A.3d at 928 (citing Thomas Rigging & Constr. 

Co., Inc. v. Contraves, Inc., 798 A.2d 753, 755 (Pa. Super. 2002)).

In cases of a written contract, the intent of the 

parties is the writing itself. If left undefined, the 

words of a contract are to be given their ordinary 

meaning. When the terms of a contract are clear 

and unambiguous, the intent of the parties is to be 

ascertained from the document itself. When, 

however, an ambiguity exists, parol evidence is 

admissible to explain or clarify or resolve the 

ambiguity, irrespective of whether the ambiguity is 

patent, created by the language of the instrument, 

or latent, created by extrinsic or collateral 

circumstances. A contract is ambiguous if it is 

reasonably susceptible of different constructions and 

capable of being understood in more than one sense. 

While ambiguous contracts are interpreted by the 

court as a matter of law, ambiguous writings are 

interpreted by the finder of fact....
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Nissley, 913 A.2d at 889 (citing Kripp v. Kripp, 849 A.2d 1159, 1163-64 

(Pa. 2004)).

In this case, we conclude that the language of the Waiver, strictly 

construed, is unambiguous and enforceable. Although the form addresses 

minor participants and parent/guardians, the language specifically releases 

Appellees from liability of claims by the person who signs the Waiver. The 

Waiver provides seven separate paragraphs, including one for waiver of 

liability for ordinary negligence, which provides:

In consideration of being permitted to 

participate in the sport of carpet skating and 

activities of Fun Slides today and on all future dates, 

I, (the minor participant and Parent/Guardian), 

on behalf of myself, my minor participant, my 

spouse, my heirs, personal representatives, and 

assigns, hereby release, discharge, and covenant 

not to sue Fun Slides, SIMTEC CO., its respective 

administrators, directors, agents, officers, officials, 

agents, employees, volunteers, other participants, 

sponsoring agencies, sponsors, advertisers, and if 

applicable, the owners and lessors of premises used 

to conduct the skating activities, (each considered 

one of the “Releasees” herein) from all liability, 

claims, demands, losses, or damages caused or 

alleged to have been caused in whole or in part by 

the ORDINARY NEGLIGENCE of the Releasees 

(including negligent rescue operations).

This agreement applies to 1) personal injury 

(including death) from incidents or illnesses arising 

from participation at Fun Slides (including, but not 

limited to active participation, classes, observation, 

individual use of facilities or equipment, locker room 

area, and all premises including the associated 

sidewalks and parking lots; 2) any and all claims 

resulting from the damage to, loss of, or theft of 

property; and 3) the right to sue for loss suffered by 

the participant, the parents, or the guardians.
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Fun Slides’ Brief in Support of Motion for Summary Judgment, 6/4/13, 

Exhibit A at 1 (Assumption of Risk, Waiver of Liability, and Indemnification 

Agreement) (emphasis in original).

Additionally, the end of the Waiver provides an “Acknowledgement of 

Understanding” clause, which provides:

I, (the minor participant and Parent/Guardian), have 

read this Assumption of Risk, Waiver of Liability, and 

Indemnification Agreement and fully understand its 

terms. I understand that I am giving up substantial 

rights, including my right to sue. I further 

acknowledge that I am signing the agreement freely 

and voluntarily, and intend my signature to be a 

complete and unconditional release of all liability due 

to ordinary negligence by Fun Slides or the inherent 

risks of the activity, to the greatest extent allowed 

by law in the State of Pennsylvania.

Id. at 2. 

Strictly construed, under the language of the Waiver, the signer of the 

Waiver agrees to release Appellees from all liability due to ordinary 

negligence. Despite the inclusion of the term “minor participant,” there is no 

ambiguity in the language of the Waiver that the signer, in his or her 

individual capacity, is releasing Appellees “from all liability, claims, demands, 

losses, or damages caused or alleged to have been caused in whole or in 

part by the ordinary negligence of the [Appellees].” 

Contrary to Belliconish’s assertion, there is no support for a finding 

that the language only waives liability for injuries the minor participant 

might suffer and any claim the parent/guardian may have as a result of an 
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injury to the minor participant. See Belliconish’s Brief at 11. Rather, the 

language is clear that the waiver of liability applies broadly to “personal 

injury (including death) from incidents or illnesses arising from participation 

at Fun Slides” incurred by the signer of the waiver and the minor child. Fun 

Slides’ Brief in Support of Motion for Summary Judgment, 6/4/13, Exhibit A 

at 1 (Assumption of Risk, Waiver of Liability, and Indemnification 

Agreement). As a result, we conclude that the language of the waiver of 

liability, strictly construed, is unambiguous and applies to Belliconish’s claim 

regarding the injuries he sustained.

Furthermore, even if the language of the Waiver was ambiguous, the 

admission of parol evidence, “to explain or clarify or resolve the ambiguity,” 

would demonstrate that Belliconish intended to sign the Waiver on his own 

behalf and release Appellees from liability. See Nissley, 918 A.2d at 889 

(citing Kripp, 849 A.2d at 1163-64) (“When, however, an ambiguity exists, 

parol evidence is admissible to explain or clarify or resolve the ambiguity, 

irrespective of whether the ambiguity is patent, created by the language of 

the instrument, or latent, created by extrinsic or collateral circumstances.”). 

When presented with a copy of the Waiver, Belliconish identified the 

document as “the contract that I signed.” Fun Slides’ Brief in Support of 

Motion for Summary Judgment, 6/4/13, Exhibit B at 76 (Deposition of 

Belliconish). Although Belliconish claims that he did not read the Waiver 

before he signed it, he admitted that he skimmed through the Waiver, 
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recognized it to be a waiver of liability, and understood that a waiver of 

liability means that “there may be, you know, some kind of risk.” Id. at 76-

78. Belliconish further admitted that he never had “any reason to believe 

that [he] would not be bound by the terms of [the Waiver] when [he] signed 

it.” Id. at 166.

Even more demonstrative of Belliconish’s intent to sign the Waiver on 

his own behalf, however, is the uncontested evidence that Belliconish 

handwrote his name, date of birth, and address on the Waiver, did not 

include the name of a child-participant, and indicated that his wife was his 

emergency contact. Fun Slides’ Brief in Support of Motion for Summary 

Judgment, 6/4/13, Exhibit A at 2 (Assumption of Risk, Waiver of Liability, 

and Indemnification Agreement). Moreover, Appellees presented evidence 

of signed waivers for Belliconish’s stepson and stepdaughter, establishing 

that his wife signed waivers on behalf of the minors. See Fun Slides’ Brief in 

Support of Motion for Summary Judgment, 6/4/13, Exhibit B at Exhibit 3. 

Thus, there is no evidence that Belliconish intended to sign the Waiver for 

anyone but himself. 

Viewing the evidence in the light most favorable to Belliconish, we 

conclude that the parties understood and intended the Waiver to be a waiver 

of liability for any injuries sustained by Belliconish as a result of ordinary 

negligence on Appellees’ behalf. We therefore conclude that Belliconish 

waived his claim to liability for the injuries he sustained. Accordingly, the 
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trial court did not commit an error of law or abuse its discretion in granting 

Appellees’ motions for summary judgment.1 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/26/2014

 

1

 Because Belliconish waived his claim to seek liability against the Appellees 

for their negligence and Belliconish only plead claims based upon their 

negligence, we need not address his second claim on appeal that the trial 

court erred in granting summary judgment based on the “no-duty” doctrine 

or assumption of risk.