[J-14-2018] [OISA: Baer, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

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. 17 EAP 2017

Appeal from the Judgment of Superior 

Court entered on November 15, 2016 

at No. 3049 EDA 2013 affirming the 

Order entered on September 30, 2013 

in the Court of Common Pleas, 

Philadelphia County, Civil Division at 

No. 1417 April Term, 2012

ARGUED: May 15, 2018

OPINION IN SUPPORT OF REVERSAL

JUSTICE DONOHUE DECIDED: June 18, 2019

I join Justice Dougherty’s Opinion in Support of Reversal (“OISR”) in full. I too 

disagree with the Superior Court’s conclusion that the Decedent’s exculpatory agreement

may serve as a complete defense to the wrongful death heir’s claim against the Triathlon. 

I write separately to express my view that, in light of the derivative nature of wrongful 

death actions, the Superior Court was technically correct in its analysis of the mechanical 

operation of the liability waiver in reaching its conclusion. However, when the mechanical 

operation of the law works to defeat the purpose of a remedial statute like the Wrongful 

Death Act, by way of the broad enforcement of a legally disfavored exculpatory 

agreement, the mechanical operation must yield. 
[J-14-2018] [OISA: Baer, J.] - 2

As Justice Dougherty explains, this Court has repeatedly affirmed a requirement 

that exculpatory agreements must be narrowly and strictly construed because exculpatory 

language, which purports to relieve a person of liability even when he has negligently

caused injury to another, is not favored in the law. OISR (Dougherty, J.) at 10, 13-14

(citing Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 224 A.2d 

620, 623 (Pa. 1966); Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 

2010); Topp Copy Prods. Inc. v. Singletary, 626 A.2d 98 (Pa. 1993); Dilks v. Flohr 

Chevrolet, Inc., 192 A.2d 682, 687 (Pa. 1963)). Here, Appellant does not challenge the 

validity or the enforceability of the contractual assumption of risk in the survival action she 

brought (as administratrix) on behalf of Decedent’s estate. Therefore, for purposes of this 

appeal, the liability waiver is valid and enforceable as a complete defense to the survival 

action. As between the Triathlon and Decedent, there is a knowing and voluntary 

agreement to extinguish Decedent’s ability to recover for claims of ordinary negligence. 

I believe that we must, however, decline to allow the liability waiver to defeat a 

wrongful death action brought by heirs who never agreed, expressly or otherwise, to 

eliminate their statutory right to recover for their pecuniary loss resulting from the death 

of their loved one that, as alleged, was tortious but for the liability waiver. Allowing the 

liability waiver to defeat the wrongful death action, as the Superior Court did, gives the 

waiver the broadest possible reading, contrary to our mandate to narrowly construe such 

provisions. The tenet of strict construction requires that we limit this liability waiver to its 

narrowest effect: a bar to recovery under the survival action.

Moreover, as noted by Justice Dougherty, for an exculpatory waiver to be valid, it 

must meet three conditions: it must not contravene public policy, the contract must be 
[J-14-2018] [OISA: Baer, J.] - 3

between persons relating entirely to their own private affairs, and each party must be a 

free bargaining agent to the agreement so that the contract is not one of adhesion. OISR

(Dougherty, J.) at 10-11 (citing Chepkevich, 2 A.3d at 1177). As to these first two prongs,

this Court’s decision in Boyd v. Smith, 94 A.2d 44 (Pa. 1953), is instructive. In Boyd, an 

agreement between a property owner and a tenant relieved the property owner from 

liability for any injury occasioned by the property owner’s negligence in the maintenance 

of the leased building. Boyd, 94 A.2d at 45. However, pursuant to statute, “no building 

... shall be used for human habitation unless it is equipped with a fire escape or fire 

escapes as required by law.” Id. (quoting 53 P.S. § 3962). The property in question was 

not equipped with fire escapes. The building caught fire and, unable to escape the 

building by fire escape, the tenant sustained serious injuries and sued. The property 

owner attempted to rely on the exculpatory agreement in the lease to avoid liability. 

We declined to find the waiver enforceable, explaining: 

Such a protective clause is undoubtedly valid and enforceable 

if it does not contravene any policy of the law, that is, if it is

not a matter of interest to the public or the state but merely an 

agreement between persons relating entirely to their private 

affairs. The situation becomes an entirely different one in the 

eye of the law when the legislation in question is, as here, a 

police measure obviously intended for the protection of 

human life; in such event public policy does not permit an 

individual to waive the protection which the statute is designed 

to afford him.

Id. at 46. We further held, “where the legislature has, by definite and unequivocal 

language, determined the public policy of this Commonwealth with regard to a particular 

subject, that pronouncement cannot be set aside and rendered unenforceable by a 

contract between individuals.” Id.
[J-14-2018] [OISA: Baer, J.] - 4

We are tasked here with determining the legal effect of a liability waiver upon a

third party, not the signatory - a far more extreme reach of the waiver of liability than in 

Boyd. However, as in Boyd, the fullest enforcement of the liability waiver would 

contravene an unequivocal policy determination by the General Assembly, namely that 

wrongful death heirs are entitled to recover pecuniary losses from the party responsible 

for their provider’s death. See OISR (Dougherty, J.) at 9-10, 13.

The Wrongful Death Act, which is remedial in nature and must be construed 

liberally, assures that surviving heirs do not need to go without financial support nor look 

to public welfare agencies to shoulder the economic burden of the loss of a provider. See

Kaczorowski, 184 A. at 665; see also Gershon v. Regency Diving Center, 845 A.2d 720, 

728 (N.J. Super. App. Div. 2004) (observing that, “in many wrongful death cases the 

decedent was the ‘breadwinner’ and the heirs are children, incompetents or those 

otherwise economically dependent on the decedent”). Notably, in the case at bar, 

Decedent was a forty-year-old husband and father of two who worked full-time for United 

Parcel Service and part-time as a licensed realtor. See Appellant’s Response to 

Triathlon’s Motion for Summary Judgment at 2.

Allowing the Triathlon to use Decedent’s waiver of liability to defeat a wrongful 

death claim would require us to ignore clear public policy embedded in the wrongful death 

statute and our laws governing decedents more generally. Analogously, the General 

Assembly has for centuries prohibited spousal disinheritance by will in order to ensure 

the surviving spouse’s financial security after the decedent’s death. See In re Houston's 

Estate, 89 A.2d 525, 526 (Pa. 1952); see also 20 Pa.C.S. § 2203 (authorizing a surviving 

spouse to take against the will an elective share of one-third of the deceased’s property, 
[J-14-2018] [OISA: Baer, J.] - 5

subject to certain exceptions, thereby ensuring the surviving spouse’s right to some 

inheritance). Thus, a married individual cannot eliminate his spouse’s statutory 

entitlement, even through an attempted disinheritance in a last will and testament. In my 

view, it is impossible to reconcile allowing a sporting event participant to eradicate a 

statutory claim for wrongful death damages when he could not accomplish a 

disinheritance by virtue of a will. For this reason, and because liability waivers are 

disfavored, I join Justice Dougherty in narrowly construing the liability waiver so that it is 

enforceable only in the survival action brought on behalf of Decedent’s estate, where it 

was not challenged. Cf. Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on 

public policy grounds). So construed, it has no effect on the wrongful death action. Like 

Justice Dougherty, I would decline to give any effect to the Decedent’s contractual waiver 

of the Triathlon’s duty of care in the wrongful death action because doing so would 

implicate public, not merely private, affairs and would contravene the policy set forth by 

our legislature in the Wrongful Death Act which we must liberally construe. OISR 

(Dougherty, J.) at 14; see also Chepkevich, 2 A.3d at 1189; Boyd, 94 A.2d at 46.