J-A12042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WAYNE E. MANKOWSKI, AND HIS WIFE, 

TRACIE MANKOWSKI

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

SEVEN SPRINGS MOUNTAIN RESORT, 

INC.

Appellee No. 1653 WDA 2016

Appeal from the Order September 29, 2016

In the Court of Common Pleas of Somerset County

Civil Division at No(s): 62 Civil 2016

BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 7, 2017

Wayne E. and Tracie Mankowski (“Appellants”) appeal from the order 

entered on September 29, 2016. We affirm. 

As the trial court disposed of this case on preliminary objections, the 

following factual background is taken from Appellants’ complaint. On 

February 28, 2015, Mr. Mankowski and his son were boarding a chairlift at 

Seven Springs Mountain Resort, Inc. (“Seven Springs”). The son was having 

difficulty boarding the chairlift. When Mr. Mankowski attempted to help his 

son, his son fell to the ground and Mr. Mankowski fell from the chairlift. Mr. 

Mankowski landed on a bolt on the base of the chairlift tower. Mr. 

Mankowski suffered injuries as a result of this fall.
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The procedural history of this case is as follows. On February 4, 2016, 

Appellants instituted the instant action by filing a complaint against Seven 

Springs. On March 10, 2016, Seven Springs filed preliminary objections in 

the nature of a demurrer. On September 29, 2016, the trial court sustained 

the preliminary objections and dismissed Appellants’ complaint. This timely 

appeal followed.1

Appellants present three issues for our review:

1. Whether the [t]rial [c]ourt erred in failing to adhere to the 

applicable standard for determining preliminary objections when 

it disregarded the well-pled facts of [Appellants’ c]omplaint 

which support claims of negligence and recklessness due to 

[Seven Springs’] actions and/or omissions in failing to protect 

patrons from a dangerous condition, which is not inherent in the 

sport of skiing and which was the direct and proximate cause of 

the injuries suffered by [Mr. Mankowski]?

2. Whether the [t]rial [c]ourt erred in applying the “no duty” rule of 

the Skiers’ Responsibility Act[(“the Act”), 42 Pa.C.S.A. 

§ 7102(c)], which bars recovery for injuries that arise from risks 

inherent in the sport of skiing, to a case where [Appellants pled] 

injuries which did not occur due to an inherent risk of the sport 

but instead[] due to a foreseeably dangerous condition, an 

unprotected chairlift tower and bolt on the tower?

3. Whether the [t]rial [c]ourt erred . . . when it ruled on 

preliminary objections that no duty was owed by [Seven 

Springs] to protect a patron from a foreseeably dangerous 

condition not inherent in the sport of skiing?

Appellants’ Brief at 4.

 

1 On October 31, 2016, the trial court ordered Appellants to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). On November 17, 2016, Appellants filed their concise 

statement. On December 20, 2016, the trial court issued its Rule 1925(a) 

opinion. Appellants’ lone substantive issue was included in their concise 

statement. 
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Although phrased as three separate issues, Appellants’ only 

substantive argument is that the trial court erred in finding that their suit 

was barred by the Act. “Our standard of review of an order of the trial court 

[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.” Freundlich & Littman, LLC v. Feierstein, 157 A.3d 

526, 530 (Pa. Super. 2017) (internal alteration and citation omitted). 

“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.” P.J.A. v. H.C.N., 156 A.3d 

284, 287 (Pa. Super. 2017) (per curiam) (citation omitted). “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.” 

Martin v. Holy Spirit Hosp., 154 A.3d 359, 362 (Pa. Super. 2017) (citation 

omitted). “If any doubt exists as to whether a demurrer should be 

sustained, it should be resolved in favor of overruling the preliminary 

objections.” Khawaja v. RE/MAX Cent., 151 A.3d 626, 630 (Pa. Super. 

2016) (citation omitted). 
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The trial court found that Appellants’ complaint was barred by the Act, 

which provides that:

(1) The General Assembly finds that the sport of downhill skiing 

is practiced by a large number of citizens of this Commonwealth 

and also attracts to this Commonwealth large numbers of 

nonresidents significantly contributing to the economy of this 

Commonwealth. It is recognized that as in some other sports, 

there are inherent risks in the sport of downhill skiing.

(2) The doctrine of voluntary assumption of risk as it applies to 

downhill skiing injuries and damages is not modified by 

[Pennsylvania’s general comparative negligence rule].

42 Pa.C.S.A. § 7102(c). 

As our Supreme Court explained:

[T]he Act explicitly preserved the common law assumption of 

risk defense as applied to injuries suffered while engaged in 

downhill skiing. Because the Act did not create a new or special 

defense for the exclusive use of ski resorts, but instead kept in 

place longstanding principles of common law, a review of those 

principles is instructive. The assumption of the risk defense, as 

applied to sports and places of amusement, has also been 

described as a “no-duty” rule, i.e., as the principle that an owner 

or operator of a place of amusement has no duty to protect the 

user from any hazards inherent in the activity. 

Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1185–1186 (Pa. 

2010) (internal citations omitted). Therefore, in order for a suit to be barred 

by the Act (1) the injury must have occurred while engaged in the sport of 

downhill skiing and (2) the injury must have arisen out of a risk inherent in 

the sport of downhill skiing. Hughes v. Seven Springs Farm, Inc., 762 

A.2d 339, 344 (Pa. 2000); see Jones v. Three Rivers Mgmt. Corp., 394 

A.2d 546, 551 (Pa. 1978) (internal quotation marks and citation omitted) 
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(“[N]o-duty rules[] apply only to risks which are common, frequent[,] and 

expected, and in no way affect the duty of theatres, amusement parks[,] 

and sports facilities to protect patrons from foreseeably dangerous 

conditions not inherent in the amusement activity.”).

Appellants concede that Mr. Mankowski was engaged in the sport of 

downhill skiing. They contend, however, that their suit is not barred by the 

Act because his injuries were not the result of a risk inherent with the sport 

of downhill skiing. We disagree. Our Supreme Court’s decision in 

Chepkevich controls this issue. In that case, our Supreme Court held “that 

boarding and riding a [chairlift] are inherent to the sport of downhill skiing 

and inherently dangerous activities, the most obvious danger of which—a 

risk that is common, frequent[,] and expected—is undoubtedly falling from 

the lift.” Chepkevich, 2 A.3d at 1187. In this case, Mr. Mankowski was 

injured when he fell from a chairlift. As this risk is inherent in the sport of 

downhill skiing, Appellants’ suit is barred by the Act.

Appellants attempt to distinguish Chepkevich by arguing that it did 

not involve an individual falling from a chairlift and striking an unprotected 

bolt on the chairlift tower. This argument fails because our Supreme Court’s 

decision in Chepkevich was not based upon what the skier fell on, e.g., the 

chairlift tower or snow. Instead, our Supreme Court’s holding in 

Chepkevich was broad and encompasses the situation in the present case. 

Our Supreme Court held that falls from chairlifts are risks inherent in the 
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sport of downhill skiing. Thus, Chepkevich is not distinguishable from the 

case at bar.

Appellants also cite Crews v. Seven Springs Mountain Resort, 874 

A.2d 100 (Pa. Super. 2005), appeal denied, 890 A.2d 1059 (Pa. 2005), in 

support of their argument that the risk in this case was not inherent in the 

sport of downhill skiing. Specifically, they contend that Seven Springs could 

have protected the bolt and eliminated the risk of injury. Our Supreme 

Court in Chepkevich, however, rejected the interpretation of Crews

advanced by Appellants. Our Supreme Court stated:

[B]y defining an inherent risk only as one that “could be 

removed without altering the fundamental nature of skiing,” 

Crews encourages plaintiffs to plead cases to define the risks 

that led to their injuries in a narrow, hypertechnical manner. 

Crews invites the argument that an allegation of negligence by 

a ski resort will always negate any defense of the assumption of 

the risk, as the “risk of negligence” can always be removed 

without altering the nature of skiing. Such an approach fails to 

account for the “no-duty” rule and is contrary to the legislative 

intent to preserve the assumption of risk defense for downhill 

skiing. Neither the common law assumption of the risk doctrine, 

nor our decision in Hughes, suggested such an interpretation of 

inherent risks. Instead, those authorities direct that inherent 

risks are those that are “common, frequent, or expected” when 

one is engaged in a dangerous activity, and against which the 

defendant owes no duty to protect.

Chepkevich, 2 A.3d at 1187 n.14 (emphasis in original). Thus, Crews was 

limited to the specific facts of that case based upon public policy concerns. 

See id. There are no such public policy concerns in the case sub judice. 

Thus, Crews is not instructive when evaluating the issue presented in this 

case.
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Finally, Appellants rely on Tayar v. Camelback Corp., 47 A.3d 1190 

(Pa. 2012). Tayar, however, did not address the assumption of risk 

doctrine. Instead, Tayar addressed whether a release relieving a party of 

liability for reckless conduct violated this Commonwealth’s public policy. 

See id. at 1190. In this case, there was no release which relieved Seven 

Springs of liability for reckless conduct. Instead, this case involves a 

straightforward application of the Act and a controlling decision of our 

Supreme Court. Under Chepkevich, Appellants’ suit is barred by the Act. 

Accordingly, we conclude that the trial court properly sustained Seven 

Springs’ preliminary objections.2

 Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2017

 

2 Appellants also cite to an unpublished memorandum issued by this Court in 

another unrelated case in January, 2017. Appellants’ Brief at 14-17. We 

remind Appellants of the Superior Court’s Operating Procedure § 65.37.A. 

which prohibits a party from relying upon or citing to unpublished 

memorandum decisions of this Court. In light of this Operating Procedure, 

we are constrained not to consider the unpublished memorandum decision 

cited by Appellants in deciding this case.