J. A11016/15

2015 PA Super 273

MICHELE VALENTINO, AS 

ADMINISTRATRIX OF THE ESTATE OF 

DEREK VALENTINO, DECEASED, AND 

MICHELE VALENTINO, IN HER OWN 

RIGHT,

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

 Appellant :

:

v. : No. 3049 EDA 2013

:

PHILADELPHIA TRIATHLON, LLC :

Appeal from the Order Entered September 30, 2013,

in the Court of Common Pleas of Philadelphia County

Civil Division at No. April Term, 2012 No. 1417

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

OPINION BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 30, 2015

Appellant, Michele Valentino (in her own right and as administratrix of 

the estate of Derek Valentino), appeals from an order entered on 

September 30, 2013, in the Civil Division of the Court of Common Pleas of 

Philadelphia County granting summary judgment on behalf of Philadelphia 

Triathlon, LLC (appellee). After careful consideration, we affirm in part, 

reverse in part, and remand for further proceedings.

In 2010, appellee organized an event known as the Philadelphia 

Insurance Triathlon Sprint (the Triathlon). Three events comprised the 

Triathlon: a one-half mile swim, a 15.7 mile bicycle race, and a 3.1 mile 
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run. (Trial court opinion, 8/14/14 at 2.) The swimming portion of the 

competition occurred in the Schuylkill River in Philadelphia, Pennsylvania.

To compete in the Triathlon, each participant was required to register 

for the event. As part of the registration process, participants paid a fee and 

executed a waiver and release form. Each participant had to complete and 

submit a registration form in order to obtain a number and bib that would be 

worn on the day of the race. Derek Valentino registered as a participant in 

the Triathlon on January 24, 2010.

On June 26, 2010, at approximately 8:30 a.m., Derek Valentino 

entered the Schuylkill River to begin the first part of the Triathlon. He never 

completed the swimming portion of the competition or any other part of the 

race. Tragically, the following day, on June 27, 2010, his body was retrieved 

from the Schuylkill River.

Appellant (Derek Valentino’s widow) filed her original complaint on 

April 12, 2012, asserting wrongful death and survival claims against various 

defendants, including appellee. Thereafter, she amended her complaint on 

June 22, 2012. All of the defendants filed preliminary objections on June 22, 

2012. On July 27, 2012, the trial court sustained the defendants’ 

preliminary objections and struck all references in appellant’s amended 

complaint that referred to outrageous acts, gross negligence, recklessness, 

and punitive damages. The court concluded that these allegations were 

legally insufficient since the alleged facts showed only ordinary negligence. 
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In addition, the court struck paragraphs 22(a), (c), (e), and (m) in the 

amended complaint on grounds that those averments lacked sufficient 

specificity. The defendants answered the amended complaint and raised 

new matter on August 9, 2012.

Shortly after discovery commenced, the defendants moved for 

summary judgment in December 2012. The trial court denied that motion 

on January 29, 2013. Eventually, appellant stipulated to the dismissal of all 

defendants except appellee. At the completion of discovery, appellee again 

moved for summary judgment on August 5, 2013. The trial court granted 

appellee’s motion on September 30, 2013. Appellant sought reconsideration 

but the trial court denied her request. Appellant filed a timely notice of 

appeal on October 23, 2013. Pursuant to an order of court, appellant filed a 

concise statement of errors complained of on appeal in accordance with 

Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Subsequently, the trial court 

explained its reasons for sustaining the preliminary objections in an opinion 

issued on March 18, 2014. In a separate opinion issued on August 14, 2014, 

the trial court set forth its rationale for granting appellee’s motion for 

summary judgment.

Appellant’s brief raises the following questions for our review:

1. Whether the [trial c]ourt erred in sustaining 

the [p]reliminary [o]bjections [] where, when 

the material facts set forth in the [a]mended 

[c]omplaint, as well as all reasonable 

inferences deducible therefrom, are accepted 

as true, it cannot be said with certainty that 
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[appellee’s] actions were not sufficiently 

reckless, outrageous and/or egregious to 

warrant an award of punitive damages?

2. Whether the [trial c]ourt erred in sustaining 

the [p]reliminary [o]bjections [] and striking 

paragraph 22(a), (c), (e), and (m) of the 

[a]mended [c]omplaint where these 

averments, and the [a]mended [c]omplaint in 

general, were sufficiently specific to enable 

[appellee] to respond and prepare a defense?

3. Whether the [trial c]ourt erred in granting 

[appellee’s] second [m]otion for [s]ummary 

[j]udgment where the issue of waiver and 

release was previously decided in the [o]rder 

of January 29, 2013 that denied its first 

[m]otion for [s]ummary [j]udgment, and the 

[c]ourt was precluded by the coordinate 

jurisdiction rule from revisiting the question?

4. Whether the [trial c]ourt erred in granting 

[appellee’s] [m]otion for [s]ummary 

[j]udgment where, when the record is viewed 

in the light most favorable to [appellant], 

questions of fact remain as to whether the 

purported release in question was effectively 

executed by the decedent and, if it was, 

whether it was enforceable?

5. Whether the [trial c]ourt erred in granting 

[appellee’s] [m]otion for [s]ummary 

[j]udgment where the report issued by 

Mark Mico fully and adequately addressed the 

questions of duty, breach of duty and 

causation and, in addition, he was fully 

qualified to render opinions in these regards?

Appellant’s brief at 7-8.

Appellant’s first claim asserts that the trial court erred in sustaining 

the preliminary objections and striking all references to outrageous acts, 
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gross negligence, and reckless conduct. Appellant also asserts that the trial 

court erred in dismissing her claims for punitive damages. The basis for 

these contentions is that, when the allegations set forth in the amended 

complaint are taken as true, the pleading asserts a claim that, “[Appellee] 

intentionally created a situation where swimmers [went] into a river with 

inadequate supervision and no reasonable means of rescue if they got into 

trouble.” (Appellant’s brief at 22 (emphasis in original).)

The standard of review we apply when considering a trial court’s order 

sustaining preliminary objections is well settled:

[O]ur standard of review of an order of the trial court 

overruling or granting 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.

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. 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. If any doubt 

exists as to whether a demurrer should be sustained, 

it should be resolved in favor of overruling the 

preliminary objections.

HRANEC Sheet Metel, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114, 

118 (Pa.Super. 2014).
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In Pennsylvania, “[p]unitive damages may be awarded for conduct 

that is outrageous, because of the defendant’s evil motive or his reckless 

indifference to the rights of others.” Hutchison v. Luddy, 870 A.2d 766, 

770 (Pa. 2005), quoting Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984). 

“As the name suggests, punitive damages are penal in nature and are proper 

only in cases where the defendant’s actions are so outrageous as to 

demonstrate willful, wanton or reckless conduct.” Hutchison, 870 A.2d at 

770. To support a claim for punitive damages, the plaintiff must show that 

the defendant had a subjective appreciation of the risk of harm to which the 

plaintiff was exposed and that the defendant acted, or failed to act, in 

conscious disregard of that risk. Id. at 772. “Ordinary negligence, involving 

inadvertence, mistake or error of judgment will not support an award of 

punitive damages.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d 

978, 983-984 (Pa.Super. 2005), affirmed, 922 A.2d 890 (Pa. 2007).

Appellant’s amended complaint alleges that Derek Valentino died while 

swimming in the Schuylkill River during the Triathlon. The amended 

complaint alleges further that appellee was inattentive to the needs of the 

contestants, failed to inspect or maintain the event course, failed to warn of 

or remove dangerous conditions, failed to properly plan or organize the 

event, failed to follow safety standards, and failed to properly train and 

supervise its employees. These allegations, however, averred nothing more 

than ordinary negligence arising from inadvertence, mistake, or error in 
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judgment; they do not support a claim involving outrageous behavior or a 

conscious disregard for risks confronted by Triathlon participants. Hence, 

the trial court correctly dismissed appellant’s allegations of outrageous 

conduct and properly struck her punitive damage claims.

Appellant next asserts that the trial court erred in sustaining the 

preliminary objections and striking paragraphs 22(a), (c), (e), and (m) from 

her amended complaint. Appellant maintains that these averments are 

sufficiently specific to enable appellee to respond to appellant’s allegations 

and to formulate a defense in this case.

Contrary to appellant’s argument, we agree with the trial court’s 

assessment that the challenged portions of the amended complaint are too 

vague and ambiguous to satisfy the requirements found in Pa.R.C.P. 1019. 

Under Rule 1019, “[t]he material facts on which a cause of action or defense 

is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019. 

“Pennsylvania is a fact-pleading state; a complaint must not only give the 

defendant notice of what the plaintiff’s claim is and the grounds upon which 

it rests, but the complaint must also formulate the issues by summarizing 

those facts essential to support the claim.” Feingold v. Hendrzak, 15 A.3d 

937, 942 (Pa.Super. 2011).

The challenged provisions of appellant’s amended complaint referred 

only to “dangerous conditions” (¶ 22(a)), “warnings” (¶ 22(c)), “failures to 

reasonably plan, operate, supervise, and organize the event” (¶ 22(e)), and 
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“failures to employ adequate policies, procedures, and protocols in 

conducting the event” (¶ 22(m)) as the basis for her claim. Upon review, we 

concur in the trial court’s determination that this boilerplate language was 

too indefinite to supply appellee with adequate information to formulate a 

defense.

Appellant cites the decision of the Pennsylvania Commonwealth Court 

in Banfield v. Cortes, 922 A.2d 36 (Pa.Cmwlth. 2007), as supportive of her 

contention that the amended complaint set forth material facts with 

sufficient specificity. Banfield is, however, distinguishable. In that case, a 

group of electors filed suit alleging that the Secretary of the Commonwealth, 

in certifying the use of certain electronic systems in elections, failed to adopt 

uniform testing procedures that addressed the security, reliability, and 

accuracy of voting systems. The Secretary requested an order directing the 

plaintiffs to re-plead their allegations with greater specificity. In rejecting 

this request, the Commonwealth Court explained that in challenging the 

adequacy of the testing features inherent in the newly adopted electronic 

voting systems, the plaintiffs provided sufficient facts to enable the 

Secretary to prepare a defense. Id. at 50. 

Here, in contrast, appellant referred vaguely, and without elaboration, 

to unspecified dangerous conditions, indefinite warnings, and generic failures 

to reasonably plan and employ adequate policies in carrying out the 

Triathlon. Moreover, even if appellee possessed some knowledge of the 
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facts around which appellant’s allegations centered, this alone would not 

relieve appellant of her duty to allege material facts upon which she based 

her claims. See Gross v. United Engineers & Constructors, Inc., 302 

A.2d 370, 372 (Pa.Super. 1973). Thus, appellant’s reliance on Banfield is 

unavailing, and she is not entitled to relief on her second claim.

Appellant’s final three claims challenge the entry of summary 

judgment in favor of appellee. Our standard of review over such claims is 

well settled.

Th[e] scope of review of an order granting summary 

judgment is plenary. Our standard of review is 

clear: the trial court’s order will be reversed only 

where it is established that the court committed an 

error of law or clearly abused its discretion. 

Summary judgment is appropriate only in those 

cases where the record clearly demonstrates that 

there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter 

of law. The reviewing court must view the record in 

the light most favorable to the nonmoving party, 

resolving all doubts as to the existence of a genuine 

issue of material fact against the moving party. 

When the facts are so clear that reasonable minds 

cannot differ, a trial court may properly enter 

summary judgment.

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-1222 

(Pa. 2002).

Appellant advances several arguments in support of her contention 

that the trial court erred in granting summary judgment. First, appellant 

asserts that the coordinate jurisdiction rule precluded the trial court from 

addressing appellee’s motion since a prior summary judgment motion was 
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denied. Second, appellant contends that genuine issues of material fact 

regarding whether Derek Valentino actually executed a waiver form barred 

the entry of summary judgment in appellee’s favor. Appellant next 

maintains that a plaintiff cannot contractually waive liability for reckless or 

intentional conduct and that, as a result, any waiver executed in this case is 

invalid. Appellant also asserts that, pursuant to our prior decision in Pisano 

v. Extendicare Homes, Inc., 77 A.3d 651 (Pa.Super. 2013), appeal 

denied, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S.Ct. 2890, U.S. 

 (2014), a decedent’s waiver is ineffective as to third-party wrongful 

death claims. Lastly, appellant claims that the trial court erred in granting 

summary judgment because she offered the testimony of a qualified expert 

to address lingering questions of appellee’s duty, breach of duty, and injury 

causation.

Upon review, we agree with the trial court that the completion of 

discovery and the development of a more complete record defeated 

application of the coordinate jurisdiction rule and eliminated any factual 

issues surrounding Derek Valentino’s execution of a waiver prior to his 

registration for the Triathlon. (See trial court opinion, 8/14/14 at 4 (“In the 

second motion for summary judgment, it is undisputed that a waiver was 

among the decedent’s possessions, prior to being discovered in the 

Schuylkill River.”).) Moreover, since we determined that appellant did not 

state claims involving reckless or intentional conduct, supra, this contention 
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cannot serve as a basis for disturbing the trial court’s ruling. However, we 

find appellant’s argument regarding Pisano to be dispositive. As discussed 

below, we determine that appellant can maintain a wrongful death cause of 

action and is not bound by Derek Valentino’s release, of which she was not a 

signatory.1

In Pisano, we addressed a similar issue in the context of an 

arbitration agreement. In that case, at the time of his admission to a 

long-term care nursing facility operated by Extendicare, the decedent, 

Vincent Pisano, executed an agreement providing that any dispute would be 

resolved by binding arbitration. Id. at 653. Extendicare sought to dismiss 

the subsequent wrongful death suit based on lack of jurisdiction. The 

agreement stated that “any and all disputes arising out of or in any way 

relating to this Agreement or to the Resident’s stay at the center [including] 

. . . death or wrongful death” are subject to arbitration. Id. at 655.

The trial court denied Extendicare’s preliminary objection seeking to 

have the case dismissed for lack of subject matter jurisdiction, finding that a 

 

1 We note that the trial court agrees it erred in dismissing appellant’s 

complaint in light of this court’s holding in Pisano. (Trial court opinion, 

8/14/14 at 1, 5-6.) In addition, appellee argues the matter is waived for 

failure to raise it in appellant’s Rule 1925(b) statement; however, we find 

that the issue is subsumed within appellant’s fourth issue, raising the 

enforceability of Derek Valentino’s release. See Pa.R.A.P. 1925(b)(4)(v) 

(“Each error identified in the Statement will be deemed to include every 

subsidiary issue contained therein which was raised in the trial court”).
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wrongful death action is a creature of statute and is independent of the 

decedent estate’s right of action. Id. at 654.

The trial court explained that a wrongful death action 

is derivative in only a very limited way: “[T]he right 

to the wrongful death action . . . does not depend 

upon the decedent’s estate’s rights to a survival 

action, but depends only upon the occurrence of the 

tortious act upon which it is based.”

Id., quoting trial court opinion, 7/9/12 at 3. Extendicare appealed, and this 

court affirmed, finding that the agreement was not binding on appellee, the 

son and administrator of Pisano’s estate, as wrongful death claims are not 

derivative of decedents’ rights under Pennsylvania law.

In so holding, this court noted that in 1911, Pennsylvania’s Wrongful 

Death Act, 42 Pa.C.S.A. § 8301, was amended and a wrongful death action 

is no longer derivative of the decedent’s claim; rather, the right of action 

belongs to the statutory claimants, not the decedent:

Unlike its nineteenth century predecessors, 

Pennsylvania’s wrongful death statute, as of 1911, 

distinguished a wrongful death action from a survival 

action, currently providing that “the right of action 

created by this section shall exist only for the benefit 

of the spouse, children or parents of the deceased.” 

42 Pa.C.S.A. § 8301 (1978); Kaczorowski v.

Kalkosinski, 321 Pa. 438, 184 A. 663, 665 (1936) 

(distinguishing the actions based on the 1911 

version of Pennsylvania’s wrongful death statute, Act 

of June 7, 1911, P.L. 678). Pennsylvania courts 

have consistently interpreted this language to mean 

that two separate and distinct causes of action arise 

from a single injury, one dependent “on the rights of 

action which the decedent possessed at the time of 

her death,” and the other dependent on “the rights 

of action that the [claimants], as named by statute, 
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possess.” Holmes v. Lado, 412 Pa.Super. 218, 602 

A.2d 1389, 1391 n. 2 (1992); see also 

Kaczorowski, 184 A. at 665 (“By the statute there 

is given an explicit and independent right of action to 

recover the damages peculiarly suffered by the 

parties named therein.”); Matharu v. Muir, 29 A.3d 

375, 383 (Pa.Super. 2011) (“[A] cause of action for 

wrongful death is not the deceased’s cause of 

action.”).

Id. at 656-657.

The Pisano court explained that in Pennsylvania, survival and 

wrongful death actions are separate and distinct, and that wrongful death 

suits are not merely derivative of the rights of the decedent:

The current distinction between these two claims, as 

explained by this Court previously, is as follows:

The survival action has its genesis in the 

decedent’s injury, not his death. The 

recovery of damages stems from the 

rights of action possessed by the 

decedent at the time of death. . . . In 

contrast, wrongful death is not the 

deceased’s cause of action. An action for 

wrongful death may be brought only by 

specified relatives of the decedent to 

recover damages in their own behalf, and 

not as beneficiaries of the estate. . . . 

This action is designed only to deal with 

the economic effect of the decedent’s 

death upon the specified family 

members.

Id. at 658-659, quoting Moyer v. Rubright, 651 A.2d 1139, 1141 

(Pa.Super. 1994) (in turn quoting Frey v. Pennsylvania Electric 

Company, 607 A.2d 796, 798 (Pa.Super. 1992)). See also Amato v. Bell 

& Gossett, 116 A.3d 607, 625 (Pa.Super. 2015) (“The purpose of the 
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Wrongful Death Statute . . . is to compensate the decedent’s survivors for 

the pecuniary losses they have sustained as a result of the decedent’s death. 

This includes the value of the services the victim would have rendered to his 

family if he had lived. A wrongful death action does not compensate the 

decedent; it compensates the survivors for damages which they have 

sustained as a result of the decedent’s death.” (citations omitted)).

The Pisano court explained that a wrongful death action is 

“derivative” of the original tort in the same way that a loss of consortium 

claim is derivative, in that both arise from an injury to another person. Id.

at 659. However, unlike, e.g., a stockholder’s derivative lawsuit or a 

subrogation action, loss of consortium and wrongful death claims are 

separate and distinct causes of action:

We conclude that wrongful death actions are 

derivative of decedents’ injuries but are not 

derivative of decedents’ rights. This conclusion 

aligns with the proper use of the term “derivative 

action” and is consistent with the Supreme Court’s 

pronouncement in Kaczorowski, which explained:

We have announced the principle that 

the statutory action is derivative because 

it has as its basis the same tortious act 

which would have supported the injured 

party’s own cause of action. Its 

derivation, however, is from the tortious 

act, and not from the person of the 

deceased, so that it comes to the parties 

named in the statute free from personal 

disabilities arising from the relationship 

of the injured party and tort-feasor.
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Id. at 660, quoting Kaczorowski, 184 A. at 664. Ultimately, this court in 

Pisano determined that Extendicare’s arbitration agreement was only 

between it and the decedent. Id. at 661. The appellee was not a party to 

the agreement, and Pennsylvania’s wrongful death statute does not 

characterize the appellee and other wrongful death claimants as third-party 

beneficiaries. Id. Therefore, the trial court properly refused to compel 

arbitration. Id.2

Among other cases, this court in Pisano cited as supporting authority 

our supreme court’s decision in Buttermore v. Aliquippa Hospital, 561 

A.2d 733 (Pa. 1989). Pisano, 77 A.3d at 658. We likewise find 

Buttermore to be instructive. In that case, James Buttermore was involved 

in an automobile accident, sustaining injuries. Buttermore, 561 A.2d at 

734. He signed a release in settlement of his claim against the tortfeasor for 

the sum of $25,000, agreeing to release from liability any and all persons, 

known or unknown. Id. Subsequently, Buttermore and his wife instituted 

suit against Aliquippa Hospital and the treating physicians alleging that the 

treatment he received aggravated the injuries he sustained in the accident, 

 

2

Following Pisano, in Taylor v. Extendicare Health Facilities, Inc., 113 

A.3d 317 (Pa.Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015), 

this court held that an arbitration agreement signed by the decedent or his 

or her authorized representative is not binding upon non-signatory wrongful 

death beneficiaries. Id. at 320-321. The Taylor court further held that 

Pa.R.C.P. 213(e) required consolidation of the wrongful death and survival 

actions, and since the wrongful death beneficiaries cannot be compelled to 

arbitrate the wrongful death actions, both must remain in court.
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worsening his condition. Id. at 734-735. The defendants moved for 

summary judgment on the basis of Buttermore’s release. Id. at 735.

After first holding that the release applied to all tortfeasors, including 

the defendants, whether specifically named or not, the court in Buttermore 

turned to the matter of Buttermore’s wife’s loss of consortium claim: “That 

is not to say, however, that parties may bargain away the rights of others 

not a party to their agreement. That question rises here because a spouse 

not a party to the agreement seeks to sue in her own right for loss of 

consortium.” Id. at 735. The Buttermore court held that the wife had an 

independent cause of action for loss of consortium regardless of her 

husband’s settlement agreement: “The question is, does the wife, not a 

signatory to the agreement, have an independent right to sue for the injury 

done her. We answer that she does.” Id. at 736. See also Pisano, 77 

A.3d at 658, citing Pennsylvania Railroad Co. v. Henderson, 51 Pa. 315, 

317 (1866) (“This suit is brought by the widow, and her right of action 

cannot be affected by any discharge or release of [husband] in his 

lifetime.”).

Similarly, in Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert. 

denied, 355 U.S. 882 (1957), the plaintiff, the widow and executrix of 

George Brown, brought a cause of action under the Wrongful Death Act for 

the benefit of herself and her three minor children, as well as a Survival Act 

claim. Id. at 714. Brown, a neurotic, was admitted to a sanitarium for 
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treatment including electrical shock therapy, following which he fell down a 

flight of stairs. Id. at 715. After the fall, Brown was picked up by his 

extremities, with his head hanging down, resulting in paralysis. Id. Brown 

had signed a release agreeing to release the sanitarium and its employees 

from liability for any injury resulting from his treatment as a neurotic while 

at the sanitarium, including electro-shock therapy or treatment of a similar 

nature. Id. at 722. After concluding that Brown’s treatment following his 

fall down the stairs was unrelated to his treatment as a neurotic by 

electro-shock therapy or other similar therapeutic means, the Brown court 

stated, 

[W]e point out that even if the release were deemed 

sufficient to relieve the defendants of liability under 

the Pennsylvania Survival Act is [sic] could scarcely 

relieve them of liability under the Pennsylvania 

Wrongful Death Act for that Act provides benefits not 

only for the widow of a deceased person but also for 

his children. Even assuming that the release was 

effective as to the plaintiff, who executed it as did 

Brown, nonetheless Brown’s children would be 

entitled to a recovery.

Id.3

 

3 Brown was disapproved of by Grbac v. Reading Fair Co., 688 F.2d 215 

(3rd Cir. 1982). However, Grbac was criticized by this court in Pisano:

In Grbac, the court of appeals held that a liability 

release executed by decedent was binding on the 

widow’s wrongful death claim. Id. at 217-218. 

Erroneously following the Pennsylvania Supreme 

Court’s holding in [Hill v. Pennsylvania Railroad 

Company, 35 A. 997 (Pa. 1896)], the court of 

appeals misinterpreted Pennsylvania law in holding 
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Relying on California law, appellee argues that even if appellant can 

bring the wrongful death action, appellee had no duty to the decedent 

because of his complete waiver. (Appellee’s brief at 38-39.) Appellee 

argues that the decedent agreed to waive liability and assume all risks 

inherent to the dangerous activity of sprint triathlon; therefore, appellee 

owed the decedent no duty to protect him from injury. (Id. at 40.) 

According to appellee, even assuming appellant can sue for wrongful death, 

she cannot possibly recover where appellee has a complete defense. (Id. at 

40-41.)

California state law in this area was recently summarized by the 

California court of appeals in Eriksson v. Nunnink, 233 Cal.App.4th 708, 

(Cal.App. 4 Dist. 2015):

Because a wrongful death claim is not derivative of 

the decedent’s claims, an agreement by the 

decedent to release or waive liability for her death 

does not necessarily bar a subsequent wrongful 

death cause of action by her heirs. (6 Witkin, 

Summary of Cal. Law (10th ed. 2005) Torts, § 1402, 

p. 825.) As explained in Madison v. Superior 

Court (1988) 203 Cal.App.3d 589, 250 Cal.Rptr. 

299, in which the decedent signed an agreement 

purporting to release, discharge, and waive any 

 

that a “wrongful death action is purely derivative” in 

Pennsylvania. Id. at 217. The Grbac Court cites no 

further cases in support of its holding, and no 

binding Pennsylvania authority exists with a similar 

holding. In fact, the limited authority on this subject 

indicates the opposite conclusion of Grbac.

Pisano, 77 A.3d at 658.
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cause of action for wrongful death, “it is clear that 

[decedent] had no power or right to waive that cause 

of action on behalf of his heirs. [Citation.] This is a 

right which belongs not to [decedent] but to his 

heirs. ‘The longstanding rule is that a wrongful 

death action is a separate and distinct right 

belonging to the heirs, and it does not arise until the 

death of the decedent.’ [Citation.]” (Id. at p. 596, 

250 Cal.Rptr. 299.)

Id. at 248.

Although Mia could not release or waive her parents’ 

subsequent wrongful death claims, it is well-settled 

that a release of future liability or express 

assumption of the risk by the decedent may be 

asserted as a defense to such claims. (See, e.g., 

Horwich v. Superior Court, supra, 21 Cal.4th at 

p. 285, 87 Cal.Rptr.2d 222, 980 P.2d 927; Paralift, 

Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 

755, 29 Cal.Rptr.2d 177; Saenz v. Whitewater 

Voyages, Inc. (1990) 226 Cal.App.3d 758, 763–

764, 276 Cal.Rptr. 672.) As the Madison court 

explained: “[A] distinction must be made between 

the legal ineffectiveness of a decedent’s preinjury 

release of his heirs’s subsequent wrongful death 

action and the legal effectiveness of an express 

release of negligence by a decedent which provides a 

defendant with ‘a complete defense.’ [Citation.]” 

(Madison v. Superior Court, supra, 203 

Cal.App.3d at p. 597, 250 Cal.Rptr. 299; see also 

Ruiz v. Podolsky, supra, 50 Cal.4th [838] at pp. 

851–852, 114 Cal.Rptr.3d 263, 237 P.3d 584 

[(2010)] [“although an individual involved in a 

dangerous activity cannot by signing a release 

extinguish his heirs’ wrongful death claim, the heirs 

will be bound by the decedent’s agreement to waive 

a defendant’s negligence and assume all risk.”].)

Id. at 249 (emphasis in Madison). Appellee in the case sub judice urges 

this court to adopt a similar approach. However, we view the Madison line 

of cases as creating a distinction without a difference, i.e., a wrongful death 
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claimant can bring suit but will inevitably lose on summary judgment 

because of the decedent’s waiver of liability, to which the wrongful death 

claimant was not a party. Such a holding would effectively eviscerate the 

Pennsylvania wrongful death statute which creates an independent and 

distinct cause of action, not derivative of the decedent’s rights at time of 

death. We believe the better approach is outlined by the New Jersey 

Superior Court in Gershon v. Regency Diving Center, Inc., 845 A.2d 720 

(N.J.Super. 2004), which explicitly rejected Madison and its progeny, aptly 

describing Madison’s holding as “internally inconsistent.” Id. at 725.4 In 

Gershon, the decedent was a scuba diver and signed up for advanced diving 

training. Id. at 723. As a condition of his participation, he executed a 

release agreement. Id. The decedent expressly waived liability, including 

for wrongful death, and assumed all risk. Id. The lower court held that 

while the exculpatory release signed by the decedent barred any 

survivorship claim which could have been asserted by his estate, it did not 

preclude an independent wrongful death action where the decedent’s heirs 

had not signed the agreement. Id. at 724. Relying on Madison, supra, 

the defendant, Regency Diving Center, argued that the release operated as a

complete bar to all claims. Id. On appeal, the Superior Court of 

 

4

“Although we acknowledge that the pronouncements of sister states are 

not binding authority on our courts, such decisions may be considered as 

persuasive authority.” Shedden v. Anadarko E&P Co., L.P., 88 A.3d 228, 

233 n.3 (Pa.Super. 2014), appeal granted on other grounds, 97 A.3d 

741 (Pa. 2014) (citation omitted).
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New Jersey, Appellate Division, rejected the Madison line of cases as 

against the public interest intended to be protected by the Wrongful Death 

Act:

[T]he intended beneficiaries of the Act are deprived 

of their statutorily authorized remedy merely to 

provide defendants with an environment from which 

to operate their business, apparently free from the 

risk of litigation. Such a prospect would directly 

undermine the remedial purpose of the Act. Stated 

differently, even if decedent had the legal authority 

to bargain away the statutory right of his potential 

heirs, society’s interest in assuring that a decedent’s 

dependents may seek economic compensation in a 

wrongful death action outweighs decedent’s freedom 

to contract.

Id. at 728.5 The Gershon court also noted that until a decedent has died, 

there are no heirs; therefore, their rights cannot be extinguished by an 

agreement that predates their existence:

It is well settled that a person’s heirs are not defined 

until the time of his or her death. Reese v. Stires, 

87 N.J. Eq. 32, 35, 103 A. 679 (N.J.Ch.1917); In re 

Bartles, 33 N.J. Eq. 46 (1880). This fundamental 

tenet of the law of wills and estates is best 

expressed by the ancient maxim nemo est haeres 

viventis, “[n]o one can be heir during the life of his 

ancestor.” Black’s Law Dictionary 936 (5th ed. 

1979). See also 4 Page on Wills § 34.6 

(Bowe-Parker rev.3d ed.1961). It is therefore legally 

impossible for an exculpatory agreement to bar the 

legal claims of a class of litigants that were not 

legally in existence at the time of its execution.

 

5 As in New Jersey, in Pennsylvania, exculpatory agreements are not favored 

by the law and must not contravene public policy. Id. at 726-727; Tayar v. 

Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012). 
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Id. Appellee argues that allowing third-party claims including loss of 

consortium and wrongful death where the decedent expressly assumed the 

risk of injury would expose insurers to increased liability. (Appellee’s brief at 

35-36.) The court in Gershon addressed those concerns as follows:

We recognize that our decision today may prevent 

insurance carriers from obtaining complete releases 

from all possible wrongful death claims, except 

perhaps by the inclusion in any such agreement of all 

persons who subsequently are determined to be 

wrongful death beneficiaries under N.J.S.A. 2A:31-4. 

The policy favoring settlement and finality of claims, 

cannot defeat statutory rights created for the 

protection of survivors of one wrongfully killed.

Id. at 728-729, quoting Alfone v. Sarno, 432 A.2d 857 (N.J. 1981) 

(citations omitted).

Following Pisano, we conclude that Derek Valentino’s release 

agreement did not bind appellant and did not preclude her from bringing a 

wrongful death action. Pisano is clear that a wrongful death action is an 

independent cause of action, created by statute, and is not derivative of the 

decedent’s rights at time of death. Furthermore, we reject appellee’s 

argument that the decedent’s waiver of liability and assumption of the risk 

can be used as a complete defense to appellant’s claims. The release 

agreement was only between the decedent and appellee and has no effect 

on the decedent’s non-signatory heirs including appellant.

Finally, we turn to appellant’s issue regarding the expert report of 

Mark Mico (“Mico”). Mico is an experienced triathlete, race director, and 
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race management consultant. (Appellant’s brief at 50.) In his report, Mico 

stated that, inter alia, appellee did not have enough lifeguards and allowed 

too many swimmers in each wave. (Id. at 51.) Contestants were not 

permitted to wear buoyant wetsuits and there was no safety instruction 

provided. (Id. at 51-52.) Swimmers were given black swimming caps 

which were a poor choice for visibility in the open water. (Id. at 51.) 

Lifeguards were mostly swimming pool lifeguards and were not trained in 

open water safety. (Id. at 52.) Mico concluded that appellee’s negligent 

conduct caused Derek Valentino’s drowning. (Id. at 53.) 

Appellee argues that Mico’s opinion was unsupported by any applicable 

industry standard. (Appellee’s brief at 45.) According to appellee, Mico’s 

report is based on his own personal and retrospective views on how the 

event should have been organized. (Id. at 47.) Appellee also argues that 

Mico failed to explain how appellee’s alleged breach of duty proximately 

caused the decedent’s death. (Id. at 48.) Appellee contends that Mico’s 

expert report represents a post-hoc, personal opinion and is insufficient to 

establish a prima facie case of negligence. (Id. at 49.)

The trial court granted summary judgment for appellee based on 

waiver. As such, the trial court did not consider the issue of Mico’s expert 

report, nor is it discussed in the trial court’s Rule 1925(a) opinion. As there 

is no ruling on the matter, we decline to address it for the first time on 

appeal. The trial court may consider this issue on remand. 
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Affirmed in part and reversed in part. Case remanded for further 

proceedings consistent with this Opinion. Jurisdiction relinquished.

Wecht, J. joins the Opinion.

Olson, J. files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2015