*3 SOLE, HUDOCK, Before DEL BECK and JJ. *4 BECK, Judge.
This appeal granting preliminary is an from an order and objections dismissing some but not all a multi-count The complaint. appeal challeng- substantive issues on raise ing questions regarding sufficiency plaintiffs-appel- the lants’ The first issue is suffi- pleading. appellants whether ciently pled negligence so as to fall gross excep- within tion to immunity provided defendants-appellees by Act, 50, Mental Health Procedures tit. Pa.Stat.Ann. The second issue is whether 7114(a) (Purdon Supp.1990). § is distress negligent infliction emotional a claim that he allege not plaintiff where the does sufficiently pled defendants, consisted of the which negligence witnessed act, he allege does witnessed failure to but negligence. of defendants’ results injurious however, must questions, we addressing Prior to these appealed order to what extent the first examine whether or dismissed Since the order appealable. from is final of the entire complaint dispose of the and did part order. must determine case, not a classic final We it is final to be considered whether the order nevertheless appealable.1 of the and somewhat presentation with a facts begin
We of this case. On October confusing procedural history admit- voluntarily Bloom appellant Cindy was Medical Regional of DuBois psychiatric unit ted to the Bloom’s next Mrs. (the “Hospital”). evening, The Center found her to visit his He (co-appellant) came wife. husband shoestrings neck a bathroom from behind hanging by suicide her evident room an adjacent hospital door On attempt Mrs. Bloom’s failed. attempt. Fortunately, 21,* 1988, instituted suit she and her husband October Hospital, are the Robert DiGilar- appellees, who unit, and Dr. mo, manager Hospital’s psychiatric employed by Hospital. Fugate, psychiatrist James they Bloom to recover for sought injuries Mr. and Mrs. of this incident. sustained as a result allegedly six All were complaint contained counts. original that Mrs. had informed premised allegation Bloom upon admission and defendants of her mental disorder her that de- alleged treatment. The also requested duty they Mrs. Bloom a care which had fendants owed count, alleged Mrs. Bloom that Dr. the first breached. wanton, reckless, and careless in Fugate had been jurisdiction question implicates it sponte 1. this since our We raise sua Burkhart, Pa.Super. appeal. See Motheral over (en (1990) banc). A.2d 1180 *5 his examination and treatment of Mrs. Bloom by failing test, diagnose to and her. In the adequately supervise count, second Mrs. Bloom made the same substantially allegations against Hospital, alleged and also that the Hospital had failed to train and its properly supervise staff. count, In the third Mrs. Bloom asserted Mr. DiGilarmo provide adequate supervision, procedures had failed to and five, at the In staffing Hospital. counts four and Mr. Bloom alone He plaintiff. sought recovery was damages for the emotional distress he suffered as a result his witnessing hanging by wife the neck and for medical he expenses expended time for treatment of his wife as six, a result incident. count both plaintiffs joined in a claim for Mr. Bloom’s loss of consortium.
All three defendants filed answers with new matter in they immunity provided which asserted to them by 7114(a) Act, Section of the Mental Health Procedures Pa. 7114(a) (Purdon tit. Stat.Ann. Supp.1990). Section § 7114(a) provides:
In the gross absence willful misconduct or negli- gence, administrator, a county a director of a facility, officer or physician, peace any person partici- other who pates person a decision that a examined be or treated act, under this or that a be or person discharged, placed under partial hospitalization, outpatient care or leave of absence, or that the upon person restraint such other- reduced, or a county wise administrator or other autho- rized an person application who denies for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly criminally liable for such decision or for of its any consequences.
Id.2 immunity defendants’ assertion of rested on the
alleged plaintiffs plead gross failure of either the negli- interpreted apply equally hospital 2. This section has been type individual defendants and to treatment decisions of the at issue Farago Hospital, in this case. v. Sacred Heart General 522 Pa. A.2d 300 7114(a). Section required by misconduct or willful gence appellant in new matter pleaded defendants also All *6 infliction negligent state a claim had failed to Mr. Bloom plead- Bloom’s alleged that Mr. They emotional distress. allege failed to in that he had deficient of this tort was ing i.e., event, act or negligent that he had witnessed care for Mrs. to adequately of the defendants failure of that viewed the “aftermath” Bloom, rather had but negligence. answers, plaintiffs defendants’ response
Apparently complaint their to add new to amend sought leave of court defendants. The the conduct of the regarding allegations amend, but limited the permission to granted trial court following in the memorandum: the amendments extent of plead have original complaint [appellants] In the [sic] wanton, acts on behalf “reckless, and careless” negligent complaint amended prepared of Defendants gross negli- conduct as to characterize said they wish they properly is satisfied that have This Court gence. “reckless, wanton, and careless” acts and plead to gross this rises the issue no doubt become whether will not, is satisfied that If it does this Court negligence. cause of action to change cannot now their Plaintiffs complaint If satis- original gross negligence. include amendment is negligence, then an pleads gross factorily will, however, Plaintiffs permit This Court unnecessary. the amend- will restrict complaint, to file an amended but of the Defendants negligence complaint defining ed wanton, careless.” “reckless, negligent and as original that if the com- Thus, court determined the trial the com- gross negligence, sufficiently plead not plaint did the necessary to add supplemented could not be plaint statute of limitations because the allegations, presumably Al- already expired. claims had negligence appellants’ of this precedent support cited no though the court finding that to add decision, in essence to be appears it con- complaint already allegations gross negligence would constitute allegations simple negligence taining pleading of a cause of action new which is permissi- ble after the limitations period See Junk passed. East End Fire Department, Pa.Super. 473, 396 A.2d (1978).3
Appellants filed an complaint amended in which they supplemented original allegations of wrongdoing by appellees. amended alleged that Dr. Fugate and the Hospital “special” had a duty care toward Mrs. Bloom upon and that her admission she showed indications psychiatric “severe and psychological disturbances, ... depression and paranoia” which created an “unreasonably high probability self-destructive actions on her part.” The amended complaint alleged also in several para- new graphs that the defendants all knew had reason to know their in dealing actions with Mrs. Bloom created an *7 unreasonably high probability of self-destructive harm for Mrs. Bloom and that all defendants acted in conscious disregard of this substantial risk. Finally, the amended complaint contained specific additional allegations of wrong- alia, doing defendants, including, inter by that the defen- dants had failed to obtain adequate information concerning Mrs. Bloom’s suicidal possibly condition on admission and had failed to properly medicate and clinically treat her.
All defendants immediately filed preliminary object
Fugate
ions.4 Dr.
demurred to all counts in which he was
defendant,
i.e.,
I,
a named
IV,
counts
V and VI. He argued
that to the extent the
complaint
amended
plead
continued to
permissible
3. We do not decide
plaintiffs
whether it would be
to
complaint
plead
amend
gross negligence
their
after the statute of
passed
limitations had
since that is not the issue before us. Neither
party
appealed
the trial court's decision to allow a limited amend-
Rather,
ment.
original
our entire focus
complaint
is on whether the
sufficiently pled gross negligence so as to
immunity
avoid defendants'
defense.
Immunity
from suit is an
4.
pleaded
affirmative defense which must be
Matter,
1030;
preliminary objections.
in New
not in
See Pa.R.C.P.
Criste,
631,
Kyle v.
(1985).
McNamara &
506 Pa.
Against this Bloom, the order on As to Mr. order. of the trial court’s Mr. All counts which the entire case. disposed of appeal and he dismissed have been as a joined Bloom was is out of Thus, court as to all defendants. the order is a classic final and appealable order as to Mr. Bloom. Bloom,
As to Mrs.
the answer is not as clear. Mrs.
Bloom has
put
been
out of court as to all of her claims
against Dr. Fugate. Since an order dismissing a defendant
is clearly final and appealable, Mrs. Bloom has a present
right
appeal
aspect
of the order. See Motheral v.
Burkhart,
408,
400 Pa.Super.
(1990) (en
This inquiry unfortunately leads us back to that troubling
line of
beginning
cases
Stocker,
with Praisner v.
313 Pa.Su
per.
(1983) (en
A.2d 1255
banc), in which we have
struggled to define an analysis which will enable us to
determine whether an order dismissing some but not all of a
plaintiffs claims against a particular defendant should be
considered final. Praisner
itself determined that such an
order is final
if it
dismissed a separate cause of action.
However, this
premise
basic
has been somewhat modified in
a very recent quartet of cases decided
an en
by
banc panel
of this court. See Jenkins v. Hospital
the Medical
College Pennsylvania,
401 Pa.Super.
The fullest exposition of the finality issue is con tained in the Motheral opinion. There, the court opined that the pivotal consideration in determining finality is “... whether the plaintiff aggrieved it has, for [the order] purposes particular action, put been ‘out of court’ on all theories of recovery asserted given defendant *9 Motheral, 412, 583 A.2d at Pa.Super. given for a loss.” Church, 516 Pa. Baptist (quoting Sweener First at 1184 The Motheral court (1987)). 539, 533 A.2d Praisner had between drawn reiterated the distinction also final, action, is of which separate of a cause the dismissal relief, of which is of alternate theory and the dismissal an situation, has been plaintiff former Id. not. or harm given for a loss to recover any opportunity denied has in been suffered, he whereas the latter has for that legal theory support recovery of denied one of of this standard to dismissal Id. loss. Application and Mr. Hospital Mrs. Bloom’s claims some of of the order is not final portion that this DiGilarmo reveals claims The dismissed Mrs. Bloom’s order appealable. of a disregard in conscious these defendants acted that The dismissed certain risk of harm. order also substantial which had been allegations wrongdoing of specific that complaint. allegations added the amended defendants to included the failure these were stricken insofar specifically mental diagnose problem, Mrs. Bloom’s suicidal, and the failure of these allegedly as she was in a manner. clinically appropriate defendants to treat her to allow Mrs. Bloom to The refusal of trial court defendants acted con- theory on the these proceed risk and on her more disregard scious a substantial put did not Mrs. specific allegations wrongdoing certainly given for a recovery Bloom on all theories of out original in court on her definitely loss. still most She arise wrongdoing, all of which out allegations deficiencies in the allege general the same same facts and provid- Hospital in which defendants and DiGilarmo manner Moreover, sought Bloom. she ed medical care Mrs. original loss in both the for but one and the same recover and she is still in complaint and the amended her recover for loss. At the attempt very court on most, recovery of her theories of been excised. one appealable This a final and order alone does result *10 way litigation put that has in ended the or Mrs. Bloom any out of court as to these defendants.5
Thus, jurisdiction appeal we conclude that our over this is limited to a of the of the trial following aspects review court’s order: of Dr. all of Fugate
1. the dismissal from counts the and complaint; claims,
2. the dismissal of Mr. Bloom’s in- specifically his claim for cluding infliction of emotional distress. begin against with the dismissal of all counts pleaded
We Fugate. reasoning Dr. trial court’s of support First, dismissal of these claims parts. was three original court found that the facts complaint pleaded that rise only give finding simple negligence could to a of and give did not rise to a claim Dr. Fugate that was of guilty Second, gross negligence. the court found that appellants could not file an amended complaint allegations that added that would sufficiently plead gross negligence because the addition of such allegations pleading would constitute the of “a new of theory recovery” past statute limitations. Finally, Fugate the court found that Dr. was immune from simple negligence 7114(a) suit for under Section of the Act, Mental Health Procedures quoted above. disagree
Since we with the first conclusion reached court, the trial by we must reverse its dismissal of Dr. recognize opinion support 5. We that the trial court of the order on appeal Hospital does state that the and Mr. DiGilarmo are immune ordinary negligence original complaint from suit for and that the alleged only ordinary negligence. recognize them We also allegations that when the trial court struck the complaint in the amended amendment, by restoring which had been added thus state, complaint original effectively to its it left Mrs. Bloom allegations immunity with which the court found to be within the Nevertheless, provided appeal to these defendants. the order on did immunity grounds. presume not dismiss these claims on We preliminary objections court did not do so because the filed these defendants, deciding, request which the court was then did not complaint immunity grounds. the Fugate, dismiss Unlike Dr. requested only portions these defendants that the amended gave be struck and is all the trial court them. appellants court found and as Clearly, as the trial Fugate. 7114(a) Fugate Dr. immune concede, would render Section of his treat- arising out simple negligence a suit for from However, supra. See note ment of Mrs. Bloom. can be determined as immunity issue not a case where the Even complaint. with- from the face matter law propriety amend- consideration of the content out original complaint, sufficient- find that the complaint, we ed could, upon development further pleaded acts that ly evidence, aby jury be found production facts gross negligence.6 constitute upon defining the depends of this issue
Resolution gross negli negligence ordinary difference between *11 the difference between these We must ascertain gence. so can doing because without we culpability two levels of appellants’ in determine whether the facts possibly not latter, high the complaint alleging presumably succeeded er, level.7 no provides
The Mental Health Procedures Act itself the fact phrase “gross negligence,” despite definition of the 7114(a) may meaning phrase that under Section this defendant is immune be determinative whether a well precedent no constru- expressly from suit. We have located Act, any nor have we found ing phrase as used definition of the generally applicable statutory other 7114(a) immunity provides exception Section an where 6. also guilty This has been defined defendants are of "willful misconduct.” bring immunity purposes whereby for as "conduct the actor desired to aware it about the result that followed or at least was that was certain follow, Breach, King implied." that desire be v. 115 so such can 355, 366-67, 976, (1988). In Pa.Commw. 540 A.2d the instant case, appellants appellees’ do conduct willful. not contend that was Thus, appellees unless their conduct was are immune from suit grossly negligent. attempt We note court no to define difference 7. trial made Instead, concepts. focus on wheth- between these the court seemed to merely appellees' original complaint labelled conduct as er the had disagree grossly negligent. We with this form or as analysis, adequacy judged of the must since pled, conclusions law that examination of the facts accompany them. phrase. There are two cases remotely even instructive on this question. Commonwealth, 558, first case is Freach 471 Pa.
370 A.2d Freach, wrongful death and brought survival actions were Commonwealth departments, several of agencies, its officials and em- ployees, Farview including State its Hospital, superintend- ent and several doctors employed there. The complaint alleged that these defendants a Mr. Wright released from Farview, where he had been pursuant committed to the Mental 1966, Health and Mental Act Retardation Pa.Stat. Ann. tit. (Purdon 1969), 4101 et seq. his despite § extensive past. Wright violent criminal Mr. subsequently persons murdered the two whose behalf the wrongful death brought. and survival actions were The court held these allegations gross sufficed to plead negligence under the Mental Health and Mental Retardation ofAct provides which immunity persons committing acts pursuant constitute, that statute those except where acts alia, inter gross negligence incompetence. The court did not on the directly opine meaning phrase gross negligence.
Similarly,
Farago v. Sacred Heart General Hospital,
(1989),
Pa.
97 The Court Supreme negligence. liability ordinary lish was did not The court affirmed the trial court. disagreed and of the conclusion jury’s the rectitude opine on specifically not rise the level negligence of did acts pleaded that the the court. gross as that issue was before negligence, of provide any of the cases us with foregoing neither Since a to deter- as to how to evaluate real standards plead failing sufficiently if it mine must be dismissed for guidance turn to the common law gross negligence, we in the gross negligence as used meaning on the term statute. negligence and
Attempts distinguishing at between in distinctions that are negligence have resulted gross perhaps As vague impractical. the authors point treatise on tort law out: leading has not negligence” the idea Although “degrees advocates, by it has been condemned been without its writers, and, common most rejected ... at law most courts, impracticable “vague as a distinction [its] nature, only it adds principle,” so unfounded nebulous and difficulty already and confusion to the given jury. must to the standards uncertain which no in most that there are prevailing rule situations law; as matter “degrees” negligence, of care care, a matter of amounts of as there are different is mere- “gross” negligence perspective, fact. From this thing ordinary negligence, “with ly the same as addition,” vituperative epithet.” “of a ... Torts, Ch. 210- and Keeton on
Keeton, 34 at Prosser § (5th 1984) (footnotes omitted). ed. 11 guidance. In provide do not clear Pennsylvania Cases Assoc., & Savings v. First Federal Loan Pa.Su Henry (1983), panel A.2d 772 noted per. degree simply a different gross negligence was of a premised and both were violation negligence Id., Ct. duty plaintiff. Pa.Superior of care owed to the contrast, A.2d 774. the Commonwealth at at *13 98 gross
Court defines
as
negligence
failure to
a
perform duty
in
disregard
reckless
of the consequences or
such want
with
of care as to
a
justify
conclusion of
willfulness wanton
ness.
Comm.,
v.
Civil
Williams
State
Service
9 Pa.
437, 443,
419,
306
(1973),
Commw.
A.2d
422
on other
aff'd
470,
Pa.
grds.,
(1974).
hand,
Although has not been universal as to agreement meaning gross term is negligence, it clear that the term does not encompass wanton or reckless behavior. As the Supreme explained: Court has understood,
It
course,
must be
that wanton misconduct
something
is
different
negligence
from
gross,—
however
merely
kind,
different
but in
degree
evincing
state of
different
mind on the part of the tortfeasor.
Negligence
inadvertence,
consists of inattention or
where-
as wantonness exists where the
danger
plaintiff,
realized,
though
that,
recklessly
so
disregarded
even
intent,
though there be no actual
there is at least a
willingness
inflict injury,
conscious indifference to
perpetration
wrong.
199, 203,
Kasanovich
348 Pa.
34 A.2d
George,
(1943);
also Krivijanski
Co.,
see
v. Union Railroad
Pa.Super.
99 negligence to gross the term legislature intended that the support the facts substan- negligence form of where mean a inadvertence, carelessness, laxity, ordinary more than tially must be the defendant The of or indifference. behavior of standard deviating ordinary from the grossly flagrant, care. origi- gross to negligence of this definition
Applying that conclude appellants, filed we by nal give to plead facts sufficient be construed to complaint can complaint alleged finding gross negligence. of rise to a defendants, competent out as who themselves held that the of position to one treatment psychiatric provide condi- Bloom, diagnose her mental failed completely Mrs. from her protect in a that would her manner tion and treat admis- upon It further averred that harm. physical serious Bloom’s mental of Mrs. were informed the defendants sion adequate precau- failed to take and nevertheless disorder allegations encompass safety. These to assure her tions of the defen- part on the showing conduct potential Based grossly negligent. might be considered dants that can plaintiffs it is not certain whether complaint, on the that the defendants’ that will demonstrate develop evidence gross as a enough to characterized flagrant be failure was of care. applicable standard deviation from of whether further note that determination We negligence, any to act constitutes an act or failure particu been always of all the view evidence degree, Colloi v. by jury. to determination committed larly Co., A.2d 616 481 Pa.Super. Philadelphia Electric Pa.Super. (1984); Freight Lloyd, East Texas Motor may It is an issue that A.2d 797 and decided as a by a jury from consideration removed free from entirely of law where the case only matter a reasonable jury that possibility and there is no doubt case, the trial court not Id. negligence. could find characterization prevented proper the issue of foreclosed going jury, from but the defendant’s conduct pleading stage moving past from plaintiffs-appellants Thus, their This ease. was error. the dismissal of Dr. Fugate on immunity grounds at this of the case stage must be reversed.8 now proceed
We to the last issue requiring our review. Mr. Bloom’s count of infliction emotional dis- tress was dismissed. The dismissal was based on the ground that he failed to had allege he witnessed the negligent acts defendants. only alleged Rather he acts, he i.e., witnessed the aftermath of those his wife hanging by the neck.9 The trial court concluded that this failure rendered Mr. pleading Bloom’s this cause of *15 action fatally defective. of of parameters the tort negligent infliction of
emotional distress have been difficult to define and the tort undergone has evolutionary an A development. of history the tort illustrates the difficult and multitudinous conceptu- al and policy problems poses. it
In an
to
attempt
engender
consistency,
courts of this
Commonwealth have drawn artificial
at
lines
different
times
to demark where
will
liability
attach and where it will not.
completely
8. The
also
trial court
dismissed Mr. Bloom’s claims for
wife,
money
expended
time and
his
he
on medical treatment of his
consortium,
six,
for
of
claim
lack
contained in counts five and
pleaded against
which had been
all defendants. The court did not
why
state
it
completely,
dismissed these claims Mr. Bloom
as to all
defendants,
only striking
portions
while
certain
of Mrs. Bloom's
against
Hospital
claims
Perhaps
and Mr. DiGilarmo.
the court
thought
immunity
Fugate
that its
on
conclusion
of Dr.
also
effectively precluded
defendants,
liability against
remaining
since
they
eventually
too would
be determined to be immune and the
event,
complaint
entirety.
any
given
them dismissed in its
In
immunity
our conclusion that
cannot
determined as a matter of
stage,
law at this
was
for
it
error
the trial court to dismiss Mr. Bloom’s
expenses
claims
of
for medical
and loss
consortium and those counts
should be reinstated on remand.
Appellees
argue
allege
9.
also
that Mr.
Bloom
failed to
facts that
plead
are sufficient to
intentional infliction of emotional distress. We
attempting
do not read Mr. Bloom’s
as even
to raise such a
claim,
argue
appeal
pled
nor does he
that he has
such a claim.
allegation
Nowhere is there
nor is
of
by appellees,
an
intentional misconduct
required pleading
outrageous
there the
of
behavior that is
(Second)
central to this tort as defined in Restatement
Torts § 46.
Thus, we do not reach this issue.
continued
this Commonwealth
until 1970
example,
For
deny-
impact,
of
requirement
physical
cling to the artificial
had
plaintiff
unless the
for emotional distress
recovery
ing
negligent
as a result
impacted
physically
also been
Gotwalt,
267, 220 A.2d
Knaub v.
Pa.
act. See
401,
(2)
the shock resulted from a
Whether
sensory
contemporane-
upon
from
impact
plaintiff
accident, as
with learn-
of the
contrasted
ous observance
occurrence;
from others after
its
of the accident
ing
closely
(3)
and the victim were
related
Whether
or the
relationship
of any
with an absence
as contrasted
relationship.
a distant
presence
Id.,
Dillon
170-71,
(quoting
... is a away distance from the scene of the accident and learns of the accident from others after its occurrence rather than from contemporaneous ob- servance, the sum total of policy considerations weigh against the conclusion particular plaintiff is legally protection entitled to from the harm suffered.
We believe that where the close
present
relative
accident,
at the scene of the
but instead learns of the
accident from a third party,
thé close
prior
relative’s
knowledge of the injury to the victim serves as a buffer
full
impact
observing the accident scene.
contrast,
By
the relative who contemporaneously ob-
serves
tortious conduct has
time
no
span
which
her
system____ Hence,
brace his or
emotional
the critical
element for establishing such
is the
liability
contempora-
neous
observance
injury
the close relative.
*17
Id.,
279,
One might well question whether there is a sufficient “buffer” inherent in from a hearing third that party
103
in
one and
inflicted on a loved
been
injury
terrible
the
of an accident but
horrible results
seeing the
emotional
recovery for
denial of
justify
to
itself
accident
legitimate
in
Is it
fact
a result thereof.
as
distress suffered
a person
when
distress suffered
the emotional
to
that
say
immediately
then
a relative and
injury
an
hears
is so
relative
injured
and sees the
to the scene
proceeds
recovery
so much less intense that
much less foreseeable
far
have thus
Although
questions
these
be denied?
should
Court,
by
Supreme
in
affirmative
our
the
been answered
debate,
it would
open to
presently
therefore are not
creates a
Sinn/Mazzagatti
standard itself
that the
appear
non-liability.
line between liability
somewhat artificial
Sinn/Mazzagatti
standard
the
applying
is—what
case,
question
the
we must answer
precise
10
above-quoted
As the
have observed?
plaintiff
must
the
reveals,
Sinn
required
the
Sinn
from
language
v.
also Brooks
See
the “accident.”
plaintiff
observe
Decker,
365,
(1986).
Panels of this
The order of the trial court is reversed part and affirmed in part, consistent with this opinion. The counts of the complaint improperly dismissed are reinstated and the matter is remanded for further proceedings in accord- opinion. ance with this relinquished. Jurisdiction is *20 J., SOLE, DEL files and Concurring Dissenting Opinion. SOLE, DEL Judge, concurring dissenting. and I concur in the majority’s decision that Mrs. Bloom’s against Hospital claims the and Mr. DiGilarmo are not final appealable. and I however, separately, write because I is to believe it time reexamine the case law that leads us to this result.
While the has majority correctly stated the prevailing line Praisner, 332, cases from 313 Pa.Super. 1255, 459 A.2d Motheral, 408, to 400 Pa.Super. 1180, 583 A.2d concluding that the dismissal of an alternative theory of relief does not plaintiff take the out court hence and is not final and appealable, I am not satisfied with Instead, this result. I the theory favor that once a court’s jurisdiction attaches for any purpose, it then all attaches for In purposes. the case, instant the because court has to jurisdiction hear Mr.
107 Fugate, against claims Dr. Bloom’s and Mrs. Bloom’s claims hear all of have to jurisdiction the court would therefore theory to the analogous This is Mrs. Bloom’s claims. In case of appellate on an level. the pendent jurisdiction, and the will have both federal jurisdiction, pendent state Although the defendant. the state claims in federal court brought be may independently claim has diversity, of lack of the federal court discretion because if claim the pendent jurisdiction over state to exercise operative a common nucleus of two claims “derive from plaintiff “would be ex- ordinarily fact” and are such that proceeding.” judicial to them all one United pected try Gibbs, 86 S.Ct. v. U.S. Mine Workers situation, (1968). in the Similarly, instant L.Ed.2d have to hear all of Mrs. court should the discretion appellate any it hear of them. agrees Bloom’s related claims when to that an order is principle the rationale for the Generally, effectively out appellant not final until appealable litigation should avoided piecemeal of court is that efficiently. resources most Gordon order to use court’s Gordon, 293 439 A.2d How- Pa.Super. ever, my proposed approach this also underlies policy Here, appellate agreed instant situation. court’s order. order to aspects hear some trial litigation economically, proper act piecemeal avoid remaining aspects be to hear all action would therefore I find this to be the order at the same time. Because I the time has come to judicial approach, most sound believe eye of the law with an towards this reconsider area change.
I respectfully portion majority dissent from that Bloom for opinion which denies relief Mr. *21 The its majority infliction of emotional distress. reaches negligent Mr. because Bloom never observed decision defendants, he found his despite acts of the fact that wife attempt. negligent her neck in a suicide hanging by test, adequately defendants of a failure to acts of consisted Bloom, diagnose proper- and Mrs. and failure to supervise and ly supervise train the staff. If one were to follow the majority’s Mr. mere reasoning, presence Bloom’s when staffing supervisory were decisions made allow would him negligent to recover for distress, infliction emotional viewing while his hanging by shoestring wife around her reason, neck not. theory would This defies for the observ- ance of these seemingly neutral acts could not have inflict- ed the resultant harm. Such observance would have to the added emotional distress suffered Mr. Bloom. Mr. Only when Bloom his hanging encountered wife’s body did he suffer the emotional for distress which he now seeks recovery illogical it is. to hold that observation of these acts negligent and omissions of defendants is the necessary element to a for Mr. finding Bloom. Because I believe that observation of defendant’s acts is irrelevant to a case determination of Mr. Bloom’s claim for recovery of damages distress, emotional I respectfully dissent.
Argued June 1991.
Filed Oct. 1991.