¶ 1 In this negligence action, we are called upon to determine whether an erroneous syphilis diagnosis was the proximate cause of the breakdown of a marriage, physical violence and loss of employment. Appellant Philadelphia College of Osteopathic Medicine (“PCOM”) sought a new trial following the entry of judgment against it upon a jury verdict totaling $510,000 plus delay damages in favor of Appellees Yvette and Gerald Brown. 1 On appeal PCOM argues, inter alia, that Ap-pellees failed to prove a causal connection between its alleged nеgligence and the “remote and unforeseeable consequences and injuries” for which they claim damages. (Appellant’s Brief at 13.) We agree. Accordingly, for the reasons set forth below, we reverse, vacate the judgment entered against PCOM, and remand this matter to the trial court with instructions to enter judgment notwithstanding the verdict in favor of PCOM.
¶ 2 The facts underlying this appeal may be gleaned from the complete trial record. 2 Yvette Brown delivered the couple’s second child, a daughter, at PCOM on August 29, 1991. Soon after her delivery, the child was givеn a blood test to detect congenital syphilis.
¶ 3 Mrs. Brown testified that a PCOM physician told her the test results revealed that her daughter had been born with syphilis. The physician further told Mrs. Brown that the baby only could have contracted the disease from her. (N.T. Trial,
¶ 4 As a result of the diagnosis, the baby remained hospitalized for a few days after Mrs. Brown was released in order to start a series of injections to treat the congenital syphilis. (N.T. Trial, 4/14/98, at 51.) Mrs. Brown testified that the complete series of these injections, which continued after the baby was released from the hospital, lasted approximately five days. (Id.) In addition, Mrs. Brown received one injection to treat syphilis. (Id. at 55.)
¶ 5 Sometime after the baby was released from the hospital, the Browns requested that she be tested again for syphilis. They learned in October 1991 that the child, in fact, did not have syphilis. (Id. at 114.) In addition, results of a test performed on Mr. Brown, which were received by the Browns in December 1991, 3 revealed that Mr. Brown did not have syphilis. 4 (Id.)
¶ 6 Mrs. Brown testified that after the diagnosis the couple experienced “a lot of arguing, a lot of accusations, distrust” which they had not previously experienced in their marriage. (Id. at 55-57.) Eventually, Mr. Brown became physically аbusive to his wife. (Id. at 60.)
¶ 7 Central to the Browns’ damage claims in this litigation was an episode of abuse in November 1991. Mrs. Brown was, during the events that transpired which gave rise to this lawsuit, a police officer for the City of Philadelphia. She testified that this particular incident began when she received a telephone call at her home from her male partner on the police force. According to Mrs. Brown, upon hearing a man’s voice on the line, Mr. Brown became suspicious and “snatched the phone out of the wall and hit me, and he hit me severаl times.” (Id.) Mrs. Brown then retrieved her service revolver and pursued Mr. Brown out of the house. (Id.) As she described the incident that followed:
I had a gun in my hand, in my underwear, was bleeding all over myself. I was enraged. I was in a blind rage, a maniac. And I went outside and I fired the gun outside after him. But the gun I fired at the car ... all the bullets hit the car. And Gerald was running down the street. But I was in such a rage, I didn’t even know how many times I had fired the gun. I didn’t even realize I was standing out there in my underwear bleeding until my neighbor called me.... And he and I were out there screaming at each other, “You gave me syphilis, you gave my baby syphilis, you are cheating on me and now yоu are going to beat me up,” and I was calling all kinds of names and obscenities at him.
(Id. at 61-62.) During this altercation, Mrs. Brown suffered a concussion that required medical treatment. (Id. at 125.)
¶ 9 The Browns separated after this incident and lived separately until February 1992 when Mr. Brown returned to the marital residence. (N.T. Trial, 4/16/98 at 347.) The parties subsequently separated again in approximately 1994 and have remained sepаrated. (Id.) At the time of trial, the couple had not divorced. (Id. at 315.)
¶ 10 The Browns filed suit against PCOM in October 1993. 6 In their complaint, Appellees alleged that as a “direct and proximate result of the negligence of PCOM” Mrs. Brown suffered “severe physical and psychological damage” and “loss and/or impairment of her earnings and her earning capacity.” (Complaint at ¶¶ 13-14.) Appellees further alleged that Mr. Brown was deprived of the “consortium, congical [sic] services, assistance, society and companionship” of Mrs. Brown. 7 (Id. at ¶ 17.)
¶ 11 At the conclusion of the six-day trial in April 1998, the jury found in favor of the Browns and against PCOM on both negligence and negligent infliction of emotional distress. The jury awarded $500,000 in damages to Mrs. Brown and $10,000 to Mr. Brown. PCOM filed post-trial motions that were denied by the Honorable Sandra Mazer Moss on August 31, 1999. By the same order, Judge Mazer Moss granted the Browns’ motion for the award of delay damages. After the addition of delay damages, the judgment totaled $666,983.90.
¶ 12 PCOM raises a plethora of issues on appeal. 8 These allegations of error fall into three general categories: (1) that the trial court erred in failing to grant judgment in favor of PCOM or a new trial for three reasons; (2) that the trial court erred in admitting the testimony of Appel-lees’ expert witness as to Mrs. Brown’s alleged loss of earning capacity; and (3) that the trial court erred in its charge to the jury.
¶ 13 We will begin with PCOM’s argument that the trial court erred in refusing to grant judgment in its favor because Appellees “failed to prove causation between the alleged negligence of PCOM and the alleged remote and unforeseeable consequences and injuries.” (Appellant’s Brief at 13.) In reviewing a trial court’s decision whether or not to grant judgment in favor of one of the parties, we must “consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to ... the verdict winner.”
Walker v. Grand Central Sani
¶ 14 In order to recover under either of the Browns’ theories of liability as submitted to the jury — professional negligence and negligent infliction of emotional distress — they must prove the elements of a cause of action for negligence, i.e., “that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage.”
Martin v. Evans,
¶ 15 The element of causation lies at the heart of this matter. For purposes of this appeal, we assume that PCOM owed a duty to the Browns and that in delivering the erroneous test results it breached that duty. In addition, we аccept, as found by the jury, that PCOM’s conduct was an actual cause of the eventual harm suffered by the Browns.
¶ 16 It is not sufficient, however, that a negligent act may be viewed, in retrospect, to have been one of the happenings in the series of events leading up to an injury. Even if the requirement of actual causation has been satisfied, there remains the issue of proximate or legal cause. See
Reilly v. Tiergarten Inc.,
whether the policy of the law will extend the responsibility for the [negligent] conduct to the consequences which have in fact occurred.... The term ‘proximate cause’ is applied by the courts to those more or less undefined considerations which limit liability even where the fact of causation is clearly established.
Bell v. Irace,
¶ 17 Proximate cause “is primarily a problem of law” and “it is a Pennsylvania court’s responsibility to evaluate the alleged facts and refuse to find an actor’s conduct the legal cause of harm ‘when it appears to the court
highly extraordinary
that [the actor’s conduct] should have brought about the harm.’ ”
Id.
(emphasis original). Thus, proximate cause must “be determined by the judge and it must be established before the question of actual cause is put to the jury.”
Reilly,
¶ 18 As a threshold issue, therefore, the trial judge must determine whether the alleged tortfeasor’s conduct could have been the proximate, оr legal, cause of the complainant’s injury before sending the case to the jury. In the present case, the learned trial judge made no such threshold determination at any of the appropriate junctures for him to have done so. Instead, the trial court denied PCOM’s motions for a nonsuit, a directed verdict and judgment notwithstanding the verdict. This was an error of law that controlled the outcome of the present case and on this basis we are constrained to reverse.
¶ 19 The law of this Commonwealth will not support a finding of proximate cаuse if, as in the present case, “the negligence, if any, was so remote that as a
¶ 20 To determine proximate cause, the Supreme Court of Pennsylvania has stated that “the question is whethеr the defendant’s conduct was a ‘substantial factor’ in producing the injury.”
Vattimo v. Lower Bucks Hosp., Inc.,
¶ 21 To determine whether an actor’s conduct constitutes the proximate cause of an injury, the courts of the Commonwealth have adopted and relied upon the factors set forth in Section 433 of the Restatement (Second) of Torts.
See, e.g., Vattimo,
§ 433. Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm
The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing harm to another:
(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
(c) lapse of time.
Restatement (Second) of Torts, § 433 (1965).
¶ 22 Applying these factor’s to the present case, it is abundantly clear that factors other than the negligence of PCOM had a far greater effect in producing the harm complained of by the Browns. 9 Mr. Brown conducted an extramarital affair and confessed this to his wife at a time when the affair was still ongoing. It is this affair and his confession to it, together with Mr. Brown’s suspicions that his wife was having an affair herself, not the false diagnosis of syphilis, that had the greatest effect in bringing about the marital discord and eventual breakdown for which the couple seeks compensation. Under the first of the Restatement factors, therefore, the actions of PCOM are not a substantial factor in bringing about these alleged damages.
¶ 24 The third factor is lapse of time. In the present case, the child was born August 29,1991 and was tested for syphilis shortly thereafter. The erroneous test results were delivered to the Browns, and Mr. Brown confessed his adultery while Mrs. Brown was still hospitalized recovering from the birth. By some time in October, they had learned that the diagnosis had been made in error. The primary physical altercation between the couple that resulted in Mrs. Brown’s physical injury, the arrest of both parties, the filing of a protection from abuse order against Mr. Brown and the couples separation, 10 occurred more than two months after the receipt of the erroneous diagnosis and in the month after they learned that the diagnosis had been in error. Thus, the lapse of more than two months, between the erroneous diagnosis and the initial break up of their marriage, point to a finding that PCOM’s negligence was not a substantial factor in bringing about this harm. Accordingly, under all three factors set forth in the Restatement analysis, PCOM’s negligence was not a substantial factor in bringing аbout the breakdown of the Browns’ marriage and, thus, was not a proximate cause of this harm.
¶ 25 Even more clearly, the erroneous test results were not the proximate cause of Mrs. Brown’s alleged loss of income and earning capacity during the more than six years between the erroneous test and the trial. Instead, her independent act of discharging her service revolver in the direction of her husband on a public street (the month after she learned that the syphilis test results were erroneous) and the subsequent determination of the Philadelphia Police Department that such an action constituted conduct unbecoming an officer were the proximate causes of the termination of her employment as a police officer. This, combined with her difficulties in finding adequate child care that would permit her to pursue full-time employment, are the proximate causes of her alleged reduction in income and earning capacity.
¶ 26 Our decision that the damages alleged to have been suffered by the Browns are so remote from the actions of PCOM that PCOM cаnnot be held legally responsible for the harm is dictated by our prior jurisprudence on this issue wherein this Court has rejected similar attempts by plaintiffs to link damages to acts well beyond the point of reasonable foreseeability.
See, e.g., Matos v. Rivera,
¶ 27 The only physical harm suffered by Mrs. Brown in the present case that was the actual and proximate result of receiving the erroneous test result was her receipt of a single injection to treat a disease that she, in fact, did not have. (N.T. Trial, 4/14/98, at 108.) As she did not testify that this injection resulted in pain, suffering, discomfort, complications or any other difficulties, she cannot recover damages on this basis.
¶ 28 Unfortunately for Mrs. Brown, under the state of the law in this Commonwealth, she may not recover for any alleged emotional distress attendant to the erroneous diagnosis, because there is no evidence that her emotional distress was accompanied by the requisite physical impact. While we are sympathetic to Mrs. Brown’s claims regarding the obvious and understаndable emotional impact of this negligent diagnosis upon herself and her family, it is well-settled that such claims are not compensable under Pennsylvania law. Indeed, our Supreme Court has made clear that there can be no recovery for negligent infliction of emotional distress without a contemporaneous physical impact.
See Simmons v. Pacor, Inc.,
¶ 29 Appellees argue in their brief that the physical impact requirement is met by their expert’s testimony that Mrs. Brown suffered “prolonged and aggravated anger and rage” and “weight gain”. (Appellee’s Brief at 34.) Anger and rage are not physical impacts.
11
Similarly, weight gain occurring over a period of years, standing alone, is not the type of “immediate” physical impact required for recovery of damages for negligent infliction of emotional distress.
12
Finally, we
¶ 30 Moreover,
Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745
A.2d 25, 28 (Pa.Super.2000),
appeal granted,
— Pa. -,
¶ 31 In
Doe,
appellant was told, after two indeterminate tests, that his third test had revealed that he was HIV-positive.
Doe,
¶ 32 The appellant in Doe claimed that he had suffered “night sweats, nausea, loss of sleep, skin lesions, rashes, recurring headaches, hair loss, scalp irritation, recurring crying fits, loss of concentration, as well as extreme anxiety, depression, belief that he was going to die of AIDS ..., post traumatic stress disorder, permanent lack of trust in medical providers, despondency, humiliation and social isolatiоn” as a result of the erroneous diagnosis. Id. A panel of this Court held that the physical injuries sustained by appellant, “such as sleeplessness and headaches, stem from [ajppel-lant’s belief that he was HIV positive” and that such “ ‘[f]ear of AIDS’ claims are not cognizable” in Pennsylvania. Id. at 29. This Court further held that “we cannot conclude that two influenza vaccines, which were not the cause of any lasting physical or emotional effects, are sufficient to bootstrap [ajppellant’s claim that he suffered the ‘physical impact’ necessary to support a claim of negligent infliction of emotional distress.” Id.
¶ 33 Accordingly, while we recognize that in this case the erroneous diagnosis alone certainly and foreseeably caused emotional upset, absent the legally requisite physical impact, Mrs. Brown cannot recover on this basis. As we noted in
Armstrong,
“[n]ot every wrong constitutes a legally cognizable cause of action.... Not every loss constitutes a legal injury for which compensation is available.”
Armstrong,
¶ 34 The Browns did not prove that PCOM’s conduct was the proximate cause of the harm that they alleged to have suffered. Further, the emotional harm suffered by Mrs. Brown, absent the requisite physical impact, does not constitute a legally cognizable claim under the law of this Commonwealth. Thus, the trial court erred in not granting judgment in favor of PCOM. Accordingly, we are constrained to reverse the judgment of the Court of Common Pleas of Philadelphia County and remand this matter for the entry of judgment in favor of Appellant Philаdelphia College of Osteopathic Medicine notwithstanding the verdict. Because of our holding herein, we need not address the remaining issues raised in Appellant’s Brief.
¶ 35 Reversed, judgment vacated, and remanded for entry of judgment notwith
Notes
. PCOM purported to appeal from the trial court's denial of its post-trial motions. Such an order is interlocutory and not appealable.
See Johnston the Florist v. TEDCO Const.,
. The Honorable Paul Ribner, who presided over the trial of this matter, retired before Appellant’s post-trial motions or Appellees’ petition for delay damages could be decided. Although the Honorable Sandra Mazer Moss granted the petition for delay damages and denied Appellant’s post-trial motions via a Memorandum Opinion dated August 3, 1999, Judge Moss did not file a formal opinion. Accordingly, we do not have the benefit of a comprehensive opinion of the trial court.
. During his questioning of Mrs. Brown, her counsel referred to test results received in December 1992. Id. Mr. Brown testified that he received the test results in December 1991. (N.T. Trial, 4/16/98, at 324.) We assume, therefore, that Mrs. Brown's counsel misspoke.
. Officials from the City of Philadelphia Department of Health visited the Brown's home, questioned the couple about their sexual relationships and tested Mr. Brown for syphilis. (Id. at 53.)
. Neither was prosecuted on any charges arising out of this incident. (Id. at 133.)
. The Browns did not bring any claims for pain and suffering on behalf of the child.
. The Complaint also averred that Mrs. Brown had "been forced to incure [sic] and will in the future continue to incure [sic] various expenses for her future medical care diagnosis and treatment” and that Mr. Brown "has been and will be required to expend large sums of money for medical attention, hospitalization, medical supplies and medicines in an endeavor to cure his wife.” (Id. at ¶¶ 15, 17.) The Browns provided no testimony at trial regarding any such expenses.
.Indeed, PCOM raises eleven specific allegations оf error regarding the jury charge alone.
. Even the allegations of the Browns' Complaint show that forces other than the negligence of PCOM were the proximate cause of their damages. The Complaint alleges that:
As a direct and proximate result of the negligence of PCOM, wife Plaintiff suffered serious and severe physical and psychological damages as a consequence. Because of the nature of the disease and its communicability, wife Plaintiff accused husband Plaintiff of infecting her with a venereal disease, which husband Plaintiff denied. These accusations took place over several days in the course of which, husband Plaintiff admitted to an extra-marital affair. As a consequence of this admission, that marital relationship became extremely strained and at one point, resulted in physical violence. In self-defense, wife Plaintiff was caused to discharge a firearm in the direction of husband Plaintiff on the public streets of Philadelphia. As a consequence of this action, wife Plaintiff was terminated from her employment as a Philadelphia Police officer.
(Complaint, ¶ 13 (emphasis added).)
. As discussed below, this incident also resulted in Mrs. Brown’s termination from the Philadelphia police force.
. In support of their argument, Appellees rely upon
Armstrong v. Paoli Memorial Hospital,
. Appellees’ expert did not testify that Mrs. Brown's weight gain was caused by the misdiagnosis or by her unnecessary injection to treat syphilis. Indeed, regarding her weight gain, he stated that she had admitted to "not working out, not taking proper care of herself.” (Transcript of the videotaped testimony for trial of Robert Cancro, M.D. at 24.)