47 Pa. Commw. 277 | Pa. Commw. Ct. | 1979
Lead Opinion
Opinion by
In this appeal, petitioners (plaintiffs) seek review of the orders of the Administrator of Arbitration Panels for Health Care (Administrator) which granted respondents’ (defendants) preliminary objections
Plaintiffs’ case, a medical malpractice action, arose out of a surgical procedure performed on plaintiff, Patricia Hoffner, on April 27, 1976. Plaintiffs Michelle Hoffner, Patricia’s identical twin sister, and Charlotte and Joseph Hoffner, parents of the girls seek recovery for the “great pain and mental anguish’ ’ they suffered as a result of the allegedly negligent surgery and resulting injuries sustained by Patricia.
The Administrator dismissed the claims based on negligent infliction of emotional distress holding that such claims failed to state a cause of action recognized by the law of this Commonwealth. The Administrator rejected plaintiffs’ claims on the authority of Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), finding the plaintiffs were not in the “zone of danger” created by the alleged negligence.
As of July 11, 1979 Niederman, supra, no longer represents the law of the Commonwealth in this area. Sinn v. Burd, Pa. , 404 A.2d 672 (1979). In an attempt to eliminate the “arbitrariness” inherent
Justice Nix in Sinn, id. at 404 A.2d at 685 noted with approval the three factors found by the California Supreme Court in Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968) to be determinative of whether the emotional injuries of a third person were reasonably foreseeable:
(1) "Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) "Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) "Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Dillon v. Legg, 69 Cal. Rptr. at 80, 441 P.2d at 920.
Chief Justice Eagen in Sinn, id. at , 404 A.2d at 687 reached the following conclusions :
Becovery should be permitted in cases of this nature even where the plaintiff is beyond the scope of danger if (1) the plaintiff is closely related to the injured party, such as a mother, father, husband or wife; (2) the plaintiff is near the scene of and views the accident; (3) the plaintiff suffers serious mental distress as a result of viewing the accident and physical injury or suffers serious mental distress and there is a severe physical manifestation of this mental distress.
The exceedingly able and detailed discussion of the law applicable to this case by Chief Justice Eagen,
Accordingly we will enter the following
Order
And Now, November 14, 1979, the orders of the Administrator of Arbitration Panels for Health Care at Docket No. M78-0212 entered November 15, 1978, and December 14, 1978 striking paragraph 22 of Count III and Count IV of petitioners’ amended complaint are hereby affirmed.
The defendants presented three preliminary objections, being a motion to strike, a demurrer, and a motion for a more specific pleading. Since the preliminary objection in the nature of a demurrer is dispositive of the issues presented by this appeal the following discussion will be so limited.
Concurrence Opinion
Concurring Opinion by
I concur in the result only. Consistent with the views expressed in my dissenting opinion in Knight v. Annon, 38 Pa. Commonwealth Ct. 1, 391 A.2d 1101 (1978), I believe that review of the Administrator’s order in this case should have gone to the appropriate Court of Common Pleas.