*1 in any way. goal or hinder this not frustrate house did wife’s maintained appellant considering misrepresentation, Even money his and kept segregated he bargain; of his the benefit After for himself. of his own house of the sale proceeds appar- it was daughter her her house with wife sold decedent in it. Appellant’s no interest would have appellant ent that apparent was misrepresentation failure act when under traditional agreement of the amounts to ratification fundamentally unfair It would be of contract law. principles he honor the as if would to conduct himself to allow successfully challenge it his wife was alive contract while her after death.
Order affirmed. A.2d 423 Gist, KELLY, of Tamar Administratrix Estate Janie right, Appellant, Kelly, in own Deceased and Janie AMERICA, INC., & Medi- OF Geriatric RESOURCE HOUSING Stone, Cook, Centers, Inc., Christopher Laura Patricia cal D.O., Meltzer, Appellees. Perry, T. and Ronald Jane Walsh Pennsylvania. Superior May Argued 1992.
Filed Oct. *3 Philadelphia, appellant. for Spivak, W. Gerald Meltzer, Sachs, Philadelphia, for appellee. Robert WIEAND, KELLY, OLSZEWSKI and JJ. Before WIEAND, Judge: mother, 2, 1989, May Kelly or Janie caused her
On about Pavilion, Gist, nursing to be admitted to the Care Tamar Mrs. Gist remained at Care Pavilion Philadelphia. home July Alleging her death on that Care Pavilion until respond and to her inadequate care had failed to provided had needs, and Kelly wrongful commenced death mother’s medical mother’s actions as administratrix of her deceased survival for the infliction of right a claim in her own estate and made were Care Pavilion Named as defendants emotional distress. Plaza, Inc.; Housing of America Park Resource of Walnut Pavilion); (owner, of Geriatric & manager, operator and Care Centers, Inc.; Medical Total Care Development Corporation; (administrator Christopher Stone Pavilion); of Care Laura (director Cook Pavilion); of nursing Care Perry Patricia (nurse Pavilion); (director at Care Jane Walsh of quality Pavilion); (the control at Meltzer, Care and Ronald D.O. treating physician). After Kelly had filed a second amended complaint, the objections. defendants filed preliminary All preliminary objections overruled, except that the trial court III dismissed Counts IV the Second Amended prejudice. with appealed. Plaintiff The trial court filed a memorandum opinion suggesting that the appeal was interlocutory but providing no further insight into the reason for its ruling.
The first count of the Second Amended Complaint, filed by Kelly in capacity administratrix, as asserted a wrongful death action for pecuniary losses by suffered the decedent’s heirs, as medical, well as reimbursement hospital and costs, nursing home together with funeral and other expenses. The second count inwas nature a survival action and sought to recover pecuniary losses by sustained the decedent’s estate. The third attempted count to state a wrongful death premised upon action an alleged breach of contract. The fourth and final count asserted a cause of action on behalf of Kelly, right, intentional, her own or reckless negligent infliction of emotional distress.
In a trio of cases decided panels, en banc Superior comprehensive conducted a analysis type orders which will be deemed “final” for appealability purposes. Shah, 400 Pa.Super. Garofolo the Court stated:
Generally, an appeal will lie from a final order unless permitted by otherwise statute or rule of court. v. Pugar Greco, 68, 72-73, 542, (1978). 483 Pa. 394 A.2d 544 An order is interlocutory and not final puts unless it a litigant out of court. Allesandro v. State Farm Mutual Auto Ins. Co., 274, 281, 347, 487 Pa. (1979); 409 A.2d 351 Giannini v. 553, Foy, 556, (1980). 279 Pa.Super. 338, 421 A.2d 339 In Stocker, 332, Praisner v. [337-338], 313 Pa.Super. 459 A.2d
397 1255, [1258] the reviewed the applicable law and said: rule, dismissing some but not all an general order
As a
interlocutory and not
is
complaint
of a multi-count
counts
Gordon,
491,
499,
v.
appealable. Gordon
Pa.Super.
[293
Madden,
v.
Stengena
(1981);
291
683,
439 A.2d
686-687]
(1981); Mitchell
366,
1269,
364,
1270
435 A.2d
Pa.Super.
Cadillac,
350, 353, 430
City
v. Center
A.2d
Pa.Super.
[287
Vickers,
Bagshaw v.
(1981)
246,
];
Pa.Super.
286
321,
322
Foy, supra
v.
Giannini
664,
(1981);
279
428
666
A.2d
An examination of the
556, 421
at 339.
Pa.Super. at
A.2d
which this
the basis
holding
cases so
discloses
when one
general rule is founded is that most instances
dismissed,
has been
complaint
count of a multi-count
precluded
not
from
is not out
court and is
In
merits of his cause of action.
these
presenting
to
policy
have adhered to a
which seeks
eases the courts
rule,
litigation.
Following
general
piecemeal
avoid
will
lie from an
appeal
... held that an
this Court has
v.
summary judgment.
See:
granting partial
order
Swift
Milner,
463, 467,
Pa.Super.
442
1146
296
A.2d
Co.,
Keystone
Rohr v.
Insurance
(1982);
Pa.Super.
294
Nitrogen
Ruminant
179, 182,
(1982);
A.2d
811
Inc.,
Co.,
& M
Machinery
Products Co. v. J
Pa.Super.
Mutual
Inselberg Employers
(1982);
Companies,
(1981);
Pa.Super.
435 A.2d
Co.,
Insurance
American States
[272
Shaefer
(1979)
67,
Id., at to Praisner is the definition of a cause of
Fundamental “the fact or of action has been defined as action. cause relief; legal give person right judicial which a a to facts to to the party of an redress a effect occurrence terms state of facts which would entitle occurrence. A situation or to give right action and him seek party sustain Dictionary, Law 5th in his behalf.” Black’s judicial remedy cases, separate of action can many Ed. recovery by theory from an alternate distinguished *5 398 requested. at the relief Alternate theories of recov-
looking obtaining different means for the same relief for the ery are same harm caused same cannot party. theories, constitute recover on all the alternate as this would recovery. a duplicative contrary, separate requests
On the cause of action party may harms. A potentially different relief different relief on causes of complete separate recover each cases, factors must be action. close additional considered in determining party alleged separate whether a has causes multiple recovery single of action or theories of for a of action. Inc., Inc. Raceway, Agency,
Trackers v. Comstock 400 Pa.Su- (1990) (citation 1196 per. omit- ted).
An in examination the Second Amended clearly this case discloses the third count is an merely or all theory recovering damages alternate some count, alleged being wrongful Count I. The third a claim of mother, only damages death for seeks to recover the first count because of previously appellees required by “failure to render of care con quality their obligations.” tractual Because is not “out of court” action, wrongful dismissing on her death the trial court’s order the third count is interlocutory, and we will review it further. IV, however, separate
Count contains a cause of action. by Kelly, It asserts a claim in her for the infliction right, own of emotional distress herself. It is the count of the which complaint separate Kelly. asserts a claim on behalf of action, therefore, dismissing The order this cause of is a final immediately appealable. order which is See: Fink v. Dela HMO, (1992); 417 Valley Pa.Super. ware Beltz, (1986); 356 514 906 Halliday A.2d Financial, Inc. v. Horizon 347 Development, Pa.Su Cloverleaf 75, per. A.2d sustaining preliminary order for review of an standard in Abadie demurrer was recited in the nature
objections
A.2d 1143
Hospital, Riddle Memorial
follows:
as
*6
admit
in the nature of
demurrer
Preliminary objections
but not
Complaint,
of the
the
of
factual averments
truth
the
law,
reasonably
infer-
as well as all
deducible
of
conclusions
if
be
the
The
must
dismissed
ences therefrom.
demurrer
of
action
Complaint set forth
averments of the
to relief.
If the
which,
party
proven,
if
would entitle
action, the demurrer
a cause of
fails to set forth
Power
Pennsylvania
v.
&
sustained. Crivellaro
must
be
Co.,
Banyas
(1985);
173,
207
Light
491 A.2d
Pa.Super.
341
122,
A.2d
Hospital,
v.
437
1236
Lower Bucks
Pa.Super.
293
(1979).
Burd,
146,
citing Sinn v.
Pa.
The tort (Second) of outlined at Restatement tional distress is Torts, 46, § as follows: Causing Outrageous
§ Emotional Conduct Severe Distress
(1) conduct intention- by outrageous One who extreme and to ally causes distress anoth- recklessly or severe emotional distress, if liability is subject er to for such emotional it, bodily such harm the other results from bodily to harm. conduct. Abadie v. outrageous tort gravamen
The is Hospital, supra, Riddle 13, 589 Memorial Pa.Super. 404 adopted part A.2d at 1145. tort has not been and made a King v. David Memori- Pennsylvania. Kazatsky of of law Park, (1987). 183, 988, As a al 515 995 Pa. event, physical requirement, any threshold there must Id. allege must harm to injury physical or harm. Love action the infliction emotional distress. sustain an (1992). Cramer, A.2d science,” Supreme state “Given the advanced of medical unnecessary permit is to explained, “it unwise and on the to be on an inference based recovery predicated confirma- ‘outrageousness’ expert defendant’s without medical the claimed distress.” plaintiff actually tion that suffered Park, supra. David Memorial Kazatsky King See also: Isdaner, Ford v. case, claim of emotional distress is appellant’s the instant
based the room while her mother’s presence removed, gangrenous dressings revealing spreading that she overwhelmed the odor infection. She was became nauseous and ill “at decomposing upset, flesh and the scene.” There are no averments that discom- the room or for a longer period fort continued after she left injury momentary time. There is no averment of other than a nauseous reaction. if
Even the decedent received care which causally suffering contributed Mrs. Gist’s and ultimate death, appellees’ treatment of Mrs. Gist will not be deemed *7 outrageous gives separate conduct which rise to a cause of intentional, reckless, negligent action for the or infliction of emotional distress who to daughter voluntarily chose and observe the treatment present being given to her by nursing personnel being mother. The services home were in treating caring rendered the normal course of and for mother. appellant’s They were calculated to induce emo tional distress to of the bystanding patient’s family members type outrageous and did not constitute the of conduct referred If to the Restatement. the decedent’s treating physician or in nursing personnel negligent the home their treat mother, provides remedy. ment of the law That conduct, however, does not give separate rise to a cause of patient’s family action favor of members of the for outra geous conduct. appeal dismissing from the order the third count of the Amended is Complaint quashed.
Second The order dismiss- the fourth count of ing the Second Amended is affirmed.
OLSZEWSKI, J., concurring opinion. files a OLSZEWSKI, Judge, concurring. appeal quash to the majority’s
I with the decision agree III dismissing of Count from the trial court’s order I, of the however, result only concur complaint. of Count IV. the dismissal decision affirm majority’s noted, sustaining the demurrer the order majority theAs See appealable final and order. is a dismissing and Count IV Inc., 400 Pa.Su- Agency, Inc. v. Comstock Raceway, Trackers 1193, 1196 per. of emotional IV a claim for infliction is
Appellant’s Count legal reasoning and majority’s I with the agree distress.1 of of the claim intentional affirming the dismissal support However, majority I think of emotional distress. infliction it com- inadequate because distress is discussion emotional Therefore, I am concepts. and negligent intentional mingles writing this concurrence. infliction of emotional dis- action present: lie if are will three factors
tress (1) as near the scene of the accident was located plaintiff it; away distance from one who was a contrasted with (2) on impact from direct emotional shock resulted contemporaneous and observance sensory from the accident, of the learning with accident as contrasted occurrence; its others after from (3) closely as contrast- the victim were related plaintiff and any relationship presence an absence of or ed with relationship. a distant *8 233, 1175, Cramer, Love (1992) (citations omitted). law re- Additionally, Pennsylvania harm in order to sustain plaintiff allege physical that quires Id. emotional distress. negligent infliction of an action Pa. Everingham by Everingham, (citing Mazzagatti negligent infliction lumps for intentional and Appellant her claims Since these different causes distress into one count. are emotional action, § separately. pled have them Pa.R.C.P. she should so, majority addresses Despite appellant’s failure to do Pa.C.S.A. will both claims and so I. (1986)). law, however, does not specify The alleged. of harm that must be Id. the amount bar, an plaintiff brought to the case at Love Similar against action for infliction of emotional distress negligent Plaintiff that the doc- physician. alleged deceased mother’s that her day led to her mother’s death. negligence tor’s died, resting had been beside her mother’s plaintiff mother and was to witness the death. Plaintiff claimed side forced nightmares, ongoing depression, that as a result she suffered resulting psychological all in a need for anxiety, stress and treatment. noted, speaking
The Love Court
without
to the ultimate
case,
plaintiffs
merits of the
that
“observance of the lack of
care,
with her observance of her mother’s heart
along
medical
negligent
attack is
to sustain her claim for
infliction of
enough
414 Pa.Super.
emotional stress.”
Id.
at
Following spreading mother’s infection would be sufficient to sustain a of action for infliction of emotional distress. Love, however, crucial from is that here did variation sufficiently physical injury. Plaintiff Love assert- allege stress continuing depression, nightmares, ed that she suffered contrast, anxiety. appellant only claimed to have unwrap- ill at the scene of the upset, become and nauseated *9 magnitude that of the same injuries Her are not ping. Id. in Love. For this this decision See Court’s prompted demurrer should affirmed. reason, sustaining the order imperative distinguish torts opinion, it is my infliction distress and of emotional and intentional failed to respectfidly ways differentiate Therefore, I concur each. satisfy requirements result. majority’s A.2d 428 Weismer, Dory Minors Their Parents and and Sara WEISMER Murray Weismer, Guardians, Ruth and Natural WEISMER Weismer, Murray on Their Own and and Ruth Weismer h/w Gist, Minor, by Her Parent and Natural and Behalf Shari Her Own Behalf Gist and Gist on Candace Candace Guardian Garcia, Minor, by His Parent Natural and Guillermo Her Be- Lederer and Linda Lederer on Own Linda Guardian half, Appellants,
BEECH-NUT NUTRITION CORPORATION. Pennsylvania.
Superior Argued Sept. 1992.
Filed Oct.