KRYSMALSKI BY KRYSMALSKI v. Tarasovich

KRYSMALSKI, by Natural A her Parent and Minor Jean Gloria Eugene Krysmalski, Guardian, KRYSMALSKI, Eugene and Eugene right, Krysmalski, Administrator of own and his Shirley Krysmalski, deceased Estate

v. Bar, TARASOVICH, Individual, An and Grant Albert Inc., Karanzas, Corporation, and Paul J. A

Individually and Cafe. Parkview t/d/b/a (at 13). Appeal Albert TARASOVICH KRYSMALSKI, A Minor her Parent and Natural Marie Diane Krysmalski, Guardian, Krysmalski, Eugene Eugene in his and Krysmalski, right, Eugene Es Administrator of the own and Krysmalski, Shirley deceased tate TARASOVICH, Individual, Bar, and Grant Albert Inc., Karanzas, Corporation, J. A and Paul

Individually and Cafe. Parkview t/d/b/a (at 14). Appeal Albert TARASOVICH KRYSMALSKI, A Parent Minor and Natural S. David Krysmalski, Guardian, Krysmalski, Eugene Eugene in his and Krysmalski, right, Eugene Administrator of the Es own Shirley Krysmalski, Deceased tate of TARASOVICH, Individual, Bar, An and Grant Albert Karanzas, Inc., Corporation, A and Paul J. Individually Cafe. Parkview t/d/b/a (at 15). Appeal Albert TARASOVICH Superior Pennsylvania. Court of

Argued Dec. 1992.

Filed March Haushalter, Pittsburgh, appellant. R. William Balzarini, Pittsburgh, appellees. Edward J. ROWLEY, CAVANAUGH, Judge,

Before President OLSZEWSKI, POPOVICH, CIRILLO, SOLE, DEL ELLIOTT, JOHNSON, and FORD JJ. HUDOCK OLSZEWSKI, Judge: judgments against entered appeal

This is an (“Tarasovich”). After a trial Albert Tarasovich defendant McFalls, jury a found Taraso- Honorable Patrick J. before the injuries. affirm.1 personal We plaintiffs’ vich liable Gloria, 23, 1986, Diane plaintiffs, the three minor July On in the waiting for their mother Krysmalski, David were and Pittsburgh near Eagle supermarket of a parking lot Giant time, At same Tarasovich was shopping.- she was while lot, a waiting pick up in the to parking his vehicle driving driving was Tarasovich was shopping. female friend who life-threatening as a and only car in what can be described lot, car, started his parked manner: he was reckless another, it into accelerated forcing into a vehicle backed forward, cars, a finally through more crashed hit several store, striking at the entrance of the concrete barrier children. severe laceratidns to their and Diane suffered

Both Gloria each of the amputation leg of one legs required which .Upon hearing a laceration on his chin. girls. David suffered mother, scene, commotion, ran to the Shirley, the children’s in the accident. The horribly injured see her children only to action Tarasovich. brought negligence against Krysmalskis the minor chil- damages to jury compensatory awarded Diane, $5,000,000 $7,000,000 amount of dren Gloria, $35,000 Shirley’s (Shirley passed David. estate trial) $100,000 negli- was awarded for a claim of away before distress. The trial court also infliction of emotional gent plaintiffs pursuant to the to Rule 238 delay damages awarded Rules of Civil Pennsylvania of the Procedure.. clarify scope appeal, necessary it of en banc

1. On this we find petition before us as a result of a Superior Court review. This case is by counsel for Tarasovich. When for en banc consideration filed banc, argued before the Court en he stated that since it defense counsel requested of the Rule 238 issues in this was he who reconsideration case, Superior opinion original he was entitled to stand on the panel reversed the award of to the Estate of Court which negligently distress. There- Shirley Krysmalski for inflicted emotional fore, argue this issue. En banc consideration causes counsel did not Therefore, original panel defense coun- decision to be withdrawn. rely Accordingly, it. when en banc consider- sel is not entitled to parties presenting granted, we review all as if the were ation is issues Below, we all claims to this Court for the first time. consider them appealed from the trial court. (I) consideration: four issues our Tarasovich raises granted new trial based have the trial court should whether proof was insufficient allegation that there on Tarasovich’s distress; emotional of infliction of negligent claim Shirley’s (II) new trial have awarded a the trial court should whether David statement made prejudicial allegedly based (III) court whether trial Krysmalski testimony; during (IV) Tarasovich; and delay damages against properly awarded or have a remittitur trial court should entered whether the of the verdicts. trial based on the excessiveness granted new in turn. each issue We address motions post-trial that Tarasovich’s Initially, we note damages emotional distress regarding the Estate’s claim for insufficient evidence Krysmalskis presented aver that the claim, such that the verdict emotional distress support remedy for such an against appropriate was the law. The successful, the ver argument, judgment notwithstanding if is (“J.N.O.V.”). Tredennick, 353 Pa.Super. dict See Erkens v. (1986) 236, may 424 be entered (judgment 509 A.2d N.O.V. disagree only reasonable could that the persons where no two Nevertheless, post-trial Tarasovich’s improper). verdict was new motions trial. request verdict, judgment withstanding

Unlike a not a motion not but the for a new trial does test the verdict itself proceedings resulting in the verdict. The basis of new judgment unsupported by sufficient trial not that evidence, alleged but that an trial error affected the verdict. 909, Nelkin, 641, 648, (1986); v. 515 A.2d 913 Waddle Steel, 557, 580, Stanhope Pa.Super. 368 534 A.2d Dorn v. (1987). grant 810 a new trial is “The decision whether court, and that court’s deci within discretion the trial if ... only on review the court acted sion will be overturned Thompson or abused its discretion.” capriciously palpably (1985); Pa. A.2d Hou Philadelphia, 507 City Walters, To seknecht a trial court’s decision amounted to determine whether discretion, must “examine the record and abuse we palpable however, evidence; as the trial weight assess judge, to determine whether the preponderance the evi- verdict, dence opposes the but rather to determine whether the court below in so finding plainly exceeded the limits of judicial discretion invaded the exclusive domain of the (citations omitted). jury.” Thompson at 493 A.2d at 673 court, adequately supports Where the record the trial it has judicial acted within the limits of its discretion. Id. findWe no basis for a new trial in awarding this case.

I. Tarasovich’s first allegation error is that the trial court (hereinaf- by allowing Shirley Krysmalski erred the Estate of “Estate”) ter to recover infliction of argument emotional distress. This has prongs: three (a) Shirley Krysmalski Since failed to suffer physical claim, conjunction harm in with her emotional distress negligent Estate’s infliction claim must fail as a matter of law;

(b) the negligent estate’s infliction emotional distress claim fails as a matter of law because the Estate did not claim; introduce medical evidence to substantiate the (c) Shirley did not witness the and Krysmalski accident fact, did not become aware of it until after the therefore the failed to the sensory contemporaneous Estate establish and necessary observance to establish a infliction negligent claim. arguments find no merit to Tarasovich’s and affirm

We award of damages the Estate infliction of emotional distress.

Tarasovich’s first that argument the trial court erred allowing the Estate to recover for negligently inflict interpret ed emotional distress. We Tarasovich’s first argu claim allegation ment be that this should not have been jury submitted to the and that the trial court erred permitting proceed. it to so The most manner of expeditious claims addressing presented argu under Tarasovich’s first ment is to consider them out of the order set forth above. We I(c) I(b). first, I(a), will address then finally that argument first of Tarasovich’s prong The third injuries her actually failed to witness Shirley Krysmalski accident, the negligent and that in the children sustained This accident disagree. therefore fails. We infliction claim (N.T. 3/27/89, store. grocery entrance to the occurred at the 131.) 120, 121, waiting outside of The children were at just mother, who was situated at the entrance their store (N.T. line. lot the check-out facing the store inside 483.) 446, 474, from inside the 3/27/89, The lot was visible at 120.) Moreover, (N.T., 3/37/89, jury pre was at store. did witness the Shirley Krysmalski sented with evidence Crisanti, a security injuries her children. Officer Salvatore accident, that: time of the testified duty at the officer Well, laying ground I children on the when seen the A: them, I Then I could hear right [Mrs. run over to and had in, like, background there. start to scream Krysmalski] I I and she had up, Krysmalski, And looked saw Mrs. hysterical- I standing screaming. guess, there been of state. type any scene that speak to her at time

Q: you Did night? No, I

A: didn’t. her at the scene? you did observe Q: long And how I with ... children busy I know there. was so A: she was keep I track of her. ... didn’t (cid:127) know how she left the scene? Q: you Do No, A I don’t recall. you observing are her at the scene is So the time that

Q: hysterically? screaming she was while interim that the during period quite upset A: She was to the they the time that had been hit where —from children And probably to the she way hospital. where on their point go point. them at that did with 3/27/89, [N.T.], 124-125. Testimony at

131 Lasso, 382 infliction of emotional distress. Neff 636, (1989), in 523 Pa. 565 denied 487, 1304 alloc. (1989). actually did Neff, complainant the A.2d 445 her hus eventually caused impact which witness the tortious in standing was impact, At time of the she band’s death. the her window. She saw out of the kitchen looking home their their the street toward coming down automobile husband’s behind him. directly speeding the tortfeasor home and saw the two vehicles. She crash between Mrs. Neff heard the her hus house and viewed immediately ran out of the then result, she front lawn. As on the lying band unconscious The tortfeasor claimed distress. suffered severe emotional of the accident actual visualization appellant’s the lack of that law. recovery Pennsylvania under precluded Burd, found, thorough examination Sinn after We (1979), in progeny, its 146, 404 A.2d 672 and 486 Pa. observance” “sensory contemporaneous and considering the Dillon, focused Supreme in Court set forth requirement immediate and direct the emotional shock was upon whether indirect, the sense upon and not than distant and rather from reviewing After cases seeing the accident.2 employed in similar situa- jurisdictions recovery which allowed other tions, found that: we she did not see solely claim because deny appellant’s reality ignore plain impact moment of the would

precise injury produced entire incident emotional that the redress, contrary be and would plaintiff which the seeks when it of the Court Sinn very purpose policy rule, eliminating danger” i.e. arbi- the “zone abandoned Court, set forth in Dillon v. referred to the Sinn first The factors 72, 80, (1968), 728, 739, Cal.Rptr. Legg, 441 P.2d 68 Cal.2d (1) following: plaintiff near the scene whether the was located are the it; away with one who was a distance the accident as contrasted impact upon (2) from a direct emotional whether the shock resulted sensory contemporaneous observance of plaintiff from the accident, after learning with of the accident from others as contrasted occurrence; (3) closely plaintiff victim were and whether the and the its related, relationship any or the as contrasted with an absence adopted by only relationship. These factors were presence of a distant Burd, Pennsylvania Supreme Court Sinn v. A.2d Therefore, trariness. conclude “sensory we and con- temporaneous sensory observance” not limited visual Succinctly, ... it perception is not the source of the awareness, rather, degree arising it is of the awareness memory from all of the senses individual’s which must plaintiffs be determinative of whether emotional shock re- sulted from a of “sensory contemporaneous observance” the accident.

Neff, Pa.Super. 506, 382 555 (emphasis A.2d at 1314 in original). presented evidence at trial establishes that Shirley Krysmalski contemporaneously observed the accident. 1(c) Thus, argument Tarasovich’s fails. 1(a),

In of support argument that the claim for emotional harm, proof physical distress fails because there was no of (Second) Tarasovich on relies Section 436A the Restatement Negligence Resulting Torts: in Emotional Disturbance Alone, provides: which

If creating the actor’s conduct is as an unreason- able causing bodily risk of either harm or emotional distur- another, bance to and it results in such emotional distur- alone, bodily bance without harm compensable or other actor damage, the is not liable for such emotional distur- bance.

Tarasovich then directs this Court to apply cases which Sec tion 436A bar recovery negligently inflicted emotional plaintiff distress absent evidence that has also suffered physi cal harm. Abadie v. Riddle Memorial 404 Hospital, Pa.Su 8, (1991); per. Fisher, 589 A.2d 1143 byWall Lalli 388 305, (1989), Pa.Super. 565 A.2d 498 in alloc. denied 526 Pa. 636, 319, (1990); Texaco, Inc., 584 321 A.2d Houston v. 371 399, 502, 538 A.2d alloc. in 520 denied Pa. (1988); A.2d 136 Banyas v. Lower Bucks Hospital, Pa.Su per. cases, however, The above are distinguishable Abadie, In plaintiffs this case. com plaint harm, no of physical contained averment illness or Wall, injury resulting from tortious conduct. In defendant’s motion summary was judgment granted and sustained this Court because plaintiffs complaint did allege physical Houston, alleged by plaintiffs harm physical In harm. defendants and bitter” because they “upset were only was Banyas, there spilled to be their land. gasoline caused bodily harm. simply allegation no was the trial court committed must determine whether We has Our Court Supreme warrants a new trial. error which a Pennsylvania a owes “the driver of vehicle instructed that in his immediate pedestrians all motorists and duty care to any bystander experiences and to who danger zone of relative.” injury a close observance contemporaneous Therefore, Pa. at 516 A.2d at 679. Mazzagatti, physical psychic or proximate is the cause driver’s conduct Id. Supreme When the plaintiff that situation. injury to rule impact the physical abandoned Pennsylvania Court of (1970), Brodsky, Niederman stated that: Court may one system that to our common law is fundamental

[i]t wrong. The best state- every for substantial seek redress is for the wrong-doer responsible rule is that a ment of the of his misconduct. proximate consequences natural and Mazzagatti, 403, In 261 A.2d at 85. Niederman at Court held that: Supreme tortious observes the contemporaneously

the relative who or her no in to brace his span has time which conduct inflicts upon The tortfeasor system. emotional separate apart injury an injury this bystander establishing for Hence the critical element to the victim. liability such is the observance contemporaneous relative. to the close injury discussed

Mazzagatti, Pa. at 516 A.2d at 679. As contem- above, Shirley Krysmalski illustrated that testimony amputations traumatic devastating observed the poraneously by Supreme As Court daughters. her stated suffered Mazzagatti, element in a cause action the critical establishing is of emotional distress negligent infliction the accident. contemporaneously observed plaintiff Therefore, this permitting no error there is trial court Court Sinn jury. Supreme before the proceed claim to held that “psychic injury capable is of being proven despite Sinn, the absence of a physical injury.” manifestation of such Cramer, 486 Pa. at 404 A.2d at 679. Love v. (1992) (Chillo, J., Pa.Super. 606 A.2d 1175 dissenting), a panel recognized this Court that in the context of emotional distress, the amount of harm that must be alleged unclear. Although Shirley Krysmalski was not available to testify trial, her own behalf at there was evidence that her observa- tion of the accident affected her noticeably severely. David Krysmalski testified that the accident was too much shock for his mother to bear and that he had never before (N.T., seen her in the state she was after the accident. 485.) 3/27/89, Eugene Krysmalski at testified that his wife was unstable and when distraught he arrived at the hospital 434.) (N.T., 3/27/89, after being notified of the accident. at Officer Salvatore Crisanti Shirley testified that in a was hysterical (N.T., 3/27/89, state when he arrived on the scene. 124-125.) evidence, On the basis of this jury returned a verdict which we are not upset. entitled to do not require We decision; abundance of evidence for a jury’s there is a presumption consistency with respect findings a^jury’s which can only be defeated when there is no theory reasonable support jury verdict. Giovanetti v. Johns-Manville Corp.,

Therefore, argument Tarasovich’s the Estate’s claim for emotional distress must fail as a matter of law Shirley Krysmalski’s meritless. observation of the devas- tating injuries suffered her support children the jury verdict for the Estate and the denial of Tarasovich’s motion for a new trial. will Tarasovich not obtain relief on his 1(a). argument 1(b)

Argument fares no better. Tarasovich argues the Estate’s present failure to medical Shirley evidence of Krysmalski’s injuries is fatal to a claim negligent for infliction Therefore, of emotional distress. argues, he the evidence was insufficient to substantiate the claim for negligent infliction of emotional argument distress. This fails for simple the reason that medical evidence is not required an action for damages Supreme infliction of emotional distress. Our negligent ato injury a witnesses bystander held where has Court rela- relative, close observance and contemporaneous close Kazatsky of the claim. tionship veracity guarantee Park, Pa. King David Memorial to buttress requirement was intended proof The medical conduct the context outrageous requirement proof claims. Id. of emotional distress intentional infliction it noted that “endorsed contrast, Kazatsky Court limited which objective recovery for the standard a to situations where mental distress recovery serious to would be unable person normally constituted reasonable engendered by distress adequately cope with the mental 193-94, A.2d at at of the event.” Id. circumstances objective standard. at satisfied that presented The facts trial this on argument relies to buttress The cases Tarasovich infliction of emotional respect involve the tort intentional case Pennsylvania no which distress. Our research discloses to infliction support evidence a requires medical Therefore, a trial not warranted on this basis claim. new is trial Tarasovich’s motion we affirm the court’s denial of this for a new trial on issue.

II. is that a new trial argument Tarasovich’s second David have awarded as result of a statement should been argument at trial. The basis this Krysmalski following passage the trial record: tell this Q: you else that want us about Something event? Yes, just

A I Krysmalski]: everybody wanted [David helped my know kill mother. that this 487.) 3/27/89, (N.T., Immediately after statement was it, trial objected counsel court made and defense cautionary instruction: rendered this given by THE The last answer that was COURT: opinion which this witness redirect statement give. totally And will disre- qualified you witness is not I it and that And will strike gard opinion. that statement from the record. 489.) 3/27/89,

(N.T., Shirley Krysmalski’s the fact that death was light of consideration, prompt as the jury’s an issue for the as well instruction, find neither cautionary of a clear we delivery a new trial. prejudice of discretion nor which warrants abuse Rental, Inc., Pa.Super. Anthony Crane Thompson See (1984). 386, 473 A.2d 120

III. improperly next the trial court Tarasovich contends Rule of delay damages pursuant Pennsylvania assessed 238. He contends that he is not accountable Civil Procedure “indigent” Berry as he is under delay damages for Anderson, dis- We agree. Company Erie Insurance

Tarasovich was insured (“Erie”). injury coverage for with policy provided bodily His $100,000 $300,000 occurrence. per person per limits of $100,- Erie settlement offers of During July of tendered $15,000 to David Krysmalski, 000 each to Gloria and Diane estate, any money Shirley’s and did not offer Krysmalski, distress claim was meritless. At claiming any emotional person- offer contribution from his any no time did Tarasovich fund. The never reached a parties al assets to the settlement trial, and, have men- The matter went to as we settlement. $7,000,000 tioned, for verdicts returned the amounts of were $5,000,000 Gloria, $35,000 David, $100,000 Diane, the verdict exceeded the offers Shirley’s estate. Since 125%, Diane, Gloria, delay damages awarded judge over delay damages amount of exceed- and David.3 combined $3,000,000. ed on this issue concerns appeal

The crux Tarasovich’s to the duty personally whether he was under a contribute Shirley’s delay damages. estate was not awarded Whether the Estate was entitled to such is not before us. insurer, Insurance Erie that his argues settlement. He limits under policy all available offered as a settlement Group, fact, Taraso- coupled with liability policy. This his automobile to the had funds to contribute insistence that he no vich’s also “indigent” under He Berry. him rendered settlement contribute, Berry to duty if was under a that even he argues an of his delay damages since offer imposition of precludes of the application avoid enough not have added to assets could 238 in this of Rule Finally, argues application he Rule. equal protection, due be under the case would unconstitutional Pennsylvania fines clauses of the and excessive process, arguments all of these Constitutions. We find United States meritless. of Rule begins background

Our with the analysis request plain are available at the of all Delay damages damages a seeking monetary against in civil tiffs actions Pa.R.C.P., injuries. for personal who is found liable defendant 238(a)(1), may 42 Pa.C.S.A. A defendant exclude Rule he has periods of time after which assessment is not made a written offer of settlement which exceeded which has periods during plaintiff 125% of the verdict or 238(b)(1); delay. Magee v. Craig caused the Rule Memorial Center, (1986). 60, 1350 Al 512 Pa. 515 A.2d Rehabilitation adopted, the rule has been amended since it was first though has purpose undisputed: its remained encourage a clearly primary reflects desire to [Rule 238] interest, ... By tolling running settlement pre-trial goal fostering provision prominent this demonstrates the Undeniably, rule early compen- settlement. this serves to plaintiff inability rightly for the to utilize funds due sate him, delay to alleviate but basic aim rule is cases, thereby congestion in the disposition lessening courts.

Laudenberger Authority Allegheny County, v. Port nom., 59, 147, (1981), 52, A.2d 151 dismissed sub. appeal 436 456 102 72 Laudenberger, Bucheit v. U.S. S.Ct. Anderson, (1982); Berry L.Ed.2d see, (1986); 512 Pa. at 515 A.2d Craig, supra, A.2d 717 (“We Laudenberger, at 1353 do not overrule the rationales of have of their own in the context of the ends they vitality rule’s purpose Since the meant to alleviate court sought.”). claims, earlier settlement of “the congestion promoting punish in no way is defendant.” Schrock purpose Center, 191, 196, Albert Einstein Medical Pa. 1103, 1106 rule,

To with the must offer a comply defendant delay damages trial order to avoid after settlement before however, Berry, recognized we exception the verdict. requirement. this otherwise steadfast We held where precluded by impecunious condition from defendant offer, expected he will be contributing a settlement do so: hold shall not be awarded for plaintiff damages

We that to after date of the defen- delay pursuant Pa.R.C.P. the offer the that the dant’s when court determines offer was full the claim payment plaintiffs amount available for of was for have impossible and it the defendant to offered more. supra, Pa.Super. at

Berry, Berry, plaintiff injuries. In sued defendant for personal applicable was insolvent and had cover- Defendant insurance $100,000. limits in age policy Defendant offered settle- ment, jury refused When the returned plaintiff. which was $2,000,000, delay for verdict court assessed $500,000. to delay damages, In order avoid defendant over to required have been offer assets which she did simply would that defendant offer recognized requiring not own. We would no 238: purpose non-existent assets serve Rule not By adopting appellant’s position, penalize we would indigent offering defendants the full amount of their And be able plaintiffs available resources. would to view negotiations eye settlement with an toward the financial may capabilities plaintiffs the defendant. Such be loathe time, drain of expense to undertake the emotional if litigation impecunious defendant is all that awaits them at the end of their labors. that a specify Rule fails language the literal

While offer must settlement a reasonable who makes defendant offer, and com- logic satisfy the assets possess first A in which result prerequisite. supply mon sense he could an offer to make required would be defendant 238 or of Rule goal promote neither pay would possibly system. judicial for the respect generate A.2d at 720-721. Id. at must that a defendant demonstrates

This passage in order to payment has available all assets that he offer has defendant damages. delay Whether escape liability the trial available is determined all that he has tendered 621, 502 A.2d at 718. Id. at evidentiary hearing. at an judge factual, we will inherently are findings trial court’s Since See, Allegheny if find an abuse discretion. only reverse we (trial (1985) Monzo, judge County unless he abuses fact-finder will not be reversed sitting as discretion). Furthermore, opposing imposi a defendant showing that he is has the burden delay damages tion of Comment-1988, 238, Explanatory to relief. Pa.R.C.P. entitled case, found that Taraso judge the trial 42 Pa.C.S.A. this offer, chose settlement but have supplemented vich could no consideration. realty to a relative for to transfer instead assets he stated, additional which Tarasovich owned Plainly eventually be knowing they may squander, chose subject to execution. insolvent within claims first that he was

Tarasovich offered Taraso argues He that Erie meaning Berry. the claims, as he He further limits as a settlement. policy vich’s he a hearing, that owned evidentiary court’s did at the trial heavily encumbered all of which were properties, few rental properties, other he had sold certain rental mortgages, suit, and to the years prior for twelve unemployed that he was applied rental are properties from his current that all rent Nonetheless, the trial mortgage payments. satisfying the protection could not seek found that Tarasovich court Erie did not offer It found as fact that by Berry. afforded accident, year that one after limits. It also found policy $60,000 his over of rental properties Tarasovich transferred ten that Taraso- agree son a consideration of dollars. We Berry. vich not under “indigent” is that a defen- underlying Berry fundamental notion The to him in order to avoid dant must offer all assets available Therefore, Ber- damages. seeking before imposition delay offer, least, shelter, any insurance must ry’s defendant may parties argue he The strenu- coverage procured. have offered, negotiations its concerning during Erie ously whether behalf, limits under policy on Tarasovich’s plaintiffs with breached its Whether Erie policy. Tarasovich’s insurance Tarasovich, however, or bad faith with acted contract since day, Erie negotiations is matter another during mind, this limitation we not to this lawsuit. With party offered, and of- that he had Tarasovich’s contention review behalf, “all available assets.” fered on policy concede that Tarasovich’s insurance parties Both $300,000 $100,000 person per or per a limit of contained Erie, settlement negotiations, the initial During occurrence. behalf, $100,000 daugh- to each of the on Tarasovich’s offered offers, apparently because Erie rejected Plaintiffs these ters. all Tara- against a release of claims “unreasonably” demanded naming in equity, Erie filed an action subsequently sovich.4 4, 1989, January as defendants.5 On plaintiffs and Tarasovich Erie’s motion to assigned equity to the suit denied judge $200,000 tolling any accru- deposit purpose court on Erie’s 238. This denial was based ing interest under Rule $200,000 “complete obligation would contention to the aforesaid minors and their Exchange Erie Insurance as to their derivative claims.” Erie’s Petition parents ¶ Court, 16, R.R. During into 259A. subse- Deposit Monies $100,000 each to Gloria and quent negotiations, Erie offered $15,000 injured made no Diane, to the son. Erie offer plus estate, contending cognizable that it had no cause Shirley’s maintain, court found Krysmalskis the trial action. any proposed the actual terms of The record does disclose releases. aspect equity in front this Court at this time. 5. No of this action is $215,000 repre- offer settlement fact, this combined as that upon the last, and was conditioned best offer sented the Krys- Tarasovich. against of all claims release Krysmalski’s at 16. brief, 25; opinion, Trial court at malski’s On Janu- rejected this offer. result, Krysmalskis the As a however, deposit court allowed Erie 27, 1989, equity ary conditions, Rule to toll court, the former $200,000 into without Tarasovich now daughters. as to each to Gloria delay damages responsible is not claims that he rejected they January after because periods Diane for $100,000 argument This limits. per person of the the offers that David First, the fact entirely ignores it misleading. $15,000 light in offer inadequate was made an Krysmalski Thus, delay dam- $35,000 entered his favor.6 verdict that to David on basis. awarded ages properly were (without de- Second, assuming even importantly, and more policy and Diane the limits Erie offered Gloria ciding) that contract, that Tarasovich had judge the trial found under the for nominal transferred to his son assets which he personal Thus, he cannot seek after the accident. consideration defendants. impecunious We Berry provides that protection the law will not authority proposition need hardly no for little or consider- transactions tolerate eleventh-hour help the owner are intended those transactions ation when “more achieve Berry’s purpose his obligations. avoid in good who those defendants by forgiving results” equitable by Rule required as offer a reasonable settlement faith cannot circumstances. Pa.Su- economic perilous 238 due to their noted, inadequate Estate of offer to the Erie also made 6. As we have $100,000 in her favor. The Shirley Krysmalski light of the verdict against in favor of the delay damages Tarasovich court assessed no trial appealed. We therefore offer no decision was not Estate and this delay damages. was entitled to opinion regarding whether the Estate Furthermore, opinion regarding was re- whether Erie we offer no if, fact, $300,000 sought per limits it occurrence quired to offer the plaintiffs. only conclude that the son was We releases from all Tarasovich, against as a result of delay damages, assessed entitled Moreover, discuss, infra, we even inadequate made to him. as offer limits, policy Taraso- daughters assuming were offered full Berry he made no escape delay damages under because cannot vich personal to him. assets available additional offer However, as equity, 502 A.2d 717. those who seek per. squander equity. must do Defendants who goes, the maxim negotiate in settle- duty assets an effort to avoid their ment, delay damages, potentially of imposition escape conduct, Berry no of responsibility for their have claim escape an only underhanded efforts are not exer- “indigency.” Such faith, of conciliatory in but also frustrate the intent cise bad had judge correctly trial found that Tarasovich Rule 238. The have assets, which he could apart policy, from his insurance offer to the meaningful more settlement contributed toward a plaintiffs. if that even he “had the wherewithal argues

Tarasovich also contribution, such additional to have made some additional woefully for clearly inadequate have been contribution would of of Rule 238.” Tarasovich’s effectuating goals purposes this brief, for this contention he cites support at 24. Berry: language then, first demanding impossible, we must

To avoid to make an offer would ability discern a defendant’s of stay operation Rule Such have been sufficient results, it yield equitable will not more only a determination in of Rule 238 cases which application will also permit it to to a defendant Supreme apply: Court intended settlement figure, assets to offer a reasonable with sufficient reason, who, chose not make such an for whatever but offer. He argues 502 A.2d at 721-722.

Berry, dollars, of a “reason- verdict was the millions that since the delay damages of imposition offer” sufficient to avoid able what he could have contributed. would have far exceeded delay damages Thus, of be- Berry precludes imposition enough him to make impossible it to contribute cause was a “reasonable offer.” essentially Berry creates shelter argues

Tarasovich defendants two distinct situations. financially unstable of only may escape imposition a defendant He claims that all assets and the delay when he has offered available damages 125%, but also when a defendant verdict exceeds offer dis- assets and the verdict proffer chooses not available them, still be if he offered the offer would closes that even had the rule. latter inter- application to avoid This insufficient frustrates the of Rule pretation Berry holding purpose s untenable. simply and is prompt is to foster settlement. purpose Rule 238

Indeed, early does not defendant who make “[t]he objective seriously impedes offer the the adequate settlement delay Schrock Albert Einstein damages.” our Rule Center, Medical Pa.

If interpretation Berry permissible, were de- Tarasovich’s payment assets could “wait and fendants with available For delay. see” if are accountable for the they $10,000 if a defendant assets worth and suffers example, holds $10,000, clearly delay a for is accountable for judgment he he have made a “reasonable offer” damages because could However, if for under the rule. that same defendant is sued $10,000, $7,000,000for which are much than damages greater “indigent” can claim he could example, he that he was because the dam- imposition not make a reasonable offer to avoid Thus, ages. might gamble a defendant not make an offer and is so that he couldn’t have made a high that a verdict Moreover, this makes a adopting offer. rationale reasonable on the duty contingent to offer his available assets defendant’s wrong has committed. This result is severity he contrary Berry’s requirement plaintiff to that a absolutely impecunious an defendant have the to avoid option who sues by accepting of trial as a settlement all the expense to assets the defendant has available offer.7 particular of whether a has We note that determination defendant all assets for settlement is a factual one made offered “available” presiding hearing. judge By at the Rule 238 no means does our trial holding require worldly possessions of his a defendant to offer all Rather, judge may begin inquiry settlement of a civil action. a trial his by considering eventually subject be those assets which would to course, judgment property money personal Of execution of a at law. all judgment subject to and salable real estate owned a debtor exempted by Mortgage specifically unless & execution statute. Gulf Alten, (1980); Realty Pa.Super. Investments v. Rees, exemp- A.2d 841 The Gordon comprehensively §§ are listed at 42 Pa.C.S.A. 8104-8152. More- tions then, a simple proposition for the defen- Berry, stands payment all will not who offers that he has available dant offer. If delay damages held after date be to expected defendant is offer imposed are because has, 238’s is frustrated because we purpose more than he Rule Furthermore, defendants impossible. to do the ask defendant they which cannot perfunctorily money to offer are forced nothing of the offer. This does upon acceptance deliver Instead, applies to purpose. Berry forgive Rule’s further the letter of Rule but has who has violated the a defendant its ensures comply spirit. Berry with every made effort financially defendant made plaintiff suing that a unstable circumstances, under the while the best offer possible do defendant who fails to punishing time avoids same duty ignore A who chooses to impossible. defendant assets, however, not put available does make offer all designed 238 is specifically in the that Rule position plaintiff create. Berry recognized principle Court has Supreme

Our for settlement. must offer all assets available a defendant Trans., Commonwealth, Dept. Woods (1992), Department Transporta plaintiff sued the A.2d 970 (“DOT”) $60,000 personal injuries. DOT offered tion plaintiff The rejected. jury awarded which was settlement plaintiff $1,500,000. judge delay damages, awarded trial $250,000, the maximum the award based but assessed appli under the against collectible the Commonwealth amount delay The that Supreme Court held statutory cap.8 cable of the jury be the amount verdict damages must based plain the It that the cap. the existence of reasoned despite if delay Rule dictated this result that language always the Commonwealth were based on damages against over, may Bankruptcy under the Code not a defendant who has filed settlement, provi- stay since the automatic have assets "available” protect a efforts Bankruptcy Code debtor collection sions the property he files under the Code. 11 U.S.C.A. against of his estate after considerations, 362(a). concerning any provisions as § as well These law, may conveyances and federal be factored fraudulent under state inquiry. list such factors. judge’s the This is not an exhaustive into 8528(b). § 8. Pa.C.S.A. to constant, no motivation settle. would have DOT

predictable 299-301, 612 A.2d at Id. at arguments, of the Commonwealth’s responding

In to one Court stated: i.e. that permitting argument, third regard [DOT’s]

With cap require would in different than damages an amount in excess many times to offer an amount Commonwealth to Rule 238 Explanatory note that Comments cap, we after not to be awarded damages delay are provide the court determines offer when the date of a defendant’s for payment. the full amount available the offer was cases, obligation Thus, statutory cap context of statutory cap cease at the time would payment for the without tendered, on this issue is argument [DOT’s] was foundation.

Id. Berry mirrors the in Woods Court’s rationale Supreme delay not liable for will be that a defendant

notion for payment. is available he offers all that the date that after which he a settlement required not offer A defendant is however, if has, even that he He must offer what pay. cannot offer” constitute a “reasonable might than what is less amount not offer all Tarasovich did the verdict. Since light assets, imposition from the cannot claim shelter he available We v. Anderson's umbrella. Berry under delay damages argument. reject must to claim conclusion, for a defendant hold that order we Berry damages under exception delay “indigency” defendant made

Anderson, must determine that the trial court impossible that it was available and offer of all assets him more than reaffirm we do no Although more. to offer of a defendant’s importance reiterate the Berry’s holding, we trial, if, in light even assets before to offer all available duty constitute a “reasonable verdict, might those assets require- of Rule 238. This application that would avoid offer” opportunity reasonable have a plaintiff ensures that a ment impecunious defen- litigation with an fruitless potentially avoid did not offer court found that Tarasovich the trial dant. Since 146 funds, must be held accountable for

all available he the Rule. under constitutionality of Rule the

Finally, challenges Tarasovich 1988, 238, violates He that Rule as amended claims protection, and excessive process, equal the substantive due Constitu- Pennsylvania the States and clauses of United fines argu- two-paragraph have reviewed Tarasovich’s tions. We he and conclude that supporting these three contentions ment fully has addressed no constitutional claim that not been raises Laudenberger, supra and Supreme Court our Court. or process equal Rule 238 does violate due (original (constitutional clauses); rationale of Craig, supra, protection continuing vitality); Dietrich v. J.I. Laudenberger has Case Co., Until we are Pa.Super. 390 argument regarding a claim that raises novel presented with continue to find discussion constitutionality, 238’s we will Rule written, and, as have unnecessary “spuri- we these claims Dietrich, A.2d Shell- supra, (quoting ous.” 129, 568 A.2d Grey hamer (1989)).

IV. fourth, damage that argues finally, and Tarasovich $7,000,000 to'Diane jury awarded awards were excessive. of her and attend- compensation leg loss Krysmalski $5,000,000 Krysmal- damages; to Gloria suffering ant and pain David, same; $100,000 $35,000 Estate ski for infliction of emotional Shirley Krysmalski trial court argues that erred distress. Tarasovich and, alternatively, remittitur that a his motion for a denying on these Al- granted grounds. should have been new trial substantial, they we cannot agree are though verdicts were excessive. view a claim that a

The standard which we may A new trial be is well-settled. verdict excessive against granted ground on the verdict is excessive when the verdict shocks the weight only of the evidence- imperative trial so justice and makes a new court’s sense Free- prevail. opportunity another right may given be (1990). Point, 427, 684 574 A.2d Pa.Super. 393 Maple man when a may only be ordered Likewise, order of remittitur an that the suggests evidence by the supported that is verdict corrup- or mistake prejudice, guided by partiality, was jury 499, A.2d 1240 445 Kinzey, Pa.Super. Stoughton v. tion. sound (1982). situations, is within the granting relief In both court, only if we find we will reverse and of the trial discretion Freeman, Id.; supra. abuse of discretion. case is that each recognized repeatedly have We The circumstances. special on its own depends and unique others, Kemp consider, the so-called among should Court was verdict particular or not determining in whether factors (1) injury; of the severity factors are: These excessive. objective (2) by physi manifested injury is plaintiffs whether subjective by revealed only it is evidence or whether cal (3) injury plain will affect whether the testimony plaintiff; (4) with his or can continue plaintiff whether permanently, tiff (5) out-of-pocket expenses; the size employment, her (6) com original plaintiff demanded and the amount Corp., Philadelphia Transportation Kemp v. plaint. Tancini, (1976); Mineo v. 361 A.2d 362 Pa.Super. (1986), in 515 Pa. alloc. denied reviewing this case under After judge that the trial we cannot conclude guiding precepts, these for a motions denying Tarasovich’s his discretion abused trial. remittitur and new the substan-

First, jury that the awarded argues Tarasovich improp- caused David’s prejudice on the tial verdicts based death. We cannot untimely to his mother’s er reference cautionary instruction judge’s that the We found above agree. prejudiced that the statement any possibility precluded was liable to that Tarasovich they when determined jurors It would be anoma- applies rationale here. That plaintiffs. not the statement did at the same time that lous for us to hold deliberations, effect did have an liability yet have an effect jury The damages. prejudiced on the amount of was engage speculation. and we will not further the statement Second, included intangible all of claims and suffering. pain and amount pain element future, a jury past primarily suffering damages, both Indeed, jury is entitled question. Stoughton, supra. suffering where pain substantial award pain. (citing Id. Bell v. injuries are and cause permanent (1960)). Co., 332, 160 A.2d 437 Our Cab Yellow recently position its that the has reaffirmed Supreme Court situated to view wit judge peculiarly and trial are jury suffering proper award of emotional nesses and evaluate Corp., Safety Appliance Botek Mine damages. Botek, In the Court reversed our in a that a remittitur should have been ordered

determination harm, suffered emotional but clearly where had plaintiff case to objective any evidence confirm emotional no scientific had in holding Botek Supreme Fundamental to Court’s injury. pain to be and compensated each is entitled plaintiff harm, an court appellate to and suffering physical attendant in circum only the fact finder’s decision drastic should disturb 166-167, Id. at stances. case, need no further than the nature go we to this girls support the adolescent find

of the harm suffered suffering damages. and Both pain award substantial lega as a Krysmalski amputation and suffered Diane Gloria consequence negligence. and Tarasovich’s sole direct in body a limb from one’s having sheared pain resulting need not be related hardly quantified can be and accident as Tarasovich out-of-pocket expenses, amount of seems they pain suffer and girls Both testified intimate. Both are girls an artificial limb. em difficulty walking with that their involve their condition and testified barrassed Indeed, limited. the loss of a in activities is ment scholastic for the rest of their every day victims limb will affect these jury’s judgment our lives. We will substitute case. this mother are the son and

Finally, the awards to suffering award painA and beyond question. our equally hardly accident is $35,000 in such a traumatic to a victim Likewise, could rea substantial, jury let alone excessive. wit contemporaneously a mother who conclude that sonably severed, hysterical manifests being her childrens’ limbs nesses unstable be emotionally crying, and exhibits screaming $100,000. There was no reasonably be entitled havior could motion for a Tarasovich’s denying of discretion abuse trial. remittitur or new affirmed.

Judgments JOHNSON, HUDOCK, SOLE, ROWLEY, P.J., DEL ELLIOTT, JJ., opinion. join majority and FORD CAVANAUGH, J., which Dissenting Opinion, files a POPOVICH, J., joins.

CIRILLO, J., Dissenting Opinion. files Statement, DEL JOHNSON, J., in which Concurring files a ELLIOTT, JJ., join. and FORD SOLE CAVANAUGH, Judge, dissenting: majority respectfully disagree disposition I must with $100,000. In favor of the as it affirms the verdict of insofar on the basis of a claim for Shirley Krysmalski Estate of I dissent on the infliction of emotional distress. 1) that; support no evidence to a determina- basis there was impact was an to the Krysmalski eyewitness tion that Mrs. inju- opposed witnessing of the accident as to the occurrence and; of daughters her as a result the accident by ries suffered 2) support no medical evidence to her claim because there was of accident. In the as a result the of emotional distress Burd, case of Sinn v. landmark

(1979), the rule which confirmed a supreme adopted our court bystander in who was a damages person action for a cause of the child. injuries by to traumatic suffered eyewitness Sinn, the mother of a child and she saw a the claimant was in fashion that resulted the child’s strike the child a vehicle circumstances, court, those under supreme death and the in the pled properly had that a cause of action been affirmed important In that it is most that case. case complaint filed the was liability the of defendant potential note that to claimant a who bystander the fact that the was grounded her the violent death of small a mother who witnessed was child. witnessed simply Krysmalski

There no evidence that Mrs. therefore can daughters the vehicle with her impact the of the accident bystander been a who witnessed be said have very scene upon clear that she did come the although it is to the accident on the reacting and was seen shortly thereafter court has after its occurrence. This scene of the accident of the Sinn rule in already expansion made substantial Neff (1989) Lasso, we where v. A.2d recovery on a permitted test which adopted before-and-after though infliction emotional distress even of of negligent claim the court found that impact was no visualization where there witness who had overall “percipient” was a the observer Further, important recog- the accident. it is of awareness support the experi- was no medical evidence to nize that there Krysmal- or suffered Mrs. psychic ence of mental fact the underpinning that ignores ski in this case. This Burd finding was a constituent the Sinn decision experi- testimony supply explanation could medical damage. or psychic of mental ence link between supply is able to causal Medical science by the shock damage bystander psychic suffered the accident. having witnessed fright or attendant Burd, 146 Pa. at Sinn of this court

Finally, opinion Judge Montgomery in an present subject, all of the authorities on examined which was reached. following conclusion authority, we conclude foregoing Based all upon injury necessary harm or is a physical the element mother recover on Appellant right element emotional distress her claim infliction of this case. Fisher, Lain v.

byWall which enormity tragedy of the gainsay can No one consequences or the catastrophic occurred in this accident but that can be no question the victims. There suffered emotionally affected seriously had been Krysmalski Mrs. they daughters grave injuries suffer the her two seeing of action However, in terms of new cause experienced. law, potential spawning has the of under our which created delimited, if and it clearly rationally innumerable claims not in two me that evidence was insufficient appears to (2) (1) and, as as to her of the accident respects; visualization suffering of emotional distress. proof to the trial of the to think of the emotional I next observe it is convenient (which arisen when a frequently distress claim most has child) to his or her as a derivative parent injury observes guardian’s similar or claim parent cause of action to a dependent’s medical or loss of consortium claim. expenses However, it not. It and cause of separate independent is is a in in recognized Pennsylvania was first Sinn action which Burd, Thus, of evidence supra. the absence sufficient require finding of the cause action would support insufficiency remedy entry of the evidence as when n.o.v. rather than the award a new trial judgment only propriety damage an error in the element there is Nevertheless, case, appellant in of a cause of action. this trial. sought only motions new post-verdict post-trial three motions for appellant’s I have examined (GD 86-12693, 227.1 Issue pursuant filed to Pa.R.C.P. relief 86-12695, 86-12694, Issue No. 131847 and GD No. GD 131849)and in the introduction paragraph Issue No. find that only sought. trial is concluding prayer of each new appellee’s sought of the limited relief raised This issue brief, in appellant’s but is mentioned brief. firmly Pennsylvania entrenched

The doctrine waiver of Procedure if law. It would be a clear violation Rules is not under Pa.R.C.P. grant sought we were to relief which post-trial rule motions. general covering the 227.11 which is alia, inter rule replaced, motion comprehensive post-trial This judgment for notwith for a new trial and motions motions motions. separate which theretofore were standing the verdict Goshorn, 437 as Dinio v. footing stands on the same Our case (1960) of the evidence insufficiency Pa. new its to of a grant court limited relief the case where the n.o.v. had been filed. judgment no trial' since motion for I a new trial as to the claim of grant Accordingly, would Shirley Krysmalski Tarasovich.2 Estate of therefore, $100,000. of on the would, the award I vacate on a new trial estate and award Shirley Krysmalski’s claim of only. this claim

JOHNSON, concurring. Judge, of our esteemed col- Majority I Opinion the excellent join however, I that Judge emphasize, wish to league, Olszewski. be for ultimately responsible who may of question damages in this case is not before delay of payment Rule analysis of the assessment proper time. The this court this go my distinguished colleague appears delay this necessary dispose appeal. be than further should Berry that, under acknowledging I in majority with the join Anderson, (1986), A.2d 717 a defen- he for that she or has available must offer all assets dant It is damages. escape liability delay payment order out, clear, that whether defen- Judge points as Olszewski also all assets determined dant has tendered available evidentiary hearing. trial at an judge 302: 1. See also Pa.R.A.P. Requisites Issue for Reviewable Rule 302. (a) waived not raised in the lower court are General Rule. Issues appeal. on raised the first time cannot be and error, respectfully, most sought on this claim the issue of relief On fact, is, (in dicta, majority since no relief it seems me weight of the evidence sufficiency the evidence and granted), confuses thereto, unnecessarily applicable struc- appropriate relief and the response opinion to the confusion. its tures had case, judge trial found Tarasovich In this his son for nominal he transferred to assets which personal majority I with the agree the accident. consideration after alone, that, protec- cannot seek the on these Tarasovich facts this impecunious defendants. Since which Berry provides tion liability of Tarasovich’s the issue is sufficient to decide time, reviewing refrain, damages, I would at this delay company, the insurance concerning whether arguments behalf, offered during its Tarasovich’s negotiations whether policy limits Tarasovich’s insurance under policy any on the policy full limits has effect an offer less than op., plaintiffs. Majority to the liability injured insured at 308-309.

CIRILLO, dissenting: Judge, question negligent I most dissent on the of respectfully question delay of distress on the of infliction emotional and damages.1 Supreme opened the court- Pennsylvania the Court

When of for infliction bystander recovery house doors to distress, only reluctantly it did so and after forceful emotional in Sinn test adopted from one of its members.2 The prodding (1979) Burd, 146, v. 486 Pa. infliction foreseeable reasonably

the of emotional distress near of the plaintiff ... when ... the was located the scene ...; the shock resulted from a direct accident [when] the upon plaintiff sensory the impact emotional agreement my emphasize majority’s with the footnote I add voice to 1. one; pieces pick panel’s Tarasovich is not entitled and choose of a petition argument grants When this en in a en banc. court decision consideration, plenary. review of case is banc our the perambu his famous in the case of the Justice Musmanno in dissent 2. application the lating bovines he would from the strict of said dissent Andrews, Bosely come v. 393 Pa. impact rule “until the cows home.” 161, (1958). eventually view A.2d Musmanno’s was 142 263 Justice 401, (1970). Brodsky, 261 adopted in v. 436 Pa. A.2d 84 Niederman unworkable, impact” this state When Niederman a “zone of rule became Burd, 146, adopted foreseeability test of v. 486 the Sinn Pa. (1979). 672 154 ...;

contemporaneous [when observance accident related ... plaintiff closely and victim were the] 266, 276, by Everingham, Mazzagatti Everingham (1986). and, 672, duty A.2d 677 Defendants have 516 plaintiffs. consequently, injuries are liable foreseeable R.R., Long Palsgraf Island N.Y. 162 N.E. 99 v. Burd the mother who watched from the Sinn In front car killed her child of her home as a struck and was porch plaintiff to be and to have cause action found a foreseeable Burd, its effects. Since Sinn v. mental distress and “sensory meaning has centered on the contem debate Id. Pa. 404 A.2d at poraneous 685. observance.” Radic, (1981), Yandrich v. A.2d Pa. a father who on the court held that arrived supreme state hospital after his son had been taken to the had accident scene cause action. Five later the court years not stated a Mazzagatti, regarding moth same conclusion reached minutes the accident and er arrived on the scene after who Mazzagatti, 512 Pa. at body her child’s in the street. saw 516 A.2d at The court reasoned that is not at the scene present

where the close relative accident, a third instead learns of accident from but prior knowledge injury the close relative’s party, impact against victim serves as a buffer full the observing By accident scene. contrast relative who no observes the tortious conduct has contemporaneously system. or in which to brace his her emotional span time upon inflicts this an bystander The tortfeasor negligent injury the victim. separate apart and injury Id. 279-80, 516 at 679. A.2d to the scene of an

A father who followed ambulance in the a injured and his son street failed state accident saw Decker, 365, of action. Brooks v. 512 A.2d Pa. 516 1380 cause Center, (1986). And, Regional in Bloom v. Dubois Medical 83, (1991), 409 A.2d this court denied Pa.Super. 597 671 her neck recovery hanging by to a husband who found wife room, allegedly hospital in due to failure hospital a

155 panel The suicidal tendencies. to treat her her doctor and conduct, the tortious had not witnessed the husband held that aftermath. only its a recovery by this court allowed a year, panel

The next failed to in arms after a doctor died her whose mother woman had daughter heart ailment. or treat a serious diagnose when present treatment and was her mother for taken Love v. symptoms. of the woman’s dismissive doctor was (1992). I 231, 1175 dissented Cramer, between a of seven weeks lapse in grounds Love “sensory death rendered and the malpractice act of impossibility. accident” an observance of the contemporaneous has allowed 240, This court also 606 A.2d at 1180-81. Id. at heading for vehicle speeding when she saw wife to recover collision, immediately real- car, heard the her husband’s Lasso, 382 Pa.Su- had been struck. ized her husband Neff denied, Pa. A.2d allocatur per.

A.2d 445 in which from those distinguishable hand is The case at not did Shirley Krysmalski has been allowed because recovery As the state conduct, aftermath. only its the tortious observe feelings of an “The Mazzagatti reasoned court supreme substantially ... not suffered are bereavement guish and sees his or by any parent who from those suffered different A.2d 512 Pa. at Mazzagatti, dying injured child.” her in which to the accident Krysmalski’s relationship at 679. to that Brooks analogous is most her children jured the accident scene she was drawn to Decker because as Brooks was impact, just which followed commotion by the ambulance. of his son’s accident to the scene drawn speeding toward Tarasovich’s car did observe Krysmalski recovery true of the wife allowed her children as was Neff v. Lasso, supra. is devoid evidence argues that the record

Tarasovich also man- requisite physical suffered Shirley Krysmalski misappre- The defendant of her emotional distress. ifestation distress. infliction of emotional hends the law David Memorial Kazatsky King Tarasovich relies Park, Inc., (1987), involving case a distress, in which the state infliction of emotional intentional man- physical medical evidence of a supreme court held that recovery. a to the emotional distress is requisite ifestation of Kazatsky to of was limited cases holding the Although distress, argues of emotional Tarasovich intentional infliction to for analogized negligent be reasoning the should Kazatsky In the court rea- infliction of emotional distress. is an injury is to tort law that an element “[i]t soned that basic unnecessary ... permit it is unwise proven to be confirmation that expert ... without medical recovery Id. actually suffered claimed distress.” plaintiff expert at 995. No case has addressed whether a of testimony requisite finding negligent for medical fails distress. The record to offer infliction of emotional Krysmalski. Her Shirley of medical treatment evidence claim, argues, must therefore be denied. Tarasovich of emotional distress are negligent

Claims for infliction of from those for intentional infliction emotion distinguishable intentional infliction is determined al distress because negligent of defendant’s while outrageousness behavior foreseeability claims are determined infliction Sinn, Kazatsky, In supra; supra. distress. See plaintiffs distress, infliction emotional the su claims intentional expert medical evi imposed requirement court preme counterweight as a to the ease with dence of the distress outrageous behavior could be which fraudulent claims infliction brought. negligent A claim for would need foreseeability counterweight question because the same which to out fraudulent imposes balance with weed already addition, are not available punitive damages since claims. acts, impose no there is need added test Therefore, there is nei recovery. the possibility balance logic support engrafting requirement nor ther need prove evidence can emotional distress only competent medical Indeed, specifically the court held negligence onto case. Burd that “psychic capable Sinn v. injury being proven injury.” of a of such despite physical the absence manifestation Instead, Burd, 160, Pa. at 404 A.2d at 679. Sinn v. 486 contemporaneous and “sensory the limitation of imposed court separate line bright of as the test to observance the accident” accident from those involving seeing the shock of cases Sinn v. comes to the fore. grief which a inevitable parent’s Brooks, Burd, supra. Mazzagatti, supra; supra; Burd, supra, v. has refined following A Sinn line of cases averred to injury that must be holding require physical infliction of emotional negligent for a cause of action sustain 404 Hospital, v. Riddle Memorial See Abadie distress. (1991) (demurrer for 8, sustained 589 A.2d 1143 Pa.Super. allege failed to plaintiff a of when failure to state cause action birthday staff celebra- hospital harm a raucous physical Fisher, treated); 388 byWall Lalli v. being tion while she was denied, A.2d allocatur Pa.Super. (1989) (mother dog a bite her child who witnessed

A.2d 319 herself); Banyas Lower physical injury failed to aver (1981) 122, 437 A.2d 1236 Bucks Hospital, Pa.Super. charged hospital with murder after records (plaintiff who was malprac- him a death and to conceal to blame were altered and no of action to aver harm stated cause physical tice failed distress). of infliction emotional negligent must accompany harm emo- requirement physical of is on the state cause action based tional distress to (Second) § which states: Torts 436A Restatement creating If as an unreason- negligent the actor’s conduct bodily harm or emotional distur- causing able risk of either another, and it results such emotional distur- bance alone, compensable harm or other bodily bance without for such emotional distur- the actor is not liable damage, bance.

Thus, quantum bodily what is the question our becomes be averred to state cause action. harm which must (Second) of the Restatement Comment c Section 436A liability dependent Torts on duration and posits fright, nervous symptoms alleged. Temporary severity shock, nausea, transitory if rage, humiliation are not grief, headaches, harm; but, or long continued nausea

compensable are. This attacks or mental aberration hysterical repeated to a case in which the Restatement standards applied court “headaches, shaking, hyperventilation, averred plaintiff breath, lack of control over shortness nightmares, neck, bowels, in the back and of the muscles tightening had stated a cause of action and found that she chest” her employer for emotional distress when infliction abuse her to enter an abusive wrongfully coerced substance Co., Light Power and Pennsylvania Crivellaro program. Again relying c, held that panel “symptoms of this court Comment anxiety, nightmares, requiring stress and depression, severe mental, treatment, ongoing physical and ... and psychological sufficiently physical stated manifestations emotional harm” Love v. to sustain a cause of action. suffering emotional Cramer, supra. hand, plaintiffs’ complaint at amended

In the case un- Krysmalski hysterical, “became Shirley averred that nerved, and sickened as she emotionally physically shattered me, That, is the kind of children. it seems viewed” her could not which the Restatement held transitory reaction negligent infliction of emotional a cause of action sustain however, goes on to aver Krysmalski’s complaint, distress. and an acute nervous depression that she suffered “severe nightmares, gener- ... tortured flashbacks and condition is trauma, inability sleep peaceably, all of which al emotional nature.” permanent or be of a serious and may conditions are Crivellaro, and consider the cases supra, return to When we jurisdictions from other and cited which that court collected harm, depression, we find regarding physical approval with nervousness, hysteria. insomnia and Id. at nightmares, conclude, therefore, I that the plain- A.2d at 210. would pled bodily harm to sus- complaint sufficiently tiffs’ amended infliction of emotional negligent tain a cause of action for Crivellaro, Love, is, Bodily harm supra; supra. distress. however, of a cause of action for only prong one distress. infliction of emotional Shirley conclude,

To I from the award dissent was not because she s estate for emotional distress Krysmalskf was; prove has but she failed injured, she because Her injury. her of Tarasovich caused the tortious behavior understandable, wrenching natural, injury stems lying children sees her mutilated of a mother who distress shock grief, not the But her reaction was pools blood. is happen. Shock actually seeing accident upon attendant Brooks, Burd, grief supra. is not. actionable, supra; Sinn awarding question on respectfully I also most dissent do “until the cows Rule 238 and will so delay damages under come home.”3 $215,000, $100,000 for a settlement of

Tarasovich offered $15,000 for David’s cut chin. leg who lost a each child than 12 million dollars. jury returned a verdict of more final delay damages as interest Rule establishes Delay damages pay- rate. are payable published award until year process from a of one after served period able verdict, delay to the excluding period attributable any period after an offer defendant which plaintiff and percent of the final award. Pa.R.C.P. 238. Tarasovich delay an additional three million dollars was assessed damages. argues that he limit of his

Tarasovich offered the insurance indigent. and that he is an The record indicates policy otherwise; $300,000 never offered the Tarasovich’s insurer $100,000 the limit of each of the two policy, only limit And, injured. finding the trial court’s that Tarasovich girls not The indigent amply supported was is record. 238, the requirements have met the of Pa.C.R.P. Krysmalskis last, than 125 of the defendant’s jury percent award more he best offer and the defendant has failed demonstrate that Anderson, exception Berry v. protected indigency (1986) 618, (delay damages not 348 502 A.2d 717 will Pa.Super. full indigent has offered the be assessed when an defendant more). it impossible amount available and was have offered Musmanno, J., 2, Andrews, supra. Bosely dissenting, see footnote v. 160

However, 238 challenges Tarasovich also Rule feelings I on the grounds. my constitutional have voiced See 238 repeatedly. infirmities of Pa.R.C.P. constitutional 83, Lilley Corp., v. Johns-Manville Pa.Super. 408 596 A.2d Philadelphia v. (1991) (Cirillo, J., concurring); Rivera 203 Borromeo, Inc., 398 St. Charles Theological Seminary of (1990) (Cirillo, J., 264, concurring); Pa.Super. Co., 475, 1272 Dietrich v. J.I. Case 568 A.2d Pa.Super. 390 v. (1990) (Cirillo, P.J., Schrock concurring dissenting); Center, 215, Medical A.2d Albert Einstein Pa.Super. 386 562 Valley v. (1989) (Cirillo, Ceresini View dissenting); 875 P.J. (1988) (en banc) Park, 416, 552 A.2d 258 Trailer Pa.Super. 380 see also Tindal v. Southeastern (Cirillo, dissenting); P.J. 94, Transportation Authority, 385 Pennsylvania Pa.Super. (1989) (en banc) (Cirillo, P.J., concurring and A.2d 183 560 Moxon, 785 dissenting); Snelsire Pa.Super. 384 557 A.2d (en banc) King v. (1989) (Cirillo, P.J., Southeast concurring); Pennsylvania Transportation Authority, ern Pa.Super. 383 banc) (1989) (en (Cirillo, P.J., dissenting); 557 A.2d Forms, Inc., 236, 553 Business Miller Wise Pa.Super. (1989) (en banc) (Cirillo, P.J., dissenting). A.2d 443 responsible delays Rule 238 makes defendants Because cause, Rule 238 they process. did not it violates due which periods delay for the exclusion of provide does not Miller, at party. Pa.Super. caused either they because culpable simply at 446. This makes defendants Dietrich, chosen to defend their cases. have (Cirillo, P.J., concurring dissenting). 568 A.2d at procedural, application impacts labelled Rule 238’s Although Pennsylvania rights litigants. the substantive The Consti- power prescribe Court “the Supreme tution vests and the conduct of governing practice, procedure rules general ... if rules are consistent with this Constitu- all courts such enlarge modify nor the substantive abridge, tion and neither 10(c). 5, § ...” Art. any litigant Pa.Const. rights the Rules of Civil Proce- specifically Constitution states that rights any litigant. enlarge dure do not the substantive Svetlik, 496, 500, 794, 796-97 Svetlik 377

161 (1988). Because, to alter the operates Rule 238 my opinion, rulemaking it exceeds rights parties, substantive Court, is therefore Pennsylvania Supreme authority Dietrich, A.2d at Pa.Super. unconstitutional. P.J., 238 de- dissenting). Rule (Cirillo, concurring and that were the delay an periods nies exclusion defendants punishes Rule 238 de- Consequently, party. of neither fault litigate their they have chosen fendants because simply Dietrich, A.2d at 1280 Super, at cases. a defen- (Cirillo, P.J., dissenting). Sanctioning concurring and enlargement substantive delay damages is a dant with owed; which under the Constitution enlargement duties Id. requires action. legislative this Commonwealth A.2d 319 Christopher Melissa R. ANDERSON & Anderson, Appellants,

M. HARPER, Wendy Harper L. & Associated David M. Company, Appellees.

Products Pennsylvania. Superior Court Argued Oct. 1992.

Filed March Notes Nonetheless, finds a new trial grounds Tarasovich his was in the Krysmalski that David testified that mother fact 486.) (N.T., 3/27/89, at at time of the accident. store however, cause for a new trial. testimony, not Conflicting Baldino v. Castagna, 239, 249, 807, 505 Pa. (1984) (“[w]e have consistently held that a new trial should not granted be on a mere conflict in the testimony”). jury found, reasonably on the basis of the testimony summarized above, that Mrs. Krysmalski was on the scene at the time of Moreover, the collision. We will disturb that finding. this case is dissimilar from the by cases cited Tarasovich support argument. The authority cited Tarasovich involved family happened members who upon scene of an involving accident a family member minutes later or were Radic, notified of the Yandrich v. parties. accident third 243, (1981); Mazzagatti v. Everingham, 495 Pa. 433 A.2d 459 Decker, (1986); 512 Pa. Brooks v. 516 A.2d 672 case, In this the evidence at trial established a closer between the relationship occurrence and the claimant’s observation. Accordingly, cases Tarasovich cites will not afford relief. Moreover, even if Krysmalski Mrs. was not on the at scene the exact moment of impact, experienced she contemporaneous sensory observance of the accident. Even if Shirley Krysmalski was in the grocery store at the exact second of impact, certainly she most heard the crash in the lot, parking and knew that her children were at the scene of those events. This accident occurred at the entrance to the (N.T. 131.) 3/27/89, grocery 120, 121, store. at The children waiting- were outside of the store at the entrance for their mother, who just was situated inside the facing the lot in store (N.T. 483.) 3/27/89, the check-out line. at The lot (N.T., 120.) 3/37/89, was visible from inside the store. at presented Evidence at trial established that the sound of Tarasovich’s vehicle crashing into other grocery cars store lot parking (N.T., was audible from inside the store. 119.) 3/27/89, at Krysmalski Diane testified that she and her siblings asked their if they mother could wait for her outside while she was in the checkout line at the front of the store. 474.) (N.T., This Court has held that visual appre 3/27/89 hension of an involving accident a family member is not a requirement crucial in an action for damages

Case Details

Case Name: KRYSMALSKI BY KRYSMALSKI v. Tarasovich

Court Name: Superior Court of Pennsylvania

Date Published: Mar 1, 1993

Citation: 622 A.2d 298

Docket Number: 13-15

Court Abbreviation: Pa. Super. Ct.