Toney v. Chester County Hospital

clearly opportunity gen- had an ing and TONEY, Appellant Jeanelle Antionette Appellant’s

erally consider and observe history and characteristics. See Common- v. Walker, 43, 666 Pa.Super. v. wealth HOSPITAL, the CHESTER COUNTY (1995). We find no abuse of A.2d 301 Foundation, County Hospital Chester discretion. D., Inc., Maheep Goyal, Mar M. East Radiology and the Univer shall Street sentencing if the court Even sity Pennsylvania The of Univer d/b/a that were subsumed into relied on factors Pennsylvania System sity Health of recommendation, guideline the such as the Practices of the The Clinical a/k/a delay deadly weapon use of a or the before University Pennsylvania Hos of a/k/a of discre shooting, there was no abuse University Pennsylva pital of sentencing tion. Even if a court relies University of nia: The Trustees of the a factor that should have not been consid Pennsylvania ered, of discretion when there no abuse Toney, Appellant Antionette Jeanelle other sentencing significant court has for from the sentenc support departure its v. Smith, ing guidelines. Commonwealth County Hospital, the Chester Chester (1996); 896-897 Foundation, Inc., County Hospital P.L.S., Commonwealth v. Goyal, D., Maheep M. East Marshall Here, sentencing (Pa.Super.2006). Radiology University of and the Street specifically proper court recited factors University Pennsylvania The d/b/a it deter took into consideration when Pennsylvania System The Health a/k/a Appel mining appropriate sentence University of Practices of the Clinical lant, impact the crime had on including the Pennsylvania Hospital a/k/a Appellant relatives of the victim and University Pennsylvania: The Trus- family committed the crime home University Pennsylvania. tees of the twelve-year-old daughter while the victim’s Pennsylvania. Superior Court of present, causing the child to suffer finding body. her mother’s trauma of 25, 2007. Argued Oct. Filed Nov. 2008. Judgment of sentence affirmed. Dismissed Dec. Reargument in the re- Judge Donohue concurs

sult. ELLIOTT, P.J.,

BEFORE: FORD STEVENS, MUSMANNO, ORIE *, MELVIN, LALLY-GREEN, TODD BENDER, GANTMAN AND PANELLA JJ. PANELLA, BY J.:

OPINION 3, 2003, Toney, Jeanelle On March pregnant, pelvic months had a then several performed by examination Ma- ultrasound M.D., County Goyal, of the Chester heep Radiology. Dr. Hospital Department Toney that Goyal informed the results and did pelvic ultrasound were normal any fetal abnormalities her not reveal comfort, Toney was unborn child. To her advised that her unborn child was normal healthy. and ¶ Regrettably, Toney gave when birth son, Toney, July Makhi to her Gaven physical deformi- profound he had and He lacked arms below the elbows ties: joints; from legs below the knee suffered cur- hypoglossia;1 micrognathia;2 ventral an her- penis; umbilical vature nia, anomalies. among other ¶ Toney and conscious dur- was awake result, she ing vaginal delivery. As a first hand observed her son’s abnormalities immediately following birth.

¶4 given the assur- surprisingly, Not Goyal, received from Dr. ances she had devastating such fetal Gaven’s birth with Stephen E. Biencivenga Daniel Toney. Follow- anomalies was shock Raynes, Philadelphia, Toney, appellant. for surrounding experience traumatic ing the Post, Benjamin Berwyn, A. for Chester Toney grief, from delivery, suffered County Hospital, appellee. nervousness, nausea, sleep- hysteria, rage, lessness, anxiety, and con- Goy- nightmares and Keppel, Philadelphia, Arthur B. and mental al, experience tinues to Pennsylvania and Trustees of Univ. Pennsylvania, appellees. Univ. of distress.3

* participate j in the consid- growth Justice Todd did not of the aw. 2. Slowed decision of this case. eration or surrounding Gaven’s 3. The circumstances anomalies, birth, To- and Ms. Gaven’s fetal accessory tongue. 1.An 29, 2005, Therefore, Toney appeals from the Toney 5 On June commenced professional negligence 15, 2006, instant action order entered on March Goyal, Dr. against Appellees Chester Court of Common Pleas Chester County Hospital, County Hos- the Chester County, preliminary which sustained the Foundation, Inc., pital East Marshall objections except of all defendants East Radiology, University Street of Penn- Radiology. Marshall After careful Street sylvania, and the Trustees of the Universi- review, Toney we conclude that has suffi- claim- ty Pennsylvania via a ciently pled negli- a cause of action for alia, ing, inter and intentional gent infliction of emotional infliction All defen- of emotional distress. portion therefore reverse that of the or- dants, exception with the of East Marshall that claim. all der which dismissed Radiology, preliminary objec- filed Street affirm. regards, other we complaint arguing tions to the ¶ Initially, juris- we must address negli- failed to state a cause of action for County dictional issue raised Chester gent and intentional infliction of emotional County Hospital Hospital and Chester attorney an appear- distress. No entered Foundation, (collectively Inc. “Chester Radiology, ance for East Marshall Street Hospital”) regarding the timeliness of the Radiology and East Marshall Street has appeals. Hospital argues two Chester complaint. never answered the On March 2006, 15, appeal untimely the trial court entered an order the first was because East objections sustaining preliminary the on Radiology party was still a Marshall Street remaining behalf of the defendants. in the trial court at the time the defendant appeal was filed. The second notice of response, Toney 6 In filed a notice of appeal untimely, is also Chester notice of 23, Shortly on March 2006. appeal Toney had the Hospital argues, because thereafter, Legal this Court’s Central begin- opportunity timely appeal to file a in- Toney contacted Staff counsel for 21, 2006, ning April on when she filed the appeal might dicated that the have been Marshall stipulation to dismiss East Street premature, Toney’s against as claims Radiology party as a defendant. There- Radiology East Marshall had not Street fore, opportunity to because the window of response, Toney been dismissed. In filed 21, 2006, May appeal expired file an on stipulation to dismiss East Marshall 15, 2007, 21, appeal May second filed on is also 2006. To- Radiology April Street on seeking untimely.4 ney subsequently filed a motion all dismissing parties

an order cer 9 After a close review of the stipula- to the pursuant causes of action record, docket entries and we now tion, tified granted which the trial court appeals sponte, these two sua consolidate April Toney 2007. thereafter filed Initially they identical issues. we on as raise appeal second notice of to this Court that, despite arguments presented May note 2007. denied, (Pa.Super.2007), appeal ney’s and mental condition follow- birth, ing are all documented in the com- reviewing plaint. It is well-established that 903(a) preliminary objections Pennsylvania of a de- in the nature of the Rules of 4. Rule murrer, provides period Appellate all material facts set forth in Procedure for a days appeal an complaint, well all inferences reason- to file an from order as Pa.R.A.P., therefrom, 903(a), 42 Pa. ably to be admitted trial court. See Rule deducible are Rothschild, LLP, true. v. Fox See Hess Cons.Stat.Ann. by adjudicated in trial Hospital, appeal finally Chester the second had been timely Therefore, was in fact Hospital Toney’s May filed. Chester court.

concedes in its statement of the case that timely, appeal notice of was and the issues Toney stipulation filed to dismiss East properly raised therein are before this Marshall Radiology party Street as a de- reasoning, Court. Under same 21, 2006; above, April fendant on as stated appeal March 2006 notice of filed the trial court an April issued order on premature, hereby and we 2007, dismissing East Marshall Street Ra- our quash light it. consolidation diology, and incorporating prior its order appeals Superior the two docketed in the 14, 2006, of March which dismissed all Court, jurisdiction question and the re- other parties and causes of action. Under solved, we now turn to the merits of the Procedure, Pennsylvania Rules of Civil appeal. may “a discontinuance not be entered as to ¶ Toney challenges the decision of the except less than all defendants upon the trial in determining court that she failed to written parties consent of all or leave of (1) cognizable state causes of action for court parties.” after notice to all negligent infliction of emotional R.C.P., 229(b)(1), Rule 42 PA. CONS. (2) intentional infliction of emotional dis- STAT.ANN. Since East Marshall Street (3) tress, misrepresentation. Ap- See Radiology did not in writing consent to the Brief, at pellant’s discontinuance, leave of court was neces- sary to make the discontinuance effective. 13 Our standard of review challenge where is a the there sustain ¶ Hospital’s 10 The argument that the ing preliminary objections of in nature the stipulation was effective absent of leave aof demurrer is well-settled: The material the trial court is of no avail. The record is facts in set forth the and all clear that although Toney circulated the reasonably inferences deducible therefrom stipulation, defendant, the remaining East Brown, are admitted as true. See Price v. Radiology, Marshall Street unrepresented 216, 221, 1149, 545 Pa. 680 A.2d 1151 during case, pendency the of this did not (1996). question presented by “The the sign stipulation, the and no for praecipe whether, averred, is demurrer on the facts upon discontinuance based it was filed. says certainty the law with no recov 229(b)(1), accordance with Rule in the ab- ery a possible. Where doubt exists as to sence of consent all parties, leave of sustained, whether a demurrer should be required court was to effectuate the dis- this doubt should be resolved favor of Matyas continuance. See Albert Ein- (citation omitted). overruling it.” Id. Center, 230, Pa.Super. stein Medical 225 301, 310 A.2d 302 ¶ explained 14 v. Phila As Doe ¶ 11 Applying Matyas delphia Community to the case Health Alternatives (Pa.Super.2000), judice, 21, Force, 25, April stipulation sub 2006 26 AIDS Task 745 A.2d trigger period d, did not the time to file an 564 Pa. 767 A.2d 548 aff' (2001), appeal, negligent and was not effective in discontinu the cause of action for case, ing the as Ra is restricted East Marshall Street infliction of emotional distress (1) diology writing never to it in to four factual scenarios: situations consented 229(b)(1). required by Rule It was not where the defendant had a contractual or (2) April fiduciary duty plaintiff; until East Marshall toward the when subjected im Radiology plaintiff physical was dismissed as a de was to a Street (3) fendant, in a zone of against parties pact; plaintiff that the claims all ¶ case, danger, thereby reasonably experiencing Toney a 16 In this satisfied (4) “duty a impending physical injury; pleading requirement fear of or for was, at plaintiff injury by averring a to a care” action she observed tortious times, all relevant under the “medical care appeal, close relative. See id. In this ie., and treatment of’ the defendants. See Toney only theory, relies on the first ¶¶ (Chester County Complaint, at 10 & 17 that Appellees had a contractual or fiducia- (Dr. Foundation), Hospital and its at ry duty towards Appellant’s her. See (East Goyal), at Marshall Street Ra Brief, at 8. ¶¶ (The University diology), at 34 & 41 Trustees). Toney Pennsylvania and its As proceeding ¶ 15 When under this sufficiently pled preexisting duty “a has theory, panel a unanimous of this Court care, contract, fiduciary through either or observed that duty” she has satisfied the first element negligent crux of a infliction of [t]he a infliction of cause of action appellees claim is that distress Armstrong v. emotional distress. See duty they appel- breached some owed to Pa.Super. Hospital, Paoli Memorial injured lant and that that her. breach (1993), appeal de (1994).5 Nursing nied, Denton v. Silver Stream and Re- 649 A.2d 666 Center, habilitation turning 17 In to whether McEwen, (although Judge (Pa.Super.1999) duty, of that pled has sufficient breach P.J.E., dissenting concurring filed injury damages, as resultant we well section). statement, joined in quoted he negligent note that the cause of action for Therefore, theory recovery, under this ly premised inflicted emotional distress is of a must establish elements (Second) upon the Restatement of Torts claim, “i.e., that the defendant § 313: duty plaintiff, owed a of care to the § 313. Emotional Distress Unin- duty, defendant breached that the breach tended injury plaintiff, resulted in to the and the (1) unintentionally If causes the actor plaintiff suffered an actual loss or dam- another, emotional distress to he is age.” Philadelphia College Brown v. subject liability to to the other for Medicine, 863, Osteopathic 868 bodily if resulting illness or harm the denied, Pa. (Pa.Super.2000), appeal 566 actor 632, (2001), v. quoting 781 A.2d 137 Martin (a)

Evans, 496, 502, 458, Pa. A.2d 461 should have realized that con- 551 711 his involved an risk duct unreasonable (1985)] concurring opinion Hunger 5. In a in v. Grand 491 A.2d 207 is not the mere exis- Sanitation, Pa.Super. Central 447 670 relationship plaintiff and tence of between denied, (1996), appeal defendant, A.2d 545 duty rather the existence of a but (1996), distinguished our flowing relationship. Only where from that retired, Phyllis colleague, now the Honorable exists, breached, duty and causes such Beck, recognized W. the claim for leading bodily emotional distress to severe upon the infliction of emotional distress based harm can a cause of action under Crivellaro duly of that existence of a and breach successfully be asserted. duty: Corp., F.Supp.2d Fanelle v. See also LoJack clear, However, Annstrong makes (E.D.Pa.2000) ("The duty 565 n. 9 must significant making in out a cause of factor exist, breached, be and cause severe emotion- Pennsylvania action under [Crivellaro harm”). bodily al distress that leads to Co., Light Pa.Super. Power and distress, causing bodily harm dam- compensable otherwise or other by age, than the actor is not liable for such knowledge of the harm or emotional disturbance. peril of person, a third and (Second) Torts, (b) § Restatement 436A. from facts to him known should distress, if have realized that the it ¶ In pleading the essential caused, might were in result illness negligence component, elements of the To- bodily or harm. ney averred that the “Defendants failed to (2) (1) properly correctly report and The rule stated in read Subsection has pelvic untrasounds” which should have application bodily

no to illness or profound revealed the fetal anomalies suf harm by of another which is caused by In Complaint, fered Gaven. at 57.6 arising solely emotional distress from being stead of advised as to the true harm peril person, or to a third unless fetus, physical condition of the negligence of the actor has other- instead that told the fetus was normal wise created an unreasonable risk of ¶¶ id., anomalies. See with no fetal at 58- bodily harm to the other. prior 62. Without the benefit of notifica (Second) Torts, § Restatement disabilities, physical Toney, tion of these

See also Armstrong, 633 A.2d at 609. awake during delivery, and conscious Therefore, a plaintiff position this must “opportunity did not have an to brace her negligence establish injury: both self for the shock” and was “without the To state a cause of action for negligent psychiatric, religious, benefit of ... or so infliction of emotional plain- distress the counseling, cial without the benefit of tiff must demonstrate that she is a fore- ” making appropriate arrangements.... seeable and that she suffered Id., at 633 A.2d 605. physical injury as a result of the defen- light 20 In it pleadings, cannot negligence. dant’s rationally argued be defendants Id. duty directly did not owe a of care ¶ 18 negligence The test for is Toney. entirely It is also foreseeable Id., one of foreseeability.” “reasonable at under alleged, Toney the circumstances as 608. The requirement physical injury is would suffer traumatic emotional distress if physical satisfied harm accompanies the such, during the birth of her son. As we id., see at and is find the elements of fore- measured standards set forth seeability adequately pled. to have been Section 436A of the Restatement: ¶ Next, requirement we turn to the of Negligence Resulting § 436A. In i.e., injury, physical compensable damage. Emotional Disturbance Alone Appellees argue pursuant that even to the

If the actor’s conduct is as basis, fiduciary duty Toney plead must and creating an causing unreasonable risk of prove subjected to a physical she was bodily harm either or emotional distur- impact damages in order to recover for another, bance to and it results in such negligent infliction of emotional distress. alone, contrast,

emotional physi- disturbance without contends that a are, course, preliminary objec- denying contesting particular, 6. We of at the from and must, aforesaid, stage, accept and we allegations surrounding tions as the administration complaint the averments in the as true. interpretation pelvic and ultrasounds However, nothing herein should be construed issue. defendants, foreclosing Goyal and Dr. from severe emotional distress impact necessary

cal is not to recover dam- suffered trauma, including physical and related there has ages for emotional distress when headaches, uncontrollable shak- intense fiduciary duty. Toney been a breach of involuntary and ing, hyperventilation argues only physical injury or illness breath, frequent night- shortness of from the distress is resulting emotional bowels, mares, inability upset to control required, physical not actual contact. All stomach, tightening and an intense have focused their parties appeal to this neck, in the back and muscles physical attention on the issue of whether chest.... impact required if there has been a Writing a unanimous fiduciary duty. 491 A.2d at 210.

breach Court, panel Stephen of this the Honorable negli 22 In types all four P.J.E., McEwen, Jr., alleged found the J. cases, gent infliction of emotional distress injures injuries exceeded the level of con- above, plaintiff as outlined must have by easily sus- templated Section 436A injury experienced physical as a result id., action. at 210- tained the cause of See traumatic having exposed been to the Armstrong, 633 A.2d at 609. event. See ¶ Here, by filed Initially, physical injury had to be accom physical harm suf Toney enumerates the type impact no panied physical some by Toney as a of the traumatic fered result minor, matter how and did not include delivery of her child: “shock and severe “transitory, only conditions manifested ¶¶ distress”, Complaint, at 53- emotional non-recurring” probl mental or emotional shock, 54; shock, grief, “severe nervous However, controlling ems.7 under case humiliation, pain, mental rage, emotional law, prob who can such show trauma, anguish, and emotional emotional or head “long lems as continued nausea distress”, 65; at “continued nausea and aches, repeated hysterical attacks or men insomnia, headaches, night depression, adequate tal aberration” has demonstrated mares, flashbacks, at repeated hysterical a cause physical injury sufficient to sustain tacks, stress, nervousness, hysteria, sleep Relying on Comment c to of action. Id. ¶ 67; lessness, anxiety”, at nightmares, and 436A, Justice Frank Section the eminent past in the and to continue to be “disabled retired, Montemuro, writing for a now performing in the future from her disabled Court, held that panel previously of this avocations, duties, occupations, usual night “symptoms depression, of severe vocations, consequent loss of earn with mares, anxiety, psy requiring stress and ¶ 68; earnings capacity”, and future at ings treatment, chological ongoing and ... care”, treatment and at “psychological mental, harm” physical and emotional suf ¶ 69. manifestations of ficiently physical state ¶25 satisfy the re allegations These a cause of suffering to sustain and substantial quirement of “immediate Cramer, Pa.Super. action. Love Philadelphia Doe v. physical harm.” (1992), appeal Community Health Alternatives AIDS (1992). denied, 634, 533 Pa. 621 A.2d 580 (Pa.Super.2000), 25, Force, A.2d 28 Task 745 264, ¶23 Crivellaro, Pa. A.2d 548 d, averred 564 767 plaintiff In the aff' (2001) original). in (emphasis that she Medicine, See, College Osteopathic 449 Pa.Su- Shumosky e.g., v. Lutheran Ser- of Welfare PA, Inc., 196, (1996). per. vices 784 A.2d A.2d 1135 Northeastern 674 of Philadelphia (Pa.Super.2001); Brown v. 201

201 ¶ Center, 176, 181, 754 Accordingly, 26 as we conclude that stein Medical (2000) (plurality).8 pleading requirements the for all elements A.2d 652 satisfied, trial in have been the court erred ¶ Justice, Taylor, then now Chief 29 In dismissing Toney’s claim for in- Justice, Castille, concurring in a Ronald fliction of emotional distress. Justice, opinion joined by another took discussion, 27 Before we leave this proposition that our issue with the broad however, important it is to mention what recog- Supreme expressly Court has never case, at this stage, this is not about. Our of action for emotional dis- nized cause address, any discussion above does not in tress, of a cause of recognition and found manner, liability. the of ultimate issue “serious mental or emotional action for unsettling The narration of the facts as resulting from intentional or wan- distress in complaint necessary described the is Lawrence, Papieves ton conduct” in v. 437 upon preliminary objections, our review Taylor, Pa. 562 any does not create of presumptions but However, Pa. at 754 A.2d at 654. reliability stages litigation. at later of this Justice Castille found this tort to be sui any opinion Nor does our review reflect on in generis; the cause of action whereas allegations professional whether the of of Papieves upon was based Section 868 stages will be sustained at later Restatement, herein, the as Appellant the with admissible evidence expert opin- in Taylor, upon did the relies Sec- ions; there are pretrial other avenues tion 46. parties available to the legal to test the acknowledging that this tort While sufficiency of the following claims the com- by officially adopted has not been our Su- pletion discovery exchange of and the Court, attempt and in an to recon- preme here, expert reports. Our decision as stat- Taylor cile the decision with an attack ed, is limited to determining whether the action, this this legality cause facts, alleged, support legally cogniza- as Court, by in a recent decision authored ble cause of action. Tamilia, Judge Patrick R. held Senior appeal, her second issue on To- standard of review as follows: ney trial in contends court erred eventually finding Supreme that the actions of the Court Appellees, Whatever matter, under all of the in this we conclude circumstances described decides herein, an intentional infliction of emotion- support did not a claim for inten- when de- upon tional claim is dismissed infliction of emotional distress. This al distress tort, murrer, appropriate legal standard as defined Section 46 of the Re- (Second) Torts, claim is reviewing applied statement has never to be sufficiently explicitly recognized been as a cause of whether in a manner that corre- Pennsylvania Supreme pleads action our the claim minimum,” Court, provi- “at a with the although Supreme sponds, Court has (Second) Restatement setting cited the section as forth the mini- sions of the Torts, 46(1), Outrageous § Conduct necessary mum such a elements sustain Emotional Distress. Taylor Causing cause of action. See v. Albert Ein- Severe purpose to maintain perior “formal Superior follow the man- Court's 8. The Court must [S]u- law of our Supreme and effectuate the decisional dates of the Court. See Dominick Co., (Pa.Su- faithfully possible,” we preme [C]ourt Statesman Ins. denied, adopt a new authorized to create or per.1997), appeal are not standard). (1998) (noting that because the Su- 671 202 ¶ contrary, the defendants 49. To the Allegheny College, v. 926 A.2d

Reardon Toney dur- 477, appeal represented de- to Ms. (Pa.Super.2007), expressly 487 n. nied, that pregnancy 947 A.2d 738 of her ing course Hoy in on to cite Toney The Court Reardon went normal and Gaven was Makhi 720 A.2d 745 Angelone, healthy. (1998), of an pleading requirements for the for intentional infliction of emotional

action distress: ¶ properly failed to and 57. Defendants outrageous in conduct must be so [T]he ul- correctly report pelvic read and character, in degree, and so extreme should have revealed trasounds which go beyond possible to all bounds of de- profound fetal anomalies. these atrocious, cency, regarded and to be utterly any

and intolerable civilized society enough ... has not been [I]t ¶ incorrectly informed 61. Defendants intent the defendant has acted with pelvic ultrasounds of Ms. criminal, is tortious or even or which baby did not reveal fetal her unborn that he has intended to inflict emotional anomalies. has or even that his conduct “malice,” by been characterized or de- gree aggravation that would entitle ¶ 63. The carelessness and for an- plaintiff punitive damages to the defendants herein increased risk other tort. injuries damages and of harm to and the

Reardon, quoting Hoy, 926 A.2d at Toney. Antionette suffered Jeanelle (internal at 554 Pa. at omitted). citation ¶ includes the Appellant’s complaint ¶ conduct with re- 71. The defendants’ of this

following support averments To- Antionette gard to Jeanelle cause of action: reckless baby and her unborn ney ¶ Goyal, im- Maheep 46. Defendant MD to displayed a reckless indifference interpreted To- properly read and Ms. health, safety, and welfare of Jea- ney’s pelvic ultrasound of March Toney and her unborn Antionette nelle baby reporting that there her unborn baby. anomalies. were no alleged “care- specification of the Further Maheep Goyal, properly MD 47. Had actions of the defen- negligent” less and Toney’s March Ms. interpreted read other in numerous dants is contained unborn pelvic ultrasound of her address causation paragraphs which Toney’s mul- baby, Makhi severe Gaven the various counts. numbering of separate should have been tiple fetal anomalies Toney should have underly identified and Ms. to the facts 32 Similar multiple fetal Reardon, notified of the severe allega been these claim in ing the Toney’s Makhi prior anomalies Gaven standard tions, per as true as our accepted time, birth. rise to a level at this do not of review most clear described as “the Toney that could be informed Ms. 48. Defendants extreme con and ultra ly desperate ultrasound pelvic that her March 152, 720 A.2d at Hoy, ...” 554 Pa. at any fetal duct. did not reveal was normal and center, alleged At the conduct its anomalies.

203 ¶ here, trial alleged and the resultant emotional 35 We therefore reverse the court’s order insofar as it dismissed To- Toney, heartbreaking harm to involve cir- cumstances, ney’s negligent infliction of emo- claim for allegations negligence but affirm trial court’s tional distress. We and carelessness do not rise to the level of respects. order in all other premised upon conduct standards such as “utterly “atrocious” and be- intolerable” ¶ EDA Appeal quashed. 36 at 773 2006 havior. Appeal at 1191 EDA order reversed part part. and affirmed in Case re- ¶ complaint supply 33 As the does not for further consistent proceedings manded any allegations factual support legal Opinion. with this relin- Jurisdiction conclusion of recklessness9 or intentional quished. acts, we conclude that the trial court com- mitted no error when it dismissed the Judge 37 a ORIE MELVIN files cause of action for intentional conduct. concurring dissenting opinion in which Judge joins. LALLY-GREEN Finally, 34 Toney argues that CONCURRING AND DISSENTING the trial court erred in dismissing her MELVIN, BY OPINION ORIE J.: misrepresentation; however, claim for our ¶ 1 joining While I have no hesitation in Toney’s review of that reveals Majority’s disposition jurisdic- pleaded she no such claim. A complaint questions tional and Appellant’s claims for apprise must a defendant of the claims intentional infliction of emotional distress being asserted and the essential facts to misrepresentation, I am compelled to Barke, support them. Grossman v. 868 disagree that Appellant has set forth (Pa.Super.2005), appeal de valid nied, negligent cause of action for infliction (2005). 585 Pa. 889 A.2d 89 The I acknowledge, emotional distress. purpose behind this rule is to enable the Majority implies, that the facts of this parties to a case to be able to ascertain the nothing heartbreaking. case are short of claims and defenses using asserted their Nevertheless, my based on review of the knowledge. own purpose See id. “This Pennsylvania law of on negligent infliction courts, would be thwarted if rather than respectfully of emotional I must parties, were burdened with the re Majority’s disposition dissent as to the sponsibility deciphering the causes of single issue. action a pleading from of facts which ob

scurely support Therefore, the claim.” Id. Philadelphia College I find Brown v. properly plead “[i]f fails to Medicine, Osteopathic 760 A.2d 863 action, separate cause of the cause he did denied, (Pa.Super.2000), appeal (citation plead not is waived.” Id. omit (2001), 781 A.2d 137 to be instructive.

ted). Toney’s complaint does not include a There, plaintiffs against filed suit separate count for misrepresentation. Ac hospital alleging negligent cordingly, we conclude that the trial court infliction of emotional distress after the claim; “dismissing” did not err in it hospital erroneously this reported their part of the litigation. daughter positive sy- never newborn tested Penman, (Second) intentionally.” 9. “Section [of the Restatement acted Pierce v. recognize liability (1986), does not Torts] for mere Pa.Super. ap- infliction of emotional distress. denied, peal A.2d 1082 However, causing reckless conduct distress renders an actor as liable as if he had Factor in Produc- philis. plaintiffs sought The to recover duct is Substantial marital subsequent ing for Harm damages their plaintiffiwife’s breakdown and the emotion- in following The are considerations plaintiffiwife’s al the well as inor combination with one themselves job physical loss her a altercation of after determining important in another than plaintiffihusband with the more two the conduct is a sub- whether actor’s jury birth. A months after the child’s to bringing factor in harm stantial plaintiffs. a verdict in favor of the returned another: however, this Court appeal, On reversed (a) number other which the of factors entry judgment and of in remanded for producing in the harm and contribute hospital. favor the We noted that both of they the extent of the effect which required plaintiffs’ of claims the exis- the it; have in producing of negligence: tence of all four elements a (b) the has whether actor’s conduct care, duty duty, a of that resul- of breach forces created a force or series of tant and As- injury, damages. Id. at 868. in active which are continuous and duty suming that the elements of harm, operation up to time of the the established, we turned to the breach were or created a situation harmless has in question of causation. We reasoned upon for unless acted other forces part

relevant as follows. responsible; the actor not which is sufficient, however, not that a “It is (c) time. lapse of viewed, may retrospect, act in negligent be (Second) Torts, § Restatement in happenings to have been one of the (1965). up injury. leading of events to an series requirement Even if the of actual causa- in Applying Id. at Section 433 869. satisfied, tion there Brown, has been remains the that of the we concluded none legal issue Id. at proximate or cause.” to three factors led the conclusion that a question 868. Proximate law. cause a hospital of the substantial Id. Al- causing harm.10 plaintiffs’ factor an con- though procedural posture

To determine whether actor’s differs Brown’s matter, proximate constitutes the cause of in the I would duct from that instant injury, an the courts of the Common- note that this Court has also nonetheless upon adopted wealth have relied 433 of the Restatement applied Section (Second) of the reviewing ruling factors set forth in Section 433 Torts in a (Second) See, of Torts. Restatement plaintiffs failed to estab- complaint Hosp., e.g., Lower Bucks [v. Vattimo proximate preliminary at the lish cause Inc.], [241,] 246-47, objection stage proceedings. See [1231,] provides: This Inc., 1233-34. section Trucking, E. Lux Gerald Ort (Pa.Super.2005) (affirming dis- in A.2d 1281 Important

§ 433. Considerations Determining missal of based absence Negligent Con- Whether impact infliction of emo- opined only physical cal "[t]he also We by [plaintifflwife] that was the harm suffered claim. Id. at 871-72. tional distress receiving proximate bar, result of allege any actual Appellant not case at does receipt of test was her erroneous result reading resulting distress from the she, single injection treat a disease that to might arguably re- of the ultrasound which fact, 871. We did not have.” 760 A.2d at physical impact proceed quire to the us this claim also failed because found that step. physi- requisite plaintiffs did not establish cause), denied, proximate appeal BRETHREN MUTUAL INSURANCE

731, 901 A.2d 499 COMPANY, Appellee ¶ Similarly, I Ap- conclude here that pellant’s complaint fails to establish Cynthia Cynthia McKERNAN f/k/a Appellees’ conduct was a substantial factor Strobridge; Pamela Gardner in causing her emotional It distress. is not Cooley, Wanda as Co-Administratrix insignificant Appellant’s brief contains Joseph Gardner, es of the Estate of M. argument little on the element of causation deceased; Pamela Gardner and Wan and instead merely para- refers us to Cooley, Co-guardians da of the Es graphs 42-71 of complaint. Appel- her Morgan Joseph Gardner, tate of a Mi lant’s brief at 21. My review of those nor, and Pamela Gardner Wanda paragraphs reveals that Appellant’s claim Cooley, as Co-Guardians of the Estate for emotional premised solely distress is Gardner, Minor, Ap of Erica Elaine upon her shock at observing her newborn pellant. significant physical son’s disabilities at the Superior Pennsylvania. Court of birth, time of his rather than resting upon anything Appellees did or failed to do Argued May 2008. some prior. four months Even if one were Filed Nov. Appellant’s

to read complaint more liberal- ly alleging that Appellees had a role in

causing her emotional “it is abun-

dantly clear that factors other than the

negligence of hospital] [the had a far

greater effect in producing the harm com- Brown,

plained of’ in supra, this case.

760 A.2d at 869.

¶ Hence, court, as did the trial I am

compelled to conclude that Appellant’s

complaint fails, law, as a matter of to set

forth a valid cause of action for negligent

infliction of According- emotional distress.

ly, I would affirm the trial court’s order in entirety.

its

Case Details

Case Name: Toney v. Chester County Hospital

Court Name: Superior Court of Pennsylvania

Date Published: Nov 12, 2008

Citation: 961 A.2d 192

Docket Number: NO. 773 EDA 2006, NO. 1191 EDA 2007

Court Abbreviation: Pa. Super. Ct.