*3 WICKERSHAM, POPOVICH, Before WIEAND and JJ. POPOVICH, Judge: appeal dismissing appellants’

This is an from an Order complaint seeking damages arising amended out of the of child. affirm. appellants’ stillborn birth We 27,1982, After the of their child on delivery July stillborn Boarts, and instituted this plaintiffs-appellants, Terry Gail 26, 1984, filing against action on June a summons McCord, Dr. James A. Dr. Michael J. defendants-appellees, Jochnowitz, Penn and As- Valley Gynecological Obstetrical 5, 1984, North Penn On Hospital. sociates and November complaint alleging negligence filed a on the part in the stillborn of their child and delivery of the defendants Wrongful under the Death seeking recovery and Survival 9, Acts, 1976, July 586, 2, P.L. No. 142 Acts of effective 27,1978, 8301(a), complaint 42 Pa.C.S.A. 8302. The June §§ for loss of also a claim consortium the child. On included 5, 1984, defendants, McCord, A. Dr. Dr. December James Valley and Penn and Michael J. Jochnowitz Obstetrical Associates, preliminary objections filed Gynecological demurrer, seeking dismissal of nature of claims Defendant, Wrongful under the Death and Survival Acts. on Hospital, preliminary objections North Penn filed its 7, December to response preliminary December

On defendants, amended filed an objections Death Wrongful wherein and Survival Instead, claims were abandoned. the amended infliction claim for the contained plaintiff-husband’s claim the loss emotional distress and wife, of his in addition to the claim for loss of consortium Defendant, Hospital, child. North Penn consortium their preliminary the nature a demurrer objections complaint on December plaintiffs’ amended McCord, defendants, A. Dr. Dr. Michael J. Jochnow- James Associ- Valley Gynecological itz and Penn Obstetrical and ates, January 1985. On January filed a demurrer prelimi- to strike defendants’ plaintiffs filed motion nary objection plaintiff’s court, by the lower the Honorable

On March *4 Stefan, Louis D. denied motion to strike the plaintiffs’ amended preliminary plaintiffs’ defendants’ to objections 28, 1985, court, by the lower complaint. On June Brown, A. granted prelim- defendants’ Honorable Lawrence thereby plaintiffs’ amended inary objections, dismissing This appeal followed. present four issues for our review: Appellants-plaintiffs’ discretion (1) court exercised its properly whether lower in nature of plaintiffs’ preliminary objections in denying a motion to strike defendants’ preliminary where objections, defendants filed their objections plaintiffs’ to preliminary beyond complaint amended the deadline set forth in Pa.R. 1026; (2) plaintiffs’ complaint C.P. whether amended plaintiffs' dismissed as to claim properly in distress; (3) fliction of emotional whether law Pennsylvania permits recovery Wrongful under Death Act and the child; Statute for (4) Survival the death of a stillborn and whether should be to allowed recover loss of consortium of their stillborn child. allege

Plaintiffs that the lower court abused its discretion in plaintiffs’ denying preliminary objections the nature of a motion to strike defendants’ preliminary objections, where filed objections plaintiffs’ defendants their preliminary complaint beyond amended the deadline set forth Pa.R. C.P. 1026. We disagree.

Pennsylvania Rule of Civil Procedure 1026 states in pertinent part:

“Every pleading subsequent to the Complaint shall be (20) filed twenty days preced- within after service of the ing pleading.”

In the instant complaint filed amended on December allege 1984. Plaintiffs that defendants were served with a of said copy complaint by amended mail 12,- day within a or two 1984. (Appellants’ December Defendant, Brief, 23). p. North Penn Hospital, prelim- inary the nature of a demurrer objections amended on December de- fendants, McCord, Dr. James A. Dr. Michael J. Jochnowitz Associates, and Penn and Valley Obstetrical Gynecological did file until preliminary objections January filing 1985. Since their January beyond (20) twenty days, plaintiffs’ allege alloted that defendants have their preliminary objec- violated Pa.R.C.P. appellants’ tions to should stricken. Merris, Allison (1985), the court held:

101 a shall provides pleading 1026 that be Pa.R.C.P. of preceding pleading. after service a days within 20 held permissive. We have mandatory This rule is not but opposite party late filed “if the pleadings may that be must left to justice requires. Much prejudiced not Quoting of the court.” v. the discretion lower Paulish 437-41, Pa. A.2d 321-22 Bakaitis, 442 275 (1971); Hill, Pa. 81 A.2d Fisher (1951). filing possible, procedure, including the rules of civil Where rules, eq- in order to effect should be construed liberally Urban, Pa.R.C.P. Urban v. 332 Pa.Su- uitable results. 373, 378-80, per. bar,

In a the case at after careful of study record, not its find that the lower court did abuse we refusing preliminary discretion to strike defendants’ by prejudice by any Plaintiffs had suffered objections. filing preliminary in the of defendants’ delay reason already put since had been objections, especially defendant, notice of the objections as to the nature De Penn filed on Hospital’s, preliminary objections North addition, justice required plain that cember to resolution on mer complaint proceed tiffs’ amended i.e., a its; plaintiffs’ whether stated damages compensable. are cause action for which their amended allege Plaintiffs further that claim plaintiffs’ negli- as to was dismissed improperly distress, in that gent Pennsylvania infliction of emotional infliction of recognizes law a cause of action from stillbirth of a viable resulting emotional distress case pleadings prima fetus and made out a facie argue defendants for such a cause action. infliction of claim for the emotion- pleaded two-year Statute beyond al distress first After recovery. are barred from Limitations and record, agree. careful we review The applicable covering Statute Limitations a claim for *6 negligent of infliction emotional distress as set forth in 42 Pa.C.S.A. 5524 states:

The following actions and proceedings must be com- years; menced within two

[*] ^{[*] [*] [*] [*] [*]} (2) an action to recover damages injuries per the son or for the death of an caused by individual wrongful neglect act or or violence unlawful or negli gence of another.

Plaintiffs’ claim negligent infliction emotional dis- tress was pleaded first 12,

December 1984. This was more than two years after 1982, cause of action arose on July 27, when plaintiffs’ daughter was delivered stillborn.

The rule general is that an amendment will not be permitted after the Statute of run, Limitations has if it introduces a v. City cause of Sanchez new action. Philadelphia, 184, 185-87, 588, 302 448 A.2d 589 (1982); Kuisis v. Corp., Baldwin-Lima-Hamilton 457 Pa. 321, 325-26, (1974). 319 A.2d 918 if the only amendment amplify enlarge would or the existing action, cause of Laursen v. General will permitted. it Hospital County, Monroe 241-43, 494 Pa. 431 A.2d 239 actions,

In negligence we have defined “cause of action” as “the act or acts which occasioned the Cotoia, v. Saracina injury.” 80, 85-87, 417 Pa. 208 A.2d v. City (1965). However, Sanchez Philadel phia, supra, Pa.Superior Ct. at 448 A.2d at the court held that it did not find the definition of “cause of Cotoia, action” in Saracina v. supra, 417 Pa. at 208 A.2d at 767, dispositive. Although the definition defines “cause of action” as “the act or acts which occasioned the it refer injury,” does not to whom duty was owed. City Sanchez Philadelphia, supra, 302 Pa.Supe rior Ct. at at while appellant named as one she is not complaint, original in the named claims only Her were personally injured. has been who incur medical continue might incurred and that she care, would suffer and that she daughter’s for her expenses to which she earnings daughter’s if her injury financial impaired. minority child’s were during the entitled would be complaint she original appellant’s that in The court ruled amendment she claims, derivative while only pleaded her own injuries “in right” her own sought to recover original in the mentioned had been which amendment Therefore, appellant’s court held that of action. existing of an cause amplification more than an no assert that there was In the instant *7 material fact every and that in factual averments change complaint was also forth in the amended and assertion set allege further Plaintiffs original complaint. in the pleaded forth an addi- brought complaint merely the amended that already of action damages for cause tional element (Appellants’ summons. complaint and original within the Brief, 21). p. complaint, original they in the are named

While personally have been persons as the who are not named Philadel City in Like the mother Sanchez injured. in claims pleaded only derivative phia, supra, original com Their claims the original their fu expenses, for medical for reimbursement were plaint in connection expenses and other incurred expenses neral death, deprivation for daughter’s with their stillborn daughter, their and consortium of companionship society, suffering under pain the conscious damages for economic and for the death daughter their before gone by of her left period the during life daughter’s of their value parents. that of her expectancy and dis- of emotional infliction negligent Plaintiffs’ claim for amplifica- an is more than complaint tress are they since now cause of action existing tion of their own right” “in their own recover seeking to two-year Stat- Thus, plaintiffs are barred injuries. from proceeding ute Limitations this with action on the ground negligent infliction of emotional distress since added they actually have a new cause of action. Moreover, after a record, careful review we that, find if plaintiffs even had complied with Statute of concerning Limitations negli addition of the claim-for distress, infliction of gent emotional no cause of action for infliction of emotional distress would exist. We agree with lower court’s findings plaintiffs’ that com plaint failed to show that there had been any physical manifestation of the emotional distress that alleg suffered. The edly lower court stated that com plaint was “devoid of any allegations that Mrs. Boarts physical defendants, sustained at injury the hands of she feared physical injury, or that she witnessed physical 4). injury (Opinion, to her child.” p. Plaintiffs’ also devoid of that Mr. any allegations Boarts suffered any physical harm at the hands of defendants. v. Lower Bucks Banyas Hospital, (1981), the court ruled that

there could no cause of action for infliction of emotional distress plaintiff because his sought recovery anguish severe mental and emotional stress, but did not show Banyas harm. The any physical court cited the Restatement of Torts 436A: Negligence Resulting 436A. in Emotional Distur-

bance Alone

If the actor’s conduct is as an creating unrea- sonable risk of either causing bodily harm or emotional another, to it in disturbance and results such emotional alone, disturbance without harm or other bodily compen- damage, sable the actor is not for such emotional liable disturbance. A to the explains

Comment Section that “Under the rule Section, stated in this actor not is liable when his conduct results in the emotional disturbance alone, harm other bodily compensable without or damage.”

105 action Thus, finding err in a cause of without we would bodily harm. allegation per- law question Pennsylvania also whether Plaintiffs Act and the Wrongful Death Sur- mits under recovery Amadio In a stillborn child. for the death of vival Statute (1985), Levin, 199, 208, A.2d 1089 our Pa. 501 509 of a child recently ruled that the estate born Supreme Court wrongful to a and right dead has the institute survival ventre mere. suffered en sa action for fetal injuries death 5, 1984, In plaintiffs the instant on November complaint pursuant their to the original Pennsylvania Act Wrongful plaintiffs Death and Survival Act. filed an amended on December wherein Death were abandoned.1 Wrongful and Survival claims that, preserve in for a party It is well order established review, it first in specific point appellate must be raised relief, A those theory the lower court. different from court, not be party may raised the lower success S.C., In re for the first time on fully appeal. advanced Services, 280 Pa. Allegheny County Children and Youth As (1980). Super. Wrongful failed to under the Death and Survival Stat sue utes, appellants we have this issue. find waived

Moreover, recover, plaintiffs sought their own daughter. loss of of their right, consortium addition, complaint, plaintiff-husband deprived companionship claimed he had of the society, been and of his wife. consortium loss long courts held that an action for

Pennsylvania have Scattaregia v. Shin of consortium is a action. derivative Wu, A.2d Shen considering the action derivative The rational follows: as original complaint amend- At the filed their time that permit recovery complaint, Pennsylvania under the ed law did Wrongful for the of a Act and the Survival Statute death Death stillborn child.

The consortium claim and personal injury claim are closely interconnected; together, they represent total, compensable damages and indirect —suffered as a —direct result of the principal plaintiffs injury. Viewed in this light, it makes little sense to hold that injured party’s negligence would direct or bar limit his recovery injury, but would not affect his spouse’s recovery for indirect injury.

The plaintiff consortium ... has suffered no direct injury---- right derived, recover both in a [His] legal sense, literal and from the injury suffered by [his] spouse.

Scattaregia v. Shin Wu, Shen Id., 495 A.2d at quoting Maidman v. Stagg, 82 A.D. 441 N.Y.S.2d

In the instant plaintiffs’ claim for the loss of consor- tium of their daughter and plaintiff-husband’s claim that he had been deprived of the society, companionship and consor- tium of his wife dismissed, were properly since in this case there is no cause of action for damages which compen- are sable. The necessary demonstration of direct does injury not exist. Plaintiffs’ claim for under the recovery Wrong- ful Death Act and Survival Statute the death of a waived, stillborn child has been claim for infliction of emotional distress was properly dis- missed by the lower court for failure to state a pursuable cause of action.

Order affirmed.

WIEAND, J., files a concurring statement.

WIEAND, Judge, concurring: I join the majority opinion. because, I do so I as under- stand opinion, its hold, majority does not either express- ly or by necessary implication, parent has a legally recognized claim for the loss of consortium of a child. Such a claim has not been recognized by the appellate courts of this Commonwealth.