Daughen v. Fox

• Decision Date: 30 March 1988
• Citation: 372 Pa.Super. 405,539 A.2d 858
• Court: Pennsylvania Superior Court
• Parties: Joseph R. DAUGHEN, Joan Daughen and Joan Patrice Daughen, a Minor by Joseph R. Daughen, Her Guardian, Appellants, v. Stuart A. FOX, D.V.M., F. Sawires, D.V.M., and Hospital, Inc., D/B/A Rau Animal Hospital, Appellees.

Page 858

539 A.2d 858

372 Pa.Super. 405

Joseph R. DAUGHEN, Joan Daughen and Joan Patrice Daughen, a Minor by Joseph R. Daughen, Her Guardian, Appellants, v. Stuart A. FOX, D.V.M., F. Sawires, D.V.M., and Hospital Inc., D/B/A Rau Animal Hospital, Appellees.

Superior Court of Pennsylvania.

Argued Oct. 27, 1987.

Filed March 30, 1988.

Randi J. Vladimer, Philadelphia, for appellants.

Ralph L. Hose, Ardmore, for Hosp., Inc., appellees.

Before CAVANAUGH, BECK and HESTER, JJ.

CAVANAUGH, Judge:

The first issue raised in this appeal is whether a cause of action exists for intentional infliction of emotional distress arising from the death of one's dog. In this case the appellants, Joseph R. Daughen, Joan Daughen and their minor daughter, Joan Patrice Daughen, commenced an action in trespass and assumpsit against the appellees. Count I was in trespass and alleged that the appellees, Stuart A. Fox, D.V.M., F. Sawires, D.V.M., and Hospital, Inc., trading and doing business as Rau Animal Hospital, who were the defendants below, intentionally or with reckless disregard of the consequences of their actions, caused the appellants to suffer severe emotional distress. The second count was also in trespass and alleged that the misconduct of the appellants resulted in the loss of appellees' pet dog, a unique chattel and caused them to suffer the loss of their dog's companionship and comfort. The third count was in assumpsit and alleged breach of express and implied warranties by the negligent and reckless conduct of the appellees. The appellees filed a motion for summary judgment which was granted by order of the court through Corso, J. on February 20, 1987. An appeal has been taken to this court.

Pa.R.C.P. 1035(b) provides in part that summary judgment "... shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ..." A motion for summary judgment should be granted where the pleadings, discovery and affidavits reflect no genuine issue of material fact. Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). A summary judgment should be entered only in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well-pleaded facts in the non-moving party's pleadings, and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Metal Bank of America v. Insurance Company of North America, 360 Pa.Super. 350, 520 A.2d 493 (1987); Mowery v. Prudential Property & Casualty Insurance Company, 369 Pa.Super. 494, 535 A.2d 658 (1988).

Applying these rules, the facts may be summarized as follows. The appellants were the owners of an eight year old mongrel dog called Cindy which had been a family pet since it was born. In June, 1980, Mr. and Mrs. Daughen took their dog to Rau Animal Hospital for examination as she had been vomiting her food for some two days. Dr. Fox, who is a veterinarian, examined the dog and prescribed medication. The next day the dog's condition worsened and the appellants returned to the veterinary hospital where the animal was examined and catherized by Dr. Sawires. Medicine was also administered to the animal. The dog was returned to the hospital the next day for an x-ray in accordance with Dr. Sawires' instructions. The x-ray was taken and the same day Dr. Sawires told the appellants that the x-rays showed a needle was in the animal's intestine and that surgery was essential to save the dog's life. The Daughen's authorized the surgery. After the surgery, the appellants were advised that the needle was not found during the operation, but additional x-rays indicated that there was an object referred to in the complaint as a "bullet" in or near the animal's liver. Dr. Sawires admittedly had mixed up two x-rays of similar dogs and the first x-ray showing the needle was not an x-ray of the appellant's dog. Dr. Sawires told the appellants that there had been signs of lead poisoning and that the personnel at Rau Animal Hospital were not qualified to remove the bullet by medical procedures. He advised that only personnel at the University of Pennsylvania were so qualified. Dr. Fox told the appellants that their dog was too weak for such surgical procedure. The dog died on June 29, 1980 and had been at Rau Animal Hospital since June 25, 1980. According to the complaint, Dr. Fox and Dr. Sawires intended to conceal from the appellants the fact that they had operated on their dog on the basis of an x-ray of another dog.

The thrust of Count I is the intentional or reckless infliction of emotional distress as set forth in Restatement (Second) of Torts, § 46 which provides in part:

§ 46. Outrageous Conduct Causing Severe Emotional Distress

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Our court has stated that § 46 of the Restatement (Second) of Torts has been adopted in Pennsylvania. Stoddard v. Davidson, 355 Pa.Super. 262, 513 A.2d 419 (1986) citing Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178 (1984); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1986); D'Ambrosio v. Pennsylvania National Mutual Casualty Company, 262 Pa.Super. 331, 396 A.2d 780 (1978). We pointed out in Bartanus v. Lis, 332 Pa.Super. at 61, 480 A.2d at 1185 (1984); "... the intentional infliction of emotional distress is an evolving tort and its scope has not yet been clearly defined." Citing Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). However, our Supreme Court recently stated in Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, (1987): "Previously this Court has acknowledged but has never had occasion to specifically adopt section 46 as the law of Pennsylvania." (Emphasis added) The Supreme Court pointed out in footnote 1, 515 Pa. 185, 527 A.2d 988-989:

1. Reference was made to section 46 in Papieves v. Kelly, 437 Pa. 373, 378, 263 A.2d 118 (1970). The principle adopted in that case, however, was derived from Restatement (First) of Torts § 868 (1939), which provides for liability to a decedent's family member for the wanton mistreatment or intentional withholding of that decedent's corpse. In Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), we rejected a claim which sought to invoke Restatement (First) of Torts § 46 (rev. 1948), which required intent to cause severe emotional distress, because there had been no showing of such intent. We also concluded that the conduct complained of was not "outrageous." Thus it was unnecessary to consider the adoption of section 46, as then written, as the law in Pennsylvania. Various other courts have incorrectly taken the view that this Court has adopted section 46. See, e.g. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir.1979); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981). (Emphasis added.)

The court stated that it would "again leave to another day the viability of section 46 in this Commonwealth." 515 Pa. 185, 527 A.2d at 989. ¹ The court also stated in footnote 5 in Kazatsky at 515 Pa. 194-195, 527 A.2d at 993:

5. It is interesting to note that this tort is not truly a judicial development simply "restated by the American Law Institute. Although it relies on prior cases, the Restatement in this area has generated the law more than it has restated it." ... "Academics, rather than courts, were the prime movers in the development of the tort of intentional infliction of severe emotional distress by outrageous conduct: the modern tort was introduced in the pages of law reviews, and then refined and finally defined by the American Law Institute in its Restatements."

In Kazatsky, supra, a dispute arose over payment for a grave marker between the purchasers of the marker and the cemetery company and insistence by the company that perpetual care be purchased for the grave in question. The claim of emotional distress was based on the defendant's alleged use of threats to coerce the plaintiffs into purchasing a perpetual care contract for their deceased children's grave. The court did not reach a determination as to whether the defendant's conduct fell within the ambit of § 46 as the plaintiffs presented no expert testimony concerning their alleged injuries. The court held that: "... if section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence." 515 Pa. 197, 527 A.2d 995.

The court further pointed out that "The species of tort created by section 46 provides only the most nebulous definition of 'outrageous' conduct." 515 Pa. 194, 527 A.2d 993. The court quoted extensively from Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L.Rev. 42, 52-53 (1982) including the statement that:

The outrageousness test presents the related difficulty that recovery often depends, at least in the first instance, upon a court's determination that the defendant behaved in an immoral and uncivilized fashion. Yet, despite claims that they serve as "society's conscience," courts may have no particular wisdom with respect to what is socially intolerable. The court's gatekeeping task is hardly aided by the Restatement's glib assurance that the tort covers only those cases that are so extreme that people are literally aroused to proclaim "outrageous."

In view of the Supreme Court's...