539 A.2d 858 (Pa.Super. 1988), Daughen v. Fox

Citation:539 A.2d 858, 372 Pa.Super. 405
Opinion Judge:Author: Cavanaugh
Party Name: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.
Case Date:March 30, 1988
Court:Superior Court of Pennsylvania

Page 858

539 A.2d 858 (Pa.Super. 1988)

372 Pa.Super. 405

Joseph R. DAUGHEN, Joan Daughen and Joan Patrice Daughen, a

Minor by Joseph R. Daughen, Her Guardian, Appellants,


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.

March 30, 1988

Argued Oct. 27, 1987.

[372 Pa.Super. 407] Randi J. Vladimer, Philadelphia, for appellants.

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


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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 [372 Pa.Super. 408] 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 [372 Pa.Super. 409] 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

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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 [372 Pa.Super. 410] 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...

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