Huddleston v. Infertility Center of America, Inc.

• Decision Date: 20 August 1997
• Citation: 700 A.2d 453
• Parties: Phyllis A. HUDDLESTON, Administratrix of the Estate of Jonathan Alan Huddleston, and in her own right, Robert Eyer, Esquire, Co-Administrator of the Estate of Jonathan Alan Huddleston, Appellant, v. INFERTILITY CENTER OF AMERICA, INC., Appellee.
• Court: Pennsylvania Superior Court

Page 453

700 A.2d 453

Phyllis A. HUDDLESTON, Administratrix of the Estate of Jonathan Alan Huddleston, and in her own right Robert Eyer, Esquire, Co-Administrator of the Estate of Jonathan Alan Huddleston, Appellant, v. INFERTILITY CENTER OF AMERICA, INC., Appellee.

Superior Court of Pennsylvania.

Argued Feb. 27, 1997.

Filed Aug. 20, 1997.

Jane E. Lessner, Philadelphia, for appellants.

William T. Jackson, Jenkintown, for appellee.

Before TAMILIA, HUDOCK and SAYLOR, JJ.

SAYLOR, Judge.

Phyllis A. Huddleston (Appellant) appeals from the trial court's order dismissing her complaint with prejudice and granting the preliminary objections in the nature of a demurrer filed by the Infertility Center of America (ICA). Having carefully considered the issues presented in this case, together with the relevant legal authorities, we reverse in part, and affirm in part.

The salient facts and procedural history of this case may be summarized as follows. ICA is a surrogacy business operated by a Michigan attorney, Noel Keane. ICA recruits women to be impregnated with the sperm of prospective fathers for the purpose of creating a child. In the typical surrogacy situation, the child is then raised by the sperm-donor father and his wife.

In 1993, in response to ICA's advertisements, Appellant contacted ICA to express an interest in becoming a "surrogate" mother. At approximately the same time, James A. Austin, a single twenty-six year old male, contacted ICA for assistance in becoming a father. Austin paid a fee to ICA for its services, and ICA brought Appellant and Austin together for the purpose of creating a child.

On November 24, 1993, Appellant agreed, in writing, to be artificially inseminated with Austin's sperm, and to release any child born of the surrogacy undertaking to Austin's sole custody. The agreement, entitled "Surrogate Parenting Agreement," was drafted by ICA and provided that Austin would pay for all medical expenses incurred by Appellant in connection with the pregnancy which were not covered by her own medical insurance. Additionally, the contract provided that Austin would pay Appellant a surrogate fee of $13,000.00 upon the child's birth. In the event of a miscarriage or stillbirth, Appellant's fee was to be prorated with reference to the number of days that elapsed from insemination.

Pursuant to the agreement, Appellant was impregnated with Austin's sperm. Thereafter on December 8, 1994, a baby boy, Jonathan, was born to Appellant in the state of Indiana. On December 9, 1994, Austin, together with an ICA representative, arrived in Appellant's hospital room to take physical custody of Jonathan. At that time, Appellant transferred Jonathan to his sperm-donor father, Austin.

Austin took his newborn son to his residence in Bethlehem, Pennsylvania, where he repeatedly abused Jonathan, causing him to suffer severe head and brain injuries, including "shaken baby syndrome." One month after his birth, on January 8, 1995, Jonathan was admitted to Muhlenberg Hospital, and was transferred shortly thereafter to Children's Hospital in Philadelphia. Jonathan died as a consequence of these injuries on January 17, 1995. ¹

On April 10, 1995, Appellant filed wrongful death and survival actions in the U.S. District Court for the Eastern District of Pennsylvania seeking damages from ICA on the theories of negligence, breach of fiduciary duty, negligent infliction of emotional distress, and fraud. Thereafter, upon agreement of the parties, the matter was removed from federal court. The case continued in the Northampton County Court of Common Pleas.

On October 2, 1995, ICA filed preliminary objections in the nature of a demurrer based on the lack of a causal connection between the factual allegations contained in Appellant's complaint and her alleged damages. ICA's preliminary objections did not challenge Appellant's standing to bring the wrongful death and survival actions.

In ruling on ICA's preliminary objections, the trial court determined, on its own initiative, that Appellant lacked standing to maintain a wrongful death action under 42 Pa.C.S.A. § 8301 because she did not stand in a "family relation" to the decedent. The court also held that, in any event, Appellant had failed to state a cause of action because the risk that a child would be murdered by his biological father was not legally foreseeable. Thus, ICA's demurrer was granted as to all counts of Appellant's complaint, and this appeal followed.

On appeal, Appellant contends that the trial court erred in granting ICA's demurrer. "[A] demurrer is a preliminary objection that the pleadings fail to set forth a cause of action upon which relief can be granted under any theory of law." Sutton v. Miller, 405 Pa.Super. 213, 221, 592 A.2d 83, 87 (1991) (emphasis in original).

An appeal from an order granting preliminary objections in the nature of a demurrer is subject to plenary review. Morgan v. McPhail, 449 Pa.Super. 71, 73, 672 A.2d 1359, 1360 (1996). In such review:

we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom. Preliminary objections should be sustained only when it appears with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

Id. (citations omitted).

"In reviewing the grant of a demurrer, we are not bound by the inferences drawn by the trial court nor are we bound by its conclusions of law. Moreover, the novelty of a claim or theory, alone, does not compel affirmance of a demurrer." Neff v. Lasso, 382 Pa.Super. 487, 490, 555 A.2d 1304, 1305 (1989), alloc. denied, 523 Pa. 637, 565 A.2d 445 (1989) (citation omitted). Finally, when a doubt exists as to whether a demurrer should be sustained, we will resolve this doubt in favor of overruling it. Snyder v. Speciality Glass Products, Inc., 441 Pa.Super. 613, 618, 658 A.2d 366, 368 (1995).

In this appeal, we must address the following issues:

I. Does Appellant lack standing to maintain the present wrongful death and survival actions?

II. Can a surrogacy agency be held liable for harm which occurs to a child born as a consequence of a surrogacy undertaking based on the agency's failure to exercise reasonable care in designing and supervising its surrogacy program?

III. Is child abuse a foreseeable risk of the surrogacy undertaking?

IV. Was Austin's intervening criminal act of murder a superseding cause of Jonathan's injuries?

V. Has Appellant stated a viable cause of action for fraud?

VI. Has Appellant stated a viable cause of action for breach of a fiduciary duty?

VII. Has Appellant stated a viable claim for negligent infliction of emotional distress?

VIII. Did the trial court err in failing to consider whether punitive damages are an appropriate remedy in this case?

A threshold issue in this case is Appellant's standing to maintain the present wrongful death and survival actions. As noted, ICA's preliminary objections did not challenge Appellant's capacity in this regard, and therefore, despite the trial court's sua sponte consideration of this issue, we conclude that it has been waived. "The issue of incapacity to sue is waived unless it is specifically raised in the form of a preliminary objection or in the answer to the complaint." Erie Indemnity Co. v. Coal Operators Casualty Co., 441 Pa. 261, 265, 272 A.2d 465, 467 (1971). See also Pa.R.C.P. No. 1028. ²

Separate and apart from the issue of standing, however, the trial court concluded, in granting ICA's demurrer, that Appellant was not entitled to maintain the present wrongful death and survival actions because it was not reasonably foreseeable that a father could so badly abuse his biological child that death would result. On appeal, Appellant contends that the trial court's conclusion in this regard was error, and that the trial court's order granting the demurrer should be reversed.

ICA, on the other hand, claims that Appellant has not stated a viable cause of action, such that the demurrer should be sustained. Specifically, ICA contends that it cannot be liable for the harm which occurred in this case because it had no affirmative duty of protection with regard to the participants of its surrogacy program, and further, even if it did have a general duty to protect its client-participants from foreseeable harm, the risk of child abuse at the hands of a sperm-donor father is not legally foreseeable. Finally, ICA argues that father's criminal act of murder was an intervening and superseding cause of the injuries suffered by the baby and his mother, which serves to insulate ICA from liability in the present case.

We begin our analysis by considering the following question: Is there a duty owed by a surrogacy clinic to the participants of a program which is specifically designed to create a child outside the boundaries of the traditional nuclear family setting? "Whether a defendant owes a duty of care to a plaintiff is a question of law." Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1366 (1993). "It has long been hornbook law that a duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others." Amarhanov v. Fassel, 442 Pa.Super. 111, 115, 658 A.2d 808, 810 (1995).

Duty, as a concept, is a flexible notion. "In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than 'the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection' from the harm suffered." Troxel v. A.I. Dupont Institute, 450 Pa.Super. 71, 82, 675 A.2d 314, 319-320 (1996), quoting Gardner by Gardner v. Consolidated Rail Corp., 524 Pa. 445, 454-455, 573 A.2d 1016, 1020 (1990), quoting Sinn v. Burd, 486 Pa. 146, 164, 404 A.2d 672, 681 (1979). Furthermore, "[d]uty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the...