Toney v. Chester County Hosp.

• Decision Date: 12 November 2008
• Docket Number: No. 1191 EDA 2007.,No. 773 EDA 2006.,773 EDA 2006.,1191 EDA 2007.
• Citation: 2008 PA Super 268,961 A.2d 192
• Parties: Jeanelle Antionette TONEY, Appellant v. CHESTER COUNTY HOSPITAL, the Chester County Hospital Foundation, Inc., Maheep Goyal, M. D., East Marshall Street Radiology and the University of Pennsylvania d/b/a The University of Pennsylvania Health System a/k/a The Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania: The Trustees of the University of Pennsylvania Jeanelle Antionette Toney, Appellant v. Chester County Hospital, the Chester County Hospital Foundation, Inc., Maheep Goyal, M. D., East Marshall Street Radiology and the University of Pennsylvania d/b/a The University of Pennsylvania Health System a/k/a The Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania: The Trustees of the University of Pennsylvania.
• Court: Pennsylvania Superior Court

961 A.2d 192

2008 PA Super 268

Jeanelle Antionette TONEY, Appellant v. CHESTER COUNTY HOSPITAL, the Chester County Hospital Foundation, Inc., Maheep Goyal, M. D., East Marshall Street Radiology and the University of Pennsylvania d/b/a The University of Pennsylvania Health System a/k/a The Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania: The Trustees of the University of Pennsylvania

Jeanelle Antionette Toney, Appellant v. Chester County Hospital, the Chester County Hospital Foundation, Inc., Maheep Goyal, M. D., East Marshall Street Radiology and the University of Pennsylvania d/b/a The University of Pennsylvania Health System a/k/a The Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania: The Trustees of the University of Pennsylvania.

No. 773 EDA 2006.

No. 1191 EDA 2007.

Superior Court of Pennsylvania.

Argued October 25, 2007.

Filed November 12, 2008.

Daniel Biencivenga and Stephen E. Raynes, Philadelphia, for Toney, appellant.

Benjamin A. Post, Berwyn, for Chester County Hospital, appellee.

Arthur B. Keppel, Philadelphia, for Goyal, Univ. of Pennsylvania and Trustees of Univ. of Pennsylvania, appellees.

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

OPINION BY PANELLA, J.:

¶ 1 On March 3, 2003, Jeanelle Toney, then several months pregnant, had a pelvic ultrasound examination performed by Maheep Goyal, M.D., of the Chester County Hospital Department of Radiology. Dr. Goyal informed Toney that the results of the pelvic ultrasound were normal and did not reveal any fetal abnormalities in her unborn child. To her comfort, Toney was advised that her unborn child was normal and healthy.

¶ 2 Regrettably, when Toney gave birth to her son, Gaven Makhi Toney, on July 3, 2003, he had profound physical deformities: He lacked arms below the elbows and legs below the knee joints; suffered from hypoglossia;¹ micrognathia;² ventral curvature of the penis; and an umbilical hernia, among other anomalies.

¶ 3 Toney was awake and conscious during the vaginal delivery. As a result, she observed her son's abnormalities first hand immediately following birth.

¶ 4 Not surprisingly, given the assurances she had received from Dr. Goyal, Gaven's birth with such devastating fetal anomalies was a shock to Toney. Following the traumatic experience surrounding the delivery, Toney suffered from grief, rage, nausea, hysteria, nervousness, sleeplessness, nightmares and anxiety, and continues to experience emotional and mental distress.³

¶ 5 On June 29, 2005, Toney commenced the instant professional negligence action against Appellees Dr. Goyal, the Chester County Hospital, the Chester County Hospital Foundation, Inc., East Marshall Street Radiology, the University of Pennsylvania, and the Trustees of the University of Pennsylvania via a complaint claiming, inter alia, negligent and intentional infliction of emotional distress. All defendants, with the exception of East Marshall Street Radiology, filed preliminary objections to the complaint arguing that Toney failed to state a cause of action for negligent and intentional infliction of emotional distress. No attorney entered an appearance for East Marshall Street Radiology, and East Marshall Street Radiology has never answered the complaint. On March 15, 2006, the trial court entered an order sustaining the preliminary objections on behalf of the remaining defendants.

¶ 6 In response, Toney filed a notice of appeal on March 23, 2006. Shortly thereafter, this Court's Central Legal Staff contacted counsel for Toney and indicated that the appeal might have been premature, as Toney's claims against East Marshall Street Radiology had not been dismissed. In response, Toney filed a stipulation to dismiss East Marshall Street Radiology on April 21, 2006. Toney subsequently filed a motion seeking an order dismissing all parties and causes of action pursuant to the stipulation, which the trial court granted on April 19, 2007. Toney thereafter filed a second notice of appeal to this Court on May 15, 2007.

¶ 7 Therefore, Toney appeals from the order entered on March 15, 2006, in the Court of Common Pleas of Chester County, which sustained the preliminary objections of all defendants except East Marshall Street Radiology. After careful review, we conclude that Toney has sufficiently pled a cause of action for negligent infliction of emotional distress, and therefore reverse that portion of the order which dismissed that claim. In all other regards, we affirm.

¶ 8 Initially, we must address the jurisdictional issue raised by Chester County Hospital and Chester County Hospital Foundation, Inc. (collectively "Chester Hospital") regarding the timeliness of the two appeals. Chester Hospital argues that the first appeal was untimely because East Marshall Street Radiology was still a party defendant in the trial court at the time the notice of appeal was filed. The second notice of appeal is also untimely, Chester Hospital argues, because Toney had the opportunity to file a timely appeal beginning on April 21, 2006, when she filed the stipulation to dismiss East Marshall Street Radiology as a party defendant. Therefore, because the window of opportunity to file an appeal expired on May 21, 2006, the second appeal filed on May 15, 2007, is also untimely.⁴

¶ 9 After a close review of the certified docket entries and record, we now consolidate these two appeals sua sponte, as they raise identical issues. Initially we note that, despite the arguments presented by Chester Hospital, the second appeal was in fact timely filed. Chester Hospital concedes in its statement of the case that Toney filed a stipulation to dismiss East Marshall Street Radiology as a party defendant on April 21, 2006; as stated above, the trial court issued an order on April 19, 2007, dismissing East Marshall Street Radiology, and incorporating its prior order of March 14, 2006, which dismissed all other parties and causes of action. Under the Pennsylvania Rules of Civil Procedure, "a discontinuance may not be entered as to less than all defendants except upon the written consent of all parties or leave of court after notice to all parties." Pa. R.C.P., Rule 229(b)(1), 42 PA. CONS. STAT.ANN. Since East Marshall Street Radiology did not consent in writing to the discontinuance, leave of court was necessary to make the discontinuance effective.

¶ 10 The Hospital's argument that the stipulation was effective absent leave of the trial court is of no avail. The record is clear that although Toney circulated the stipulation, the remaining defendant, East Marshall Street Radiology, unrepresented during the pendency of this case, did not sign the stipulation, and no praecipe for discontinuance based upon it was filed. In accordance with Rule 229(b)(1), in the absence of consent by all parties, leave of court was required to effectuate the discontinuance. See Matyas v. Albert Einstein Medical Center, 225 Pa.Super. 230, 310 A.2d 301, 302 (1973).

¶ 11 Applying Matyas to the case sub judice, the April 21, 2006 stipulation did not trigger the time period to file an appeal, and was not effective in discontinuing the case, as East Marshall Street Radiology never consented to it in writing as required by Rule 229(b)(1). It was not until April 19, 2007, when East Marshall Street Radiology was dismissed as a defendant, that the claims against all parties had been finally adjudicated in the trial court. Therefore, Toney's May 15, 2007 notice of appeal was timely, and the issues raised therein are properly before this Court. Under the same reasoning, the March 23, 2006 notice of appeal filed by Toney was premature, and we hereby quash it. In light of our consolidation of the two appeals docketed in the Superior Court, and the question of jurisdiction resolved, we now turn to the merits of the appeal.

¶ 12 Toney challenges the decision of the trial court in determining that she failed to state cognizable causes of action for (1) negligent infliction of emotional distress, (2) intentional infliction of emotional distress, and (3) misrepresentation. See Appellant's Brief, at 3.

¶ 13 Our standard of review where there is a challenge to the sustaining of preliminary objections in the nature of a demurrer is well-settled: The material facts set forth in the complaint and all inferences reasonably deducible therefrom are admitted as true. See Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151 (1996). "The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it." Id. (citation omitted).

¶ 14 As explained in Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25, 26 (Pa.Super.2000), aff'd, 564 Pa. 264, 767 A.2d 548 (2001), the cause of action for negligent infliction of emotional distress is restricted to four factual scenarios: (1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative. See id. In this appeal, Toney relies only on the first theory, i.e., that Appellees had a contractual or fiduciary duty towards her. See Appellant's Brief, at 8.

¶ 15 When proceeding under this theory, a unanimous panel of this Court observed that

[t]he crux of a negligent infliction of emotional distress claim is that appellees breached some duty they owed to appellant and that that breach injured her.

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