Appeal from order of Court of Common Pleas of Delaware County, No. 5136 of 1966, in case of Joseph V. Papieves et ux. v. Owen Norman Lawrence et al.
Harry R. Mayer, for appellants.
George J. McConchie, with him Cramp & D'Iorio, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell dissents.
This appeal is from an order of the Court of Common Pleas of Delaware County sustaining preliminary objections in the nature of a demurrer and dismissing plaintiff's complaint. The only facts before the Court are the averments of the complaint, and for present purposes the demurrer admits every well pleaded material fact set forth in the pleading to which it is addressed and the inferences reasonably deducible therefrom. Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 259 A.2d 443 (1969); Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964); and Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959).
From the complaint it appears that one Richard Papieves, the fourteen year old son of Joseph V. and Margaret Papieves (plaintiffs-appellants herein), disappeared from his home on June 11, 1965. It was subsequently discovered that on that day the Papieves boy had been struck by a motor vehicle operated by a minor,
one Owen Norman Lawrence (defendant herein). Whether Papieves was killed or seriously injured in the collision is not of record. Without attempting to obtain medical assistance and without notifying either the police or the boy's parents, Lawrence removed Papieves' body from the scene of the accident, took it to his home, and hid it in his garage. Some few days later, Lawrence contacted one Joseph J. Kelly, also a minor, and requested his assistance in disposing of the body of Papieves. Defendants Lawrence and Kelly thereupon took Papieves' body to a field near Darby Creek Road in Marple Township, Delaware County, where they dug a grave and interred the decedent. More than two months later, the partially decomposed body of young Papieves was found, and his remains were returned to his parents.
Thereafter, plaintiffs commenced this suit by filing and having served a complaint in trespass against Lawrence and Kelly, alleging that defendants' acts constituted an invasion of, and an unlawful interference with, plaintiffs' right to the possession of the decedent's body; that such acts constituted an unlawful and indecent disposal of decedent's body without the authority or consent of the plaintiffs; and that defendants had so acted with the intent to prevent the plaintiffs from discovering the fate of their son. Plaintiffs averred that as the result of the aforesaid acts they had suffered mental anguish, emotional disturbance, embarrassment, and humiliation; they sought damages in excess of $10,000 against both defendants.
Defendant Kelly filed preliminary objections in the nature of a demurrer and a motion for more specific pleadings. As indicated above, the court sustained Kelly's demurrer and dismissed the complaint. This appeal followed.*fn1
In its opinion, the court below stated that it knew of no Pennsylvania cases which would allow such an action in trespass, although the court's equitable powers would have been available, if timely invoked, to prevent such interference with the plaintiffs' right to the decedent's body. Noting the rule of recovery set forth in the Restatement of Torts, § 868 (1939),*fn2 the court found that this Court's adherence to the so-called impact rule set forth in Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 ...