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KAHLE v. GLOSSER BROS.

June 1, 1971

Melvin KAHLE, Administrator of the Estate of Adelia Curry, Plaintiff,
v.
GLOSSER BROTHERS, INC., Defendant


Weber, District Judge.


The opinion of the court was delivered by: WEBER

Plaintiff administrator has sued defendant under the Pennsylvania Wrongful Death Act and the Pennsylvania Survival Act for the death of decedent. Defendant has moved for Summary Judgment on the following evidence established by the depositions of plaintiff's witnesses in the pretrial record.

 Plaintiff's decedent had been under the care of a physician for some years prior to her death for a heart condition described as "hypertensive cardiovascularitis" a condition of high blood pressure and sclerotic blood vessels. She and her daughter were shopping at defendant's store where they selected some groceries. Decedent had selected some cheese and butter but her daughter took these back to the counter because they had a sufficient supply. They then checked out and paid for their purchases and proceeded to their automobile in the parking lot, the daughter standing on the driver's side, the mother standing on the passenger side. At the moment they were about to be seated in the car an employee of defendant appeared, grabbed the daughter's right arm and said; "I'm the security officer from Glosser's, where is the butter and cheese? You are shoplifting." The daughter replied that she had put them back where they belonged. The mother came around to the driver's side and asked what was wrong and the security officer asked where the butter and cheese was. The daughter invited the security officer to search her and she searched the daughter's purse and bags. Both women opened their coats and the security officer asked about the pockets. With their permission she searched the pockets of their coats. The security officer then walked away. The daughter became furious and screamed after her and started to follow her but the mother said; "Come on, let's go." The daughter started to follow the security officer when the mother fell to the ground and died instantly.

 Based on the description of events and the manner of death, her treating physician testified that the mother died of a coronary occlusion, which was occasioned by the excitement of the event which produced an excess supply of adrenalin causing heart spasms. Her attending physician was of the opinion that the search of her pockets did not cause the coronary occlusion and that it would have occurred had there been no such search. He did not regard the search of the pockets as a physical injury.

 Defendant relies upon the depositions of plaintiff's eye witness and plaintiff's expert medical witness, and argues that accepting all their testimony as true, there is no cause of action cognizable under controlling Pennsylvania law.

 Defendant relies on the Pennsylvania rule of law which denies damages for injuries due to emotional trauma unaccompanied by physical impact, known as the "impact rule" in Pennsylvania. Bosley v. Andrews, 393 Pa. 161, 142 A. 2d 263 [1958]; Cucinotti v. Ortmann, 399 Pa. 26, 159 A. 2d 216 [1960].

 In Bosley, supra, the Pennsylvania Supreme Court denied recovery where a bull chased a woman in a farm yard. The bull never reached her but she suffered a heart attack. The Court held:

 
"The rule is long and well established in Pennsylvania that there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress, unless they are accompanied by physical injury or physical impact." (citations omitted). 393 Pa. 161, 164, 142 A. 2d 263, 264.

 In Cucinotti, supra, the defendants were charged with threats of violence and physical harm to plaintiffs unless plaintiffs left the premises, from which plaintiffs allege they suffered great emotional distress. The court held that the words or threats of themselves do not constitute an assault unless they are accompanied by some act to indicate that physical harm will ensue immediately. It further held that threatening words alone are insufficient in this jurisdiction to put a person in reasonable apprehension of physical injury or offensive touching.

 In Hoffman v. Rhoads Construction Co., 113 Pa. Super. 55, 172 A. 33 [1934] recovery for a compensable accident was denied under the Pennsylvania Workmen's Compensation Act where the decedent died of a heart attack after a heated argument with his foreman on the job.

 The Pennsylvania "impact" rule has been recently enlarged in Niederman v. Brodsky, 436 Pa. 401, 261 A. 2d 84 [1970], where the court said:

 
"We today chose to abandon the requirement of a physical impact as a precondition to recovery for damages proximately caused by the tort in only those cases like the one before us where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact." (p. 413, 261 A. 2d p. 90).

 The "impact rule" in Pennsylvania and in other jurisdictions has for a long time been subject to the restriction that it is only applied where there is absolutely no impact whatsoever.


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