the defendant is guilty of a wanton and intentional act. Papieves v. Kelly, 437 Pa. 373, 263 A. 2d 118 , but no evidence of such conduct has been offered by the plaintiff here in response to the motion for summary judgment.
It appears to us that any logical support which the rule once possessed has disappeared by judicial erosion and by the increased understanding of modern medicine, but our understanding of Niederman relaxes the requirement only where a plaintiff is placed in a position of physical danger and actually feared a physical impact. This is the law of Pennsylvania and by this we are bound in this diversity suit, despite our personal opinion that a reading of Niederman would indicate a further relaxation of the rule when a situation is squarely presented to that court requiring such action. We cannot envision that court, after its forthright analysis of the rule in Niederman, resorting to the old subterfuge of the "slightest impact" and thus hold the consented search of a coat pocket to be such a physical impact, or physical injury, or threat of physical injury as to avoid the application of the rule. We rather feel that the court will conclude that evidence which satisfies modern medical science will be sufficient proof of causal relation for modern jurisprudence.
And now this 1st day of June, 1971, this matter having come before the court on Defendant's Motion for Summary Judgment, and the court, having considered the evidentiary matters offered in support of the motion, and arguments of counsel, determines that there is no genuine dispute as to issues of material fact, and that judgment should be rendered as a matter of law.
It is ordered that Defendant's Motion for Summary Judgment be granted, and Plaintiff's action is ordered dismissed.
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