Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Action - Law, at No. 3128 of 1974. No. 1644 October Term, 1975.
Thomas F. Schilpp, Media, for appellants.
Michael R. Bradley, Media, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Price, J., concurs in the result. Jacobs and Van der Voort, JJ., note their dissent.
[ 245 Pa. Super. Page 532]
This appeal is from the order of the lower court granting defendant-appellee's motion for summary judgment. Appellant*fn1 contends that the decision was improper because a genuine issue of fact exists and, under current case law, her claim should reach the jury. We agree that appellee's motion for summary judgment was improperly granted, and therefore, reverse the lower court's order.
Appellant, her two adult daughters and two grandchildren were shopping in appellee's department store in Glen Riddle, Delaware County, on March 6, 1974. Appellant alleges in her complaint filed on March 21, 1974, that, while shopping, she saw five men employed by appellee accost and forcibly remove her daughters from the shopping area. The complaint also alleges that appellee's employees detained them for approximately one-half
[ 245 Pa. Super. Page 533]
hour. Upon returning to appellant, her daughters found her in a state of great anxiety. Appellant alleges that she suffered a severe heart attack as a direct result of appellee's reckless, wanton, and willful misconduct. She avers that this injury resulted not only from the mental anguish and shock of seeing the assault upon her daughters, but also from her own fear of physical impact from the appellee's conduct.
The parties took depositions in the instant case on August 6, and August 8, 1974. In her deposition, appellant stated that while she was seated in the shoe department of appellee's store she saw the appellee's employees assault her daughters and force them onto an elevator. Her testimony does not indicate clearly the distance between her and the store employees at the time of the alleged assault.
Appellant further testified that after her daughters returned from the security office, she tried to find the store manager to obtain an explanation for the assault and detention. A few minutes later she collapsed in the store. One of appellee's employees summoned an ambulance, and appellant was taken to the hospital. Appellant suffered a heart attack for which she was hospitalized two and one-half weeks.
On August 28, 1974, appellee moved for a summary judgment against appellant on the ground that there was no tortious conduct of the appellee or appellee's agents directed toward appellant. The lower court granted the motion because it concluded that appellant was not in any fear of personal danger of physical contact; she was merely a passive observer some distance away from the activity. The lower court based its decision on Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), and held that appellant did not meet the threefold test of Niederman which requires ...