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JOSEPH A. BANYAS v. LOWER BUCKS HOSPITAL AND YOUNG KIM (12/04/81)

filed: December 4, 1981.

JOSEPH A. BANYAS, III, APPELLANT,
v.
LOWER BUCKS HOSPITAL AND YOUNG KIM, M.D. AND C.R.N.A. TANYA O'NEILL AND ALVIN MERKIN, M.D.



No. 836 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Division, at No. 79-8439-05-2

COUNSEL

Steven E. Wolfe, Bensalem, for appellant.

Arthur B. Walsh, Doylestown, for Lower Bucks, appellee.

Allan C. Molotsky, Philadelphia, for Kim, etc., appellees.

Brosky, Watkins and Montgomery, JJ.

Author: Brosky

[ 293 Pa. Super. Page 124]

This suit was instituted by appellant who seeks damages for mental distress which he claims appellees caused him to suffer. The complaint contained counts charging appellees with both intentionally and negligently inflicting emotional distress upon him. The lower court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. We affirm the order as to the negligence counts but reverse as to the count alleging an intentional infliction of mental distress by appellees.

Our Supreme Court has summarized the guidelines we are to follow in determining whether the preliminary objections were properly granted.

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Finally, where the propriety of an order sustaining a demurrer is being reviewed by a court of last resort, the fact that the theory for recovery relied upon has not been previously sanctioned, is not conclusive. It must be remembered that "[e]very cause of action . . ., however, was once a novel

[ 293 Pa. Super. Page 125]

    claim and the absence of Pennsylvania authority for appellant's proposition is not an end to the issue." Papieves v. Kelly, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970).

Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

We have paraphrased the complaint's allegation of facts pertinent to this appeal as follows. On July 27, 1977, Thomas Lavin was admitted to the emergency room of Lower Bucks Hospital complaining of facial and jaw injuries which resulted from an altercation with Joseph A. Banyas, III. Mr. Lavin was admitted to the hospital for surgical reduction of what was diagnosed as a fractured jaw. On July 28, 1977, Mr. Lavin was taken to the operating room for the reduction and was placed under the care of Alvin Martin, M.D., Young Kim, M.D., and C.R.N.A. Tanya O'Neill. Mr. Lavin died at that time due to the negligence of the named defendants (the hospital and persons named in previous sentence), their agents, servants or employees acting within the course and scope of their employment. The death of Thomas Lavin was due solely to the acts of the defendants and was due to no act or failure to act on the part of Mr. Banyas.

The complaint alleges three causes of action, all of which incorporate the above recited factual allegations. The first count charges that the defendants knowingly, wilfully, recklessly and intentionally prepared records indicating that Mr. Lavin's death was due solely to the injuries inflicted upon him by Mr. Banyas. Banyas stated in his complaint that as a result of the wrongful preparation of records, he was charged with the crimes of aggravated assault, simple assault, recklessly endangering another person, murder, third degree murder and voluntary manslaughter. He seeks recovery for severe mental anguish and emotional stress which he claims to have suffered as a result of having been charged with the above-mentioned crimes.

The second count charges that Mr. Banyas suffered damages as a result of what he ...


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