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FRANK SPECK v. RICHARD A. FINEGOLD AND HENRY J. H. SCHWARTZ. APPEAL FRANK SPECK (12/31/81)

decided: December 31, 1981.

FRANK SPECK, JR. AND DOROTHY SPECK, HIS WIFE AND VALERIE SPECK, A MINOR, LEE ANN SPECK, A MINOR, AND FRANCINE SPECK, A MINOR, BY THEIR PARENT AND NATURAL GUARDIAN FRANK SPECK, JR.
v.
RICHARD A. FINEGOLD AND HENRY J. H. SCHWARTZ. APPEAL OF FRANK SPECK, JR., DOROTHY SPECK, HIS WIFE, AND FRANCINE SPECK, A MINOR, AT NO. 80-1-16. APPEAL OF HENRY J. H. SCHWARTZ AT NO. 80-1-19. APPEAL OF RICHARD A. FINEGOLD AT NO. 80-1-20



No. 80-1-16, No. 80-1-19 and No. 80-1-20, Appeal from the Order entered July 25, 1979, in the Superior Court of Pennsylvania, Pittsburgh District No. 7 April Term, 1977.

COUNSEL

Bruce R. Martin, Pittsburgh, for Henry J. H. Schwartz.

David H. Trushel, Pittsburgh, for Richard A. Finegold.

Thomas Hollander, Evans, Ivory & Evans, Pittsburgh, for Frank Speck, et al.

Stephen Feldman, Philadelphia, for amicus curiae.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., joins this opinion. O'Brien, C. J., joins Part I of this opinion and joins Roberts', J., opinion. Kauffman, J., joins this opinion and files an opinion in which Larsen and Flaherty, JJ., join. Roberts, J., files an opinion in which O'Brien, C. J., joins. Nix, J., files an opinion dissenting from this opinion.

Author: Per Curiam

[ 497 Pa. Page 79]

I.

The Order of the Superior Court allowing the parent plaintiffs' cause of action in tort, with right to recover expenses attributable to the birth and raising of their daughter, is affirmed.

(Mr. Justice Flaherty files the lead Opinion in which Mr. Chief Justice O'Brien and Mr. Justice Larsen and Mr. Justice Kauffman join. Mr. Justice Roberts, joined by Mr. Chief Justice O'Brien, files an opinion concurring in the affirmance of this portion of the Order of the Superior Court. Mr. Justice Kauffman files an Opinion concurring in the affirmance of this portion of the Order in which Mr. Justice Larsen and Mr. Justice Flaherty join. Mr. Justice Nix files an Opinion which disagrees only as to a recovery predicated upon a cause of action based upon "wrongful birth.")

[ 497 Pa. Page 80]

II.

The Order of the Superior Court, denying the parent plaintiffs' right to recover for damages for mental distress and physical inconvenience attributable to their daughter's birth is reversed.

(Mr. Justice Flaherty files the lead Opinion in which Mr. Justice Larsen and Mr. Justice Kauffman join. Mr. Justice Roberts, joined by Mr. Chief Justice O'Brien, files an Opinion concurring in the reversal of this portion of the Order of the Superior Court. Mr. Justice Kauffman files an Opinion concurring in the reversal of this portion of the Order of the Superior Court, in which Mr. Justice Larsen and Mr. Justice Flaherty join. Mr. Justice Nix files an Opinion which disagrees only as to a recovery predicated upon a cause of action based upon "wrongful birth.")

III.

The Court being evenly divided on the question of whether an infant plaintiff can bring an action in the circumstances of this case, the Order of the Superior Court that the infant plaintiff's cause of action is not legally cognizable is affirmed.

(Mr. Justice Roberts, joined by Mr. Chief Justice O'Brien, files an Opinion supporting affirmance of the Order of the Superior Court denying a cause of action to the infant plaintiff. Mr. Justice Nix also files an Opinion in support of affirmance of the Order of the Superior Court denying the infant plaintiff's cause of action.)

(Mr. Justice Flaherty files an Opinion in support of reversal of the Order of the Superior Court denying the infant plaintiff's cause of action, in which Mr. Justice Larsen and Mr. Justice Kauffman join. Mr. Justice Kauffman also files an Opinion in support of reversal of the Order of the Superior Court denying the infant plaintiff's cause of action in which Mr. Justice Larsen and Mr. Justice Flaherty join.)

[ 497 Pa. Page 81]

OPINION

FLAHERTY, Justice.

In this case*fn1 Frank Speck, Jr., Dorothy Speck, his wife, and Francine Speck, a minor, by her parent and natural guardian, Frank Speck, Jr., seek to recover from Drs. Richard A. Finegold and Henry J. H. Schwartz. Action was brought in trespass and assumpsit. We are asked to review the Superior Court's order, 268 Pa. Super. 342, 408 A.2d 496, affirming in part and reversing in part the lower court's order sustaining defendant-physicians' demurrers to the complaint filed below.

The first count is brought by the husband and wife against Dr. Finegold for the birth of their daughter, Francine. In a second count, Mr. and Mrs. Speck seek damages from Dr. Schwartz for that birth. The third count seeks damages from both doctors for that birth. In a fourth count, the daughter, by her father Frank, seeks recovery from the physicians for having been born with an incurable disease.

According to the factual averments set forth in the complaints, Frank Speck, Jr. suffers from an inherited defect of the genes causing the disease neurofibromatosis.*fn2 Mr. Speck

[ 497 Pa. Page 82]

    and his wife, Dorothy, after having had two children who inherited the defect and its accompanying disease, decided not to have other children for genetic and economic reasons. Pursuant to this decision, the couple decided that Mr. Speck would get a vasectomy. On April 28, 1974 Mr. Speck entered into an oral agreement with Dr. Finegold, a urologist, that Dr. Finegold would perform a bilateral vas ligation or vasectomy upon Mr. Speck. After the vasectomy was performed, Dr. Finegold informed Mr. Speck that Mr. Speck was sterile and no supplemental method of birth control was necessary. Nevertheless, Mrs. Speck became pregnant.

Subsequent to the conception, Mr. and Mrs. Speck engaged Dr. Schwartz, by oral agreement, to terminate Mrs. Speck's pregnancy, and on December 27, 1974 Dr. Schwartz operated upon Mrs. Speck. Dr. Schwartz represented to Mrs. Speck that the operation had been successful. Later, Mrs. Speck told Dr. Schwartz that she thought she was still pregnant, but Dr. Schwartz persistently represented to her that she was not. On April 29, 1975, Mrs. Speck gave birth to a daughter, Francine, who also has neurofibromatosis. On April 9, 1976 suit was filed in the Court of Common Pleas of Allegheny County.

The Court of Common Pleas of Allegheny County, ruling on the demurrers, held that Mr. and Mrs. Speck could not assert claims resulting from the birth of Francine, but would be restricted to damages flowing from the immediate effects of the alleged negligence of both doctors. The claim of the daughter was dismissed.

A divided Superior Court affirmed the dismissal of the daughter's claim. However, it allowed that part of the parents' claim which sounded in tort, with compensable damages for the cost of rearing their daughter, but denied the parents' claim for damages for mental anguish, emotional distress and physical inconvenience. Judge Price, in a

[ 497 Pa. Page 83]

    concurring and dissenting opinion, would have disallowed damages for raising Francine, although he saw the first two counts as containing the traditionally cognizable allegations of negligence. He agreed, however, with the disallowance of Francine's claim.

Judge Spaeth, in a concurring and dissenting opinion, agreed with those portions of the majority opinion which afforded the parents a remedy but disagreed with the denial of the parent's claim for emotional distress and physical inconvenience attributable to Francine's birth.

The parents petitioned for allowance to appeal the Superior Court's disallowance of damages for emotional distress and physical inconvenience from Francine's birth and the dismissal of Francine's claim; the physicians cross-petitioned from the Superior Court's allowance of the parents claim in tort.*fn3 We granted allocatur.

The instant appeal presents two substantive issues: (1) will this Court approve a cause of action brought by the parents of an unplanned, unwanted, genetically defective child for the birth of that child and (2) will this Court approve a cause of action brought by an unplanned, unwanted, genetically ...


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