Appeal from Order of the Court of Common Pleas, Civil Division, of Centre County, No. 82-1726.
Henry A. Goodall, Jr., Bellefonte, for appellant.
James M. Horne, State College, for appellees.
Wickersham, Wieand and Del Sole, JJ. Del Sole, J., files a dissenting opinion.
[ 343 Pa. Super. Page 498]
Christopher Brooks was riding a bicycle when he was struck by a vehicle owned by Sue Decker and operated by Ann Decker. Douglas Brooks, the father of Christopher, commenced an action on his own behalf and as guardian ad litem for his son to recover damages from both the owner and operator of the offending vehicle. The complaint contained three counts. The first count stated the minor's claim for personal injuries; the second count stated a claim for medical expenses incurred by the father; and the third count stated a separate claim for the father's mental distress. The third count averred that Douglas Brooks had not seen the accident occur but had arrived at the scene of
[ 343 Pa. Super. Page 499]
the accident and observed his injured son before the son had been removed by ambulance to the hospital. The first count was settled with court approval for $50,000.00. The second count was settled by payment of medical bills to the father. The defendants filed preliminary objections in the nature of a demurrer to the father's separate cause of action for his own mental distress. The trial court sustained these preliminary objections and dismissed the third count of the complaint because Douglas Brooks had not witnessed the accident which injured his son and also because the father's action for his own injuries was barred by his failure to meet the statutory threshold requirements of section 301(a)(5) of the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.301(a)(5). Brooks appealed. We affirm.
The order sustaining preliminary objections in the nature of a demurrer to the third count of the complaint was consistent with the present state of the law in this Commonwealth. A parent does not have a legally recognized cause of action for negligently inflicted emotional distress caused by injuries to a child inflicted by an accident which the parent did not observe. See: Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). See also: Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981) (affirming by evenly divided court the decision of the Superior Court reported at 286 Pa. Super. 626, 427 A.2d 247 (1980)). Accord: Vattimo v. Lower Bucks Hospital Inc., 59 Pa. Commw. 1, 428 A.2d 765 (1981), aff'd in part and rev'd in part, 502 Pa. 241, 465 A.2d 1231 (1983) (recovery for emotional distress not at issue in appeal to Supreme Court). See generally: Annot., 5 A.L.R.4th 833 (1981). If, as appellant contends, the law should now be changed to allow such a cause of action, that change must come from the Supreme Court.
In this case, moreover, a separate action to recover for appellant's emotional distress was barred by Section 301 of the No-fault Motor Vehicle Insurance Act, supra, 40 P.S. § 1009.301, which abolishes tort liability for injuries arising from the maintenance or use of a motor vehicle unless
[ 343 Pa. Super. Page 500]
certain threshold requirements are met. In the instant case, the averments of the complaint disclose that the appellant-father did not meet those threshold requirements. Therefore, a separate action for his mental and emotional distress cannot be maintained. In holding as we do, we reject appellant's argument that he can rely upon the fact that the separate claim of his son met threshold requirements sufficient to allow a tort action for his injuries. The father's claim for emotional distress is a separate cause of action; it is not derivative of the son's right to recover for his injuries. To maintain a tort ...