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GAIL D. BOARTS AND TERRY J. BOARTS v. JAMES A. MCCORD (06/11/86)

filed: June 11, 1986.

GAIL D. BOARTS AND TERRY J. BOARTS, ADMINISTRATORS OF THE ESTATE OF ROBERTA BOARTS, AND GAIL D. BOARTS AND TERRY J. BOARTS, IN THEIR OWN RIGHT, APPELLANTS
v.
JAMES A. MCCORD, M.D., MICHAEL J. JOCHNOWITZ, M.D., PENN VALLEY OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES, LTD. AND NORTH PENN HOSPITAL



Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 84-09934.

COUNSEL

Mark S. Fridkin, Philadelphia, for appellants.

Ralph L. Hose, Ardmore, for North Penn Hosp., appellee.

M. Cathleen Driscoll, Norristown, for McCord, Jochnowitz, Penn Valley Obstetrical and Gynecological Associates, appellees.

Wickersham, Wieand and Popovich, JJ. Wieand, J., files a concurring statement.

Author: Popovich

[ 354 Pa. Super. Page 98]

This is an appeal from an Order dismissing appellants' amended complaint seeking damages arising out of the stillborn birth of appellants' child. We affirm.

After the delivery of their stillborn child on July 27, 1982, plaintiffs-appellants, Gail and Terry Boarts, instituted this action by filing on June 26, 1984, a summons against defendants-appellees, Dr. James A. McCord, Dr. Michael J. Jochnowitz, Penn Valley Obstetrical and Gynecological Associates and North Penn Hospital. On November 5, 1984,

[ 354 Pa. Super. Page 99]

    plaintiffs filed a complaint alleging negligence on the part of the defendants in the stillborn delivery of their child and seeking recovery under the Wrongful Death and Survival Acts, Acts of 1976, July 9, P.L. 586, No. 142 § 2, effective June 27, 1978, 42 Pa.C.S.A. §§ 8301(a), 8302. The complaint also included a claim for loss of consortium of the child. On December 5, 1984, defendants, Dr. James A. McCord, Dr. Michael J. Jochnowitz and Penn Valley Obstetrical and Gynecological Associates, filed preliminary objections in the nature of demurrer, seeking dismissal of plaintiffs' claims under the Wrongful Death and Survival Acts. Defendant, North Penn Hospital, filed its preliminary objections on December 7, 1984.

On December 12, 1984, in response to the preliminary objections of the defendants, the plaintiffs filed an amended complaint wherein their Wrongful Death and Survival claims were abandoned. Instead, the amended complaint contained plaintiffs' claim for the negligent infliction of emotional distress and plaintiff-husband's claim for the loss of consortium of his wife, in addition to the claim for loss of consortium of their child. Defendant, North Penn Hospital, filed preliminary objections in the nature of a demurrer to plaintiffs' amended complaint on December 20, 1985, and defendants, Dr. James A. McCord, Dr. Michael J. Jochnowitz and Penn Valley Obstetrical and Gynecological Associates, filed a demurrer on January 10, 1985. On January 25, 1985, plaintiffs filed a motion to strike defendants' preliminary objection to plaintiff's amended complaint.

On March 14, 1985, the lower court, by the Honorable Louis D. Stefan, denied plaintiffs' motion to strike the defendants' preliminary objections to plaintiffs' amended complaint. On June 28, 1985, the lower court, by the Honorable Lawrence A. Brown, granted defendants' preliminary objections, thereby dismissing plaintiffs' amended complaint. This appeal followed.

Appellants-plaintiffs' present four issues for our review: (1) whether the lower court properly exercised its discretion in denying plaintiffs' preliminary objections in the nature of

[ 354 Pa. Super. Page 100]

    a motion to strike defendants' preliminary objections, where defendants filed their preliminary objections to plaintiffs' amended complaint beyond the deadline set forth in Pa.R.C.P. 1026; (2) whether plaintiffs' amended complaint was properly dismissed as to plaintiffs' claim for negligent infliction of emotional distress; (3) whether Pennsylvania law permits recovery under the Wrongful Death Act and the Survival Statute for the death of a stillborn child; and (4) whether plaintiffs should be allowed to recover for loss of consortium of their stillborn child.

Plaintiffs allege that the lower court abused its discretion in denying plaintiffs' preliminary objections in the nature of a motion to strike defendants' preliminary objections, where defendants filed their preliminary objections to plaintiffs' amended ...


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