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ROBERT HALLIDAY v. WILLIAM R. BELTZ (09/02/86)

filed: September 2, 1986.

ROBERT HALLIDAY, EXECUTOR OF THE ESTATE OF ISABELLE HALLIDAY, DECEASED; ROBERT HALLIDAY, IND.; AND DEBORAH HALLIDAY, APPELLANTS,
v.
WILLIAM R. BELTZ, M.D.; JOHN M. BURKS, M.D.; R. HYMAN AND R. LUKAS, IND. AND AS EMPLOYEES OF SCHOPFER AND GINTER, ASC.; SCHOPFER AND GINTER, ASC; AND THE WILLIAMSPORT HOSPITAL, APPELLEES



Appeal From Judgment, Court of Common Pleas Civil Division, Lycoming County No. 84-01888

COUNSEL

Robert Vesely, Williamsport, for appellants.

R. James Reynolds, Jr., Harrisburg, for Beltz, appellee.

Robert A. Eckenrode, Williamsport, for Burks, appellee.

Gary Weber, Williamsport, for Schopfer, appellees.

Cavanaugh, Tamilia and Cercone, JJ.

Author: Cavanaugh

[ 356 Pa. Super. Page 377]

The lower court dismissed appellants' cause of action for negligent infliction of emotional distress. The court stated in its opinion in support of its order that appellants failed to state a cause of action for negligent infliction of emotional distress in that they did not plead: (1) bodily harm and (2) that they observed the injury to the decedent. Appellant brings this appeal arguing: (1) that the lower court erred in dismissing their complaint and (2) that, in the alternative, the lower court should have allowed the appellants to amend their complaint. For the reasons set forth below, we affirm the lower court's order.

This appeal arises from a medical malpractice lawsuit. Isabelle Halliday, who was the wife of appellant, Robert Halliday, and the mother of appellant, Deborah Halliday, entered Williamsport Hospital for elective surgery in June of 1984. Complications arose following the surgery which eventually resulted in her death. Robert Halliday, as executor of the Estate of Isabelle Halliday, subsequently filed a lawsuit against several defendants alleging medical malpractice. Later, Robert Halliday, individually, and Deborah Halliday filed an amended complaint asserting claims in their own right for negligent infliction of emotional distress. Appellees filed preliminary objections to this action which

[ 356 Pa. Super. Page 378]

    the lower court sustained. Appellants appealed from this order.*fn1

In order to sustain Preliminary Objections in the nature of a demurrer, it must appear certain that upon the factual averments and all inferences fairly deducible therefrom, the law will not permit recovery by the plaintiff. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 259 A.2d 443 (1969). Because we believe that the law of Pennsylvania will not permit recovery by plaintiffs under their factual averments and the inferences deducible therefrom, we affirm the lower court's decision.

Appellants argue that the lower court erred when it ruled that they could not plead a claim for negligent infliction of emotional distress unless they could show that they had directly witnessed the negligent surgery performed by the appellees and had also suffered physical harm. They assert that a plaintiff need not allege that he viewed the specific negligent acts of a defendant in order to recover for negligent infliction of emotional distress. They further assert that under Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the ...


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