The opinion of the court was delivered by: POLLAK
LOUIS H. POLLAK, UNITED STATES DISTRICT JUDGE
Plaintiffs, Nancy Schachter as Conservator of the Estate and Person of Geoffrey Schachter, and Nancy Schachter, Individually, brought suit alleging medical malpractice with respect to defendants' treatment of Geoffrey Schachter at Moss Rehabilitation Hospital ("Moss") in November, 1986. In March, 1988, the defendants moved to dismiss plaintiffs' complaint for failure to state a claim upon which relief could be granted. The parties then agreed to allow plaintiffs to file an amended complaint. Accordingly, defendants' motions to dismiss were denied as moot.
Defendants have now entered new motions to dismiss on the grounds that the amended complaint fails to state a cause of action on behalf of Nancy Schachter and that it improperly includes an ad damnum clause. In their motions, defendants request that the court award counsel fees to the defendants for the cost of refiling their motions to dismiss.
Plaintiffs' Amended Complaint
The plaintiffs' factual allegations are as follows: Geoffrey Schachter was admitted to Moss on November 12, 1986 to receive rehabilitative treatment for injuries sustained in a motor vehicle accident on August 30, 1986. (Para. 14). Mr. Schachter's condition was improving prior to his admission to Moss, but his doctors were concerned that he might injure himself if, in the absence of adequate supervision, he were to attempt to stand up or move about. Medical personnel at Moss were explicitly advised prior to his admission that Mr. Schachter should "not be left alone under any circumstances because he might involuntarily attempt to stand or otherwise move on his own, which would or could severely injure him." (Para. 16).
Ms. Schachter experienced severe emotional distress as a result of defendants' intentional and reckless conduct in treating her son. (Para. 32) On that basis, she seeks damages under Pennsylvania law for intentional infliction of emotional distress. (Para. 31). The complaint requests $ 20 million for injuries sustained by Mr. Schachter, and $ 5 million for injuries sustained by Ms. Schachter.
For the purposes of defendants' motions to dismiss, the plaintiffs' allegations are assumed to be true. See, e.g., Labov v. Lalley, 809 F.2d 220 (3d Cir. 1987). The central issue raised by defendants' motions is whether Pennsylvania law permits a mother to recover for emotional distress caused by the willful or reckless medical treatment of her son. To reach this issue, this court must determine the circumstances under which a third party may recover for the emotional distress that results from conduct directed at another party. More particularly, this court must decide whether a recent decision by the Pennsylvania Superior Court has eliminated all barriers to third party emotional distress claimants where the conduct complained of is intentional rather than negligent.
Over the past twenty years, Pennsylvania courts have addressed the problem of emotional distress to a "third party" by developing a number of intricate rules that have been subject to continuous refinement. Prior to 1970, the Supreme Court of Pennsylvania applied the so-called "impact rule" which allowed a person to recover for emotional distress only if the distress "was accompanied by a physical injury or impact upon the complaining party." Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, 992 (Pa. 1987) (citations omitted). The court subsequently adopted the less restrictive "zone of danger" requirement that permitted a person who was not physically injured to recover if the person nonetheless was within "the zone of danger" created by the defendant's conduct. See e.g., Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). More recently, the Court has apparently authorized recovery for emotional distress if a third party actually witnesses a severe injury to a close relative. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).
None of the Pennsylvania Supreme Court decisions formulating limitations on third-party recovery for emotional distress has distinguished between negligent and intentional conduct. Plaintiffs argue, however, that these limitations apply only to circumstances of negligent infliction of emotional distress. Plaintiffs rely on a recent decision by the Superior Court, Hackett v. United Airlines, 364 Pa. Super. 612, 528 A.2d 971 (1987), that remarked, in dicta, that the impact rule -- the predecessor of the "zone of danger" requirement -- is inapplicable to cases of intentional infliction of emotional distress. On this basis, plaintiffs contend that there is no barrier at all to third-party claims of intentional infliction of emotional distress.
To assess plaintiffs' claim, I will first discuss the tort of intentional infliction of emotional distress under Pennsylvania law and then examine the applicability of ...