known as the 'zone of danger' theory." Kazatsky, 515 Pa. at 192, 527 A.2d at 992.
The zone of danger theory was subsequently extended to allow recovery by a plaintiff who, while outside the zone of danger, actually witnessed an event causing serious injury to a close relative. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Then, in Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986), the Pennsylvania Supreme Court considered the issue of whether a close relative who does not actually observe an accident, but rather "arrives at the scene of the accident and observes the victim a few minutes afterwards," 512 Pa. at 269, 516 A.2d at 673, is entitled to relief. Refusing to extend further the zone of danger doctrine, the court found that prior knowledge of the injury "serves as a buffer against the full impact of observing the accident scene." 512 Pa. at 279, 516 A.2d at 679. Thus, Mazzagatti made clear that "the critical element for establishing such liability is the contemporaneous observance of the injury to the close relative." Id.
Plaintiffs may state a cause of action for emotional distress "only if they can demonstrate that [they were] within the 'zone of danger' of defendants' conduct or if the circumstances of [their] injuries fall within a recognized exception to the 'zone of danger' requirement." Schachter v. Moss Rehabilitation Hospital, 695 F. Supp. 186, 189 (E.D. Pa. 1988).
Further, because an individual who learns of such injury from a third person falls outside the parameters of the zone of danger requirement, it is clear that such a party may not maintain a claim for the tort of intentional infliction of emotional distress. See Mazzagatti, 512 Pa. at 279-80, 516 A.2d at 679. See also Williams v. Guzzardi, 875 F.2d 46, 51 (3d Cir. 1989).
There is no allegation in the complaint itself that either Harry Chalfin, Richard Chalfin, Alan Chalfin, or Susan Chalfin-Dughi actually witnessed the transfer of Mrs. Chalfin to Bryn Mawr hospital. Moreover, it appears from the language used by plaintiffs in both their complaint and their memorandum of law opposing defendant's motion, that Mrs. Chalfin's husband was "advised" of the transfer. I do not believe that the defendant advising Mrs. Chalfin's family either that she was transferred or that it would not readmit her to Rosemont is sufficient to place plaintiffs within the zone of danger and thus allow them to maintain an action for intentional infliction of emotional distress. As in Mazzagatti, here the plaintiffs had no "contemporaneous sensory perception of the injury," 512 Pa. at 280, 516 A.2d at 679, and as a result, "the emotional distress results more from the particular emotional makeup of the plaintiff[s] rather than from the nature of defendant's actions." Id.
After a careful review of the pleadings, I find that because Mrs. Chalfin's family cannot demonstrate either that they were within the zone of danger of defendant's conduct, or that they fall within a recognized exception to the zone of danger requirement, and because her family learned of her transfer from a third party, regardless of how liberally the pleadings are construed, these plaintiffs have failed to state a claim under Pennsylvania law for intentional infliction of emotional distress. Accordingly, pursuant to Federal Rule of Civil Procedure 12(b)(6), I will dismiss count V of the complaint with respect to plaintiffs Harry Chalfin, Richard Chalfin, Alan Chalfin and Susan Chalfin-Dughi.
Under Pennsylvania law, a plaintiff may only recover an award of punitive damages if she can show intentional tortious conduct on the part of a defendant.
See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1277 (3d Cir. 1979) (applying Pennsylvania law). The predicate inquiry is "whether there has been sufficiently aggravated conduct contrary to the plaintiffs' interests, involving bad motive or reckless indifference, to justify the special sanction of punitive damages. That sanction serves the dual function of penalizing past conduct constituting an aggravated violation of another's interests, and of deterring such behavior in the future." Medvecz v. Choi, 569 F.2d 1221, 1227 (3d Cir. 1977).
Defendant argues that all claims for punitive damages must be dismissed because defendant's conduct may not, as a matter of law, be considered extreme or outrageous. I disagree. At this stage of the litigation, I cannot properly find that Mrs. Chalfin can prove no set of facts which would give rise to an award of punitive damages. For purposes of a motion to dismiss, I must of course accept as true all of plaintiff's well pleaded allegations, Jenkins v. McKeithen, 395 U.S. 411, 421-22, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969); Labov v. Lalley, 809 F.2d 220 (3d Cir. 1987), and construe them in a light most favorable to her. Scheuer v. Rhodes, 416 U.S. 232, 237, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). While it is true that Mrs. Chalfin "must meet an extremely high burden of proof to establish entitlement to punitive damages," David v. Pueblo Supermarket of St. Thomas, 740 F.2d 230, 237 (3d Cir. 1984), whether Mrs. Chalfin is ultimately able to meet that burden is not for the court to decide in the context of a motion to dismiss. Construing plaintiff's well pleaded allegations in a light most favorable to her, I cannot, as a matter of law, find that Mrs. Chalfin will not be able to demonstrate "outrageous conduct" on the part of the defendant, and therefore will not dismiss her claim for punitive damages at this time.
Pennsylvania Unfair Trade Practices and Consumer Protection Law
Count VII of plaintiffs' complaint alleges that defendant violated Pennsyvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann. §§ 201-1-201-9.2 (Purdon Supp. 1989). While it is not clear from the face of the complaint whether all the plaintiffs are seeking relief for the alleged violations of this statute, I will assume for purposes of this analysis that count VII is alleged collectively and will proceed to discuss whether both Mrs. Chalfin and her family state a cause of action under the statute. For the reasons set forth below, I will grant defendant's motion to dismiss count VII with respect to Harry Chalfin, Richard Chalfin, Alan Chalfin and Susan Chalfin-Dughi and deny the motion as to Mrs. Chalfin.
The Pennsylvania Unfair Trade Practices and Consumer Protection Law was enacted by the Pennsylvania legislature "to benefit the public at large by eradicating, among other things, 'unfair or deceptive' business practices. . . . [with] the statute's underlying foundation [being] fraud prevention." Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 457-59, 329 A.2d 812, 815-16 (1974). To this end, Section 3 of the Act provides that "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . are hereby declared unlawful." Id. § 201-3.
Section 201-9.2 of the Act provides an express private right of action to individuals who have suffered a pecuniary loss as a result of a violation of the Act:
Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action, to recover actual damages or one hundred dollars ($ 100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($ 100), and may provide such additional relief as it deems necessary or proper.
Id. § 201-9.2(a).
Defendant contends that although the statute does in fact provide a private right of action, the Act clearly was not intended to encompass a situation such as the one at bar. Because it is clear that plaintiffs may only maintain their claim if they can show that the parties involved and the actions complained of fall within the parameters of the Act, I must determine the following: (1) whether defendant is a "person" within the meaning of the Act; (2) whether the health care services provided by defendant's facility constitute "trade" or "commerce" contemplated by the Act; (3) whether the defendant's acts, as alleged by the plaintiffs in their complaint and taken as true, properly constitute "unfair or deceptive acts or practices" as those terms are defined by the Act; and (4) whether both Mrs. Chalfin and her family may recover for the defendant's alleged violative conduct.
First, the Act defines "person" as "natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entities." Id. § 201-2(2). Thus, it is clear that defendant, a corporation, falls within the statute's definition of the term "person."
Second, I turn to whether the health care Rosemont provides falls within the ambit of the statute's definition of "trade or commerce." The Act defines "trade" or "commerce" as "the advertising, offering for sale, sale or distribution of any services and any property, tangible or intangible, real personal or mixed, and any other article, commodity, or thing of value wherever situate, and includes any trade or commerce directly or indirectly affecting the people of this Commonwealth." Id. § 201-2(3) (emphasis added). Mindful that "this already broad language is to be construed broadly so as to effectuate as fully as possible the Legislature's purpose of preventing unfair or deceptive practices," Culbreth v. Lawrence J. Miller, Inc., 328 Pa. Super. 374, 382, 477 A.2d 491, 495 (1984), I find that the health care the Rosemont facility provides indeed falls within the scope of the "trade or commerce" clause of the Act.
Defendant argues that the type of services provided to Mrs. Chalfin by Rosemont should not be construed as falling within the Act's meaning of "goods or services primarily for personal, family or household purposes." I disagree. It is clear that the legislature intended to give the Consumer Protection Act the broadest scope possible. See 328 Pa. Super. at 382, 477 A.2d at 495. To facilitate this, the legislature specifically utilized broad terms, merely restricting the scope of the Act to goods and services purchased for "personal, family or household services."
Clearly, Mrs. Chalfin purchased health care "services" from the defendant, and did so for her own personal benefit. It is uncontroverted that the legislature's paramount goal was to provide a remedy for those individuals who are the victims of fraudulent conduct. Certainly, such protection is no less compelling in the context of a provider of health care services to the elderly and infirm than to a consumer who, in reliance upon a salesperson's misrepresentation, purchases a defective product in a traditional sales transaction.
To find otherwise would allow unscrupulous institutions the upper hand, leaving individuals like Mrs. Chalfin vulnerable to fraudulent practices, a burden the legislature clearly did not intend to place on the consumer. Accordingly, I find that the health care services provided by the Rosemont facility provided a "personal" benefit to Mrs. Chalfin, as that term is used in Section 201-9.2, and thus falls within the broad scope of the Act.
Next, I must determine whether the unfair or deceptive acts plaintiffs allege in their complaint state a claim under the statute. Plaintiffs contend that at the time Mrs. Chalfin was admitted to Rosemont, Mrs. Chalfin entered into an "Admission Agreement" with the facility which represented the following:
Where other sources of payment may be available, such as State or Federal agencies (under Medicare, Medicaid, or other programs) or insurance companies, Facility will aid patient in determining whether Patient's care may be so covered and, if appropriate, will submit a claim to the proper agency or insurance company for payment.