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CHRISTOPHER T. WALL v. WILLIAM FISHER AND CAROLYN FISHER (10/26/89)

filed: October 26, 1989.

CHRISTOPHER T. WALL, A MINOR, BY RHONDA L. LALLI, HIS GUARDIAN AND RHONDA L. LALLI
v.
WILLIAM FISHER AND CAROLYN FISHER, HIS WIFE, APPELLEES. APPEAL OF RHONDA L. LALLI



Appeal from the Order Dated October 13, 1988, in the Court of Common Pleas of Erie County, Civil Division, at No. 3579-A-1987.

COUNSEL

Robert E. McBride, Jr., Erie, for appellants.

Karen S. Phelps, Erie, for appellees.

Cavanaugh, Del Sole and Montgomery, JJ. Del Sole, J., concurs in the result.

Author: Montgomery

[ 388 Pa. Super. Page 306]

The Plaintiffs instituted this action as a result of an incident in which the minor Plaintiff was allegedly injured as a result of being attacked by a dog owned by the Defendants. The first two counts of the three count Complaint sought damages for the child. In the third count, Plaintiff Rhonda L. Lalli, the mother of the minor Plaintiff, sought a recovery on a claim of negligent infliction of emotional distress. After discovery, the Defendants filed a motion for partial summary judgment as to the claims asserted by Ms. Lalli in her own right. The trial court granted this motion and the instant appeal followed.*fn1

[ 388 Pa. Super. Page 307]

The record shows that in her Complaint, Ms. Lalli did not assert that she suffered any physical harm, but only that she experienced emotional distress as a result of the dog's purported attack on her son. In response to interrogatories, she declared that she was not claiming damages for physical injury to herself. She also asserted that she had received no treatment by a psychologist or a psychiatrist, and had no care in any hospital. Based upon the lack of any allegation of physical harm, the trial court granted summary judgment in favor of the Defendants, as to her claim. The Appellant contends that the trial court erred in this ruling. She argues that a plaintiff, in a case such as this, need not allege any physical manifestation of the claimed emotional distress, or that the emotional distress caused some physical harm.

When reviewing an order granting summary judgment, our function is to determine whether any genuine issues of triable fact exist. Bowman v. Sears, Roebuck & Co., 245 Pa. Super. 530, 369 A.2d 754 (1976). Summary judgment is available, pursuant to Pa.R.C.P. 1035, when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, considered together, reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bobb v. Kraybill, 354 Pa. Super. 361, 511 A.2d 1379 (1986). We must view the evidence in the light most favorable to the non-moving party and resolve any doubts against the entry of judgment. Husak v. Berkel, Inc., 234 Pa. Super. 452, 341 A.2d 174 (1975). Summary judgment is appropriate only in cases which are clear and free from doubt. Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (1983). Mindful of those concepts, we find no basis for disturbing the ruling of the trial court.

In Banyas v. Lower Bucks Hospital, 293 Pa. Super. 122, 437 A.2d 1236 (1981), our Court adopted Section 436A of the Restatement (Second) of Torts, relating to the recovery of damages for negligent infliction of emotional distress in situations such as the one presented in the instant case. It

[ 388 Pa. Super. Page 308]

    was held that the negligent actor is not liable when the conduct results in emotional disturbance alone, without bodily harm or other compensable damage to the plaintiff. Section 436A, entitled "Negligence Resulting in Emotional Disturbance Alone", states this rule clearly:

If the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable ...


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