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06/10/97 THERESA FAVOROSO KELLY v. ST. MARY

June 10, 1997

THERESA FAVOROSO KELLY, APPELLANT
v.
ST. MARY HOSPITAL, A/K/A ST. MARY MEDICAL CENTER, PENNSYLVANIA DEFENSE INSTITUTE, APPELLEE



Appeal from the Order entered September 6, 1996 In the Court of Common Pleas of Bucks County, Civil, No. 96-003062-22-2. Before WEAVER, J.

Before: Beck, J., Saylor, J. And Montemuro*, J. Opinion BY Montemuro, J.

The opinion of the court was delivered by: Montemuro

OPINION BY MONTEMURO, J.:

Filed June 10, 1997

In this appeal from an order granting Appellee's preliminary objections, Appellant raises the question of whether a claim for spoliation of evidence presents a viable cause of action in Pennsylvania.

In March of 1991, during a two week stay in the maternity ward of Appellee hospital, Appellant was struck on the left wrist by a guardrail while attempting to reach the control buttons attached to her hospital bed. Allegedly the guardrail struck Appellant's wrist on two further occasions, causing serious injury.

In 1993, Appellant commenced an action against St. Mary Hospital and Hill Rom, Inc., the bed's manufacturer, alleging negligence against the former, and negligence, breach of warranty and strict liability against the latter. In 1996, Appellant filed the instant, separate, suit for negligent and/or intentional spoliation of evidence against the hospital arguing that given the notice afforded it by the previously filed suit, the hospital was charged with a legal duty to preserve evidence, namely the bed. In her complaint, Appellant claimed that

(19) As a direct or proximate result of Defendant Hospital's failure to preserve the hospital bed which caused Plaintiff's injuries, Plaintiff is or will be, or may be significantly impaired in her ability to prove the requisite elements of her ongoing product liability lawsuit in Bucks County against defendant hospital and Hill Rom Co., Inc.

(20) As a direct and proximate result of Defendant Hospital's failure to preserve the hospital bed which caused Plaintiff's injuries, Plaintiff is, will be or may be unable to prove the requisite elements of her ongoing product liability lawsuit in Bucks County against Defendant Hospital and Hill Rom Co., Inc. and Plaintiff has been severely prejudiced in her ability to prepare and present claims in this litigation including the loss of opportunity to inspect the bed involved in the litigation and to obtain expert's reports on the particular bed involved in the litigation.

(Complaint at 3-4).

In response, Appellees filed preliminary objections in the nature of a demurrer, contending that no cause of action for spoliation of evidence exists in Pennsylvania, and further, that Appellant's complaint failed to allege any damages. The trial court agreed, granting the preliminary objections and striking Appellant's complaint with prejudice. This appeal followed, raising the sole question of "whether there is a cause of action under Pennsylvania law for spoliation of evidence under the facts involved in this case on appeal?" (Appellant's Brief at 3).

The appellate court's standard of review for preliminary objections is well settled.

We must accept all material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom as true. The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer ...


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