McShane v. Shashikumar

46 Pa. D. & C.3d 563, 1988 Pa. Dist. & Cnty. Dec. LEXIS 279
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedJanuary 21, 1988
Docketno. 84-14002
StatusPublished

This text of 46 Pa. D. & C.3d 563 (McShane v. Shashikumar) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McShane v. Shashikumar, 46 Pa. D. & C.3d 563, 1988 Pa. Dist. & Cnty. Dec. LEXIS 279 (Pa. Super. Ct. 1988).

Opinion

YOHN, J.,

James and Joyce McShane filed a complaint on December 31, 1984, on behalf of Megan McShane, their minor daughter, and in their own right, seeking damages allegedly resulting from medical care negligently rendered to their daughter by Abington Memorial Hospital and Dr. V. L. Shashikumar, defendants.

Count III of the complaint sets forth several purported causes of action on behalf of parents. In particular, in paragraph 51 of count III, parents alleged that they have been deprived of “the society, companionship, love, affection and service” of the minor. In addition, in paragraphs 52-55 of count III, parents seek recovery for negligent infliction of .emotional distress.

On June 15, 1987, years after the filing of the complaint, defendant Shashikumar filed a motion for partial summary judgment with regard to parents’ claims in count III for loss of consortium and [564]*564negligent infliction of emotional distress. Parents then filed an answer to the motion, and oral argument was held before this court on September 16, 1987. At the conclusion thereof, this court granted defendant’s motion for partial summary judgment with regard to these claims and dismissed the relevant portions of the complaint. Plaintiff-parents appeal.

ISSUES RAISED

Plaintiffs claim that the court erred in:

(1) granting defendant’s motion for partial summary judgment as to the claim of plaintiff-parents for. loss of their child’s consortium,

(2) granting defendant’s motion for partial summary judgment as to the claim of plain tiff-parents for negligent infliction of emotional distress arid,

(3) granting defendant’s motion for partial summary judgment prematurely as the discovery in the case is not complete.

STANDARD FOR GRANTING SUMMARY JUDGMENT

It is well established law in this commonwealth that a motion for summary judgment can be granted only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b); Linwood Harvestore Inc. v. Cannon, 427 Pa. 434, 235 A.2d 377 (1967); Just v. Sons of Italy Hall, 240 Pa. Super. 416, 368 A.2d 308 (1976); Matson v. Parking Service Corp., 242 Pa. Super. 125, 363 A.2d 1192 (1976). In ruling on a motion for summary judgment, the court must view the record in the light most favorable to the nonmoving party, who must be given the benefit of all reasonable inferences to be drawn therefrom. [565]*565Furthermore, if there is any doubt as to the existence of a genuine issue of material fact, it must be resolved against the moving party. Mscisz v. Russell, 338 Pa. Super. 38, 487 A.2d 839 (1985); citing: Lehigh Electric Products Co. v. Pennsylvania National Mutual Cas. Ins. Co., 257 Pa. Super. 198, 202-203, 390 A.2d 781, 783 (1978), Schacter v. Albert, 212 Pa. Super. 58, 62, 239 A.2d 841, 843 (1968). Finally, summary judgment may be entered only where there is not the slightest doubt as to the absence of a triable issue of material fact. Long John Silver’s Inc. v. Fiore, 255 Pa. Super. 183, 386 A.2d 569 (1978); Bennetch v. Dreistadt, 242 Pa. Super. 529, 364 A.2d 398 (1976); Prince v. Pavoni, 225 Pa. Super. 286, 302 A.2d 452 (1973).

DISCUSSION

A. Claim For Loss of Child’s Consortium

Parents first contend that the court erred in granting defendant’s motion for summary judgment as to their claim for loss of their child’s consortium. The court disagrees.

It is, of course, well established in Pennsylvania that either spouse is entitled to recover for loss of consortium with the other.1 Klein v. Council of Chemical Assoc., 587 F.Supp. 213 (E.D. Pa., 1984); citing: Reuter v. United States, 534 F.Supp. 731, 733, (W.D. Pa, 1982); Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974). The Pennsylvania trial courts have uniformly recognized the rigidity of the common law rule and have refused to extend the [566]*566spousal loss-of-consortium claims even to include parties who, were engaged when the injury occurred and who married shortly thereafter. Akers v. Martin, 14 D.&C.3d 325 (1980); Rockwell v. Liston, 71 D.&C.2d 756 (1975); Sartori v. Gradison Auto Bus Co., 42 D.&C.2d 781 (1967). Thus, under Pennsylvania law, there may be no recovery by parents for the loss of consortium of a child. Quinn v. Pittsburgh, 243 Pa. 521, 90 A. 353 (1914); See also, Roberts v. Lankenau Hospital, 15 D.&.C.3d 127 (1980).

To the court’s knowledge there is no appellate authority in this commonwealth establishing a parent’s right to a claim for the loss of the consortium of a child. In addition, the common pleas cases cited by plaintiff that recognized such a right are outweighed by the more recent Superior Court decision on parent/child consortium, which reaffirmed the court’s reluctance to extend the cause of action for consortium to anyone outside the spousal relationship. In Steiner v. Bell Telephone Company of Pennsylvania, 358 Pa. Super. 505, 517 A.2d 1348 (1986), the Superior Court refused to recognize a cause of action on behalf of a child for the loss of parental consortium. The court, after reviewing the law of various states on this point, concluded that there is no general consensus among state courts to allow such a cause of action.

The court in Steiner had before it a cause of action involving a child’s claim for the loss of parental consortium, but its reasoning is broadly worded and, in this court’s judgment, applicable to a parent’s claim for the loss of a child’s consortium as well. The court reasoned as follows:

“The difference in creation of spousal and filial relationships justifies differential treatment between spouses and children. Spouses enter into their rela[567]*567tionship freely and by choice and do so to bind one another together into a permanent unity. A child, however, has no control over the commencement of the parental/child relationship and rather than trying to become one with his parents, he perpetually strives to develop from a totally dependent person to one which is entirely independent. Although both relationships involve love, companionship, affection, guidance and care, the nature of those elements, the ends which they ideally achieve, and the means by which they'reach those ends is subtly but intrinsically different. Therefore, although identical labels'can be attached to the elements of the spousal and the parent/child relationship, substantively the relationships are different and not comparable.” Steiner at 518-19, 517 A.2d at 1355.

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Related

Dillon v. Legg
441 P.2d 912 (California Supreme Court, 1968)
Reuter v. United States
534 F. Supp. 731 (W.D. Pennsylvania, 1982)
Vattimo v. Lower Bucks Hospital, Inc.
465 A.2d 1231 (Supreme Court of Pennsylvania, 1983)
Tackett v. Encke
509 A.2d 1310 (Supreme Court of Pennsylvania, 1986)
Linwood Harvestore, Inc. v. Cannon
235 A.2d 377 (Supreme Court of Pennsylvania, 1967)
Bliss v. Allentown Public Library
497 F. Supp. 487 (E.D. Pennsylvania, 1980)
Klein v. Council of Chemical Associations
587 F. Supp. 213 (E.D. Pennsylvania, 1984)
Long John Silver's, Inc. v. Fiore
386 A.2d 569 (Superior Court of Pennsylvania, 1978)
Amader v. Johns-Manville Corp.
514 F. Supp. 1031 (E.D. Pennsylvania, 1981)
Schacter v. Albert
239 A.2d 841 (Superior Court of Pennsylvania, 1968)
Steiner by Steiner v. Bell Tele. Co.
517 A.2d 1348 (Supreme Court of Pennsylvania, 1986)
Mazzagatti v. Everingham by Everingham
516 A.2d 672 (Supreme Court of Pennsylvania, 1986)
Niederman v. Brodsky
261 A.2d 84 (Supreme Court of Pennsylvania, 1970)
Prince v. Pavoni
302 A.2d 452 (Superior Court of Pennsylvania, 1973)
Berardi v. Johns-Manville Corp.
482 A.2d 1067 (Supreme Court of Pennsylvania, 1984)
Mscisz v. Russell
487 A.2d 839 (Supreme Court of Pennsylvania, 1984)
Sinn v. Burd
404 A.2d 672 (Supreme Court of Pennsylvania, 1979)
Matson v. Parking Service Corp.
363 A.2d 1192 (Superior Court of Pennsylvania, 1976)
Bennetch v. Dreistadt
364 A.2d 398 (Superior Court of Pennsylvania, 1976)
Quinn v. Pittsburgh
90 A. 353 (Supreme Court of Pennsylvania, 1914)

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Bluebook (online)
46 Pa. D. & C.3d 563, 1988 Pa. Dist. & Cnty. Dec. LEXIS 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcshane-v-shashikumar-pactcomplmontgo-1988.