author: HOFFMAN, Judge: CAVANAUGH, Judge,

text:
    511 A.2d 184
    Francis L. MORGAN and Elizabeth Morgan, his wife, Appellants, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raybestos-Manhattan, Inc., Owens-Corning Fiberglass Corporation, Nicolet, Inc., GAF Corporation, Forty-Eight Insulations, Inc., H.K. Porter Company, Inc., Southern Textile Corporation, Pittsburgh Corning Corporation, Garlock, Inc., North American Asbestos Company, Armstrong World Industries, Inc., Amatex Corporation, Delaware Asbestos and Rubber Company, Pacor, Inc., Fibreboard Corporation, Eagle-Picher Industries, Inc., J.P. Stevens & Company, Celotex Corporation, Unarco Industries, Turner & Newall, Ltd., Keene Corporation, and Owens-Illinois Glass Company. Frank ALICE and Theresa Alice, Appellants, v. JOHNS-MANVILLE CORP., and Johns-Manville Sales Corp., and Raybestos-Manhattan, Inc., and Forty Eight Insulation Inc., and Nicolet Industries, Inc., and Pittsburgh Corning Corporation and Celotex Corporation and GAF Corporation and Armstrong Cork Company and Fiberboard Corp. and J.P. Stevens, Inc. and H.K. Porter Co., Inc. and Southern Asbestos Company and Unarco Industries Inc. and Eagle-Picher Industries, Inc., and Amatex Corporation and Pacor, Inc., and Delaware Asbestos & Rubber Co., and Owens-Corning Fiberglass Corp. and Owens-Illinois Fiberglass Corp. Philip & Rose BAGIAN, Appellants, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raymark Industries, Forty-Eight Industries, H.K. Porter, Southern Asbestos, Nicolet Industries, Pittsburgh Corning Corporation, Owens-Corning Corporation, G.A.F. Corporation, Armstrong World Industries, Unarco Industries, Eagle-Picher Industries, Delaware Asbestos and Rubber Fibreboard Corporation, Keene Corporation, Turner & Newall Ltd., Certain-Teed U.S. Rubber Co., Inc., Pacor Industries, Celotex Corporation, Amatex Corporation, Owens-Corning Fiberglas Asbestos Textile Institute, Termoid Company, Philip Carey, Garlock, Industrial Products Division, Glen Alden, Inc., Rapid American, Uni-Royal, Carolina Asbestos Co., J. Franklin Burke General Asbestos Co., Ruberoid Company, Keaseey Mattison Co., Asten Hill Manufacturing Co.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed June 10, 1986.

      Martin Greitzer, Philadelphia, for appellants.
    Laurence H. Brown and Howell K. Rosenburg, Philadelphia, for appellants Bagian.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   HOFFMAN, Judge:

These are appeals from three orders of the lower court granting summary judgment in favor of appellees in three separate actions for personal injuries resulting from appellants’ exposure to asbestos. Appellants contend that the court erred in holding that their claims are barred by the applicable two-year statute of limitations, 42 Pa.C.S.A. § 5524(2), and in thus granting summary judgment in favor of appellees. For the following reasons, we reverse the lower court’s order in No. 972 PHL 84 and remand for further proceedings and affirm the orders entered in Nos. 173 PHL 84 and 1051 PHL 82.

Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.Civ.P. 1035(b). When deciding whether to grant a motion for summary judgment, a court must draw all reasonable inferences in favor of the non-moving party, Helinek v. Helinek, 337 Pa. Superior Ct. 497, 502, 487 A.2d 369, 372 (1985), and view all of the evidence in a light most favorable to the non-moving party, Rossi v. Pennsylvania State University, 340 Pa. Superior Ct. 39, 48, 489 A.2d 828, 833 (1985). Moreover, summary judgment may be rendered only in cases that are free from doubt. Id., 340 Pa. Superior Ct. at 44-45, 489 A.2d at 831; Huffman v. Aetna Life and Casualty Co., 337 Pa. Superior Ct. 274, 277, 486 A.2d 1330, 1331 (1984).

In this Commonwealth, actions to recover damages for personal injuries are governed by a two-year statute of limitations. 42 Pa.C.S.A. § 5524(2). Thus, a plaintiff must commence an action within two years from the time he or she suffers an injury. For cases in which an injury is not readily detectable, our courts have developed the discovery rule to ameliorate the harsh results of the running of the statute of limitations before a plaintiff is aware of his or her injury. In Cathcart v. Keene Industrial Insulation, 324 Pa. Superior Ct. 123, 471 A.2d 493 (1984) (en banc), this Court held that in “creeping disease” cases the statute of limitations begins to run when “the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Id., 324 Pa.Superior Ct. at 136-37, 471 A.2d at 500 (footnote omitted). Under this test the statute of limitations begins to run even though the plaintiff lacks actual knowledge of an injury and its cause as long as he or she should have been so aware. Id. Moreover, a plaintiff is under a duty to use all reasonable diligence to be informed of facts upon which a potential action may be based. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983).

We note that whether a plaintiff has exercised due diligence in discovering an injury and its cause is usually a jury question. DeMartino v. Albert Einstein Medical Center, 313 Pa. Superior Ct. 492, 510, 460 A.2d 295, 299 (1983). Sometimes, however, “ ‘a case will arise where the facts will be undisputed and will lead unerringly to the conclusion that the length of time it took the plaintiff to discover the injury or its cause was unreasonable as a matter of law.’ ” Id., 313 Pa.Superior Ct. at 510, 460 A.2d at 304, quoting Anthony v. Koppers Co., 284 Pa. Superior Ct. 81, 110, 425 A.2d 428, 443 (1980). Thus, only in the latter instance would a grant of summary judgment be appropriate.

With these principles in mind, we now apply the Cathcart test to each of the three cases before us to determine whether summary judgment was properly granted.

Philip and Rose Bagian

Appellant in No. 972 PHL 84, Philip Bagian, was employed as a pipefitter at the Philadelphia Naval Shipyard from 1941 until 1943 and from 1947 until his retirement in 1978. In 1972, Bagian obtained a report of his annual examination from the shipyard dispensary. Under the heading “Significant findings,” the report stated, “1. CHEST X-RAY: LOCALIZED PLEURAL THICKENING IN THE RIGHT HEMITHORAX.” Bagian testified at his deposition that he did not pay much attention to this report and that he thought nothing was wrong. (Deposition of Philip Bagian, January 10, 1983 at 67).

In December, 1974, Bagian completed a questionnaire entitled “Health Inventory for Asbestos Workers and Handlers” in which he stated that he experienced shortness of breath upon climbing two flights of steps. (Memorandum of Law in Support of Appellee, the Celotex Corporation’s, Motion for Summary Judgment on behalf of all Appellees, exhibit “D”). The notation “Routine Annual Surveillance” and the dispensary physician’s signature appear at the end of the questionnaire. The same notation is written twice more at the bottom of the questionnaire followed by the dates “2/12/76” and “1/14/77”. {Id.)

Beginning in 1971, Bagian became fairly knowledgeable about the health hazards of asbestos. At his deposition, he testified that “about” 1971 his supervisors began to tell the shipyard workers to be careful with asbestos and to require the use of respirators to prevent the inhalation of asbestos fibers. Bagian was aware that asbestos exposure could lead to asbestosis, mesothelioma, and other forms of cancer. He also testified that they had “lost a few men,” and that the men spoke of “breathing that damn junk all these years.” (Deposition of Philip Bagian at 46-50).

In November, 1977, Bagian was examined by a private physician, Dr. Paisley, who informed him that he had asbestosis. In October, 1979, Bagian and his wife Rose filed this action against appellees asserting that his exposure to appellees’ asbestos products caused him to contract certain diseases and injuries as set forth in his complaint and that his wife Rose has suffered from the loss of his society, services, and companionship. Appellees filed a motion for summary judgment contending that the Bagians’ action was barred by the statute of limitations because they had discovered the injury and its cause more than two years before they commenced their lawsuit. On March 22, 1984, the lower court issued an order granting appellees’ motion. The Bagians have appealed from that order.

The Bagians contend that the lower court erred in granting summary judgment because there are genuine issues of material fact concerning whether Philip Bagian knew or should have known of his injury and its cause prior to September, 1977. They argue first that Bagian did not know he was injured until he was examined by Dr. Paisley in November, 1977. Bagian stated that he received the chest x-ray report in 1972, but that he did not pay much attention to it because “it looked like nothing was wrong.” (Deposition of Philip Bagian at 67). Furthermore, he argues that he had no reason to believe that pleural thickening was an injury because after he received the x-ray report nothing happened to illustrate the significance of that finding. He asserts that he continued to receive annual physical examinations and chest x-rays and was never informed of any medical problem. In addition, he points out that in 1976 and 1977, the dispensary physician noted “Routine Annual Surveillance” at the end of his health inventory questionnaire and did not bring any significant findings to his attention.

The Bagians also argue that, although Philip Bagian knew that asbestos could cause asbestosis and cancer, he did not know that it could cause pleural thickening.

Appellees argue that summary judgment was properly granted because Bagian knew or should have known of his injury and its cause prior to September, 1977, and thus their suit is barred by the statute of limitations. They assert that Bagian had actual knowledge of an injury, pleural thickening, when he read the chest x-ray report in 1972. They also argue that Bagian’s knowledge of the hazards of breathing asbestos fibers, his knowledge of his own pleural thickening, his position at the shipyard, and his intelligence, establish that he possessed actual knowledge that his injury was asbestos-related.

Appellees argue in the alternative that, even if this Court should conclude that there is a genuine issue concerning Bagian’s actual knowledge of his injury and its cause, in the exercise of the requisite reasonable diligence, he should have known of his injury and its cause prior to November, 1977. Because Bagian was aware of the results of his chest x-ray and of the connection between asbestos and lung injuries, they argue, he was under a duty to become educated about pleural thickening. They further argue that Bagi-an should have visited a physician in 1974 when he began to suffer shortness of breath, knew of the hazards of asbestos, and knew of his own pleural thickening, the three factors that appellees claim led Bagian to see Dr. Paisley in 1977.

A court in ruling on a summary judgment motion must not try disputed issues of fact, but rather, must determine whether such issues exist. Wheeler v. Johns-Manville Corp., 342 Pa. Superior Ct. 473, 479, 493 A.2d 120, 123 (1985). Viewing the above-stated evidence in a light most favorable to the non-moving party, the Bagians, and drawing all reasonable inferences in their favor, we conclude that summary judgment was improperly granted because there are genuine issues of material fact. First, we conclude that there is a genuine issue whether Bagian knew or should have known prior to October, 1977, that pleural thickening was an “injury” and, hence, whether he knew he was injured. After receiving his x-ray, Bagian testified that he did not think anything was wrong. We believe that this testimony places his actual knowledge of his injury at issue. Whether or not Bagian exercised due diligence and thus should have known that pleural thickening was an injury is also at issue here. We do not believe that the facts “lead unerringly to the conclusion that the length of time it took the plaintiff to discover the injury or its cause was unreasonable as a matter of law.” Anthony v. Koppers, supra 284 Pa. Superior Ct. at 110, 425 A.2d at 443 (1980). To the contrary, Bagian’s failure to seek medical advice after he went to the trouble of- obtaining his x-ray raises in our minds an inference that he did not know that pleural thickening was an injury and thus thought he had no reason to seek medical advice. We also conclude that there is an issue concerning whether Bagian knew or should have known that pleural thickening could be caused by exposure to asbestos even though it is clear that he knew that such exposure could lead to asbestosis. Accordingly, we reverse the lower court’s order granting summary judgment in favor of appellees and remand for further proceedings.

Frank and Theresa Alice

Appellant in No. 173 PHL 84, Frank Alice, was employed at the Philadelphia Naval Shipyard as a welder beginning in 1961. In 1970 or 1971, the head physician at the shipyard dispensary informed Alice that he had asbestosis. (Deposition of Frank Alice, September 22, 1983 at 87). On April 5, 1976, Alice filed and signed a Federal Employee’s Notice of Injury or Occupational Disease form with the Office of Federal Employees’ Compensation at the United States Department of Labor. On that form the nature of his injury is listed as “Lungs,” and the cause of injury is listed as “Exposed to asbestos.” (Memorandum of Law in Support of Appellee, Pittsburgh Corning Corporation’s, Motion for Summary Judgment on behalf of all Appellees, exhibit “E”).

On June 23, 1977, Dr. Duca of the shipyard dispensary signed a form placing Alice on permanent restrictions from exposure to asbestos. (Id., exhibit “B”). Alice received a copy of this form. (Deposition of Frank Alice at 90-91). On August 29, 1977, Alice delivered a letter written by Dr. Mingroni, a private physician, to the Philadelphia Naval Shipyard informing them that Alice was suffering from asbestosis as a result of his exposure to asbestos. (Memorandum of Law in Support of Appellee, Pittsburgh Corning Corporation’s, Motion for Summary Judgment, supra, exhibit “D”).

On September 25, 1979, Frank and Theresa Alice filed a complaint against appellees alleging that Frank Alice had contracted certain diseases and injuries as a result of his exposure to appellees’ asbestos products. The complaint also alleged that Theresa Alice suffered a loss of her husband’s society, consortium, and assistance because of appellees’ acts. On October 21, 1983, appellees filed a motion for summary judgment contending that the Alices’ claims were barred by the statute of limitations. The lower court granted this motion in favor of appellees by order dated December 14, 1983. The Alices have appealed from that order.

The Alices contend that the lower court erred in granting summary judgment in favor of appellees because there are genuine issues of material fact regarding Frank Alice’s knowledge of his injury and its cause. The Alices argue that the statute of limitations did not begin to run until September, 1979, when Frank Alice was first able to ascertain the gravity and nature of his injury. They assert that Alice was never informed about the severity of his illness and that his physicians did not lead him to believe that his condition was permanent. Rather, he refers to his deposition testimony wherein he stated that Dr. Duca of the shipyard dispensary told him that his asbestosis was “[j]ust like you got a cut and it healed and that’s all.” (Deposition of Frank Alice, September 22, 1983 • at 88). The Alices argue that this misinformation as to the consequences of Alice’s illness nullified his actual knowledge of his injury.

The uncontroverted facts show that appellant was informed by a shipyard physician in 1970 or 1971 that he had asbestosis. (Deposition of Frank Alice at 87). In addition, Alice submitted a Federal Employee’s Notice of Injury or Occupational Disease form dated April 5, 1976, to the United States Department of Labor listing his injury as “lungs” and its cause as exposure to asbestos. Alice also received a dispensary permit dated June 23, 1977, issued by Dr. Duca, placing him on permanent restrictions from exposure to asbestos and a letter from Dr. Mingroni dated August 29, 1977 stating that Alice was suffering from asbestosis as a result of his exposure to asbestos.

After reviewing the uncontroverted facts, we conclude that appellees have shown that Alice knew or should have known of his injury and its cause more than two years before he commenced his action. Therefore, we affirm the order of the court below in No. 173 PHL 84.

Francis and Elizabeth Morgan

Appellant in No. 1051 PHL 82, Francis Morgan, worked as a pipefitter at the Philadelphia Naval Shipyard from 1940 to 1943, from 1946 to 1960, and from 1964 until 1966. From 1966 to 1977 he was employed there as a planner and an estimator. On April 8, 1976, the physician at the shipyard dispensary issued a dispensary permit indicating that Morgan had been examined and diagnosed as suffering from asbestosis. (Appellee, Fibreboard Corporation’s, Memorandum of Law in Support of its Motion for Summary Judgment on behalf of all Appellees, exhibit “B”). The same day, Morgan filed and signed a Federal Employee’s Notice of Injury or Occupational Disease form with the United States Department of Labor. On that form the nature of his injury is listed as “Lungs,” and the cause of injury is listed as, “Disconnecting, disturbing and modifying piping systems aboard ship insulated/lagged with asbestos.” (Id., exhibit “C”).

Francis and Elizabeth Morgan commenced this action on July 7, 1978 against appellees for diseases and injuries suffered by Francis Morgan as a result of his exposure to appellees’ asbestos products and for Elizabeth Morgan’s loss of her husband’s society, services, and companionship. Appellees filed a motion for summary judgment contending that the Morgans’ claim is barred by the statute of limitations. The lower court granted appellees’ motion by order dated November 30, 1981. The Morgans have appealed from that order.

The Morgans contend that the court erred in granting summary judgment in favor of appellees because there are genuine issues of material fact concerning when Francis Morgan had actual knowledge and understanding of his injury. Morgan admits by affidavit that he signed the Federal Employee’s Notice of Injury or Occupational Disease form dated April 8, 1976 that listed “lungs” as the nature of his injury and exposure to asbestos as its cause. He states that personnel at the dispensary told him what to write and instructed him to sign the form. He also states that he never saw the dispensary permit issued by the dispensary physician that indicated that he had been diagnosed with asbestosis. Thus, he argues that he did not understand the nature of his injury until he received a letter from Dr. Paisley on July 9, 1976, which indicated that he had asbestosis.

Applying the Cathcart test, we conclude that the uncon-troverted facts show that by April 8, 1976, Morgan knew, or should have known, that he had asbestosis and that it was caused by his exposure to asbestos. It follows that appel-lees have met their burden of showing that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law because the Morgans’ action is barred by the two-year statute of limitations. Accordingly, we affirm the order of the lower court in No. 1051 PHL 82.

Order in No. 972 PHL 84 reversed and case remanded for further proceedings. Orders in No. 173 PHL 84 and No. 1051 PHL 82 affirmed. Jurisdiction is relinquished.

CAVANAUGH, J., files a concurring and dissenting opinion.

CAVANAUGH, Judge,

concurring and dissenting:

I agree with the majority as to their disposition in No. 00173 Philadelphia, 1984 (Frank and Theresa Alice) and in 1051 Philadelphia, 1982 (Francis and Elizabeth Morgan). I respectfully dissent only as to the majority’s disposition in No. 00972 Philadelphia, 1984.

I believe this case to be controlled by our en banc decision in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). In Cathcart we found “... that there was [a] sufficient basis for the lower court’s determination of when the statute of limitations began to run ... [and that there was] no question of fact which would [require] a jury’s resolution.” Id., 324 Pa.Super. at 146, 471 A.2d at 505. I believe the same to be true in this case. Accordingly, I would affirm the lower court’s grant of summary judgment in appellant, Bagian’s case.

In Cathcart, we stated: “whether the statute of limitations has run on a claim is usually a question of law for the judge; however, at times, a factual determination by the jury may be required.” Id., 324 Pa.Superior Ct. at 140, 471 A.2d 502 (emphasis added). The majority states in its opinion that “... whether a plaintiff has exercised due diligence in discovering an injury and its cause is usually a jury question.” Maj.Op. at 62 citing DeMartino v. Albert Einstein Medical Center, 313 Pa.Super. 492, 510, 460 A.2d 295, 299 (1983). I do not believe this to be the best statement of the law in asbestos related cases as this position effectively undermines this court’s decision in Cathcart. The majority’s position would allow an asbestos injured plaintiff, who raises the issue of due diligence in discovering his injury and its cause, to usually be entitled to a jury resolution of that issue. A jury resolution of due diligence would effectively determine whether plaintiff complied with the statute of limitations. I believe this is contrary to Cathcart’s express intention to leave the question of compliance with the statute usually in the hands of the judge.

Our review of this case, as in Cathcart, involved whether there was a sufficient basis for the lower court to determine when the statute began to run, and/or whether there was a question of fact which required a jury resolution. Cathcart. Id. I conclude that there was a sufficient basis for the trial court to determine that Mr. Bagian knew or reasonably should have known that he was injured and that his injuries were caused by another party’s conduct before October of 1977. Consequently, I conclude that there was no issue of fact requiring a jury resolution. Id.

Crucial to my conclusion is Mr. Bagian’s receipt of his medical report from the Navy Shipyard Infirmary following his physical examination. This report listed as a significant finding, “LOCALIZED PLEURAL THICKENING IN THE RIGHT HEMOTHORAX.” While Mr. Bagian testified that he did not pay much attention to this report and that he thought nothing was wrong, he admitted that he looked at the report. Accordingly, I believe he was charged with the knowledge of his injury as of the date of the receipt of this report: June, 1972. I reached this conclusion even in light of the stringent requirements needed to grant summary judgment. Even granting all favorable inferences to plaintiff as the moving party, it is beyond dispute that plaintiff reviewed this document which highlighted his injury. It is also beyond dispute that plaintiff resorted to unusual methods to obtain this document. As the lower court recounted, the plaintiff created a fictitious doctor to obtain his medical report:

In 1972, however, the plaintiff engaged in an intricate subterfuge to discover the results of a “medical exam [he] had at the Navy Yard.” N.T. at 54. Because “[t]hey don’t want to tell you anything if you don’t have a doctor,” N.T. at 53, the plaintiff requested that the results of his annual Personnel Health Inventory at the Philadelphia Naval Yard be sent to a fictitious “Dr. Sardarian.” There was no Dr. Sardarian; in reality, the medical report was sent to the plaintiff’s brother-in-law. The plaintiff admitted on questioning that his brother-in-law subsequently gave the plaintiff this report and that the plaintiff read it. The letter from J. Caruso, Capt. MC., U.S.N. to “Dr. Sardarian” dated June 27, 1972 was attached to the deposition as an exhibit. N.T. at 53-55, 67-68. Under the hearing “significant findings,” it stated: “CHEST X-RAY: LOCALIZED PLEURAL THICKENING IN THE RIGHT HEMITHORAX.” The defendant denied that he ever showed this report to anyone else while conceding that his two sons were physicians. N.T. at 53, 67. (Lower Court Op. at 4-5).

Additionally, it is not an issue that the plaintiff knew he was working with asbestos as early as 1941; that he was aware of the dangers of working with asbestos by 1971; and that he was aware that the deaths of several Navy Yard workers were related to “... breathing that damn junk all these years....” Plaintiff was also told in 1971 that exposure to asbestos “caused asbestosis, which frequently or sometimes developed into mesothelioma or some cancer or something.” I believe plaintiff’s receipt of the medical report, combined with the environment in which he worked, put him on notice of his injury. Furthermore, plaintiff had a duty to “diligently investigate the facts upon which a potential action [could be based].” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). Accordingly, under Cathcart plaintiff clearly knew, or reasonably should have known, that he was injured. As to Mr. Bagian’s knowledge that his injury was caused by another’s conduct, Cathcart, supra, the lower court stated:

The second prong of the Cathcart test requires that the plaintiff know, or reasonably should have known, that his injury was caused by another party’s conduct. Since the plaintiff sought the medical report of an x-ray which had been taken at his work place, the Navy Yard, he obviously suspected that he had been injured through the conduct of his employers and/or those who manufactured and supplied the material with which he worked. See N.T. at 54. This conclusion is inescapable in light of the chronology outlined by the plaintiff in his deposition concerning precautions then taken at his work place to safeguard workers from asbestos exposure. In the deposition, the plaintiff stated that it was in 1971 that he first became aware of the danger of asbestos through the deaths of fellow pipe coverers and through the precautions taken at his work place to limit exposure to asbestos. A year later, according to the plaintiff’s testimony, he sought information as to results of his own chest x-ray and then learned that it revealed pleural thickening. Armed with this information, he reasonably knew or should have known “that his injury was caused by another party’s conduct.” (Lower Court Op. at 13, 14).

I believe the lower court had a sufficient basis to conclude that there was no genuine issue as to whether Bagian should have known that his pleural thickening was an injury and that it was caused by exposure to asbestos prior to Dr. Paisley’s diagnosis in November, 1977.

In concluding that the statute of limitations, combined with our decision in Cathcart, preclude plaintiff’s cause of action, I emphasize the important policy concerns connected with the statute. In Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 471 A.2d 1233 (1984) this court stated:

Statute of limitations are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extended to the limit prescribed, is itself a conclusive bar. The bane and anecdote go together.

Schmucker v. Naugle, 426 Pa. 203, 205-206, 231 A.2d 121, 123 (1967), quoting United States v. Oregon Lumber Co., 260 U.S. 290, 43 S.Ct. 100, 102, 67 L.Ed. 261 (1922). See also Insurance Co. of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728 (1971). Accordingly, I would affirm the lower court’s decision, and respectfully dissent from the majority’s disposition on this matter.

      . In Cathcart, an en banc panel of this Court modified the test that was announced in Volpe v. Johns-Manville Corp., 4 Phila. 290 (Ct.C.P. 1977), aff’d, 323 Pa.Superior Ct. 130, 470 A.2d 164 (1983) (en banc). Cathcart v. Keene Industrial Insulation, supra. Under the Volpe test, the statute of limitations begins to run when the plaintiff has (1) knowledge of the injury, (2) knowledge of the operative cause of the injury, and (3) knowledge of the causative relationship between the injury and the operative conduct. Cathcart, supra, 324 Pa.Superior Ct. at 136, 471 A.2d at 500, citing Volpe v. Johns-Manville Corp., 4 Phila. 290. Several panels of this Court have subsequently relied on the Cathcart test. See Powell v. Johns-Manville Corp., 342 Pa.Superior Ct. 544, 548 n. 2, 493 A.2d 724, 726 n. 2 (1985) (Volpe test modified in Cathcart); Wheeler v. Johns-Manville Corp., 342 Pa.Superior Ct. 473, 477, 493 A.2d 120, 122 (1985) (Cathcart should be followed because it is most recent holding of Court en banc ); Pastierik v. Duquesne Light Co., 341 Pa.Superior Ct. 329, 331-32, 491 A.2d 841, 842 (1985) (per curiam ) (applying Cathcart test); Price v. Johns-Manville Corp., 336 Pa.Superior Ct. 133, 136-37, 485 A.2d 466, 467 (1984) (Cathcart Court, en banc, modified Volpe); Berardi v. Johns-Manville Corp., 334 Pa.Superior Ct. 36, 46-47, 482 A.2d 1067, 1073 (1984) (OLSZEWSKI, J., concurring) (Cathcart is controlling; it is most recent pronouncement by this Court on the issue).

      . Because the dispensary would send these reports only to a physician, Bagian instructed it to send the report to his brother-in-law, Dr. Sardarian, who was not, in fact, a physician. (Deposition of Philip Bagian, January 10, 1983 at 53-54).

      . I note that Cathcart involved a factual scenario considerably more appertinent to the case before us than DeMartino. Cathcart involved this court’s review of a grant of summary judgment against a plaintiff in an asbestos case. DeMartino involved this court’s review of a grant of summary judgment in a dental malpractice case. Accordingly, I believe this court’s statements as to summary judgment in Cathcart are better authority for the case we are reviewing than those found in DeMartino.

      . This is not to imply that Cathcart disregards the issue of due diligence. However, I believe that Cathcart’s intent was to incorporate the issue of due diligence within its "reasonably should know” standard, thus leaving this matter usually within the judge’s responsibilities. Cathcart held that the statute begins to run when the plaintiff knows or reasonably should know that he has been: (1) injured; (2) by the cause of another party’s conduct. Id., 324 Pa.Superior Ct. at 136-37, 471 A.2d at 500.

      . Plaintiff brought his cause of action against defendant in October of 1979. Accordingly, with the two year statute of limitations, if plaintiff was on notice of his injury and that his injury was caused by another prior to October of 1977, his cause of action would be barred by the statute of limitations.

      . The requirements for summary judgment are significant:
      Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Pa.R.C.P. 1035. And see Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970); Bollinger v. Palmerton Area Com. Endeavor, Inc., 241 Pa.Superior Ct. 341, 361 A.2d 676 (1976). Furthermore, summary judgment is only proper in cases which are clear and free from doubt as to the existence of a disputed factual question. See Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967); Toth v. Philadelphia, 213 Pa. Superior Ct. 282, 247 A.2d 629 (1968). In ruling on a motion for summary judgment the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom. See Hankin v. Mintz, 276 Pa.Superior Ct. 538, 419 A.2d 588 (1980); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Superior Ct. 198, 280 A.2d 570 (1971). The record as a whole should be examined in the light most favorable to the party opposing the motion and all doubts as to the existence of a genuine issue about a material fact must be resolved in that party’s favor, that is, against the entry of summary judgment. See Bowman v. Sears, Roebuck & Co., 245 Pa.Superior Ct. 530, 369 A.2d 754 (1976); Husak v. Berkel, Inc., 234 Pa.Superior Ct. 452, 341 A.2d 174 (1975); Schacter v. Albert, 212 Pa.Superior Ct. 58, 239 A.2d 841 (1968). And see Hankin v. Mintz, supra; Ritmanich v. Jonnel Enterprises, Inc., supra. In disposing of such a motion the court’s function is not to decide issues of fact, but solely to determine whether there are material issues of fact to be decided. See Hankin v. Mintz, supra; Ritmanich v. Jonnel Enterprises, Inc., supra.

        Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 404-05, 446 A.2d 914, 917-18 (1982), quoting Community Services of Clearfield, Inc. v. Local 2665, American Federal of State, County and Municipal Employees, AFL-CIO, 292 Pa.Super. 238, 242, 437 A.2d 23, 25 (1981).


source: Caselaw Access Project

author: KELLY, Judge: ROWLEY, Judge,

license: Public Domain

text:
    511 A.2d 193
    Melvin GERBER and Sylvin Goldstein, t/a M & M Investment, Appellees, v. Barbara EMES, Individually and as Executrix of the Estate of James T. Emes, and Jim Emes Petroleum Co., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1986.
    Filed June 10, 1986.

      Robert H. Lang, Pittsburgh, for appellant.
    Robert S. Trigg, Lancaster, for appellees.
    Before ROWLEY, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

This case was initiated by the plaintiffs/appellees filing a complaint with counts sounding both in trespass and as-sumpsit, and serving the defendant/appellant with the complaint on July 26, 1982. No entry of appearance was filed on defendant’s behalf. A default judgment was entered on September 13, 1982. Appellant timely filed a petition to open or to strike that judgment on September 22, 1982. After hearings, submission of briefs, and the taking of depositions, the lower court entered an order on April 26, 1985 granting the petition to strike the judgment as to the counts sounding in assumpsit, and denying the petition to strike or open the default judgment as to the trespass counts. Appellant timely appealed the denial. For the reasons stated below, we reverse.

The facts of this case are as follows. Appellant Barbara Ernes was served with the Complaint on July 26, 1982. She contacted her counsel, John O’Brien, Esquire, and he assured her that he would attend to the Complaint. In fact, he did not attend to the matter. By letter dated August 27, 1982 he informed appellant that he was going to withdraw from the case. The letter further stated he would be out of his office until September 7, 1982. On September 1, appellant received the “Ten Day Notice”, Notice of Praecipe for Final Judgment or Decree as required by Pa.R.C.P. 237.1. Appellant contacted Mr. O’Brien on September 7 to arrange to retrieve her files to take to her new counsel. It is unclear whether Mr. O’Brien ever informed appellant or her new counsel that he had never entered an appearance on her behalf.

Appellant’s new counsel, representing her in this appeal, realized that until he obtained appellant’s files he could not properly act on her behalf; on September 8 he contacted appellees’ counsel seeking an extension of 20 days within which to respond to the complaint. It is disputed whether the extension was granted. Nonetheless, appellees’ counsel praeciped for a default judgment on September 13, 1982. Default judgment accordingly was entered.

Appellant filed a petition to open or to strike the judgment, claiming, inter alia, that appellant was under no obligation to file a responsive pleading since appellees’ complaint was improper for failure to contain a Notice to Defend, Pa.R.C.P. 1018.1. The lower court agreed in part and struck the judgment with regard to the counts sounding in assumpsit, relying on Pa.R.C.P. 1037(b) and 1026. The lower court declined to strike the complaint with regard to the counts sounding in trespass, relying upon the fact that Rule 1047(a) contains no mention of need to contain a notice to defend for counts sounding in trespass.

Appellant’s first issue on appeal is whether the trial court erred in refusing to strike the default judgment entered against him for failure to timely respond to the four counts sounding in trespass. Appellant argues that no response was required because appellees’ complaint was defective on its face for failing to contain a notice to defend. Because we hold that actions sounding in trespass must conform to Pa.R.C.P. 1026 and contain a notice to defend, we uphold appellant and reverse the lower court.

We agree that Rule 1047(b)(1) contains no specific requirement to include a notice to defend on a trespass complaint. Pennsylvania Rule of Civil Procedure 1047, which was in effect at the time of this action’s initiation, governed entry of judgment upon default in trespass actions. It states in part:

Rule 1047. Judgment Upon Default
(a) After a complaint has been filed and time for pleading thereto has expired, the prothonotary, on praecipe of the plaintiff, shall enter judgment against a defendant who has neither pleaded to the complaint nor appeared at any time in the action. In such case, the damages except as provided in Subdivision (b) shall be assessed at a trial at which the issues shall be limited to the amount of the damages.

However, we find that Rule 1047(b)(1) cannot be read in isolation from other applicable rules, as the lower court apparently did. Because Rule 1047 and the other rules of trespass do not specify what time period governs response, we look to Rule 1041 which provides:

Rule 1041. Conformity to Assumpsit
Except as otherwise provided in this chapter, the procedure in the action of trespass shall be in accordance with the rules relating to the action of assumpsit.

Therefore it is appropriate to look at parallel assumpsit rules to provide the specifications that the trespass rules omit.

Rule 1037 encapsules the rule for judgment upon default in assumpsit actions. It states in part:

Rule 1037. Judgment Upon Default or Admission. Assessment of Damages
(a) ... If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros.
(b) The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time an answer to a complaint which contains a notice to defend or for any relief admitted to be due by the defendant’s pleadings, (emphasis added).

Rule 1037 as stated does differ from Rule 1047 by specifying that the complaint must contain a “notice to defend” before default judgment shall be entered. Rule 1037 also specifies 20 days as being the time in which to file a response whereas neither Rule 1047 nor any other trespass rule specifies either the time limit or the need to include a notice to defend. However, Rule 1047’s silence on the issue, when read in conjunction with Rule 1041 and its rule of conformity, leads us to conclude that the authors of the rules intended 20 days to be the applicable time limit for trespass action response. Moreover, they did not intend for the trespass pleadings to exclude a notice to defend.

We are further guided by Rule 1026. It provides in part:

Rule 1026. Time for Filing. Notice to Plead
... [E]very pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead, (emphasis added).

The words “every pleading” as set forth in the statute neither state nor imply an intent to except trespass actions from the Rule’s authority. Further, the rules of construction, Rule 131 in particular, guide our interpretation:

Rule 131. Rules in Pari materia
Rules or parts of rules are in pari materia when they relate to the same proceedings or class of proceedings. Rules in pari materia shall be construed together, if possible, as one rule or one chapter of rules.

Our reading of these rules “in pari materia” leads us to equate the requirements of Rule 1047 with those of Rule 1037.

We are finally persuaded by the Explanatory Comment which accompanied the Rule 1018.1 Notice to Defend form. Rule 1018.1 was adopted in January 1975 and became effective July, 1975, before this action commenced. Although the rule is included within assumpsit action rules, it applies to trespass actions via Rule 1041.

“Rule 1018.1 is universal, applying without distinction to all types of cause of action and to all parties defendant. The Committee had the choice between a universal Rule, and one which would attempt to define special categories of defendants to receive special notice, and other categories where special notice was not needed.
It was suggested that Notice to Defend be restricted to consumer transactions or to certain forms of action such as assumpsit or to only individual defendants. The ultimate decision was in favor of uniformity of application.....
The amendment of Rules 1026 and 1037(b) concern responsive pleadings. They were amended to accommodate the new procedure provided by Rule 1018.1 in replacing the Notice to Plead “endorsed” on a complaint with the new Notice to Defend “contained” in the complaint.”

Appellees in their brief cite their compliance with Rule 237.1, Notice of Praecipe for Default Judgment, in support of their argument. Rule 237.1, included with the rules on Business of Courts, applies to all causes of action, not just to assumpsit and/or trespass actions. The Explanatory Comment which accompanied the rule stated in part:

Explanatory Note-1979
The increasing number of petitions being filed in the common pleas courts throughout the Commonwealth to open default judgments and the ensuing appeals have become a matter of concern to the courts.
One part of the problem arises from the entry of “snap judgments” without notice, a practice sharply disapproved by the Superior Court, and the lack of notice is frequently singled out as an important factor justifying the opening of a default judgment ...
Where, under Rules 1037(b), 1047(a), 1511(a), 3031(a) and 3146(a), a plaintiff may proceed directly by praecipe to enter a default judgment for failure of a defendant to file a responsive pleading to a complaint, the new Rule mil require prior notice ...
Form of Notice
Subdivision (c) of the Rule prescribes the form of notice when a default judgment is to be entered. It is adapted from the notice to defend which Rule 1018.1 requires on every complaint. It informs the defendant of the need for action, the consequences of default and where he can obtain a lawyer. Since the notice will in many cases be sent to an as yet unrepresented defendant, it was felt that repetition of the notice to defend, in modified form, would help stimulate action and stem the tide of petitions to open.
The notice is universal. It applies to all defendants, whether represented or not, without distinction as to their degree of education or sophistication. As in Rule 1018.1, no attempt is made to apply the notice selectively based on the nature of the_ action or of the defendant in volved. To do so would require a multiplicity of forms and confusion as to their application. The use of one form for all actions and all defendants will, as in Rule 1018.1 prevent confusion, (emphasis added).

The clear implication of this comment is that rule 1018.1 shall be followed in all causes of action, and every complaint filed by a plaintiff “shall begin with a notice to defend.” Where a notice to defend was not originally sent, the purpose of Rule 237.1 of giving repetition of the notice to defend cannot be fulfilled. To hold otherwise, that Rule 1018.1 need not be complied with in trespass actions, would be to sow the confusion the authors were seeking to prevent. Therefore we hold that every pleading sounding in trespass must contain a notice to defend in conformity with Rule 1018.1. If such notice is not included, or is not in substantial conformity, Rule 1026 applies, and no responsive pleading need be filed. We find that appellees’ pleadings did not contain a notice to defend and thus were facially defective.

Appellees state that the filing of a Rule 237.1 Notice also acted to cure the defect of omitting the Rule 1018.1 Notice, by providing notice to appellant of the imminence of a default judgment. However, Rule 237 does not act to cure an original defect in a plaintiff’s pleadings. The burden is always upon the party moving for a default judgment to insure that all pleadings are complete, Whelan v. Mack, 190 Pa.Super. 40, 151 A.2d 797 (1959). A Rule 237.1 Notice, sent by the moving party to a respondent, serves only to insure that the respondent has actual knowledge that a party is filing a praecipe for default judgment. It does not lessen the burden that the original pleading must be in compliance with the rules. Moreover, where the obligation to file an answer or enter an appearance does not otherwise exist, a Rule 237.1 Notice will not create one. Thus, although appellees complied with the Rule 237.1 formality, they did not comply with a threshold formality, the inclusion of a notice to defend in the original complaint.

Appellees further contend that appellant waived the required Notice to Defend, Rule 1018.1, by the request of an extension of time in which to file an answer. On September 8, appellant’s counsel requested an extension of time by phone. Appellant’s counsel sent a letter dated September 13, confirming what he considered to be the agreement (R. at 39a). Appellees’ attorney, in a reply letter dated September 17, stated it was his understanding that the agreement was conditioned upon appellant’s “immediate” entry of appearance and since no appearance had been immediately entered, appellees moved for default judgment on the 13th (R. at 28a).

Appellees maintain that there was no agreement to extend the time for response since the precondition of filing an entry of appearance had not been met. (Appellees’ brief at 5-6). Yet appellees also argue “a waiver is clearly the consequence of an agreement to extend the time for filing a responsive pleading” and that therefore the lack of a notice to defend “was cured by an agreement between counsel ....” (Appellees’ brief at 9-10). Appellees cannot have it both ways. Either there was an agreement and arguably a waiver, or there was no agreement. Moreover if there was an agreement, appellees violated that agreement by entering a default judgment before twenty days had passed, and may not now assert the agreement in their own defense. Either way appellees’ argument fails.

Finally, we are persuaded that omission of the notice to defend constitutes such an error that the subsequent act by appellant’s counsel seeking a time extension to protect his client’s rights does not constitute a waiver. His request was merely one of several possible acts undertaken to preserve a defense and protect a client’s rights.

Therefore we find that appellees’ original pleadings were facially and fatally defective, and appellant’s subsequent acts created no waiver of the right to contest the defect. We reverse the holding of the lower court. Because we reverse the order, we find no need to address appellant’s arguments that in the alternative we open judgment. We remand to the lower court for proceedings consistent with this opinion.

ROWLEY, J., concurring statement.

MONTEMURO, J., concurs in the Result.

ROWLEY, Judge,

concurring:

I concur in the result. See Parliament Industries, Inc. v. William H. Vaughan and Co., Inc., 501 Pa. 1, 459 A.2d 720 (1983); Middleton Township v. Fried and Gerber, Inc., 308 Pa.Super. 161, 454 A.2d 71 (1982).

It is my understanding that we are reversing only that portion of the trial court’s order that denied the appellant’s petition to strike or open the judgment on the trespass count. It is also my understanding that our order does not affect in any manner the trial court’s order insofar as it relates to the assumpsit action.

      . Rules 1041 to 1048 (Action in Trespass) were Rescinded December 16, 1983, effective July 1, 1984.

      . See, Downes v. Hodin, 377 Pa. 208, 104 A.2d 495 (1954) (20 days limit applies in trespass actions).

      . Rule 1018.1 Notice to Defend. Form
      (a) Every complaint filed by a plaintiff and every complaint filed by a defendant against an additional defendant shall begin with a notice to defend in substantially the form set forth in subdivision
      (b) . No other notice to plead to a complaint shall be required.
      NOTICE
      (b) You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you.

        YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
      (NAME)
      (ADDRESS)
      (TELEPHONE NUMBER)
      (c) Each court shall by local rule designate the officer, organization, agency or person to be named in the notice from whom legal help can be obtained.
      (d) A court may by local rule require the notice to be repeated in one or more designated languages other that English.
      This rule was amended twice, in 1975 and 1979. We look to the 1975 Explanatory Comment as being indicative of the framers’ intent. Comments are advisory only but may serve as effective aids in statutory interpretation. Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982).

      . Rule 237.1 Notice of Praecipe for Entry of Default Judgment
      (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice on intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must he taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
      (b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq. Appellees also cite Malakoff v. Zambar, 446 Pa. 503, 288 A.2d 819
      (1972), in support of their contention that notice was given appellant by other means. In Malakoff the court held that failure of the appellees' counsel to sign the notice to plead was a "de minimis” defect and no default judgment should be stricken for such error. Here we are dealing with the complete omission of the notice to defend, certainly no "de minimis” error, and thus we find Malakoff factually distinguishable.

      . Appellees’ brief states:
      “Appellant’s brief states at page 10 that Mr. Lang “requested and obtained an extension of time,” but the record does not support that statement. On the contrary, the petition to open the judgment averred (Paragraph 11, R36a) only that counsel was prepared to grant an extension under certain circumstances. Those circumstances are suggested, though not explicitly, in Mr. Lang’s confirming letter dated September 13, 1982 (R39a) and are articulated in the response dated September 17 (R40a). Other than these two letters in the record, and the conditional averment of paragraph 11 of the petition, there is nothing of record to support the factual claim that Mr. Lang "obtained an extension of time” (Emphasis added).

      . Appellees’ brief states:
      "Rule 1018.1 requiring a notice to defend, is clearly one ‘relating to the manner of commencing an action’ which may be waived under Rule 1003, and a waiver is clearly the consequence of an agreement to extend the time for filing a responsive pleading. Such agreements should be in writing (Rule 201) but are rarely placed on the record.
      Thus in this case, the lack of a Notice to Defend defining the time for pleading was cured by an agreement between counsel (see paragraph 2, Motion for Rule Absolute filed February 15, 1984 but omitted from the reproduced record) which in effect waived Rule 1018.1 and fixed the time for responsive pleading.”


author: HOFFMAN, Judge:

text:
    511 A.2d 200
    COMMONWEALTH of Pennsylvania v. Aaron THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 16, 1985.
    Filed June 11, 1986.
    Petition for Allowance of Appeal Denied Nov. 7, 1986.

      Joseph P. Grimes, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence imposed following appellant’s parole and probation violations. Appellant’s counsel contends that “[tjhere are no meritorious issues on appeal and therefore the appeal should be dismissed pursuant to” Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Brief for Appellant at 1. We direct counsel either to comply with all of this Commonwealth’s Anders requirements if he seeks leave to withdraw from this appeal or to file an advocate’s brief. In so directing counsel, we clarify the requirement that counsel seeking leave to withdraw file a so-called Anders brief, a requirement that has generated continued confusion. We also direct the Commonwealth, if appellant’s counsel petitions for leave to withdraw from this appeal, to file, consistent with this opinion, a responsive brief to counsel’s Anders brief.

In Commonwealth v. Wallace, 322 Pa. Superior Ct. 157, 469 A.2d 230 (1983), this Court granted a petition to withdraw after counsel, representing a defendant on his appeal from an order dismissing his third petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. §§ 9541-9551, proceeded as follows: she (1) petitioned this Court for leave to withdraw, stating that, after making a conscientious examination of the record and interviewing the defendant, she had determined that the appeal was frivolous; (2) filed a brief referring to anything in the record that might arguably support the appeal, but which did not resemble a no-merit letter or amicus curiae brief; and (3) furnished a copy of the brief to the defendant and advised him of his right to retain new counsel or raise any additional points that he deemed worthy of this Court’s attention. Commonwealth v. Wallace, supra, 322 Pa. Superior Ct. at 160, 469 A.2d at 231-32. The Court was then able to “make an independent judgment whether the appeal [was] in fact frivolous.” Id., 322 Pa.Superior Ct. at 160-161, 469 A.2d at 232.

Here, appellant’s counsel has failed to comply with each of these requirements. First, although counsel states that he “has thoroughly reviewed the very brief record in this matter” and has found no meritorious or “colorable” issues to raise on appeal, Brief for Appellant at 7, we do not know if counsel ever consulted appellant as part of his review of this case. Indeed, counsel has not filed a petition for leave to withdraw stating that he has found the appeal to be frivolous (an Anders brief is not a petition for leave to withdraw); he asks only that we “dismiss” appellant’s appeal. Secondly, counsel has failed to file a proper Anders brief, that is, one “referring to anything in the record that might arguably support the appeal,” but that “does not resemble a no-merit letter or amicus curiae brief.” Counsel’s brief includes only a “statement of the case.” Brief for Appellant at 6-8. Lastly, counsel has not averred that he furnished appellant with a copy of his Anders brief and withdrawal petition and explained to him that he could retain new counsel or raise on his own behalf other issues for this Court’s attention. Accordingly, we direct appellant’s counsel, within thirty (30) days of the date of this decision, either to comply fully with this Commonwealth’s Anders requirements as detailed here, or to file an advocate’s brief.

We would add these additional comments concerning the content of counsel’s Anders brief. Counsel need not find meritorious issues if he believes there are none. However, counsel must briefly set forth those issues that appellant wishes to advance as well as any other claims necessary to the effective appellate presentation of those issues. “Counsel could also include relevant case citations and references to the record in aid of the reviewing” court. Commonwealth v. McGeth, 347 Pa. Superior Ct. 333, 342, 500 A.2d 860, 868 (1985) (HOFFMAN, J., concurring) (footnote omitted); see also Commonwealth v. McClendon, 495 Pa. 467, 476, 434 A.2d 1185, 1189 (1981) (O’BRIEN, C.J., dissenting) (“Counsel should [limit] his brief to a statement of the facts with citations to the transcript and discussion of the legal issues involved in the case with citations of authority.”). In other words, counsel need not argue against appellant, as was done here, see Brief for Appellant at 8, or, for that matter, argue the issues as an advocate who is not seeking leave to withdraw. Instead, by his simply “flagging” the issues, counsel could better enable this Court to make an independent judgment whether appellant’s appeal is, in fact, frivolous. See Commonwealth v. McClendon, supra, 495 Pa. at 476, 434 A.2d at 1189 (O’BRIEN, C.J., dissenting) (“[T]he Anders Court was concerned with what counsel submitted to the court that might verify counsel’s examination of the record and aid the Court in conducting its independent evaluation of the case.”).

The confusion among practitioners and judges as to what constitutes a proper Anders brief stems from our Supreme Court’s decision in Commonwealth v. McClendon, supra. There the Court stated:

Once we are satisfied with the accuracy of counsel’s assessment of the appeal as being wholly frivolous, counsel has fully discharged his responsibility. The role of an advocate, insisted upon in Anders, refers to the manner in which the record was examined in an effort to uncover grounds to support the appeal. Where counsel has in good faith satisfied that obligation and found the appeal to be wholly frivolous, he can do no more. We reject the view that his explanation of why there is no basis for an appeal should be interpreted as reflecting counsel’s lack of concern in the client’s cause. Nor can that fact be assigned as a reason for concluding that the client did not receive this constitutionally protected right of representation.

Id., 495 Pa. at 473-74, 434 A.2d at 1188. Thus, if counsel need “do no more” after finding an appeal to be wholly frivolous, the Court suggests that no discussion of the issues on appeal is necessary.

The McClendon Court perceived a conflict between the requirements that counsel seeking leave to withdraw find that an appeal is “wholly frivolous” while filing a brief that referred to “anything in the record that might arguably support the appeal.” Id., 495 Pa. at 471-73, 434 A.2d at 1187-88. This is, of course, what Anders itself requires:

[Counsel’s] role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.

Anders v. California, 386 U.S. at 744, 87 S.Ct. at 1400 (emphasis added). Justice Clark, writing for the Court, detailed why it would require such a brief:

The requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had "not handled the case with that diligence to which an indigent defendant is entitled.
This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.

Id., 386 U.S. at 745, 87 S.Ct. at 1400. Therefore, there are two purposes to be served by counsel’s filing a brief that refers to anything in the record that might arguably support the appeal: (1) it gives the reviewing court a basis upon which to decide if the appeal is, in fact, frivolous, and (2) it gives indigent defendants “as nearly as is practicable” that which is guaranteed them under the Sixth and Fourteenth Amendments, the right to counsel (and, in the process, protects counsel from ineffectiveness allegations). If we were to accept a counsel’s conclusion that an appeal was wholly frivolous, without more, “counsel would become the ‘court’ determining the merits of a defendant’s appeal.” Commonwealth v. McGeth, supra, 347 Pa.Superior Ct. at 342 n. 6, 500 A.2d at 868 n. 6 (HOFFMAN, J., concurring). In any event, we perceive no conflict: counsel who honestly believes that an appeal is wholly frivolous need not argue as an advocate would, but need only set out the issues in brief “neutral” form in order that a reviewing court, in most instances this Court, can address the defendant’s contentions. Furthermore, by counsel’s not arguing against his or her client, a defendant will not be “ ‘sandbagged when the counsel appointed by one arm of the Government seems to be helping another to seal his doom.’ ” Commonwealth v. Jones, 451 Pa. 69, 75, 301 A.2d 811, 815 (1973) (quoting Suggs v. United States, 391 F.2d 971, 974 (D.C.Cir.1968)).

In McClendon, our Supreme Court was able to conduct fully an independent study of the record, no doubt aided by the defendant’s pro se memorandum of law, even though counsel who sought leave to withdraw there argued against his client in the Anders brief. Commonwealth v. McClendon, supra, 495 Pa. at 474, 484 A.2d at 1188. Therefore, to the extent that the Court was able to satisfy the central purpose of the Anders briefing requirement, independent review of the merits of the appeal, by means other than relying on counsel’s no-merit or amicus curiae brief, we consider the Court’s suggestion of “he can do no more” dictum. For many of the appeals to this Court in which counsel for the defendant seeks leave to withdraw, we have nothing to aid us in our independent review. In the instant case, we have no pro se brief filed by appellant, and for the reason that follows, our ability to review the merits of the appeal is hampered in yet another way.

In its brief, the Commonwealth takes the position that, “for the reasons set forth in both defense counsel’s brief and the opinion of the lower court ... [it] is of the view that [appellant’s] appeal should be dismissed as requested by counsel.” Brief for the Commonwealth at 2. We strongly disapprove of the Commonwealth’s relying on an appellant’s brief in support of its argument for the affirmance of a lower court’s judgment of sentence or order. “It is not appellate counsel’s responsibility to write a brief for the prosecution....” Commonwealth v. Oliver, 479 Pa. 147, 150, 387 A.2d 1266, 1267 (1978). Although admittedly difficult here because appellant’s counsel’s Anders brief summarily sets forth issues that could be raised on appeal, see Brief for Appellant at 8, the Commonwealth should respond to an Anders brief by arguing why the issues set forth therein are meritless. Such a responsive brief will aid this Court in determining whether an appeal is, indeed, frivolous. Accordingly, we direct the Commonwealth, within thirty (30) days of the date appellant’s counsel petitions for leave to withdraw from this appeal, to file, consistent with the above, a responsive brief to counsel’s Anders brief. If counsel files an advocate’s brief, the Commonwealth will be expected to respond as usual.

The briefs filed in this case would force this Court to play three roles, not one: for appellant, we must search a cold record for issues that could arguably support this appeal, and then, without the benefit of the Commonwealth’s advocacy, determine their merit. This we will not do.

For the foregoing reasons, then, we enter the following order: Appellant’s counsel is directed, within thirty (30) days of the date of this decision, either to comply with this Commonwealth’s Anders requirements as set forth above if he seeks leave to withdraw from this appeal, or to file an advocate’s brief. The Commonwealth, within thirty (30) days of the date appellant’s counsel files his petition for leave to withdraw or advocate’s brief, is directed to respond consistently with this opinion. Jurisdiction of this panel is relinquished. Jurisdiction of the Superior Court is retained. Case to be reassigned by the Prothonotary’s Office to another panel.

      . Counsel could make these averments by way of affidavit, certificate of service, or the petition for leave to withdraw.

      . Compare the Massachusets procedure:
      In summary, we adopt the following guidelines in order to avoid the fragmentary and circuitous steps of the procedure suggested in Anders yet still achieve the Anders goal of assuring that indigent appellants receive treatment substantially equal to that enjoyed by those able to retain private counsel. Once counsel is appointed to represent an indigent criminal defendant on appeal, no withdrawal will be permitted solely on the basis of the frivolousness or merit-lessness of the appeal. Even if counsel has doubts about the merits of the appeal, he or she must prepare and submit a brief arguing any issues that are arguable. Counsel need not espouse unsupportable contentions insisted on by the defendant, but should present them sketchily, simply designating pertinent portions of the trial transcript and citing any relevant cases. If counsel feels ethically compelled to dissociate himself or herself from contentions presented in the brief, counsel may preface the brief with a statement that is filed pursuant to Anders and to the guidelines of this case. In that event, counsel must so notify the defendant, who will have thirty days to respond should he so choose. Beyond such a preface, counsel should not inject disclaimers of personal belief in the merits of the case or otherwise argue against the defendant’s interests.

        Commonwealth v. Moffett, 383 Mass. 201, 216-17, 418 N.E.2d 585, 596 (1981) (footnotes omitted). The court reasoned that, because counsel had to file an Anders brief anyway, "he or she may as well submit it for the purposes of an ordinary appeal. Even if the appeal is frivolous, less time and energy will be spent directly reviewing the case on the merits." Id., 383 Mass. at 206, 418 N.E.2d at 590-91. Thus the court sought to balance an indigent’s right to counsel on appeal with counsel’s ethical duty not to advance knowingly meritless claims, while attempting to avoid "the fragmentary and circuitous steps” necessitated by Anders.

      . Counsel in McClendon satisfied the other withdrawal requirements, including advising the defendant that he could raise any points that he deemed worthy of consideration. Commonwealth v. McClendon, supra, 495 Pa. at 471, 434 A.2d at 1187. Counsel in the instant case did not, thus depriving appellant of an opportunity to respond on his own behalf.


author: POPOVICH, Judge: WIEAND, Judge,

text:
    511 A.2d 204
    Gail D. BOARTS and Terry J. Boarts, Administrators of the Estate of Roberta Boarts, and Gail D. Boarts and Terry J. Boarts, In Their Own Right, Appellants v. James A. McCORD, M.D., Michael J. Jochnowitz, M.D., Penn Valley Obstetrical and Gynecological Associates, Ltd. and North Penn Hospital.
    Superior Court of Pennsylvania.
    Argued March 11, 1986.
    Filed June 11, 1986.

      Mark S. Fridkin, Philadelphia, for appellants.
    Ralph L. Hose, Ardmore, for North Penn Hosp., appellee.
    M. Cathleen Driscoll, Norristown, for McCord, Jochnowitz, Penn Valley Obstetrical and Gynecological Associates, appellees.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an Order dismissing appellants’ amended complaint seeking damages arising out of the stillborn birth of appellants’ child. We affirm.

After the delivery of their stillborn child on July 27,1982, plaintiffs-appellants, Gail and Terry Boarts, instituted this action by filing on June 26, 1984, a summons against defendants-appellees, Dr. James A. McCord, Dr. Michael J. Jochnowitz, Penn Valley Obstetrical and Gynecological Associates and North Penn Hospital. On November 5, 1984, plaintiffs filed a complaint alleging negligence on the part of the defendants in the stillborn delivery of their child and seeking recovery under the Wrongful Death and Survival Acts, Acts of 1976, July 9, P.L. 586, No. 142 § 2, effective June 27,1978, 42 Pa.C.S.A. §§ 8301(a), 8302. The complaint also included a claim for loss of consortium of the child. On December 5, 1984, defendants, Dr. James A. McCord, Dr. Michael J. Jochnowitz and Penn Valley Obstetrical and Gynecological Associates, filed preliminary objections in the nature of demurrer, seeking dismissal of plaintiffs’ claims under the Wrongful Death and Survival Acts. Defendant, North Penn Hospital, filed its preliminary objections on December 7, 1984.

On December 12, 1984, in response to the preliminary objections of the defendants, the plaintiffs filed an amended complaint wherein their Wrongful Death and Survival claims were abandoned. Instead, the amended complaint contained plaintiffs’ claim for the negligent infliction of emotional distress and plaintiff-husband’s claim for the loss of consortium of his wife, in addition to the claim for loss of consortium of their child. Defendant, North Penn Hospital, filed preliminary objections in the nature of a demurrer to plaintiffs’ amended complaint on December 20, 1985, and defendants, Dr. James A. McCord, Dr. Michael J. Jochnow-itz and Penn Valley Obstetrical and Gynecological Associates, filed a demurrer on January 10, 1985. On January 25, 1985, plaintiffs filed a motion to strike defendants’ preliminary objection to plaintiff’s amended complaint.

On March 14, 1985, the lower court, by the Honorable Louis D. Stefan, denied plaintiffs’ motion to strike the defendants’ preliminary objections to plaintiffs’ amended complaint. On June 28, 1985, the lower court, by the Honorable Lawrence A. Brown, granted defendants’ preliminary objections, thereby dismissing plaintiffs’ amended complaint. This appeal followed.

Appellants-plaintiffs’ present four issues for our review: (1) whether the lower court properly exercised its discretion in denying plaintiffs’ preliminary objections in the nature of a motion to strike defendants’ preliminary objections, where defendants filed their preliminary objections to plaintiffs’ amended complaint beyond the deadline set forth in Pa.R.C.P. 1026; (2) whether plaintiffs’ amended complaint was properly dismissed as to plaintiffs' claim for negligent infliction of emotional distress; (3) whether Pennsylvania law permits recovery under the Wrongful Death Act and the Survival Statute for the death of a stillborn child; and (4) whether plaintiffs should be allowed to recover for loss of consortium of their stillborn child.

Plaintiffs allege that the lower court abused its discretion in denying plaintiffs’ preliminary objections in the nature of a motion to strike defendants’ preliminary objections, where defendants filed their preliminary objections to plaintiffs’ amended complaint beyond the deadline set forth in Pa.R. C.P. 1026. We disagree.

Pennsylvania Rule of Civil Procedure 1026 states in pertinent part:

“Every pleading subsequent to the Complaint shall be filed within twenty (20) days after service of the preceding pleading.”

In the instant case, plaintiffs’ filed an amended complaint on December 12, 1984. Plaintiffs allege that defendants were served with a copy of said amended complaint by mail within a day or two of December 12,- 1984. (Appellants’ Brief, p. 23). Defendant, North Penn Hospital, filed preliminary objections in the nature of a demurrer to plaintiffs’ amended complaint on December 20, 1984. However, defendants, Dr. James A. McCord, Dr. Michael J. Jochnowitz and Penn Valley Obstetrical and Gynecological Associates, did not file their preliminary objections until January 10, 1985. Since their filing on January 10, 1985, is beyond the alloted twenty (20) days, plaintiffs’ allege that defendants have violated Pa.R.C.P. 1026 and their preliminary objections to appellants’ amended complaint should be stricken.

In Allison v. Merris, 342 Pa.Super. 571, 572-76, 493 A.2d 738, 739-40 (1985), the court held:

Pa.R.C.P. 1026 provides that a pleading shall be filed within 20 days after service of a preceding pleading. This rule is not mandatory but permissive. We have held that late pleadings may be filed “if the opposite party is not prejudiced and justice requires. Much must be left to the discretion of the lower court.” Quoting Paulish v. Bakaitis, 442 Pa. 434, 437-41, 275 A.2d 318, 321-22 (1971); Fisher v. Hill, 368 Pa. 53, 54-58, 81 A.2d 860, 862-63 (1951).

Where possible, the rules of civil procedure, including filing rules, should be liberally construed in order to effect equitable results. Pa.R.C.P. 126, Urban v. Urban, 332 Pa.Super. 373, 378-80, 481 A.2d 662, 665 (1984).

In the case at bar, after a careful study of the record, we find that the lower court did not abuse its discretion by refusing to strike defendants’ preliminary objections. Plaintiffs had not suffered any prejudice by reason of the delay in the filing of defendants’ preliminary objections, especially since plaintiffs had already been put on notice as to the nature of the objections by defendant, North Penn Hospital’s, preliminary objections filed on December 20, 1984. In addition, justice required that plaintiffs’ amended complaint proceed to resolution on the merits; i.e., whether plaintiffs’ amended complaint stated a cause of action for which damages are compensable.

Plaintiffs further allege that their amended complaint was improperly dismissed as to plaintiffs’ claim for negligent infliction of emotional distress, in that Pennsylvania law recognizes a cause of action for negligent infliction of emotional distress resulting from the stillbirth of a viable fetus and plaintiffs’ pleadings made out a prima facie case for such a cause of action. However, defendants argue that plaintiffs’ claim for the negligent infliction of emotional distress was first pleaded beyond the two-year Statute of Limitations and plaintiffs are barred from recovery. After a careful review of the record, we agree.

The applicable Statute of Limitations covering a claim for negligent infliction of emotional distress as set forth in 42 Pa.C.S.A. § 5524 states:

The following actions and proceedings must be commenced within two years;
* * * * * *
(2) an action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

Plaintiffs’ claim for negligent infliction of emotional distress was first pleaded in plaintiffs’ amended complaint on December 12, 1984. This was more than two years after the cause of action arose on July 27, 1982, when plaintiffs’ daughter was delivered stillborn.

The general rule is that an amendment will not be permitted after the Statute of Limitations has run, if it introduces a new cause of action. Sanchez v. City of Philadelphia, 302 Pa.Super. 184, 185-87, 448 A.2d 588, 589 (1982); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 325-26, 319 A.2d 914, 918 (1974). However, if the amendment would only amplify or enlarge the existing cause of action, it will be permitted. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 241-43, 431 A.2d 237, 239 (1981).

In negligence actions, we have defined “cause of action” as “the negligent act or acts which occasioned the injury.” Saracina v. Cotoia, 417 Pa. 80, 85-87, 208 A.2d 764, 767 (1965). However, in Sanchez v. City of Philadelphia, supra, 302 Pa.Superior Ct. at 188, 448 A.2d at 590, the court held that it did not find the definition of “cause of action” in Saracina v. Cotoia, supra, 417 Pa. at 208 A.2d at 767, dispositive. Although the definition defines “cause of action” as “the negligent act or acts which occasioned the injury,” it does not refer to whom the duty was owed.

In Sanchez v. City of Philadelphia, supra, 302 Pa.Superior Ct. at 189, 448 A.2d at 590-591, while appellant is named in the original complaint, she is not named as one who has been personally injured. Her only claims were that she incurred and might continue to incur medical expenses for her daughter’s care, and that she would suffer financial injury if her daughter’s earnings to which she would be entitled during the child’s minority were impaired. The court ruled that in appellant’s original complaint she pleaded only derivative claims, while in the amendment she sought to recover “in her own right” for her own injuries which had not been mentioned in the original complaint. Therefore, the court held that appellant’s amendment was more than an amplification of an existing cause of action.

In the instant case, plaintiffs assert that there was no change in factual averments and that every material fact and assertion set forth in the amended complaint was also pleaded in the original complaint. Plaintiffs further allege that the amended complaint merely brought forth an additional element of damages for a cause of action already within the original complaint and summons. (Appellants’ Brief, p. 21).

While plaintiffs are named in the original complaint, they are not named as the persons who have been personally injured. Like the mother in Sanchez v. City of Philadelphia, supra, plaintiffs pleaded only derivative claims in their original complaint. Their claims in the original complaint were for reimbursement for medical expenses, funeral expenses and other expenses incurred in connection with their stillborn daughter’s death, for deprivation of society, companionship and consortium of their daughter, for damages for the conscious pain and suffering undergone by their daughter before death and for the economic value of their daughter’s life during the period of her left expectancy and that of her parents.

Plaintiffs’ claim for negligent infliction of emotional distress in their amended complaint is more than an amplification of an existing cause of action since now they are seeking to recover “in their own right” for their own injuries. Thus, plaintiffs are barred by the two-year Statute of Limitations from proceeding with this action on the ground of negligent infliction of emotional distress since they have actually added a new cause of action.

Moreover, after a careful review of the record, we find that, even if plaintiffs had complied with the Statute of Limitations concerning the addition of the claim-for negligent infliction of emotional distress, no cause of action for negligent infliction of emotional distress would exist. We agree with the lower court’s findings that plaintiffs’ complaint failed to show that there had been any physical manifestation of the emotional distress that plaintiffs’ allegedly suffered. The lower court stated that plaintiffs’ complaint was “devoid of any allegations that Mrs. Boarts sustained physical injury at the hands of defendants, that she feared physical injury, or that she witnessed physical injury to her child.” (Opinion, p. 4). Plaintiffs’ complaint was also devoid of any allegations that Mr. Boarts suffered any physical harm at the hands of defendants.

In Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 127-30, 437 A.2d 1236, 1239-40 (1981), the court ruled that there could be no cause of action for negligent infliction of emotional distress because the plaintiff in his complaint sought recovery for severe mental anguish and emotional stress, but did not show any physical harm. The Banyas court cited the Restatement of Torts § 436A:

§ 436A. Negligence Resulting in Emotional Disturbance Alone
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 compen-sable damage, the actor is not liable for such emotional disturbance.
Comment A to the Section explains that “Under the rule stated in this Section, the negligent actor is not liable when his conduct results in the emotional disturbance alone, without the bodily harm or other compensable damage.”

Thus, we would err in finding a cause of action without an allegation of bodily harm.

Plaintiffs also question whether Pennsylvania law permits recovery under the Wrongful Death Act and the Survival Statute for the death of a stillborn child. In Amadio v. Levin, 509 Pa. 199, 208, 501 A.2d 1085, 1089 (1985), our Supreme Court recently ruled that the estate of a child born dead has the right to institute a survival and wrongful death action for fetal injuries suffered en ventre sa mere.

In the instant case, on November 5, 1984, plaintiffs filed their original complaint pursuant to the Pennsylvania Wrongful Death Act and Survival Act. However, plaintiffs filed an amended complaint on December 12, 1984, wherein their Wrongful Death and Survival claims were abandoned. It is well established that, in order for a party to preserve a specific point for appellate review, it must first be raised in the lower court. A theory of relief, different from those raised by the party in the lower court, may not be successfully advanced for the first time on appeal. In re S.C., Allegheny County Children and Youth Services, 280 Pa. Super. 539, 544, 421 A.2d 853, 856 (1980). As plaintiffs failed to sue under the Wrongful Death and Survival Statutes, we find that appellants have waived this issue.

Moreover, plaintiffs sought to recover, in their own right, for the loss of consortium of their daughter. In addition, in plaintiffs’ amended complaint, plaintiff-husband claimed he had been deprived of the society, companionship and consortium of his wife.

Pennsylvania courts have long held that an action for loss of consortium is a derivative action. Scattaregia v. Shin Shen Wu, 343 Pa.Super. 452, 456, 495 A.2d 552, 553-54 (1985). The rational for considering the action derivative is as follows:

The consortium claim and the personal injury claim are closely interconnected; together, they represent the total, compensable damages — direct and indirect — suffered as a result of the principal plaintiffs injury. Viewed in this light, it makes little sense to hold that an injured party’s negligence would bar or limit his recovery for direct injury, but would not affect his spouse’s recovery for indirect injury.
The consortium plaintiff ... has suffered no direct injury---- [His] right to recover is derived, both in a literal and legal sense, from the injury suffered by [his] spouse.

Scattaregia v. Shin Shen Wu, Id., 495 A.2d at 553-54, quoting Maidman v. Stagg, 82 A.D. 299, 305, 441 N.Y.S.2d 711, 715 (1981).

In the instant case, plaintiffs’ claim for the loss of consortium of their daughter and plaintiff-husband’s claim that he had been deprived of the society, companionship and consortium of his wife were properly dismissed, since in this case there is no cause of action for which damages are compen-sable. The necessary demonstration of direct injury does not exist. Plaintiffs’ claim for recovery under the Wrongful Death Act and Survival Statute for the death of a stillborn child has been waived, and plaintiffs’ claim for negligent infliction of emotional distress was properly dismissed by the lower court for failure to state a pursuable cause of action.

Order affirmed.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I join the majority opinion. I do so because, as I understand its opinion, the majority does not hold, either expressly or by necessary implication, that a parent has a legally recognized claim for the loss of consortium of a child. Such a claim has not been recognized by the appellate courts of this Commonwealth.

      . At the time that plaintiffs filed their original complaint and amended complaint, Pennsylvania law did not permit recovery under the Wrongful Death Act and the Survival Statute for the death of a stillborn child.