author: TAMILIA, Judge:

text:
    555 A.2d 1294
    Patsy I. MAURER, Appellant, v. Raymond MAURER.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed Jan. 30, 1989.
    Petition for Allowance of Appeal Denied June 19, 1989.

      Bruce F. Bratton, Harrisburg, for appellant.
    Jeffrey E. Piccola, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant/mother and appellee/father are the parents of a 19 year old son, Troy, who graduated from high school in the spring of 1987. At that time, appellee was paying $75 per week for Troy’s support and $15 per week for appellant’s support. On June 24, 1987, appellee petitioned the court to terminate the support Order as to Troy, alleging he was 18 years old, had graduated from high school and enlisted in the army. The support Order was modified by the domestic relations office which reduced appellee’s support obligation to Troy to $50 per week. Both parties appealed to the domestic relations court which entered an Order on October 20, 1987 terminating Troy’s support, finding him emancipated and capable of supporting himself. That portion of the Order granting appellee/mother support in the amount of $15 per week was unappealed.

The facts are not in dispute. Troy was scheduled for induction in the United States Army in June, 1987, but developed appendicitis and was released from his commitment. Prior to June, 1987, Troy was employed at a service garage and after the army released him, he enrolled in the Automotive Techniques and Management School (ATMS) at the National Education Center. The school provides a 15-month program of vocational training in automobiles and prepares students to set up their own small businesses. The cost of the program is $15,000 and Troy and appellant were approved for $4,700 in loans and grants.

The trial court found appellee has no duty to support Troy because he is not attending a college where he will obtain a bachelor’s degree and also because Troy has the ability to support himself, as evidenced by his induction in the army and his employment at the service station. Appellant appeals from this Order claiming appellee is obligated to provide support for his son even though the school he is attending is not a four-year college.

The trial court relied on Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984), in finding “college” meant undergraduate study leading to a bachelor’s degree, therefore, Troy was not entitled to support from appellee for his training at the ATMS. In Brown, however, we were reviewing the question of whether a parent was obligated to support a child who already had an undergraduate degree and was attending law school. In our decision we stated children are entitled to support for “college” under certain circumstances and in distinguishing college from law school or any other post-graduate school, we used the definition for college which other states have propounded, namely, “college” means undergraduate study leading to a bachelor’s degree. Subsequent decisions reaffirmed this Court’s intent to limit Brown to holding a child is not entitled to support for post-graduate education.

Brown does not limit the types of post-secondary education for which a parent may be compelled to provide support. Our cases do not stand for the proposition that a parent’s obligation to provide education expenses is dependent on whether the child attends college or a commercial art school. Rather, the determination is to be made on the basis of whether the child possesses the aptitude and the desire to successfully complete the course of studies the school provides. (Citations omitted.)

Kopp v. Turley, 359 Pa.Super. 106, 108-09, 518 A.2d 588, 590 (1986).

Thus a parent may be responsible for helping a child financially through post-secondary schooling, whether it is college or vocational school, if the child has the ability and desire to successfully complete the course of studies. This is not an automatic obligation, however, as the parent from whom support is sought must have sufficient means to pay the support Order without undue hardship. Leonard v. Leonard, 353 Pa.Super. 604, 510 A.2d 827 (1986). In Leonard, we listed several factors the trial court must consider in determining a parent’s ability to pay support for a child.

It is well established in evaluating a parent’s support obligation the lower courts should consider the parent’s income (or potential earning power if there is a disparity between that figure and actual income) and the full nature and extent of the parent’s property interests and financial resources. The parent’s stock holdings, and other investments, at their market value, are among the factors the lower court should consider. Quite naturally, the court should consider a parent’s income, from whatever source; included in income should be monies received from the rental of real estate, but that “income” must reflect actual available financial resources and not the oft time fictional financial picture which develops as the result of depreciation deductions taken against rental income as permitted by the federal income tax law. Otherwise put, “cash flow” ought to be considered and not federally taxed income. The court must also consider the parent’s interest in jointly held assets, but it may not consider the entire value of joint property as the parent’s.

Id., 353 Pa.Superior Ct. at 610, 510 A.2d at 830 (citations omitted).

The trial court did not reach the issue of appellee’s ability to pay as, in addition to its erroneous reliance on Brown, supra, it found Troy has shown the ability to support himself. We cannot agree that a child should be denied support for post-secondary education because he showed enough initiative to obtain employment while in high school or prior to entering his chosen course of study; nor do we agree with appellee that he should not be ordered to contribute to the cost of Troy attending ATMS since Troy does not require further education to become employable. Under this reasoning, few children would have any claim on their parents for aid in furthering their advanced education in a time when jobs in fast food and other service areas go begging.

While it may be true further education is not “necessary” for a student who has a high school diploma, is employable and/or has worked prior to graduation, we have never held that a child should not be assisted by his parents financially to attend post-secondary school because the child could get a minimum wage job and be productive. This earning ability is a consideration as to the need of the child for parental assistance in pursuing advanced training, to the degree he can do both, but it does not eliminate parental support. A child should be encouraged to further his education and if he has the ability, aptitude and desire to attend and successfully complete a chosen program, his parents have a responsibility, within the limits of their respective incomes, to assist him.

The family structure is the major unit of our society from which flows the culture, educational energy, direction and generational progression of our scholastic attainment. We are in serious competition with the rest of the world to maintain our leadership in educating our children. Because we have the highest divorce rate in the world and a serious problem of single parent families, which mitigate against children receiving the fullest measure of care and education, we stand to fall behind. Only through an enlightened legislative and judicial policy of assuring fairness and protection to the child victimized by family breakup, can we lessen the impact on the child and society of aborted educational pursuits.

A child in an intact family is usually encouraged by his parents to achieve the highest educational pursuits possible within family resources and usually with some sacrifice on the part of the parents. In a family racked by divorce, one parent, usually the mother, continues to support those aspirations, whereas the absent parent frequently seeks to shed those responsibilities even when sufficient means are available. This places the child of divorce in a doubly disadvantaged position in that he lacks the nurturing of an intact family and the loss of expectation for fulfillment of his intellectual and scholastic potential. Neither the child nor society can afford this.

In this case, the trial court buttressed his finding that the child was not entitled to support while seeking advanced training as he was emancipated. Emancipation, within the context of the law as it applies to minors, has only limited application in this or other cases involving support of children seeking advanced education from parents who have been separated or divorced.

In a limited way, this Court recently considered in an en banc review, the concept of emancipation as it applied to a minor who had become a mother, but then desired to return to college to complete her education. There, the child, Christine, graduated from high school in 1984, attended the University of Rochester during the fall of 1984, gave birth to a child in the spring of 1985, attended Lehigh University in the fall of 1985, was employed during the winter, spring and summer of 1986, and attended Maine Institute of Art during the fall of 1986 and spring of 1987. She remained in the family home with the mother. Griffin v. Griffin,_Pa.Super__, 558 A.2d 75 filed (1989). The father argued the child was emancipated because she was twenty-one years of age and herself a mother of a child. The Court in Griffin was not inclined to find emancipation or adopt a distinction between a child who reached twenty-one and achieved motherhood from one who had not.

After careful analysis of the term and concept of emancipation, once the other requirements are met permitting a child to pursue advanced training, the criterion that is applicable in a support/educational situation is whether the child is dependent upon his parents for support or is independent of such needs. The Domestic Relations Code, 23 Pa.C.S. § 4323 Support of emancipated child, provides:

(a) Emancipated child. — A court shall not order either or both parents to pay for the support of a child if the child is emancipated.

Emancipation is a question of fact to be determined by the circumstances presented in each case. For purposes of this case and support matters generally, dependency is the criterion and is less restrictive than the standards applied for purposes of receiving public assistance. See Public Assistance Manual, 55 Pa.Code § 145.62 Definitions, Emancipated minor. In that context, minors of 16 and over, not living with the parents or under the parents’ control, or minors, married, whether or not living with the parents, are considered emancipated and, therefore, eligible for General Assistance. An unemancipated minor is eligible for Aid to Families of Dependent Children. Thus it is evident that the definition and concept as to emancipation in the context of children in need of public assistance is not relevant or applicable to those children who can be supported by their parents. In Public Welfare context, it becomes a procedural and substantive means by which public aid is distributed as a state rather than federal responsibility.

Clark’s work on Domestic Relations summarizes the law of emancipation and its various applications in English and American Common Law.

Emancipation, the legal process by which a child is released from the control and authority of his parent, was a Roman law institution____ [T]he earliest cases ... arose out of the father’s claim to the services and earnings of his son, a claim which he was normally entitled to assert at common law ... if the father had failed or refused to support the child, courts were reluctant to let the father recover the child’s earnings from an employer, since the father’s right to his child’s services was usually considered to be a correlative of the father’s duty to support the child. Somewhat later the cases began characterizing the circumstances in which the father’s claim to the child’s earnings was rejected as constituting emancipation.
[In modern times] ^mancipation as a legal term is useful, but only as a means of describing a result already reached, not as an analytical tool____ A particular disability [of minority] should no longer exist whenever the child’s circumstances have so changed that the reason for creating the disability no longer exists. This requires separate treatment for each sort of disability, ... [by] reliance upon ... the theory of partial emancipation---Courts are beginning to adopt it in decisions which expressly hold that emancipation has occurred for some purposes but not for others----
The child is given the right to be supported by his parents because he is unable to support himself and because human progress requires that there be a relatively long period of education and training for the young, during which they cannot be productive citizens. If the child’s situation is such that he no longer needs to be supported, then his right to that support should no longer exist. We normally, though not always, find that this right ends at majority, but it could end earlier. Since the issue of the right to support arises in many ways, there are situations in which a child who would be considered “emancipated” for other purposes would not be entitled to support and others in which he would be so entitled.

H.H. Clark, Jr., The Law of Domestic Relations in the United States (2nd Edition 1987), pp. 323-326.

With this frame of reference and as applied to established case law in Pennsylvania, it becomes clear that emancipation may not arise by abandonment of the child by his father, or by the mere capacity of the child to get into the service or to become self-supporting. Granted, where a child has attained majority, has no disabilities and neither desires nor has the capability of attending a course of advanced training to reasonably prepare him for self-sufficiency, continued support is not in order. However, where as here the child has sincere and reasonable intentions for acquiring additional training, the law is abundantly clear that the parents have some obligations to provide assistance to him. For this purpose, he is not emancipated and the parents’ obligation is a continuing one as outlined and delineated in the cases and discussion above. It is also true that a child may move in and out of emancipation and the mere fact he at one time qualified as an emancipated minor, does not foreclose the divestiture of emancipation when circumstances change.

For the above reasons, we hold that the trial court abused its discretion in finding that the child was emancipated and, therefore, no longer entitled to his father’s assistance while he attended ATMS. It remains, however, to be determined the needs of the child and the ability of the father to pay, without there being an undue hardship on him.

We, therefore, vacate that portion of the Order of the trial court denying child support and remand for a hearing to evaluate appellee’s support obligation for the child and for entry of an Order consistent with this Opinion.


source: Caselaw Access Project

license: Public Domain

text:
    555 A.2d 1299
    Willa E. WHITE v. J. Nevin WHITE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed Feb. 24, 1989.
    Reargument Denied April 5, 1989.

      Albert Momjian, Philadelphia, for appellant.
    Richard C. Snelbaker, Mechanicsburg, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

This is a timely appeal by defendant J. Nevin White of a Decree in divorce and Order incorporated therein providing for equitable distribution of the marital property, awarding appellee attorney’s fees and costs, and denying appellee alimony. On appeal, appellant contests the trial court’s distribution of marital property and award of attorney’s fees.

The parties were married on November 28, 1946. During the course of their marriage they had two children, both of whom are emancipated adults. The parties separated on June 2, 1970 and have not resided together since that date. Appellee Willa E. White filed a complaint in divorce on December 24, 1981, alleging grounds for divorce pursuant to 23 P.S. § 201(d) of the Divorce Code, 28 P.S. § 101 et seq. Eleven hearings were held before a master during 1985 to resolve appellee's claims for equitable distribution, alimony pendente lite, alimony and counsel fees and costs. Timely exceptions to the master’s report and recommendations were filed by both parties. After review of the exceptions, the trial court upheld the master’s finding with the exception of the valuation of appellant’s one-fourth interest in timberland located in Centre County, which the trial court concluded required an increase in the cash distributive award to appellee of $10,140 (Slip. Op., Hoffer, J., 4/6/88, p. 6). This appeal followed.

Appellee was born on March 26, 1926, making her 60 years old at the time of the master’s report and 62 years old at the time of the appeal. The family unit remained intact for the first 24 years of the marriage, with appellee working in appellant’s lumber business without remuneration for the last 14 years prior to their separation in 1970, in addition to her being a homemaker. She has a high school education with little training and is suffering from a series of serious and chronic health problems which will prohibit any future gainful employment. Appellee has remained in the marital home since separation, receiving monthly spousal support by court Order in the amount of $2,100.

Appellant was born on October 25, 1925, making him 61 years old at the time of the master’s report and 63 years old at the time of this appeal. Appellant is the sole stockholder and owner of J. Nevin White Lumber Company, Inc. (hereinafter “White Lumber”), and earns a salary of $53,000 per year, plus substantial fringe benefits. The trial court did not disturb the master’s finding that the value of the company as of the date of the divorce was $2,735,000. Appellant also has a disputed interest in a Bermuda Corporation known as White Timber, Ltd., which was established and is controlled by a trust created by appellant’s aunt in Bermuda in 1976. White Timber, Ltd., is a foreign income sales corporation or FISC, designed to defer or avoid United States income taxes for the sale of domestic lumber produced by appellant’s lumber company in the international market.

The trial court made the following distribution of marital property after largely upholding the findings of the master:

APPELLEE

Description Value or Amount

Marital home $ 110,000.00

Household goods and furnishings 3,138.00

Joint securities 25,761.16

Individually owned life insurance policy 46,334.90

Bethel Isle, Florida lot 85.000. 00

Veromer, Florida lot 52.000. 00

Individual securities 13,862.38

Cash distributive award 1,662,990.00

Total $1,999,086.44

APPELLANT

Timberland, Centre County $ 694,500.00

Timberland, Juniata County 60,000.00

Swiss francs 15,000.00

White Lumber capital stock 2,735,000.00

Joint bank account 3,728.34

Two cemetery lots 120.00

Total $3,508,348.34

In connection with the cash distributive award of $1,662,-990, the trial court directed it be paid in equal quarterly installments over a ten-year period from the date of the divorce decree with interest at a rate of seven percent per year. This would make appellant’s payments approximately $57,803 per quarter or $231,214 per year. As security for the cash award, the trial court directed appellant to have White Lumber issue a note payable to appellee for the full amount of $1,662,990 with appellant’s personal and individual guarantee on the note. Additionally, appellant is to give appellee a first mortgage lien on appellant's timberland in Centre County and Juniata County, as well as pledge 50 per cent of the capital stock of White Lumber as security for the obligation. The trial court determined that because of the large equitable distribution award appellee was not entitled to alimony, 23 P.S. § 501(a)(1), but it did award appellee $24,000 in legal fees and expenses and $2,000 in court costs.

Appellant’s first claim is that the trial court erred in determining the equitable distribution award by failing to consider that the amount of the cash distributive award to appellee will allegedly force appellant to liquidate his business and consequently cause White Lumber to incur adverse tax consequences. Appellant argues the inevitable deflation in value a liquidation sale produces, plus the brokerage costs of selling and adverse tax consequences such a sale would result in, will substantially and unjustly decrease appellant’s share of the marital assets distributed without affecting appellee’s share.

In evaluating an equitable distribution scheme, our scope of review is limited. An appellate court will not reverse an Order determining equitable distribution absent an abuse of discretion by the trial court. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987); Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986); Bold v. Bold, 358 Pa.Super. 7, 516 A.2d 741 (1986).

Appellant repeatedly argues the master and trial court “ignored” and “overlooked” the alleged forced liquidation and tax consequences involved in a cash award to appellee, and appellant argues the trial court is “silent” as to liquidation or the manner in which appellant should pay appellee the yearly payments of the cash award (appellant’s brief at 14-16, 18-20 and 23). Moreover, appellee relies on our holding in Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986), that a cash award to one spouse was not an abuse of discretion and was amply justified by the trial court’s rationale under the circumstances despite an allegation the award would force a liquidation of the paying spouse’s business holdings. Appellant argues that unlike the Morschhauser court, the present trial court failed to address the liquidation issue in its Opinion, leaving a fatal absence of any supporting rationale as to how the cash award could be paid by appellant. After review of the record, we agree.

The Pennsylvania Supreme Court recently addressed the tax consequences or liability in equitable distribution in Hovis v. Hovis, 518 Pa. 137, 141-44, 541 A.2d 1378, 1380-81 (1988), where the Court stated:

This case represents the classic quandary that confronts our trial courts regarding the issue of potential tax liability as it effects the equitable distribution of property. If a taxable event such as a sale or other transfer of property is required by the award of equitable distribution, or is certain to occur shortly thereafter, the tax liability of the parties can be reasonably ascertainable. However, where there is merely a likelihood or possibility that a taxable event will occur, the court is left to speculate as to the tax consequences.
In order to insure a “fair and just determination and settlement of property rights” we favor predictability over mere surmise in the valuation and distribution of marital property after divorce. Accordingly, we hold that potential tax liability may be considered in valuing marital assets only where a taxable event has occurred as a result of the divorce or equitable distribution of property or is certain to occur within a time frame such that the tax liability can be reasonably predicted.

(Footnote omitted.) The liquidation of White Lumber is a taxable event and with ten partial liquidations foreseeable to provide the funds for payment of the award, the calculation of tax consequences as to these liquidations, in whole or in part, can be readily predicted.

As stated before, appellee alleges this case is positively disposed of by the holding in Morschhauser, supra, while appellant would find it is distinguishable from the instant case. In Morschhauser, the trial court considered and appropriately dealt with that issue, which we recognized in rejecting the claim that liquidation of the business would be required and the husband would suffer adverse tax consequences. There, we said:

The final claim made by appellant is that the court erred in requiring an immediate payment of the entire equitable distribution award, in the amount of $127,-641.25. He contends this will force him to liquidate his business holdings or suffer adverse tax consequences.
The court directly addressed this argument and determined appellant could produce part of the sum from his annual income, (gross income was found to be approximately $155,000.00) with the remainder obtained through a bank loan or by reaching some accomodation [sic] with appellee/wife. The court did not agree with appellant’s contention that the measures he claims are necessary are actually required to meet this obligation.
The court also upheld the immediate payment because the alimony award was based on the wife having a large amount of investment capital to produce income. If the payment of the distribution amount was spread out over time, appellant would be required to pay interest, the same as if he obtains a bank loan to pay appellee.
We find no abuse of discretion by the court in reaching this determination. The rationale provided by the court is sufficient to justify the action.

Id. 357 Pa.Super. at 346, 516 A.2d at 16.

The financial structure, business enterprise, distribution award, earnings and consequences of the award in the present case are radically different from those in Morschhauser. There, it was reasonably determined liquidation was not required to affect distribution. Here, it appears unavoidable and, therefore, presents a taxable event. This Court in Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987), held the court must consider tax consequences on equitable distribution. Amendments to the Divorce Code, filed February 12, 1988, require the court to undertake such consideration. Section 401(d)(10), as amended, states the court shall consider:

The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.

(Emphasis added.) While appellee contends it may be inferred the trial court undertook this consideration, our review of the record does not support such a view or, if it was considered, the conclusions drawn from the facts were erroneous. There is nothing in the record which supports the court’s findings or proposal by appellee that appellant, whose present gross earnings are $52,000 per year, can generate an additional $240,000 a year income by harvesting and selling timber already possessed by White Timber to meet the distribution schedule. Also despite the fact that the Bermuda trust is alleged to have yearly sales of $2,000,000, again there is no evidence as to the amount of income this generates and as to how much appellant is legally able to take in income or profits, even assuming the trust was created for the purpose of putting assets and profits beyond the reach of the wife.

This appears to be a situation in which the marital property is in assets which lack liquidity of funds available for distribution. The court’s solution to value the assets, apportion them between the parties and impose the burden on appellant through harder work, loans or sell offs over ten years, to produce the wife’s share has failed to take into account this cannot be accomplished without a total or gradual liquidation or heavy loans, which are likely not to be available since the property is also liened with the wife’s security for payment. With liquidation, because of the low-cost value of the acquisition of the marital property, tax consequences will be severe and entirely borne by the husband. Partial liquidation may seriously reduce the capacity of the business to continue to function, as it would appear that for a lumber business to function, it must continually seek out new timber assets to assure continued operation, rather than liquidate those assets to bring about a large short range cash flow.

We, therefore, find that failure to consider tax consequences in this case results in a severe imbalance in equitable distribution and such a distribution must be made with tax consequences in mind, or another form of distribution devised, whether it be in kind, notes, etc.

Next, appellant argues the trial court abused its discretion in assigning a constructive interest to appellant in the trust which established the Bermuda Corporation, White Timber, Ltd. Section 401(d)(8) of the Divorce Code, 23 P.S. § 401(d)(8), provides “[t]he value of property set apart to each party” is a valid consideration in equitable distribution. In discussing the appellant’s interest in the trust in its review of the award, the trial-court gave little weight to appellee’s version of the interest held:

Defendant’s beneficial interest, while not capable of being quantified, was amply demonstrated in the record by extensive testimony concerning his numerous trips to Bermuda, some two hundred out-of-country telephone calls concerning the trust, and approximately $2,000,000 in sales to Bermuda by defendant’s company. Defendant’s obvious reluctance to be forthright about the Bermuda trust was also properly weighed by the Master in arriving at his decision.

(Slip Op. at 7.) Because of the inability to quantify the interest in a dollar amount, we find this was not an abuse of discretion. It goes without saying that we cannot permit a party to siphon off profits and assets which are part of a going concern, construed to be marital property, by passing them through a foreign trust.

Lastly, appellant claims the court abused its discretion in awarding appellee counsel fees of $24,000 plus $2,000 court costs in view of the disposition of the equitable distribution of the marital assets. In determining the propriety of an award of counsel fees an appellate court should employ an abuse of discretion standard. Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985); Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984), reversed on other grounds, 509 Pa. 282, 502 A.2d 109 (1985). The fact that appellee received support and appellant controlled the business and its assets demonstrates the parties did not litigate this action on equal footing and, as found by the master, appellant employed uncooperative and delaying tactics throughout the proceedings before him. Fee awards are meant to equalize the parties’ economic positions in conducting the divorce action. Hoover v. Hoover, 288 Pa.Super. 159, 431 A.2d 337 (1981). In Chaney v. Chaney, 343 Pa.Super. 77, 493 A.2d 1382 (1985), we found that even though one spouse received a disproportionate share of the marital property in an equitable distribution award this did not preclude an award of attorney’s fees. However, in view of the fact this case must be remanded for further hearings and determinations as to the effect of tax consequences on the distribution of the marital property, it is also appropriate to have a redetermination of counsel fees as reflecting the respective awards made to each party.

Accordingly, we affirm the determination of the value of the property subject to equitable distribution, the percentage of the marital property awarded to each part and the creation of a constructive interest in the Bermuda trust in the wife, but vacate the Order of distribution and the Order as to counsel fees and court costs and remand for a determination by the trial court of the effect of tax consequences in a final award of distribution.

Jurisdiction relinquished.


author: KELLY, Judge:

text:
    555 A.2d 1304
    Janice A. NEFF, Individually and as Executrix of the Estate of William L. Neff, Appellant, v. William LASSO, Jr. and G. Thomas Pasquariello, T/A Pasquariello’s Auto Shop Appellees.
    Superior Court of Pennsylvania.
    Argued June 28, 1988.
    Filed March 13, 1989.

      James T. Huber, Allentown, for appellant.
    James D. Rawlings, II, Bethlehem, for Lasso, appellee.
    William P. Exaros, Bethlehem, for Pasquariello, appellee.
    Before TAMILIA, KELLY and HESTER, JJ.
   KELLY, Judge:

The sole issue on appeal is whether a wife may recover against a tortfeasor for serious emotional distress caused by shock and fear for her husband who was fatally injured in an automobile accident, where the wife visually observed her husband’s vehicle being followed by defendant’s speeding vehicle, heard the impact between her husband’s pickup and defendant’s automobile and arrived on the scene immediately thereafter to find her husband lying unconscious. For the reasons which follow, we find that appellant has alleged sufficient facts to state a cause of action. Accordingly, we reverse the order of the trial court sustaining defendant’s preliminary objections in the nature of a demurrer, reinstate appellant’s cause of action, and remand for proceedings consistent with this opinion.

Appellant, Janice E. Neff, appeals from the order granting the preliminary objections in the nature of a demurrer made by appellees, William Lasso, Jr. and G. Thomas Pasquariello, t/a Pasquariello’s Auto Shop, dismissing appellant’s claim for negligent infliction of emotional distress.

I. STANDARD OF REVIEW

Our standard of review of an order granting preliminary objections in the nature of a demurrer was set forth in Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231 (1983) as follows:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true [for the purpose of this review.] The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

502 Pa. at 244, 465 A.2d at 1232-33 (citations omitted); see also Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983). In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court nor are we bound by its conclusions of law. See Drug House Inc. v. Keystone Bank, 272 Pa.Super. 130, 132, 414 A.2d 704, 705 (1979). Moreover, the novelty of a claim or theory, alone, does not compel affirmance of a demurrer. See Sinn v. Burd, 486 Pa. 146, 150, 404 A.2d 672, 674 (1979); Papieves v. Lawrence, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970); Woodward v. Dietrich, 378 Pa.Super. 111, 548 A.2d 301 (1988).

In light of our standard of review, the following is a summary of the relevant factual history of this case as stated in appellant’s complaint. At approximately 3:55 p.m. on May 17,1986, the decedent, William L. Neff, was driving his Chevrolet pickup truck on Allen Drive directly in front of his home. Appellee, William Lasso, Jr., traveling at an excessive rate of speed, followed decedent down Allen Drive. As decedent was attempting to make a left-hand turn into his driveway, appellee attempted to pass him on the left-hand side in a no passing zone. In doing so, appellee struck the rear left portion of decedent’s pickup fatally injuring the decedent.

At the time of these events, appellant, Janice A. Neff, was standing in her home looking out her kitchen window. Appellant observed her husband arriving home and observed appellee following directly behind him at an excessive rate of speed. Appellant heard an impact between two vehicles. Appellant arrived at the accident scene immediately thereafter and found her husband lying unconscious on their front lawn. As a result, appellant suffered severe emotional distress.

Appellant, in her capacity as executrix of her husband’s estate, filed a wrongful death and survival action. She also filed a separate claim on her own behalf for negligent infliction of emotional distress based upon the injuries she incurred as a result of appellee’s negligence. Appellees, William Lasso and G. Thomas Pasquariello, filed preliminary objections in the nature of a demurrer in which they argued that appellant had failed to allege a cause of action for negligent infliction of emotional distress where she did not visually observe the accident. In her response, appellant asserted that seeing the impact was unnecessary and that she need only have had a contemporaneous sensory perception of the accident. The Honorable Richard D. Grifo concluded that “contemporaneous observance” of the accident as required by our Supreme Court’s decision in Sinn v. Burd, supra, implied sight only and not hearing, and therefore he sustained the preliminary objections and dismissed Mrs. Neffs separate claim for negligent infliction of emotional distress. This timely appeal followed.

II. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Initially, we find it appropriate to briefly review the development of the cause of action for negligent infliction of emotional distress. In doing so, we will consider the development of the cause of action generally and then its development in Pennsylvania particularly.

A. EVOLUTION OF THE TORT OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: GENERALLY

Originally, courts allowed plaintiffs to maintain a cause of action for emotional distress only if certain limiting and qualifying factors were present. Early cases denied plaintiffs recovery unless the plaintiff had suffered a contemporaneous physical injury or impact accompanied by mental distress. A majority of courts gradually departed from the impact rule and adopted a rule allowing recovery for psychic injury where the plaintiff was in the physical zone of danger and was in fear for his own safety. This was known as the “zone of danger” rule. See W.P. Keeton, Prosser & Keeton on Torts (5th Ed.1984) at 363; Note, The Next Best Thing to Being There?: Foreseeability of Mediar-Assisted Bystanders, 17 S.W.U.L.Rev. 65 (1987); Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U.Fla.L.R. 333 (1984); Note, Administering the Tort of Negligent Infliction of Emotional Distress, 4 Cardozo L.Rev. 487 (1983); Note, Negligent Infliction of Emotional Distress: Keeping Dillon in Bounds, 37 Wash. & Lee L.Rev. 1235 (1980); Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L.J. 1237 (1971).

In 1968, the California Supreme Court rendered the landmark decision of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), which lowered the bystander barrier by permitting a mother, who was not within the zone of danger, to recover for psychic injury caused by witnessing her daughter’s negligently caused death. The court adopted the position that liability for the negligent infliction of emotional distress would depend upon whether such injuries were foreseeable to the defendant at the time of the accident. The Dillon court set forth three factors — plaintiff’s proximity to the decedent, the directness of her observance of the accident, and the closeness of her relationship to the accident victim — as guidelines for future courts to determine whether psychic injury was reasonably foreseeable. The California Supreme Court emphasized, however, that the reasonableness of imposing liability was ultimately a factual determination which is made on a case by case basis. 69 Cal.Rptr. at 80, 441 P.2d at 920. Thus, the factors were not to be applied formalistically to bar arguably valid claims. See Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1 (1985). A majority of courts now recognize a cause of action based upon Dillon’s three prong test, though some variety exists between courts recognizing the Dillon test with regard to the precise parameters of the cause of action. See Witnessing Injury—Damages—Mental Anguish, 5 A.L.R. 4th 833 (1981 & 1988 Supp.); see also Note, The Next Best Thing to Being There?: Foreseeability of Media—Assisted Bystanders, supra.

B. EVOLUTION IN PENNSYLVANIA

In Pennsylvania, the tort of negligent infliction of emotional distress has followed a similar course of evolution. For decades, our Supreme Court uniformly applied the “impact rule,” which barred recovery for fright, nervous shock or mental or emotional distress unless it was accompanied by a physical injury or impact upon the complaining party. Kazatsky v. King David Memorial Park, 515 Pa. 183, 191-92, 527 A.2d 988, 992 (1987) (collecting cases). However, in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), our Supreme Court abandoned the requirement of physical impact as a precondition to recovery where the plaintiff was in personal danger of physical impact from the negligent force and actually feared for his own safety.

Finally, in Sinn v. Burd, supra, our Supreme Court was presented with the question of whether to permit recovery for emotional distress by a plaintiff who, while outside the zone of danger, actually witnessed the accident causing serious injury to a close relative. In Sinn,- the deceased child and her sister were standing by the family's mailbox located alongside the roadway. An automobile operated by the defendant struck the child and hurled her through the air, causing injuries which resulted in her death. The plaintiff-mother witnessed the accident from a position near the front door of her home. Our Supreme Court abandoned the zone of danger requirement, and permitted recovery for emotional distress by the plaintiff-mother who, while outside the zone of danger, actually witnessed the accident causing serious injury to her daughter.

In abandoning the “zone of danger” rule, the Court found that the Niederman test was unduly restrictive and prevented recovery in instances where there was no sound policy basis supporting such a result. The Court reasoned that the emotional impact upon a parent who witnesses the death of a child was “as great and as legitimate” as the apprehension of fear of impact under the zone of danger. 404 A.2d at 677. The Court explained:

Applications of the zone of danger test to situations where the death or serious injury of a child is witnessed by a parent creates the very evil that the test was designed to eliminate, i.e., arbitrariness. It would bar recovery depending upon the position of the plaintiff at the time of the event, and ignores that the emotional impact was most probably influenced by the event witnessed — serious injury to or death of the child — rather than the plaintiffs awareness of personal exposure to danger.

404 A.2d at 678 (footnote omitted).

The Court adopted the Dillon parameters for determining whether the infliction of emotional distress was reasonably foreseeable. Thus, a cause of action for negligent infliction of emotional distress exists in Pennsylvania when the following criteria are met:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it;
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence;
(3) Whether plaintiff and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship.

Id. 404 A.2d at 685, quoting Dillon v. Legg, supra, 68 Cal.2d at 740-41, 69 Cal.Rptr. at 80, 441 P.2d at 920. Applying the Dillon foreseeability requirements in Sinn, our Supreme Court found that the contemporaneous observance of the accident was the proximate cause of the plaintiff-mother’s emotional injuries and therefore a cause of action should be recognized despite the fact that the plaintiff-mother was not within the zone of danger.

In the instant case, there is no question that appellant’s pleading adequately satisfied requirements one and three. The question here is whether appellant has pled facts sufficient to meet the requirement that appellant’s shock resulted from a “direct emotional impact from a sensory and contemporaneous observance of the accident.” Specifically, we must determine whether visual awareness of the setting, simultaneous auditory perception of the impact, and immediate visual observation of the results of the impact seconds later is sufficient to constitute a “sensory and contemporaneous observance” within the meaning of those terms as used in Sinn.

III. SENSORY AND CONTEMPORANEOUS OBSERVANCE

Appellant argues that to require a visual observance of the moment of impact unrealistically elevates sight above the other senses and misperceives the distinction drawn in Sinn and its progeny. Appellant maintains that the cases which have considered the parameters of the “sensory and contemporaneous observation” requirement have not drawn the line between sight and hearing but have focused on whether the emotional blow was direct and immediate rather than distant and indirect. Thus, appellant asserts, for a cause of action to exist, the prospective plaintiff must be a percipient witness to the traumatic event. For the reasons which follow, we agree.

A. PENNSYLVANIA SUPREME COURT DECISIONS

Following its decision in Sinn, our Supreme Court has been called upon three times to consider the parameters for pleading a cause of action for negligent infliction of emotional distress; specifically the contemporaneous observance requirement. Brooks v. Decker, 512 Pa. 365, 516 A.2d 1380 (1986); Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986); and Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981). In each case, the Court concluded that the plaintiff had failed to allege that his shock resulted from a “sensory and contemporaneous observance” of the accident.

In Yandrich, the Court denied recovery to a plaintiff-father who did not witness the accident and who did not arrive at the accident scene until after his son had been taken to the hospital. The father’s emotional injuries resulted from seeing his son at the hospital and remaining there with him until he died five days later. Our Supreme Court sustained the grant of demurrer in an Opinion in Support of Affirmance. The Court held that the father’s pleadings had not satisfied the Sinn criteria and, therefore, his emotional distress was not foreseeable as a matter of law. 433 A.2d at 461 (Wilkinson, J.). In a separate Opinion in Support of Affirmance, Justice Nix (now Chief Justice), in addressing the question of whether the policies underlying its decision in Sinn would support the extension of liability when the plaintiff had been notified of the accident, gave the following explanation for the denial of recovery:

Where a parent or close blood relative actually witnesses a traumatic serious injury to a loved one, we expressed in Sinn that the emotional impact reverberating from that event was at least as potent as that which flowed from the personal exposure to danger under the zone of danger theory articulated in Niederman.
In Sinn we also recognized the traditional view that solatium was not compensable. In Sinn we noted that damages were not to be awarded to allay the grief resulting from the loss, but rather to compensate for the shock of actually witnessing the event.

433 A.2d at 462-63 (Nix, J.) (footnote omitted). Recovery was denied because the plaintiff had been informed of the event by a third person and thus had not suffered an emotional injury resulting from a direct and contemporaneous sensory experience of the event itself.

In Mazzagatti, the Court considered whether a cause of action exists where a close relative does not observe the accident itself, but instead arrives at the scene of the accident and observes the victim a few minutes afterwards. The Court declined to extend liability reasoning that any other interpretation of the Sinn foreseeability test would ignore several basic principles of tort liability. “These principles, which require that the defendant’s breach of a duty of care proximately cause the plaintiff’s injury, have established the jurisprudential concept that at some point along the causal chain, the passage of time and the span of distance mandate the cut-off point for liability.” 516 A.2d at 676. (Citations omitted).

The Court in Mazzagatti determined that the critical element for establishing such liability was the contemporaneous observance of the injury to the close relative. Our Supreme Court explained that:

We believe that where the close relative is not present at the scene of the accident, but instead learns of the accident from a third party, the close relative’s prior knowledge of the injury to the victim serves as a buffer against the full impact of observing the accident scene. By contrast, the relative who contemporaneously observes the tortious conduct has no time span in which to brace his or her emotional system. The negligent tortfeasor inflicts upon this bystander a injury separate and apart from the injury to the victim. See Sinn v. Burd, supra, 486 Pa. at 158-62, 404 A.2d at 678-80 ... Where, as here, the plaintiff has no contemporaneous sensory perception of the injury, the emotional distress results more from the particular emotional makeup of the plaintiff rather than from the nature of defendant’s actions.

516 A.2d at 679. (Emphasis added). Based upon the above reasoning, the Court in Mazzagatti held that a plaintiff who does not experience a contemporaneous observance of the injury to a close relative does not state a cause of action for the negligent infliction of emotional distress under the parameters enunciated in Sinn v. Burd, supra.

Similarly, in Brooks v. Decker, supra, our Supreme Court denied recovery to a plaintiff-father who did not witness the accident. In Brooks, as the plaintiff drove towards his home an ambulance passed him and turned onto his street. The ambulance stopped shortly thereafter where a crowd of people had gathered. Plaintiff, who followed the ambulance, noticed a bicycle that belonged to his son on the ground. As plaintiff exited his vehicle to investigate, he discovered his son had been the victim of an automobile accident. Relying upon its reasoning in Mazzagatti, our Supreme Court held in Brooks that a father who alleged that he sustained an actual injury upon seeing the broken body of his son who had been struck by an automobile while riding a bicycle, but who failed to allege that he witnessed the accident or his son’s injuries, failed to state a cause of action for negligent infliction of emotional distress. 516 A.2d at 1383.

A comparision of the facts alleged in the instant case with the facts as alleged in Sinn, Yandrich, Mazzagatti, and Brooks, discloses that we are dealing with a case that falls between the facts in Sinn, which involved the actual visual observance of the moment of impact and those in Yandrich, Mazzagatti, and Brooks, which involved no comtemporaneous observance of the impact, visual or otherwise. Although appellant did not visually witness the impact, she experienced a contemporaneous sensory awareness of the accident and its personal import based upon her visual and aural observations before, during, and after the moment of impact. Thus, we must determine whether our Supreme Court in abandoning the “zone of danger” rule intended to limit relief for negligent infliction of emotional distress to those plaintiffs who visually witnessed the impact.

Our reading of Sinn, Yandrich, Mazzagatti, and Brooks leads us to conclude that our Supreme Court, in considering the parameters of the “sensory and contemporaneous observance” requirement, focused upon whether the emotional shock was immediate and direct rather than distant and indirect, and not upon the sense employed in perceiving the accident. We concede however, these decisions are inconclusive for purposes of deciding the narrow question before us. Consequently, we look to persuasive authority of nonbinding precedent from this and other jurisdictions to determine whether actual visual observance ought to be deemed necessary to satisfy the “sensory and contemporaneous observance” requirement.

B. PENNSYLVANIA PERSUASIVE AUTHORITY

Our research discloses no Pennsylvania appellate court cases addressing the narrow question of whether visual perception of the impact is necessary to satisfy the Sinn requirement that the “shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident.” Our research has, however, disclosed two Pennsylvania trial court decisions which allowed the plaintiffs to recover for emotional injury where the plaintiffs heard the impact and immediately thereafter visually observed the injured relative. Kratzer v. Unger, 17 Pa. D & C 3d 771 (1981); Anfuso v. Smith, 15 Pa. D & C 3d 389 (1980).

In Kratzer, the plaintiff-foster mother heard a loud thump and turned to see that her foster son had been struck by the defendant’s automobile and was lying unconscious in the road. Relying on Sinn, the defendant argued that the plaintiff had failed to state a cause of action where the perception of the accident’s happening was auditory rather than visual. The trial court disagreed and found that a cause of action for negligent infliction of emotional distress existed. The trial court reasoned that:

Clearly our Supreme Court focused upon the first-hand observation by plaintiff of her son’s fatal accident in Sinn v. Burd. However, we cannot believe that the court intended thereby to limit recovery to those situations where the shocking event might manifest itself through the eyesight of the witness, to the exclusion of other types of sensory observation. The important element is the immediate and direct awareness of what has occurred, and the appellate court’s concern was to limit recovery to persons ‘on the scene’ when such a tragedy happens, as opposed to those who might learn of it from someone else who had been present. There is no rational reason to believe that what an eyewitness sees will be any more or less shocking than what an ‘earwitness’ hears.

17 Pa. D & C 3d at 773. (Emphasis added).

In Anfuso, the plaintiff-mother observed her daughter shortly before the child was struck by an automobile, heard the impact, and witnessed the accident scene immediately thereafter. The trial court rejected the contention that visual perception of the impact was the only sensory observance sufficient to give rise to a cause of action and concluded that the facts as pleaded established that the plaintiff-mother was a “percipient witness” to the impact. Finding no basis in logic or fairness for rejecting the claim, the trial court concluded that the “sensory and contemporaneous observance” requirement was satisfied by the pleading that the plaintiff-mother saw her child immediately prior to impact, heard the squeal of tires and the impact with the child, and witnessed the accident scene immediately after-wards.

In addition to the above trial court decisions, we note that the District Court for the Eastern District of Pennsylvania addressed this precise question in Bliss v. Allentown Public Library, 497 F.Supp. 487 (E.D.Pa.1980). Applying its construction of Pennsylvania’s law, the Eastern District Court held that a complaint alleging that the mother heard a metal sculpture fall upon her child and turned to see her child lying on the floor with a statute positioned across the child’s arm stated a cause of action for negligent infliction of emotional harm, even though the mother was not looking at the child at the exact moment of impact. The court reasoned that to deny the mother’s claim because of the position of her eyes at the split second that the accident occurred would ignore the reality that the entire incident produced the emotional injury for which she sought redress. The court concluded that requiring a direct visual perception would defeat the policy underlying Sinn. The court held that the mother had identified herself sufficiently as a “percipient witness” to state a cause of action for negligent infliction of emotional harm. 497 F.Supp. at 489.

C. OTHER JURISDICTIONS

This particular question has also been addressed by the appellate courts of California, Florida, New Hampshire and Texas. Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022 (1977); Champion v. Gray, 478 So.2d 17 (Fla.1985); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Bedgood v. Madalin, 589 S.W.2d 797 (Tex.Civ.App.1979). A review of these cases reveals that the requirement of actual observance of the event has been construed since Dillon to include sensory perception of the accident generally and not strict visual observance of the event. Versland v. Caron Transport, 206 Mont. 313, 317, 671 P.2d 583, 586 (1983). See also Prosser & Keeton, at 366 n. 74 (1984 & 1988 Supp.).

In Krouse v. Graham, supra, the plaintiff was seated in the driver’s seat of a parked car. His wife was removing groceries from the back seat when the defendant driver smashed into the car, killing plaintiff’s wife. In response to plaintiff’s claim for emotional injury under Dillon, the court specifically held that direct impact from a sensory and contemporaneous observance did not require visual perception of the impact causing the injury. 137 Cal.Rptr. at 872, 562 P.2d at 1031. The court concluded that the plaintiff must have perceived that his wife was struck because “he knew her position an instant before the impact, observed the defendant’s vehicle approach ... and realized that defendant’s car must have struck her.” 137 Cal.Rptr. at 872, 562 P.2d at 1031. Thus, he was deemed a percipient witness and recovery for negligent infliction of emotional distress was granted. Compare Parsons v. Superior Court, 81 Cal.App.3d 506, 146 Cal.Rptr. 495 (1978) (recovery denied because plaintiff neither “saw, heard, or otherwise sensorily perceived the injury-producing event”).

In Champion v. Gray, supra, the Florida Supreme Court adopted the Dillon foreseeability requirements and allowed the mother to recover after she heard the accident, came immediately to the accident scene, and, upon seeing the body of her daughter who had been hit by a drunk driver, suffered such severe emotional distress and shock that she collapsed and died. In reaching its conclusion, the court reasoned that the price of death or significant discernible physical injury, when caused by psychological trauma resulting from negligent injury imposed upon a close family member within the sensory perception of the physically injured person, is too great a harm to require direct physical contact before a cause of action exists. The injury is foreseeable where the physically injured party is directly involved in this event which caused the original injury. Therefore, if the plaintiff “sees it, hears it, or arrives upon the scene while the injured party is still there, the person is likely involved.” 478 So.2d at 20. We note that the last contingency is concededly beyond the scope of recovery which our Supreme Court is willing to recognize.

In Corso v. Merrill, supra, the New Hampshire Supreme Court adopted the Dillon foreseeability requirements and allowed the plaintiff-mother to recover after she heard a thud, looked outside and saw her daughter lying in the street. The court stated that in order to prove the injury was foreseeable the emotional injury must be directly attributable to the emotional impact of the plaintiffs observations or contemporaneous sensory perception of the accident and immediate viewing of the accident. 406 A.2d at 306. (Emphasis added). To ensure against unreasonable and unlimited liability the New Hampshire Supreme Court indicated that they would require a relatively close connection in both time and geography between the negligent act and the resulting injury. The court reasoned that, such requirements were consistent with general principles of liability based upon reasonable foreseeability. The court concluded that Mrs. Corso’s auditory perceptions from inside the house followed by her immediate observance of the accident scene met the test of reasonable foreseeability and stated a cause of action for negligent infliction of emotional distress. Accord Oberreuter v. Orion Industries, Inc., 342 N.W.2d 492 (Iowa 1984) (recovery for negligent infliction of emotional distress is intended to compensate the plaintiff for emotional trauma caused by plaintiffs “visceral participation” in the event).

In Bedgood v. Madalin, supra, a cause of action for negligent infliction of emotional distress was held to exist where the father who was located 100 feet from the place where his eleven year old son was struck by an automobile, heard the impact, heard a loud scream by his son, reached the scene within less than one minute after impact, and found the boy apparently unconscious and bleeding profusely from a torn artery. The court concluded that the circumstances were sufficient to permit a finding that tortfeasors could have reasonably foreseen that their negligence would cause mental anguish. Cf. Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App.1978) (allowing minor plaintiff to recover for injuries sustained by her as a result of shock and trauma in witnessing efforts to revive her infant sister after she was removed from a swimming pool was appropriate where plaintiff was located near the scene of the accident, the shock resulted from a direct emotional impact on plaintiff from a contemporaneous perception of the accident).

Finally, it appears that English courts also recognize a cause of action for negligent infliction of emotional distress where there’s an immediate sensory observance without actual visual observance of the impact. For example, in Hambrook v. Stokes Brothers, Ltd., 41 The Times L.R. 125, 1 K.B. 141 (1925), a mother was allowed to recover for emotional injuries she sustained not by reason of what she saw or what she was told by any bystander but on the assumption that the shock was caused by her own sight of the lorry, running uncontrolled down the hill, and knowing her children were in the lorry’s path. Hale, The Lot of Negligent Frightener, 22 B.U.L.L.Rev. 508, 512 (1942).

Our analysis of the foregoing persuasive authorities convinces us that the “sensory and contemporaneous observance” requirement should not be limited to visual observance. Well reasoned opinions in this and other jurisdictions persuade us that the logical and practical focus of the second prong of the Dillon test should be whether the observance was direct and immediate as opposed to indirect and removed and not upon the particular sensory vehicle which gave rise to the awareness of the event and its personal import. It is the immediate sensory awareness and not the source (i.e. visual, tactile, aural, gustatory or olfactory), of the awareness which must control.

IV. APPLICATION

With these principles in mind, we now consider the question of whether appellant’s “shock resulted from a direct emotional impact upon her from a sensory and contemporaneous observance of the accident,” keeping in mind that our focus is on the degree of appellant’s awareness of the negligent act rather than the source of her awareness. A review of the record discloses that appellant has pled that she was standing in her kitchen looking out towards the street. She observed her husband’s pickup traveling down the street followed by Mr. Lasso, who was operating his automobile at an excessive rate of speed. Although she no longer could see the two vehicles, appellant heard a collision and immediately realized her husband’s pickup was involved in the collision. She arrived on the scene immediately thereafter to find her husband lying unconscious on their front lawn. As a result, she suffered a severe and emotional shock for which she now seeks recovery. We find that appellant has pled sufficient facts to state a claim that she was a percipient witness and her injuries were foreseeable under the circumstances.

It may be true that unlike visual observance, aural awareness may rarely, standing alone, give rise to a sufficient awareness of the nature and import of the event to cause severe emotional injury. However, aural perception (hearing the impact) when considered together with prior and subsequent visual observance (seeing Mr. Lasso’s car speeding behind her husband’s pickup and seeing her husband lying unconscious immediately after the impact), may produce a full, direct, and immediate awareness of the nature and import of the negligent conduct which may foreseeably result in emotional injury, and which is not buffered by the intervention of a third party or the effects of the removal of the awareness temporally or geographically from the impact and its consequences. To deny appellant’s claim solely because she did not see the precise moment of the impact would ignore the plain reality that the entire incident produced the emotional injury for which the plaintiff seeks redress, and would be contrary to the very policy and purpose of the Court in Sinn when it abandoned the “zone of danger” rule, i.e. eliminating arbitrariness. Therefore, we conclude that “sensory and contemporaneous observance” is not limited to visual sensory perception but properly includes an aural sensory awareness as well. Succinctly, it is not the source of the awareness, rather, it is the degree of the awareness arising from all of the individual’s senses and memory which must be determinative of whether the plaintiff’s emotional shock resulted from a “sensory and contemporaneous observance” of the accident.

CONCLUSION

Having found that appellee has alleged a claim for negligent infliction of emotional distress, we reverse the order of the trial court, reinstate appellant’s claim and remand for trial. Jurisdiction relinquished.

      . A review of the record does not reveal the reason why appellant did not visually witness the accident. We do not know whether something obstructed her view or whether appellant turned her eyes away immediately prior to impact.

        . Appellant’s appeal from the order granting appellees’ preliminary objections is proper because the effect of the order is to preclude appellant from pursuing the merits of a separate and distinct cause of action. Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600 (1988); Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987).

      . Percipient is defined as: "capable of or characterized by perception." Perception is defined as: “1. obs: consciousness; 2. a: a result of perceiving: OBSERVATION; b: a mental image: CONCEPT: 3. a: awareness of the elements of environment through physical sensation < color 5-; b: physical sensation interpreted in the light of experience; 4. a: a quick, acute, and intuitive cognition: APPRECIATION: b: a capacity of comprehension.” Webster's Ninth New Collegiate Dictionary (1986) at 872.

      . Yandrich v. Radic, supra, affirmed a Superior Court order by an equally divided Supreme Court. Justice Wilkinson filed an Opinion in Support of Affirmance in which Justice Roberts joined. Justice Nix (now Chief Justice) also filed an Opinion in Support of Affirmance. Justice Flaherty filed an Opinion in Support of Reversal joined by Justice Larsen and Justice Kauffman.

      . At the time of the accident, Mrs. Mazzagatti was at work, approximately one mile away. She received a telephone call immediately after the collision informing her that her daughter had been involved in an automobile accident. Mrs. Mazzagatti arrived at the scene of the accident a few minutes afterwards.

      . The California Supreme Court confirmed the propriety of the expression in Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969), that the Dillon requirements of sensory and contemporaneous observance of the accident does not require visual observance.

      . The New Hampshire Supreme Court also concluded that plaintiff-father stated a cause of action where he heard his wife scream immediately after the accident that their daughter was run over, and that he immediately went to the aid of his daughter.