author: MANNING, J.,

text:
    Commonwealth v. Ludwig

      C.P. of Allegheny County,
    no. CC 200114991.

      Stephi-Anna Kapourales, assistant district attorney, for Commonwealth.

      Patrick J. Thomassey, for defendant.
    March 12, 2002
   MANNING, J.,

This matter comes before the court on a petition for writ of habeas corpus filed on behalf of the defendant, Gregory Ludwig. The district attorney of Allegheny County has charged Mr. Ludwig with one count of drug delivery resulting in death, 18 Pa.C.S. §2506 and one count of delivery of controlled substance, 35 P.S. 780-113(a)(32). The complaint alleges that on May 19, 2001 the defendant:

“Committed murder in the third degree when he delivered, sold and distributed a controlled substance (namely methlynenedioxymethamphetamine (Ecstasy)) in violation of section 13(a)(30) of the Act of April 14, 1972 (PL. 233, no. 64) known as the Controlled Substance, Drug, Device and Cosmetic Act and Brandy French W/F/16 died as a result of using the substance.”

The charges were filed following an open inquest held by the coroner of Allegheny County, the Honorable Cyril H. Wecht M.D., J.D., on August 23 and September 5, 2001. That inquest resulted in a recommendation by the hearing officer who presided at that hearing, John L. Doherty, Esquire, and Dr. Wecht that the defendant be charged with violating title 18, section 2506 and with third-degree murder. The coroner also recommended that Michelle Maranuk be charged with the same offenses. The district attorney, however, elected to charge the defendant only. Maranuk was not charged with any offenses.

A preliminary hearing was held before District Justice James E. Russo on October 19, 2001. Magistrate Russo concluded that the Commonwealth had established a prima facie case as to both offenses and ordered the defendant held for court. This petition was filed on the defendant’s behalf on November 7, 2001, and set for hearing on November 16, 2001. On November 16 the court continued the matter to allow a witness called by the Commonwealth, Paula Wilson, the opportunity to consult with court appointed counsel when it became apparent that her testimony might be self-incriminating.

When the hearing reconvened on December 10, 2001, the Commonwealth presented an application for immunity order for the witness Wilson. The application was granted. After incorporating the testimony from both the coroner’s inquest and the preliminary hearing, the Commonwealth presented testimony from Wilson. The court then took the matter under advisement.

In his petition, the defendant seeks relief on two grounds. First, he claims that the evidence is insufficient to establish a prima facie case because the Commonwealth failed to establish “malice,” which defendant contends is an element of this offense. Second, he claims that title 18, section 2506 violates the due process clauses of the Fourteenth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution because the section is too vague. Before turning to these claims, it is first necessary to review the evidence. In doing so, because one of the claims involves a pre-trial challenge to the sufficiency of the evidence, the court must view the evidence in a light favorable to the Commonwealth and give the Commonwealth the benefit of all reasonable inferences that arise from the evidence.

Brandy French, a 15-year-old sophomore at Quaker Valley High School, died on May 20, 2001. Dr Shaun Ladham, a forensic pathologist with the coroner’s office, testified that French’s death, “was a direct result of the methylenedioxymethamphetamine overdose, which led to irreversible brain damage, or hypoxic encepha-lophathy, which was manifested by the cerebral edema, plus clinical signs of lack of brain function.” (Transcript of coroner’s inquest, p. 43.) French took the drug while attending a concert, known as the X-fest, at the Post-Gazette Pavilion in Burgettstown, Pennsylvania. Within hours after ingesting it, she began to vomit, exhibit signs of confusion and slip gradually into unconsciousness.

The group that attended the concert with French took her from the concert to the home of Lewis Hopkins. Hopkins’ mother, Rosalind Hopkins, was home when French was carried into the home and placed in a bed in an upstairs bedroom at around 9:45 p.m. French’s condition continued to deteriorate, through the late evening. At one point, she stopped breathing and was resuscitated by Paula Wilson. When several of the teenagers suggested to Mrs. Hopkins that they should call 9-1-1, she refused to summon the medical help that was clearly needed by French. According to several of the teenagers that were caring for French in the Hopkins home, Mrs. Hopkins repeatedly rebuffed their requests that the police or an ambulance be summoned, callously commenting that she did not want “her reputation harmed” by having the police come to her home. Eventually, however, showing the sense and concern that escaped Mrs. Hopkins, the teenagers decided to drive French to the hospital. They carried her out toward Robert Sontag’s car. When she stopped breathing again, they laid her down in the driveway and attempted CPR. Mrs. Hopkins finally summoned an ambulance, which arrived and transported French first to Sewickley Valley Hospital and then to Allegheny General Hospital, where she died later in the day on May 20, 2001.

According to Paula Wilson, on the night before the concert she received a call from Michelle Maranuk who asked if Wilson’s boyfriend, Robert Sontag, could give Maranuk a ride to a Dairy Queen restaurant in Beaver County. The purpose of the trip was to obtain Ecstasy from someone Maranuk had met and who she described as the defendant, Gregory Ludwig. (N.T. 10/19/01, p. 11.) With Sontag driving, Wilson in the front passenger seat and Maranuk and French in the rear seat, they drove to the Dairy Queen. During the drive, French and Wilson told Maranuk that they also wanted to buy an Ecstasy pill. (N.T. 10/19/01, p. 21.) They each gave Maranuk $20. The defendant arrived a few minutes after they did. He approached the Sontag vehicle and entered through the rear passenger door. While Sontag drove around the block, the defendant gave Maranuk three small white pills and she gave him $60. Maranuk kept the pills with her until the next day at the concert, when she gave one each to Wilson and French.

The defendant challenges both the legal validity and the sufficiency of the evidence as to each of two elements in this offense. He claims that the mental element is too vaguely defined and that, to the extent that the mental element is sufficiently set forth, the evidence presented failed to establish that element. He also contends that the statute is too vague in defining the element of causation. The court will first address these claims as they related to the requirements of the law for a mens rea “a guilty mind” and the element of “malice.”

Our criminal laws, from their ancient origins through the millennia of time, have continually prohibited two different classes of conduct. Crimes that are fundamentally and universally recognized as anathema to society are mala in se, wrongs in themselves, and include murder. The second class of crimes are referred to as mala prohibita, wrongs because society wants the commission proscribed. As pervasive and devastating as drug trafficking is in modem culture it still falls within that second class of crimes.

Generally speaking mala in se crimes require a criminal intent, the mens rea, described as a guilty mind. The ancient Latin maxim of the law was: Actus not facit reum nisi mens sit rea — “an act does not make one guilty unless his mind is guilty.” Thus it came to pass to distinguish mala in se crimes from those simply prohibited by statute, the difference between murder, rape or robbery, on one hand, and bookmaking, motor vehicle violations, and drug trafficking on the other, creations of social prohibitions not moral ones.

Our modem Crimes Code, in defining for us the requirements of criminal culpability, specifies that “a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently as the law may require with respect to each material element of the offense.” 18 Pa.C.S. 302. The mens rea, the mental state is cardinal to conviction and condemnation.

In the passage of section 2506 into law the legislature has coupled murder of the third degree a malum in se crime with delivery of a controlled substance a malum prohibition crime without defining the mental state, the sine qua non of criminal liability.

It is the failure of the legislature to recognize this distinction and its forlorn attempt to pass a law, which not only fails to recognize the distinction but also incorporates the unincorporable that brings this court to decide, as it must.

Defendant contends that the statute is unconstitutionally vague and therefore violates the due process clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. The due process clause invalidates as void for vagueness any “criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute or that is so indefinite that it encourages arbitrary and erratic arrests . . . .” Commonwealth v. Stein, 519 Pa. 137, 144, 546 A.2d 36, 40 (1988), citing Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). A penal statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Village of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

This doctrine focuses both on actual notice to citizens and arbitrary enforcement. The United States Supreme Court, in Smith, supra, recognized, however, that the more important aspect of the vagueness doctrine “is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.” 415 U.S. at 574, 94 S.Ct. at 1247-48. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” 415 U.S. at 575, 94 S.Ct. at 1247-48. If arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

The void-for-vagueness doctrine is “a due process doctrine incorporating notions of fair notice and warning.” Commonwealth v. Potts, 314 Pa. Super. 256, 268, 460 A.2d 1127, 1133 (1983), citing Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). In U.S. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432, (1997), the Supreme Court provided a succinct description of the requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. The court wrote:

“There are three related manifestations of the fair warning requirement embodied in the due process clause. First, the vagueness doctrine bars enforcement of ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); accord Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). Second, as a sort of ‘junior version of the vagueness doctrine,’ H. Packer, The Limits of the Criminal Sanction 95 (1968), the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered. See e.g., Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct. 2084, 2089, 85 L.Ed.2d 434 (1985); United States v. Bass, 404 U.S. 336, 347-48, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971); McBoyle, supra at 27, 51 S.Ct. at 341. Third, although clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute, see e.g., Bouie, supra at 357-59, 84 S.Ct. at 1704-1706; Kolender, supra, at 355-56, 103 S.Ct. at 1856-58; Lanzetta, supra at 455-57, 59 S.Ct. at 619-21; Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L.Rev. 189, 207 (1985), due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope, see e.g., Marks v. United States, 430 U.S. 188, 191-92, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977); Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972) (per curiam); Bouie, supra at 353-54, 84 S.Ct. at 1702-1703, cf. U.S. Constitution, Article I, Section 9, cl. 3; id., Section 10, cl. 1; Bouie, supra at 353-54, 84 S.Ct. at 1702-1703.” 520 U.S. at 266.

A statute violates the due process clause either because it is vague on its face or it is vague in its application to the facts of a particular case. A statute that is challenged facially may be voided if it is “impermissibly vague in all its application,” that is, there is no conduct that it proscribes with sufficient certainty. Hoffman Estates, supra, 455 U.S. at 495, 102 S.Ct. at 1192, 71 L.Ed.2d at 369. A statute can be challenged “as applied” if the law does not with sufficient clarity prohibit the conduct against which it sought to be enforced, Palmer v. City of Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971). A party may test a law for vagueness as applied only with respect to his or her particular conduct; if a statute is vague as applied to that conduct, it will not be enforced even though the law might be validly imposed against others not similarly situated. Conversely, if a statute is not vague as applied to a particular party, it may be enforced even though it might be too vague as applied to others. To summarize, a law that is challenged for facial vagueness is one that is impermissibly vague in all its applications. A statute that is challenged as applied, however, need not be proven vague in all conceivable contexts but must be shown to be unclear in the context of the particular case.

This court concludes that title 18 section 2506 is facially invalid with regard to the mens rea, the mental element of the offense. On its face, section 2506 fails to set forth with requisite definiteness the mental state required for criminal liability. It fails to define itself as a strict liability statute and fails to define the mental state required to constitute a criminal act.

Neither the statute nor the legislative history reveals whether the legislature intended to create a strict liability offense or whether they intended to make this offense a new version of third-degree murder necessarily requiring proof of malice. The legislature, in its haste to enact laws to combat the very real danger posed by the trafficking in drugs, failed to carefully craft legislation that satisfies the constitutional requirement to specifically define the conduct prohibited and provide clear guidelines to law enforcement and the courts of its intended application. The ineptness in the drafting of section 2506 was aptly demonstrated when an amendment was made to this statute at its initial passage to include language set forth in subsection (c). In Commonwealth v. Highhawk, 455 Pa. Super. 186, 687 A.2d 1123 (1996), the Superior Court invalidated section 2506 because subsection (c) included language which provided: “Provisions of this section shall not be an element of the crime.” The Superior Court found that this subsection nullified the attempt in subsection (a) to define the elements of a new crime, rendering the entire statute void for vagueness.

One must wonder whether the legislature reads what it passes into law before voting. The defects in the statute were obvious, yet the legislature chose not to correct, but to simply re-enact the same defective language. Given a chance in 1998 to remedy the defects apparent to the statute following the Highhawk decision, the legislature failed to consider the constitutionality of the statute. It simply re-enacted the statute deleting subsection (c) and chose not to remedy the other defects, ignoring the less than subtle hint given by the Superior Court in Highhawk at footnote 8, that the statute did not clearly define a scienter requirement.

In footnote 8, the Superior Court noted that the Commonwealth asserted the statute created a “strict liability” offense, however, the court declined to affirm that contention. The court acknowledged a statute enacted in New Jersey, creating a “strict liability” offense for deaths caused by violations of that state’s drug laws.

It is conceivable, as the Commonwealth argued before the Superior Court in Highhawk, that the legislature intended to create a “strict liability” statute. On the other hand, language of the statute terming the offense “third-degree murder” requires courts to conclude that the legislature intended to incorporate all of murder’s elements, including the element of malice. It is this inability to discern from the language of the statute what mental state is required that renders it, on its face, in violation of the due process mandate that a criminal statute provide notice of its reach.

The “touchstone of due process is protection of the individual against arbitrary government action.” Commonwealth v. Heck, 341 Pa. Super. 183, 197, 491 A.2d 212, 219 (1985), citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); and Commonwealth v. Hernandez, 339 Pa. Super. 32, 488 A.2d 293 (1985). Where there is no clear standard of what mental state is required for criminal liability, there is a dire risk of arbitrary government action. Police officers, prosecutors, defense attorneys, judges and juries are left to try to extrapolate from the sparse language in section 2506 whether the act of delivery of drugs and a death resulting therefrom is all that is required for criminal liability or if there must be proof of a mens rea, criminal intent or malice. As our Superior Court noted quoting from Groyned v. City of Rockford, supra:

“[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972). (footnotes omitted)” Commonwealth v. Hughes, 468 Pa. 502, 510, 364 A.2d 306, 310 (1976)..

Section 2506 does not provide an explicit standard regarding the mental state required to allow the application of the law in a consistent matter. This statute, as written, invites “policeman, judges and juries ... [to resolve cases]... on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory enforcement.” Hughes, supra.

The allegations in this case exemplify these dangers. The Commonwealth chose to charge only Mr. Ludwig, although its evidence reveals that at least one, if not two, other persons were in the chain of delivery. The Commonwealth proved that Michelle Maranuk obtained the drugs in question and then, depending on which of the Commonwealth’s witnesses (Paula Wilson or Michelle Maranuk) is believed, Maranuk delivered the drug directly to Brandy French or delivered it to Paula Wilson who then delivered it to French. The evidence presented at the coroner’s inquest was certainly sufficient, as the Honorable John I. Doherty and Honorable Dr. Cyril H. Wecht concluded, to charge Ms. Maranuk with the same offenses as Mr. Ludwig. Yet the Commonwealth made a decision not to charge Ms. Maranuk, even before she agreed to cooperate in the investigation of the matter and/ or provide testimony. On the record before this court, Ms. Maranuk, unlike Ms. Wilson, has not been promised anything by the Commonwealth to secure her testimony. It is unclear whether the decision not to charge her was based on some agreement regarding her testimony, the exercise of the district attorney’s discretion, or because the district attorney concluded, contrary to the position taken by his colleague in Highhawk, that the statute requires proof of malice. The vagueness of this statute, which allows this uncertainty, is why it must be stricken and the legislature given another attempt to create a law that meets the constitutional requirement to give fair notice of the conduct prohibited.

To the extent that the mental element, the mens rea, might be construed as sufficiently defined by the simple reference to “murder of the third degree” this court must also address the evidence presented to establish the elements of that offense, with regard to the defendant’s claim that the evidence is insufficient. The elements of section 2506 are delivery of a substance and a death resulting therefrom. Moreover, this court concludes that the plain language of section 2506(a), because it incorporates the offense of third-degree murder, requires that the Commonwealth establish that a defendant acts with malice.

Again, section 2506 has only been interpreted once in this Commonwealth. In Commonwealth v. Highhawk, supra, the Superior Court, although holding the statute unconstitutional, did conclude that the legislature intended to create a new criminal offense whose elements were set forth in subsection (a). The court wrote: “Reviewing section 2506 in light of this precedent, we find that it does indeed define the substantive crime of third-degree murder in those cases where death results from certain conveyances of controlled substances in violation of the Controlled Substance, Drug Device and Cosmetic Act.” 455 Pa. Super. at 192, 687 A.2d at 1126.

The Superior Court in Highhawk was not asked to determine if “malice” was a required element. It did remark in footnote 8, that the Commonwealth had argued it was the legislature’s intent to create a strict liability offense. The Superior Court declined to address this claim but referred to a New Jersey statute, which explicitly made drug violators strictly liable for deaths caused by the delivery of controlled substances. The New Jersey statute referred to by the Superior Court, N.J.S. §2C:35-9, provides on its face that it is a strict liability statute. The statute provides:

“(a) Any person who manufacturers, distributes or dispenses methamphetamine, ysergic acid diethylamide, phencyclidine or any other controlled dangerous substance classified in schedules I or II or any controlled substance analog thereof, in violation of subsection (a) of N.J.S. 2C:35-5, is strictly liable for a death which results from the injection, inhalation or ingestion of that substance, and is guilty of a crime of the first degree.
“(b) The provisions of N.J.S. 2C:2-3 (governing the casual relationship between conduct and result) shall not apply in a prosecution under this section. For purposes of this offense, the defendant’s act of manufacturing, distributing or dispensing a substance is the cause of a death when
“(1) The injection, inhalation or ingestion of the substance is an antecedent but for which the death would not have occurred; and
“(2) The death was not:
“(a) too remote in its occurrence as to have a just bearing on the defendant’s liability; or
“(b) too dependent upon conduct of another person which was unrelated to the injection, inhalation or ingestion of the substance or its effect as to have a just bearing on the defendant’s liability.
“(c) It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by his purposeful, knowing, reckless or negligent injection, inhalation or ingestion of the substance, or by his consenting to the administration of the substance by another.
“(d) Nothing in this section shall be construed to preclude or limit any prosecution for homicide. Notwithstanding the provisions of N.J.S. 2C:1-8 or any other provision of law, a conviction arising under this section shall not merge with a conviction for leader of narcotics trafficking network, maintaining or operating a controlled dangerous substance production facility, or for unlawfully manufacturing, distributing, dispensing or possessing with intent to manufacture, distribute or dispense the controlled dangerous substance or controlled substance analog which resulted in the death.” N.J.S. §2C:35-9. (emphasis added)

There can be no doubt from the language of the New Jersey statute that its legislature created a strict liability statute. The Pennsylvania statute, because it defines this new offense in the context of the crime of murder in the third degree, just as plainly requires proof of malice, a fundamental component of murder of the third degree. The only purpose for the legislature to have incorporated third-degree murder in this statute was to sensationalize the crime without thought to the legal requirements of the offense. Murder of the third degree requires proof of malice.

In evaluating the evidence produced by the Commonwealth in the proceedings before this court, taken in the light most favorable to the prosecution and giving the Commonwealth the most advantageous interpretation of every inference, there is simply no evidence of malice whatsoever.

Malice is an essential element of third-degree murder, Commonwealth v. Horton, 485 Pa. 115, 401 A.2d 320 (1979); Commonwealth v. McFadden, 448 Pa. 277, 292 A.2d 324 (1972), and it is the distinguishing factor between murder and manslaughter:

“Malice express or implied is the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances ...
“To summarize: If there was an unlawful killing with (legal) malice, express, or implied, that will constitute murder even though there was no intent to injure or kill the particular person who killed and even though his death was unintentional or accidental....” Commonwealth v. Commander, 436 Pa. 532, 537, 260 A.2d 773, 776 (1970), quoting Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157 (1963). (emphasis added) (citations omitted)

Malice is defined for juries and fact-finders under our law in the Pennsylvania Standard Jury Instruction for third-degree murder, which provides:

“The word ‘malice’ [as] I am using it has a special legal meaning. It does not mean simply hatred, spite or ill will. Malice is a shorthand way of referring to three different mental states that the law regards as being bad enough to make a killing murder. Thus, a killing is with malice if the killer acts with first, an intent to kill, or second, an intent to inflict serious bodily injury or third, (wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty, indicting an unjustified disregard of the probability of death or great bodily harm, and an extreme indifference to the value of human life) (a conscious disregard of an unjustified and extremely high risk that his actions might cause death or serious bodily harm).” Pa. Standard Jury Instructions, section 15 2502C.

Examining the three definitions with a commonsense review of the facts, there was no malice present. Neither Ludwig nor any subsequent distributor exhibited any intention to kill those engaged in the purveying of a substance called “Ecstasy,” certainly did not intend serious bodily harm, and the day-to-day distribution of illegal drugs and illegally procured prescription drugs does not constitute wickedness of disposition, hardness of heart, cruelty or a recklessness of consequences such as to demonstrate an extreme indifference to the value of human life. There was absolutely no evidence presented that suggested that the defendant was aware or should have been aware that the delivery of the drug “Ecstasy,” a hallucinogenic stimulant, created an “unjustified and extremely high risk that his actions might cause death or serious bodily harm.”

Attempts to charge drug traffickers with murder where a drug user dies of an overdose are not new. The halls of this very courthouse echo with those attempts. In 1970, over 30 years ago, District Attorney Robert W. Duggan charged Edward “Apache” Bauer with murder in the death of two Mt. Washington men whom Bauer had provided with Dilaudid, a synthetic morphine, and whose voluntary ingestion resulted in death. Despite a stirring prosecution by Donald W. Minahan, Esquire, now deputy attorney general for Pennsylvania, no more staunch a “law and order” judge than the legendary and Honorable Samuel Strauss dismissed the murder charge ruling that the prosecution was over-reaching and could not establish “malice.”

The Superior Court ultimately addressed the issue of whether a drug delivery that results in the death of the person who receives the drug is sufficient to establish of “malice” necessary for murder. In Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973) the defendant was found guilty of murder of the second degree. The evidence established that the victim purchased heroin and agreed to share it with the defendant. After injecting himself, the defendant in Bowden actually “administered” the fatal dose by injecting the victim. The victim died from heroin overdose. The Supreme Court overturned the conviction, finding that the element of malice was lacking. The court held “Under the facts of the instant case, we do not believe the necessary element of malice can be implied from Bowden’s act of injecting Saunders with the drug, heroin. Initially, although we recognize heroin is truly a dangerous drug, we also recognize that the injection of heroin into the body does not generally cause death. Unfortunately, there are thousands of individuals who use or abuse heroin daily.” Bowden, 456 Pa. at 284, 309 A.2d at 718.

The Commonwealth did not present any evidence concerning the dangerousness of “Ecstasy.” While the court is cognizant of the inherent danger in any substance produced in a basement, garage or trailer by the invidious degenerates who manufacture mind-altering substances for thrill and profit, the record is simply devoid of any evidence from which the court could infer that “Ecstasy” is inherently dangerous and that the defendant should have known that there was a high probability that death would result from its ingestion. Accordingly, the court concludes that the Commonwealth’s evidence was not sufficient to establish a prima facie case of a violation of section 2506 due to the absence of any evidence establishing malice.

The court also finds that the application of the statute to the facts of this case violates the due process clause in the attempt to hold the defendant liable for the death of a person other than the person to whom the controlled substance was delivered. The statute provides that a person will be guilty of third-degree murder if that person violates sections 13(a), (14) or (30) of the Controlled Substance, Drug, Device and Cosmetic Act and “another person dies as a result of using the substance.” 18 Pa.C.S. §2506(a). The statute in its application to the facts of this case, criminalizes conduct based on a particular result regardless of whether there was a causal connection between the conduct and the result. Under the facts of this case, the defendant did not deliver drugs to the person who died, he delivered them to a person who in turn delivered them to the deceased. Any attempt to extend the reach of this statute to hold a person liable for the murder of any person other than the recipient of the controlled substance violates the due process clause. There are countless deaths that “result” from the ingestion of controlled substances delivered in violation of law. Any person who shares their prescribed medication with a friend could potentially be held liable for a violation of section 2506 if the recipient abuses the substance and dies or if the medicine is passed on to others and they die. Under the Commonwealth’s proposed application of this statute, the defendant faces criminal liability for two voluntary acts of other persons: Michelle Maranulc’s act of delivering the “Ecstasy” to Brandy French and French’s decision to ingest “Ecstasy.” The application of this statute to reach this far in the chain of causation violates the due process clause. There is no way a person of ordinary intelligence could contemplate that he or she would be liable for murder in the death of a person with whom there was no direct contact or to whom they did not deliver a controlled substance. The court will not succumb to the temptation of deciding whether the statute can validly apply where the person obtaining the substance dies from its use. In this case, it is clear that the statute’s application offends the principles behind the due process clause.

Once again, the New Jersey statute is instructive in applying explicit guidelines regarding causation:

“Subsection (b) provides:
“(b) The provisions of N.J.S. 2C:2-3 (governing the causal relationship between conduct and result) shall not apply in a prosecution under this section. For purposes of this offense, the defendant’s act of manufacturing, distributing or dispensing a substance is the cause of a death when:
“(1) The injection, inhalation or ingestion of the substance is an antecedent but for which the death would not have occurred; and
“(2) The death was not:
“(a) too remote in its occurrence as to have a just bearing on the defendant’s liability; or
“(b) too dependent upon conduct of another person which was unrelated to the injection, inhalation or ingestion of the substance or its effect as to have a just bearing on the defendant’s liability.”

Section 2506 fails to address the question of causation with the clarity that the New Jersey statute does. For this reason, the statutory language is too vague. Although the law of Pennsylvania does provide guidelines for causation, the failure of the statute to specifically require a causal connection beyond the simple fact that the death resulted from a delivery renders the statute too vague to satisfy the constitutional requirements of the due process clause.

While this court must invalidate a statute criminalizing the delivery of drugs resulting in death, this does not mean that this court or the judiciary condones such conduct. It is abhorrent. Abhorrent to the judiciary, to the community and to any and all reasonable citizens of this Commonwealth.

We as a society need to better address the problem of substance abuse and its criminal consequences than by continuing to pass legislation requiring the imposition of more severe penalties. To somehow believe that we can stop the abuse of legal and illegal substances by simply increasing the penalty upon the distributors while ignoring the addiction of the users collides with reality. Nations without substance abuse problems are nations where substances are not abused. To use the economic genre, drug abuse is a demand side, not a supply side problem. If no one demands — wishes to use controlled substances — suppliers have no market. Without a market business ceases.

Unless and until we as a society choose to confront the “demand,” the temptations, desires and addictions, we will hopelessly wallow in ineffective and unsuccessful efforts to end substance abuse by punishing the availability, the “supply.” Increasing penalties for purveyors and extending criminal liability beyond the bound of logic and reason only increases the risk and the price involved in supplying an ever-expanding market.

In dealing with the “supply” side, prosecutors, and legislators seem bent upon ignoring the concept of personal responsibility. In a fruitless effort to amplify the blame for a death induced by a drug overdose our lawmakers ignore the fact that the death here, as virtually every overdose case is the result of the intentional and voluntary ingestion of controlled substances by the deceased. It is a compelling and grotesque tragedy that the life of a teenager is forfeit because young people seek the thrill of euphoria and “ecstasy” offered by the consumption of legal and illegal drugs often not fully assessing the risks, but, it remains part of our culture, an unfortunate scenario in our American way of life.

For the foregoing reasons the petition for writ of ha-beas corpus is Granted, the charge of drug delivery, resulting in death, 18 Pa.C.S. §2506, is Dismissed, and the defendant is discharged as to that offense Only.

ORDER

And now, to-wit March 12, 2002 it is hereby ordered that the petition for a writ of habeas corpus is granted, the charge of drug delivery resulting in death, 18 Pa.C.S. §2506, is dismissed, and the defendant is discharged as to that offense only.

      . The defendant has not raised any claim involving this charge.

      . In 1973 second-degree murder was defined as all murder other than first-degree. It is identical to the crime of third-degree murder in the current version of our Crimes Code.

      . The Commonwealth’s evidence on this point was inconsistent. Michelle Maranuk testified that she delivered the Ecstasy to Paula Wilson who in turn delivered it to French. Wilson claimed, however, that Maranuk delivered the drug directly to French.


source: Caselaw Access Project

author: WARMAN, J.,

license: Public Domain

text:
    Hough v. Meyer

      C.P. of Fayette County,
    no. 1838 of 2001 G.D.

      Elizabeth Deemer, for plaintiff.

      John Kwasneski, for defendants.
    March 26, 2002
   WARMAN, J.,

Presently before this court for disposition are preliminary objections filed on behalf of defendants, Michael Arthur Meyer, Schneider National Inc., and Schneider Specialized Carriers Inc., to plaintiffs’ complaint.

Defendants raise several objections for our consideration. Defendants first object pursuant to Pa.R.C.P. 1028(a)(4) to the negligent infliction of emotional distress claims contained in Counts 2, 6, and 10 of plaintiffs’ complaint. Defendants argue that it is unclear whether a cause of action for negligent infliction of emotional distress exists in this Commonwealth. To the extent that it does exist, defendants argue that such a cause of action may only be maintained under either the physical impact rule or the bystander rule, and that neither apply under the facts as alleged in plaintiffs’ complaint. Defendants, therefore, request this court to dismiss the negligent infliction of emotional distress claims contained in Counts 2, 6, and 10 of plaintiffs’ complaint.

Defendants next object pursuant to Pa.R.C.P. 1028(a)(4) to the intentional infliction of emotional distress claims contained in Counts 3, 7, and 11 of plaintiffs’ complaint. Defendants argue that the alleged conduct was neither extreme nor outrageous and that plaintiffs have, therefore, failed to state a claim upon which relief may be granted. Defendants Schneider National Inc. and Schneider Specialized Carriers Inc. further argue that the intentional infliction of emotional distress claims contained in Counts 7 and 11 fail to state a claim upon which relief may be granted because the complained of conduct was not alleged to have been committed with the intent to cause emotional distress to the plaintiffs. Defendants, therefore, request this court to dismiss the intentional infliction of emotional distress claims contained in Counts 3, 7, and 11 of plaintiffs’ complaint. In the alternative to a dismissal of the intentional infliction of emotional distress claims contained in Count 3, defendant Michael Arthur Meyer requests that the claim for punitive damages set forth under said count be stricken as legally insufficient. Defendants’ final objection is made pursuant to Pa.R.C.P. 1028(a)(2) wherein they request this court to strike plaintiffs’ request for counsel fees for failure to conform to law.

Upon consideration of plaintiffs’ complaint, applicable law, briefs, arguments, and submissions of counsel, and for reasons more fully discussed herein, defendants’ preliminary objections are Sustained in part and Overruled in part. Before addressing the merits of defendants’ preliminary objections, we shall recount the facts and history of the present cause of action.

BACKGROUND

This action arises as a result of a motor vehicle accident which is alleged to have occurred on May 18,2001, when a tractor-trailer operated by defendant Michael Arthur Meyer under the employ of defendants, Schneider National Inc., and Schneider Specialized Carriers Inc., collided with the premises owned by plaintiffs Nancy and Kenneth Hough.

Plaintiffs allege that shortly before the collision, defendant Meyer had been traveling north on State Route 711. They allege that he became lost, turned the tractor-trailer around, and then began to travel south on State Route 711.

While traveling south on State Route 711, plaintiffs allege that defendant Meyer lost control of the vehicle due to a brake and/or braking system failure. They further allege that he then made a conscious decision to leave State Route 711 and to drive the tractor-trailer onto their property and into their home. They claim that the collision tore off their front porch, knocked out and obliterated their stone retaining wall, altered their home’s foundation, smashed the front windows and doors to their home, destroyed their front yard, and sent both small and large pieces of plate glass flying into and throughout their entire home. At the time of the collision, Nancy Hough was taking a bath and Kenneth Hough was watching television.

As a direct and proximate result of the collision, plaintiffs claim to have suffered extensive damage to their property and home located at 1209 Springfield Pike, Connellsville, Pennsylvania, and severe and permanent mental and emotional shock, including but not limited to, anxiety, distress, depression, a general decline in health, high blood pressure, heart palpitations, post-traumatic syndrome, recurrence of cancer, and sleeplessness.

Thereafter, on or about August 15, 2001, a 13-count complaint was filed on plaintiffs’ behalf in the Court of Common Pleas of Fayette County, Pennsylvania. Said complaint contains claims for negligence, negligent en-trustment, negligent infliction of emotional distress, and intentional infliction of emotional distress. On October 4, 2001, defendants filed the preliminary objections now before this court, and on November 20, 2001, we heard oral argument thereon.

DISCUSSION

It is well settled that in ruling on preliminary objections, the court must accept as true all well-pled facts and all inferences reasonably deducible therefrom; however, the court need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion. Dorfman v. Pennsylvania Social Services Union—Local 668 of the Service Employees International Union, 752 A.2d 933 (Pa. Commw. 2000); Turner v. Pennsylvania Board of Probation and Parole, 749 A.2d 1018 (Pa. Commw. 2000).

Preliminary objections may be filed on the ground of legal insufficiency of a pleading; such an objection is commonly referred to as a demurrer. Preliminary objections in the nature of a demurrer require this court to resolve issues solely on the basis of the pleading with no other evidence being considered. Mellon Bank v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994).

In order to sustain a demurrer, it is essential that the face of the complaint indicate that its claims may not be sustained and the law will not permit recovery. Chichester School District v. Chichester Education Association, 750 A.2d 400 (Pa. Commw. 2000), allocatur denied, 2000 Pa. Lexis 2684. If there is any doubt, it should be resolved by overruling the demurrer. Id.

A preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim upon which relief may be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985). If any theory will support the pleading challenged by the preliminary objection, the objection will be denied. Cianfrani v. Commonwealth State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468 (1984).

The only issue to be resolved by a preliminary objection on the ground of legal insufficiency in the nature of a demurrer is whether the facts as alleged in the pleading are sufficient to entitle the claimant to relief. Gillespie v. St. Joseph’s University, 355 Pa. Super. 362, 513 A.2d 471 (1986).

In ruling on a demurrer, this court must deem the defendant to have admitted all relevant facts sufficiently pled and all inferences fairly deducible therefrom. Chichester School District v. Chichester Education Association, supra. With the above mentioned mies in mind, this court now turns to the case at bar.

We will first consider defendants’ preliminary objection to the negligent infliction of emotional distress claims contained in Counts 2, 6, and 10 of plaintiffs’ complaint. Defendants argue in support of their objection that it is unclear whether a cause of action for negligent infliction of emotional distress exists in this Commonwealth. To the extent that it does exist, defendants argue that such a cause of action may only be maintained under either the physical impact or bystander rales and that neither apply to the facts as alleged in plaintiffs’ complaint. We agree only with defendants’ claim that the plaintiffs have failed to allege sufficient facts to maintain a cause of action based on negligent infliction of emotional distress under either the bystander or physical impact rales.

Initially we note that we find no merit in defendants’ argument that the very existence of the tort of negligent infliction of emotional distress in this Commonwealth is unclear. For many years plaintiffs have maintained causes of action based on the negligent infliction of emotional distress. However, the theories upon which such a cause of action may be maintained has been the subject of much controversy, litigation, and appear to this court to be somewhat unsettled. Unfortunately, this area of the law will remain unsettled until our Supreme Court provides further guidance. Nevertheless, our review of the cases and their application to the facts as alleged in plaintiffs’ complaint lead us to conclude that plaintiffs have failed to allege sufficient facts to maintain a cause of action for negligent infliction of emotional distress under any legally recognized theory.

Our Superior Court recently held that in order to recover for negligent infliction of emotional distress, a plaintiff must establish the defendant’s breach of a duty and damages proximately caused thereby, and that the action may be sustained under the impact rule, the zone of danger rule, or the bystander rule. See Shumosky v. Lutheran Welfare Services of Northeastern Pennsylvania Inc., 784 A.2d 196 (Pa. Super. 2001).

Initially, however, the law of this Commonwealth allowed recovery only for injuries resulting from mental distress where they were accompanied by physical injury or physical impact. Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966). The physical impact rule, as it came to be known, was expanded by our Supreme Court in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). In Niederman, our Supreme Court stated:

“We today choose to abandon the requirement of a physical impact as a precondition to recovery for damages proximately caused by the tort in only those cases like the one before us where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact.” Niederman, 436 Pa. at 413, 261 A.2d at 90.

This holding of this case became known as the zone of danger rule and is an exception to the impact rule.

In 1979, our Supreme Court in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), addressed the question of whether to permit recovery for emotional distress by a complainant who, while outside of the zone of danger, actually witnessed an accident causing serious injury to a close relative. The court held that recovery was permissible, finding that the Niederman zone of danger rule was too narrow. The court stated, “Since the Niederman decision, experience has taught us that the zone of danger requirement can be unnecessarily restrictive and prevent recovery in instances where there is no sound policy basis supporting such a result.” Sinn, 486 Pa. at 155, 404 A.2d at 676. (footnote omitted) The court further expressed the view that Niederman precluded recovery on the basis of mere proximity, when the event witnessed outside of the zone of danger would produce the same result. To guard against an enlargement of liability, however, the court found it necessary to impose limits, in the form of forseeability requirements. The court set forth three factors to determine whether the complainant’s injury was reasonably foreseeable:

(1) Whether the complainant was situated near the scene of the accident as contrasted with one who was a distance from it;

(2) Whether the complainant suffered shock as a result of witnessing the accident directly, as contrasted with one who learned about it from others after its occurrence; and

(3) Whether the victim and the complainant were closely related, as contrasted with an absence of any relationship or a distant relationship. Sinn, 486 Pa. at 170, 404 A.2d at 685.

The Sinn holding has come to be known as the bystander rule.

In the years following Sinn, the appellate courts that have addressed the theories upon which a plaintiff may maintain a cause of action for negligent infliction of emotional distress, however, have provided varied rulings. By way of illustration, although the physical impact rule finds support in a number of cases that have explicitly recognized its continued validity as a basis on which to establish a prima facie case of negligent infliction of emotional distress, other cases appear to have held to the contrary. Recently, in Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 670 A.2d 173 (1996), allocatur denied, 545 Pa. 664, 681 A.2d 178 (1996), our Superior Court stated that: “[a] cause of action for negligent infliction of emotional distress exists in only two circumstances: (1) where a close family member experiences a contemporaneous sensory observance of physical injuries being inflicted on another family member, Krysmalski v. Tarasovich, 424 Pa. Super. 121, 622 A.2d 298 (1993); or (2) where the plaintiff nearly experiences a physical impact in that he was in the zone of danger of the defendant’s tortious conduct. Kazatsky v. King David Memorial Park, [515 Pa. 183, 194, 527 A.2d 988, 993 (1987)].” 447 Pa. Super. 575, 585, 670 A.2d 173, 178 (1996). (emphasis added)

Moreover, certain cases, such as Hoffner v. Hodge, 47 Pa. Commw. 277, 407 A.2d 940 (1979), allocatur dismissed, 498 Pa. 135, 445 A.2d 104 (1982), suggest that the zone of danger test is no longer valid. In Hoffner, the Commonwealth Court stated that

“Niederman ... no longer represents the law of the Commonwealth in [the area of negligent infliction of emotional distress]. ... In an attempt to eliminate the ‘arbitrariness’ inherent in the ‘zone of danger’ test, the Supreme Court substituted therefore an analysis based on the traditional tort law concept of foreseeability.” Id. (citations omitted)

Additionally, in Neff v. Lasso, 382 Pa. Super. 487, 555 A.2d 1304 (1989), allocatur denied, 523 Pa. 637, 565 A.2d 445 (1989), our Superior Court stated that the zone of danger test had been abandoned upon the acceptance of the bystander rule.

In 1993 our Superior Court again addressed the basis upon which a claim for negligent infliction of emotional distress may be maintained and stated that:

“When we look at Pennsylvania appellate cases against the backdrop of the development of the law of negligent infliction of emotional distress in other states, it becomes clear that Pennsylvania allows recovery for negligent infliction of emotional distress under two circumstances. First, and most commonly, in cases in which there is liability to a bystander .... Second, Pennsylvania also recognizes recovery in situations in which there is a contractual or fiduciary duty.” Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 55, 633 A.2d 605, 615 (1993), allocatur denied, 538 Pa. 663, 649 A.2d 666 (1994). The Armstrong court went on to state:
“The impact rule yielded to the zone of danger test in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). When Niederman’s ‘zone of danger’ rule became unworkable, Pennsylvania adopted the forseeability test of Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).” Id. at 45-46, 633 A.2d at 610.

Finally, at least one case suggests that the bystander rule is the only basis upon which a cause of action for negligent infliction of emotional distress may be maintained. See Salerno v. Philadelphia Newspapers Inc., 377 Pa. Super. 83, 546 A.2d 1168 (1988) (the parameters for pleading a cause of action for negligent infliction of emotional distress are set forth under the bystander rule).

However, in 1996 in Brown v. Philadelphia College of Osteopathic Medicine, 449 Pa. Super. 667, 674 A.2d 1130 (1996), and again in 2001, in Shumosky v. Lutheran Welfare Services of Northeastern Pa., 784 A.2d 196 (Pa. Super. 2001), our Superior Court stated that the physical impact, zone of danger and bystander rules each remain valid and define the circumstances under which recovery will be permitted for negligent infliction of emotional distress.

Despite the confusion that may exist as to the basis upon which a plaintiff may maintain a cause of action for the negligent infliction of emotional distress, we find that based on the facts as alleged in the present complaint, plaintiffs have failed to state a claim upon which relief may be granted under any legally recognized rule.

Under the bystander rule, recovery depends on an analysis of three factors: (1) whether the plaintiff was located near the scene of the accident; (2) whether the plaintiff experienced a sensory and contemporaneous observation of the accident; and (3) whether the plaintiff and the victim were closely related. Brown v. Philadelphia College, 449 Pa. Super. 667, 674 A.2d 1130 (1996). Applying this rule to the facts as alleged in plaintiffs’ complaint, it is clear to this court that the bystander rule does not apply. Although plaintiffs have alleged that they were both at the scene of the accident and that they were closely related, there are no allegations that they could observe or see each other at the time of the collision. To the contrary, plaintiffs allege that they were in separate rooms at the time of the collision. Accordingly, we find that the bystander rule does not apply to the facts as alleged in plaintiffs’ complaint.

Under the zone of danger rule, a plaintiff may recover for the negligent infliction of emotional distress where he was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact. Niederman, supra. Here, there simply are no allegations contained in plaintiffs’ complaint to indicate that they were in actual fear of a physical impact. We, accordingly, find that the zone of danger rule does not apply.

Under the physical impact rule, where a plaintiff suffers physical injuries, even though they may be relatively mild, all of the consequent psychological and emotional pain and suffering is compensable and our law has long so held under the so-called “impact rule.” Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992). See also, Tomikel v. PennDOT, 658 A.2d 861 (Pa. Commw. 1995); Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987). Further, the jarring and jostling of the occupants of a car involved in a motor vehicle collision constitutes physical impact sufficient to entitle the occupants to recover for emotional distress. Zelinsky v. Chimics, 196 Pa. Super. 312, 175 A.2d 351 (1961). Where it is definitely established that injury and suffering were proximately caused by an act of negligence, and any degree of physical impact, however slight, can be shown, recovery for such injuries and suffering is a matter for the jury’s determination. Id.

More recently in Tomikel v. PennDOT, 658 A.2d 861 (Pa. Commw. 1995), our Superior Court found sufficient physical impact where the plaintiff’s vehicle was struck directly behind her seat by an excavator as she proceeded through a construction zone. Plaintiff claimed to have felt and heard the impact between her vehicle and the excavator and that her car lurched upon impact.

Defendants, here, argue that plaintiffs have failed to allege any physical impact whatsoever. They, therefore, claim that plaintiffs’ complaint fails to state a claim for negligent infliction of emotional distress under the physical impact rule. Plaintiffs argue that although they did not allege any physical impact in their complaint, they are entitled to all reasonably deducible inferences from the well-pled facts, and that, here, it is certainly reasonable to conclude that they suffered a severe impact when the tractor-trailer crashed into their home.

After reviewing plaintiffs’ complaint, and considering the applicable law, we believe that it is necessary for plaintiffs to allege a physical impact to maintain a cause of action for negligent infliction of emotional distress under the physical impact rule. In light of plaintiffs’ failure to allege such an impact, we find that the physical impact rule does not apply to the facts as alleged in plaintiffs’ complaint and that they, therefore, have failed to state a cause of action for negligent infliction of emotional distress. We, accordingly, Sustain defendants’ preliminary objection and Dismiss the negligent infliction of emotional distress claims contained in Counts 2, 6, and 10 of plaintiffs’ complaint.

We will next consider defendants’ preliminary objection to the intentional infliction of emotional distress claims contained in Counts 7, 11, and 3 of plaintiffs’ complaint. Defendants Schneider National Inc., and Schneider Specialized Carriers Inc., argue in support of their objection to the claims of intentional infliction of emotional distress contained in Counts 7 and 11 of plaintiffs’ complaint that the alleged conduct contained in said counts is neither extreme nor outrageous, nor was the complained of conduct alleged to have been committed with the intent to cause emotional distress to the plaintiffs. Defendants Schneider National Inc. and Schneider Specialized Carriers Inc., therefore, claim that plaintiffs have failed to state a claim upon which relief may be granted and request this court to dismiss said counts.

Defendant Michael Arthur Meyer similarly argues in support of his objection to the intentional infliction of emotional distress claims contained in Count 3 of plaintiffs’ complaint that plaintiffs have failed to state a claim upon which relief may be granted because the complained of conduct was neither extreme nor outrageous. Defendant Meyer, therefore, requests this court to dismiss said count. In the alternative to a dismissal of Count 3, Defendant Meyer requests this court to strike plaintiffs’ claim for punitive damages contained in said count.

Although our Supreme Court has never expressly recognized a cause of action for intentional infliction of emotional distress, and thus has never formally adopted section 46 of the Restatement (Second) of Torts, the court has cited section 46 as setting forth the minimum elements necessary to sustain such a cause of action. See Kazatsky v. King David Memorial Park, supra. See also, Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 754 A.2d 650 (2000).

Liability for intentional infliction of emotional distress is limited to those cases in which the conduct complained of is extreme and outrageous. Dawson v. Zayre Department Stores, 346 Pa. Super. 357, 499 A.2d 648 (1985). Additionally, it is for the court to determine, in the first instance, whether a defendant’s conduct can reasonably be regarded as so extreme and outrageous so as to permit recovery for alleged intentional infliction of emotional distress. Id. The requisite “intention” which one must display for liability to be imposed is knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct. Hoffman v. Memorial Osteopathic Hospital, 342 Pa. Super. 375, 492 A.2d 1382 (1985).

Section 46 of the Restatement (Second) of Torts provides in part:

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
“The availability of recovery under section 46 is highly circumscribed. The tortuous conduct contemplated by the drafters of section 46 is described in their commentary:
“(d) Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortuous or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous! ’
“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.” Restatement (Second) of Torts §46 comment d.

With the above mentioned standard and rules in mind, this court finds that plaintiffs’ allegations and claims for intentional infliction of emotional distress against defendants Schneider National Inc. and Schneider Specialized Carriers Inc. contained in Counts 7 and 11 of their complaint are insufficient to establish that said defendants acted in an extreme and/or outrageous manner, and that plaintiffs have, therefore, failed to state a claim upon which relief may be granted in said counts. We, accordingly, Sustain defendants Schneider National Inc. and Schneider Specialized Carriers Inc.’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) and Dismiss Counts 7 and 11 from plaintiffs’ complaint.

Defendant Michael Arthur Meyer’s objection to the claims contained in Count 3, however, is Overruled. We believe that the allegations contained in said count, if proven, are sufficient for a jury to find that defendant Meyer’s conduct was extreme, outrageous, and reckless to the point of putting innocent lives in extreme danger.

Defendant Michael Arthur Meyer’s request that plaintiffs’ claim for punitive damages contained in Count 3 be stricken as legally insufficient is also Denied.

Punitive damages are available in cases where the defendant has acted tortiously in an extremely outrageous manner, and are awarded to deter him and others from such future conduct. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986). Punitive damages are awarded when the conduct of the defendant is more serious than the mere commission of the tort. Geyer v. Steinbronn, 351 Pa. Super. 536, 506 A.2d 901 (1986). When deciding whether to award punitive damages, the fact-finder must look at the character of the act, and all of the circumstances, including the mental state and motive of the wrongdoer, the relations of the parties, and the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause. Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 555 A.2d 800 (1989).

Pennsylvania has adopted the guidelines of section 908 of the Restatement (Second) of Torts regarding the imposition of punitive damages. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). An essential fact needed to plead a claim for punitive damages is that the defendant’s conduct must have been outrageous. Outrageous conduct is an “act done with a bad motive or with a reckless indifference to the interests of others.” See Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970), citing comment (b) to section 908 of the Restatement (Second) of Torts. Moreover, comment (b) to section 908 provides that “punitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.”

Furthermore, a plaintiff must plead those facts upon which his/her claim for punitive damages is based. Simply averring “outrageous conduct” or “reckless indifference to the interests of others” amounts to pleading conclusions, not facts. Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980). Boilerplate allegations that the defendant’s conduct was willful, wanton, outrageous, grossly negligent, or reckless fail to meet this standard as well. See id.

After a careful and meticulous review of relevant case law regarding punitive damages, and after accepting as true all of plaintiffs’ well-pled facts, we conclude that plaintiffs have pled sufficient facts which, if proven, could permit a jury to find that defendant Meyer’s conduct was both extreme and outrageous.

Defendants’ final objection is made pursuant to Pa.R.C.P. 1028(a)(2) wherein they claim that plaintiffs’ request for counsel fees must be stricken for failure to conform to law. We agree. 42 Pa.C.S. §2503 sets forth the rights of litigants to receive counsel fees. Based thereon, this court finds that plaintiffs are not entitled to an award of counsel fees. We, accordingly, Sustain defendants’ preliminary objection and Order plaintiffs’ request for counsel fees Stricken from plaintiffs’ complaint.

In sum, this court (1) Sustains defendants Michael Arthur Meyer, Schneider National Inc., and Schneider Specialized Carriers Inc.’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) and Dismisses the negligent infliction of emotional distress claims contained in Counts 2,6, and 10 of plaintiffs’ complaint; (2) Grants plaintiffs a period of 20 days from the date of this opinion and order to file an amendment only to the claims contained in Counts 2, 6, and 10 of their complaint, and if plaintiffs fail to file an amendment, defendants shall file their answers; (3) Sustains defendants Schneider National Inc. and Schneider Specialized Carriers Inc.’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) and Dismisses the claims contained in Count 7 and 11 of plaintiffs’ complaint; (4) Overrules defendant Michael Arthur Meyer’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) to the claims contained in Count 3 of plaintiffs’ complaint; (5) Overrules defendant Michael Arthur Meyer’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) to plaintiffs’ claim for punitive damages contained in Count 3 of plaintiffs’ complaint; and (6) Sustains defendants Michael Arthur Meyer, Schneider National Inc., and Schneider Specialized Carriers Inc.’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(2) to the plaintiffs’ request for counsel fees and orders the same Stricken from plaintiffs’ complaint.

ORDER

And now, March 26, 2002, upon consideration of the preliminary objections filed on behalf of defendants, Michael Arthur Meyer, Schneider National Inc., Schneider Specialized Carriers Inc., and upon further consideration of applicable law, briefs, arguments, and submissions of counsel, it is hereby ordered and decreed that (1) defendants Michael Arthur Meyer, Schneider National Inc., and Schneider Specialized Carriers Inc.’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) to the claims for negligent infliction of emotional distress claims contained in Counts 2, 6, and 10 of plaintiffs’ complaint is sustained and the same are dismissed from plaintiffs’ complaint; (2) plaintiffs are granted a period of 20 days from the date of this opinion and order to file an amendment only to the claims contained in Counts 2, 6, and 10, and if plaintiffs fail to file such an amendment, defendants shall then file their answers; (3) defendants Schneider National Inc., and Schneider Specialized Carriers Inc.’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) to the claims contained in Counts 7 and 11 of plaintiffs’ complaint is sustained and said claims are dismissed; (4) defendant Michael Arthur Meyer’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) to the claims contained in Count 3 of plaintiffs’ complaint is overruled; (5) defendant Michael Arthur Meyer’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) to plaintiffs’ claim for punitive damages contained in Count 3 is overruled; and (6) defendants Michael Arthur Meyer, Schneider National Inc., and Schneider Specialized Carriers Inc.’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(2) to the plaintiffs’ request for counsel fees is sustained and the same stricken from plaintiffs’ complaint.

      . In Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992), the plaintiff was a trainee at a fire-fighting school and, during a simulated fire-fighting exercise, he put on an air pack which had been mistakenly filled with carbon monoxide instead of oxygen. The plaintiff suffered injuries as a result of his inhalation of the carbon monoxide and, thus, sought recovery from the manufacturer of the air pack. Our Supreme Court held that, because plaintiff had suffered physical injury, albeit relatively minor, “[a]ll of the consequent psychological and emotional pain and suffering [was] compensable . . . under the so-called impact rule.” Id. at 166, 611 A.2d at 1177. See also, Carson v. City of Philadelphia, 133 Pa. Commw. 74, 574 A.2d 1184 (1990) (a physical impact analysis was performed to determine entitlement to relief on a claim for negligent infliction of emotional distress); Tomikel v. PennDOT, 658 A.2d 861, 864 (Pa. Commw. 1995) (“[w]here it is definitely established that injury and suffering were proximately caused by an act of negligence, and any degree of physical impact, however slight, can be shown, recovery for such injuries and suffering is a matter for the jury’s determination.”).

      . We note, however, that in Kazatsky, supra, which is relied upon in Hunger, supra, our Supreme Court stated that the zone of danger rule is a limited exception to the impact rule whereby the requirement of a physical impact as a precondition to recovery was abandoned in those cases where the plaintiff was in personal danger of physical impact from the negligent force and actually feared physical impact although no physical impact actually occurred.

      . In Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987), the Pennsylvania Supreme Court stated that it had “acknowledged but ha[d] never had occasion to specifically adopt” Restatement (Second) of Torts §46 which sets forth the tort of intentional infliction of emotional distress. 515 Pa. at 185, 527 A.2d at 988. The Kazatsky court ultimately concluded that, “because the evidence adduced in this matter does not establish a right of recovery under the terms of the provision as set forth in the Restatement, we again leave to another day the question of the viability of section 46 in this Commonwealth.” 515 Pa. at 185, 527 A.2d at 988-89. See also, Hoy v. Angelone, 554 Pa. 134, 151 n. 10, 720 A.2d 745, 753 n.10 (1998) (where plaintiff could not establish a right to recovery, even if the tort were recognized, the court would not consider whether to adopt section 46). Cf. Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 181, 754 A.2d 650, 652 (2000) (“[ajlthough we have never expressly recognized a cause of action for intentional infliction of emotional distress, and thus have never formally adopted this section of the Restatement, we have cited the section as setting forth the minimum elements necessary to sustain such a cause of action.”).

      . Despite the Supreme Court’s failure to adopt section 46, both our Superior and Commonwealth courts have held that an action for the intentional infliction of mental distress is cognizable in Pennsylvania. See Commonwealth of Pennsylvania v. Balisteri, 329 Pa. Super. 148, 478 A.2d 5 (1984); Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984); Lazor v. Milne, 346 Pa. Super. 177, 499 A.2d 369 (1985); McNeal v. Easton, 143 Pa. Commw. 151, 598 A.2d 638 (1991).

      . Section 2503. Right of participants to receive counsel fees.
      The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
      (1) The holder of bonds of a private corporation who successfully recovers due and unpaid interest, the liability for the payment of which was denied by the corporation.
      (2) A garnishee who enters an appearance in a matter which is discontinued prior to answer filed.
      (3) A garnishee who is found to have in his possession or control no indebtedness due to or other property of the debtor except such, if any, as has been admitted by answer filed.
      (4) A possessor of property claimed by two or more other persons, if the possessor interpleads the rival claimants, disclaims all interest in the property and disposes of the property as the court may direct.
      (5) The prevailing party in an interpleader proceeding in connection with execution upon a judgment.
      (6) Any participant who is awarded counsel fees as a sanction against another participant for violation of any general rule which expressly prescribes the award of counsel fees as a sanction for dilatory, obdurate or vexatious conduct during the pendency of any matter.

        (7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.
      (8) Any participant who is awarded counsel fees out of a fund within the jurisdiction of the court pursuant to any general rule relating to an award of counsel fees from a fund within the jurisdiction of the court.
      (9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.
      (10) Any other participant in such circumstances as may be specified by statute heretofore or hereafter enacted.


author: O’BRIEN, J.,

text:
    Anthony v. Browne

      C.P. of Monroe County
    no. 1472 Civil 1999.

      Patrick G. Geckle, for plantiffs.

      Cody H. Brooks, for defendants.
    December 7, 2001
   O’BRIEN, J.,

The plaintiffs have filed a complaint seeking economic and noneconomic damages resulting from personal injuries sustained in an automobile accident on February 16, 1997, in East Stroudsburg, Monroe County, Pennsylvania. In their responsive pleadings, the defendants alleged in “new matter” that the plaintiffs’ right of recovery was limited by their “election of tort liability.” Defendants have now filed a motion for summary judgment challenging the right of Wendy Ace, who was a passenger in her parents’ vehicle, from claiming noneconomic damages. The motion is premised on the allegation that Wendy Ace is bound by her parents’ election of “limited tort” liability coverage and the fact that Wendy Ace did not suffer a “serious injury” in the accident. In their answer to defendants’ motion, plaintiffs admit that Wendy Ace is bound by her parents’ “limited tort” election, but dispute the allegation that she did not suffer a “serious injury.” Following the submission of briefs and oral argument, defendants’ motion for summary judgment with respect to the noneconomic claims of plaintiff Wendy Ace is now before the court for disposition.

In 1990, the Pennsylvania Legislature amended the Motor Vehicle Financial Responsibility Law in an effort to reduce the spiraling cost of automobile insurance in the Commonwealth. This amendment provided that if a consumer affirmatively elects the limited tort option for liability coverage, they are barred from recovering damages for noneconomic harm unless they sustain a “serious injury.” In exchange for this election, they receive a significant reduction in the premium paid to the insurance carrier for their liability coverage. The section of that statute pertinent to the dispute in the case at bar provides as follows:

“(d) Limited tort alternative. — Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss . 75 Pa.C.S. §1705. (emphasis added)
‘“Serious injury.’ A personal injury resulting in death, serious impairment of bodily function or permanent serious disfigurement.” 75 Pa.C.S. §1702.

In the case at bar, it is undisputed that the passenger’s injuries did not result in death or permanent serious disfigurement. The issue in dispute is whether or not her injuries resulted in “serious impairment of bodily function.”

In Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), our Supreme Court adopted the following standard for determining whether a “serious impairment of bodily function” has occurred.

“The ‘serious impairment of body function’ threshold contains two inquiries:
“(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
“(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment. ... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.”

The court also held that the traditional summary judgment standard was to be followed by trial courts with respect to the issue presented in the case at bar.

A motion for summary judgment is only proper in those cases where the pleadings, depositions, answers to interrogatories, and admissions on file, along with the affidavits, and all other matters filed on the record, demonstrate that there is no genuine issue of material fact, and that as a result the moving party is entitled to a judgment as a matter of law. Grossman v Rosen, 424 Pa. Super. 463, 623 A.2d 1 (1993); Frederick v. Action Tire Company, 744 A.2d 762 (Pa. Super. 1999); Weiner v. American Honda Motor Company Inc., 718 A.2d 305 (Pa. Super. 1998). In deciding whether summary judgment is warranted and proper, the court must construe the facts on the record in a light that is most favorable to the non-moving party. The court must also resolve all doubts and reasonable inferences as to the existence of a genuine issue of material fact in favor of the non-moving party. Frederick, supra; Telega v. Security Bureau Inc., 719 A.2d 372 (Pa. Super. 1998); Kaller’s Inc. v. John J. Spencer Roofing Inc., 388 Pa. Super. 361, 565 A.2d 794 (1989).

In support of their motion for summary judgment, the defendant submitted the deposition of Wendy Ace. During her deposition, Ace testified that on the day of the accident, her right knee was swollen after hitting the glove compartment of the vehicle in which she was a passenger. Ace deposition pp. 11-12. After the accident, Ace went to the Pocono Medical Center’s emergency room and was discharged after about an hour. Ace deposition, p. 12. Sometime afterward, Ace was seen by a medical professional for about six months for therapy. Ace deposition, p. 13. According to Ace, she received medical treatment from only one professional after the accident. Ace deposition, p. 14. Ace also testified that although she claims her right thigh was injured the day of the accident she never sought medical help for her thigh. Ace deposition, pp. 10, 14.

At the time of the deposition, Ace testified that the only condition she still attributes to the accident is pain she feels in her right knee on rainy days, or after standing for one to two hours. Ace deposition, p. 15. However, Ace also testified that since the accident she has worked for the Carbon County Training Center on an assembly line five days a week for 35 hours a week. Ace deposition, pp. 16-17. Despite the fact that Ace’s job requires her to stand for many hours five days a week, she did not testify to missing any days of work as a result of the accident. Ace testified that she has received no medical attention for the injuries she sustained in the accident of February 16, 1997, after she stopped receiving treatment sometime in July or August of 1997. Ace deposition, pp. 27-29. Ace has not received any treatment for the injuries sustained in the February 16, 1997 accident for the last three years.

The only items submitted by the plaintiff in opposition to the motion for summary judgment are four office notes by a chiropractor during 1997. None of these office notes discloses any impairment of any bodily function and falls far short of the definition of “serious injury” set forth in the statute. In McGee v. Muldowney, 750 A.2d 912 (Pa. Super. 2000) our Superior Court affirmed the grant of a motion for summary judgment by a trial court in a scenario most similar to the case at bar. In that case, treatment was rendered for similar injuries for a period of several months but no medical evidence was presented of any impairment of a bodily function. In that case, as in the case at bar, the claimant was able to continue their employment without reduction in income. Therefore, we conclude that defendants’ motion must be granted.

ORDER

And now, December 7, 2001, the motion of defendants Marcia V. Browne and Samuel A. Browne for summary judgment, to preclude plaintiff Wendy Ace from pursuing a claim for noneconomic damages, is granted.