Bloom v. DuBois Regional Medical Center

DEL SOLE, Judge,

concurring and dissenting.

I concur in the majority’s decision that Mrs. Bloom’s claims against the Hospital and Mr. DiGilarmo are not final and appealable. I write separately, however, because I believe that it is time to reexamine the case law that leads us to this result.

While the majority has correctly stated the prevailing line of cases from Praisner, 313 Pa.Super. 332 , 459 A.2d 1255 , to Motheral, 400 Pa.Super. 408 , 583 A.2d 1180 , concluding that the dismissal of an alternative theory of relief does not take the plaintiff out of court and hence is not final and appealable, I am not satisfied with this result. Instead, I favor the theory that once a court’s jurisdiction attaches for any purpose, it then attaches for all purposes. In the instant case, because the court has jurisdiction to hear Mr. *107 Bloom’s claims and Mrs. Bloom’s claims against Dr. Fugate, the court would therefore have jurisdiction to hear all of Mrs. Bloom’s claims. This is analogous to the theory of pendent jurisdiction, on an appellate level. In the case of pendent jurisdiction, the plaintiff will have both federal and state claims against the defendant. Although the state claim may not independently be brought in federal court because of lack of diversity, the federal court has discretion to exercise pendent jurisdiction over the state claim if the two claims “derive from a common nucleus of operative fact” and are such that plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers v. Gibbs, 383 U.S. 715 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1968). Similarly, in the instant situation, the appellate court should have the discretion to hear all of Mrs. Bloom’s related claims when it agrees to hear any of them.

Generally, the rationale for the principle that an order is not final and appealable until the appellant is effectively out of court is that piecemeal litigation should be avoided in order to use the court’s resources most efficiently. Gordon v. Gordon, 293 Pa.Super. 491 , 439 A.2d 683 (1981). However, this policy also underlies my proposed approach to the instant situation. Here, the appellate court has agreed to hear some aspects of the trial court’s order. In order to avoid piecemeal litigation and act economically, the proper action would therefore be to hear all remaining aspects of the order at the same time. Because I find this to be the most sound judicial approach, I believe the time has come to reconsider this area of the law with an eye towards this change.

I respectfully dissent from that portion of the majority opinion which denies relief to Mr. Bloom for negligent infliction of emotional distress. The majority reaches its decision because Mr. Bloom never observed the negligent acts of defendants, despite the fact that he found his wife hanging by her neck in a suicide attempt. The negligent acts of defendants consisted of a failure to adequately test, diagnose and supervise Mrs. Bloom, and a failure to proper *108 ly train and supervise the staff. If one were to follow the majority’s reasoning, Mr. Bloom’s mere presence when staffing and supervisory decisions were made would allow him to recover for negligent infliction of emotional distress, while viewing his wife hanging by a shoestring around her neck would not. This theory defies reason, for the observance of these seemingly neutral acts could not have inflicted the resultant harm. Such observance would not have added to the emotional distress suffered by Mr. Bloom. Only when Mr. Bloom encountered his wife’s hanging body did he suffer the emotional distress for which he now seeks recovery and it is. illogical to hold that observation of these negligent acts and omissions of defendants is the necessary element to a finding for Mr. Bloom. Because I believe that observation of defendant’s negligent acts is irrelevant in this case to a determination of Mr. Bloom’s claim for recovery of damages for emotional distress, I respectfully dissent.