J-A01036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOYCE MIKOLAWSKI AND DENNIS : IN THE SUPERIOR COURT OF
MIKOLAWSKI : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1721 EDA 2018
CURTIS ANTHONY YOUNG, JAROD :
BROWN, WELLINGTON MAYO AND :
YOUTH SERVICES AGENCY OF :
PENNSYLVANIA :
Appeal from the Judgment Entered June 8, 2018
In the Court of Common Pleas of Carbon County Civil Division at No(s):
12-2311
BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 14, 2019
Joyce and Dennis Mikolawski (“the Mikolawskis”) appeal from the
judgment entered in favor of the Youth Services Agency of Pennsylvania
(“YSA”). The Mikolawskis maintain that the trial court erred in granting YSA’s
Motion for Summary Judgment because it “misconstrued the issue raised by
YSA and, in turn, raised a completely different issue sua sponte.” Mikolawskis’
Br. at 23. We affirm.
Three juveniles housed at a placement facility escaped and burglarized
the Mikolawskis’ home. The facility was controlled by YSA. During the
burglary, one of the juveniles brandished a log of firewood over Dennis
Mikolawski’s head in the presence of Mrs. Mikolawski. They then demanded
the Mikolawskis’ money and car keys. The juveniles then fled with the
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Mikolawskis’ money and car. The Mikolawskis sustained no physical impact or
injury.
The Mikolawskis subsequently filed this lawsuit against YSA and the
juvenile offenders. As against YSA, the Mikolawskis asserted claims of
negligent infliction of emotional distress (“NIED”). As the litigation progressed,
YSA filed a motion for summary judgment arguing that the Mikolawskis “failed
to produce sufficient evidence to support a negligence claim.” YSA’s Motion
for Summary Judgment (“MSJ”), filed 3/31/16, at ¶ 8. YSA argued that the
Mikolawskis failed to satisfy any of the four scenarios under which liability may
attach for NIED because its alleged negligence “did not result in any physical
impact” to the Mikolawskis. See YSA’s MSJ at ¶ 7; Brief in Support of MSJ,
filed 3/31/16, at 3.
At argument on the motion, the Mikolawskis argued that “but for” YSA’s
alleged negligence, the Mikolawskis “would not have been placed in the ‘zone
of danger.’” N.T., Motion Hearing, 6/16/16, at 27. The court responded that
the question “becomes a proximate cause issue then.” Id. at 28. The
Mikolawskis’ counsel agreed that it was an issue of proximate cause, but
argued that proximate cause was for the jury, and even if it was not,
proximate cause was met. Id.
The trial court granted YSA’s motion. It then held a bench trial on the
Mikolawskis’ claims against the juveniles and entered a verdict “in favor of
each Plaintiff in the amount of $50,000.00 and against the [j]uvenile
[d]efendants jointly and severally for a combined verdict of $100,000.00 in
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favor of Plaintiffs.” 1925(a) Op. at 3. The Mikolawskis filed a Motion for Post-
Trial Relief, which the trial court denied. This timely appeal followed.
The Mikolawskis raise three issues for our review:
I. Whether the trial court abused its discretion by granting
defendant Youth Services Agency of Pennsylvania’s Motion
for Summary Judgment based on an issue that the court
raised sua sponte that was different than the issue raised
by Youth Services Agency of Pennsylvania and responded to
by plaintiffs when the issue raised by Youth Services Agency
of Pennsylvania was clear and unambiguous by its own
terms and ripe for disposition.
II. Whether the trial court abused its discretion by granting
defendant Youth Services Agency of Pennsylvania’s motion
for summary judgment based on an issue that the court
raised sua sponte when it was clear from the record that the
issue raised by the court was premature.
III. Whether plaintiffs were prejudiced in that they were not
given and full and fair opportunity to supplement the record
to address the issue raised by the trial court sua sponte.
Mikowlawskis’ Br. at 4 (suggested answer).
In their first issue, the Mikolawskis argue that the trial court erroneously
granted summary judgment based on an issue that it raised sua sponte. They
maintain that YSA’s motion for summary judgment raised only the issue of
the “impact rule.” Mikolawskis’ Brief at 26. They argue that the trial court
nonetheless sua sponte raised the issue of proximate cause. Id. at 28.
“[S]ummary judgment is only appropriate in cases where there are no
genuine issues of material fact and the moving party is entitled to judgment
as a matter of law. Pa.R.C.P. 1035.2(1).” Nicolaou v. Martin, 195 A.3d 880,
891 (Pa. 2018). “When considering a motion for summary judgment, the trial
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court must take all facts of record and reasonable inferences therefrom in a
light most favorable to the non-moving party and must resolve all doubts as
to the existence of a genuine issue of material fact against the moving party.”
Id. at 892. We reverse a grant of summary judgment if there has been an
error of law or an abuse of discretion. Id. Because the issue of whether there
is a genuine issue of material fact is a question of law, our standard of review
is de novo and our scope of review is plenary. Id.
A cause of action for NIED may arise in any of four scenarios: (1)
situations where the defendant had a contractual or fiduciary duty to the
plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff
was in a zone of danger; or (4) the plaintiff observed a tortious injury to a
close relative. Toney v. Chester County Hosp., 961 A.2d 192, 197-98
(Pa.Super. 2008), affirmed by evenly divided court, 36 A.3d 83 (Pa. 2011);
see also Niederman v. Brodsky, 261 A.2d 84, 85 (Pa. 1970) (holding that
“recovery may be had from a negligent defendant, despite the fact that
appellant’s injuries arose in the absence of actual impact,” i.e., within the zone
of danger).
Here, the Mikolawskis argued they were in the zone of danger. A claim
that the plaintiff was within the zone of danger is a question of proximate
cause. See Mazzagatti v. Everingham by Everingham, 516 A.2d 672, 679
(Pa. 1986). The Mikolawskis’ counsel conceded that such is the case during
oral argument before the trial court. Their claim that the trial court improperly
raised proximate cause sua sponte does not hold water.
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The Mikolawskis’ second and third issues are likewise meritless. They
argue that the trial court’s ruling on proximate cause was premature because
discovery was not complete they therefore did not have a full and fair
opportunity to supplement the record on summary judgment. The difficulty
the Mikolawskis face is that in the trial court, they never identified any
discovery that was incomplete or any evidence or information that would have
refuted the trial court’s application of the “impact rule.” Although the
Mikolawskis did move for reconsideration of the summary judgment order, the
only evidence they produced at that time related to the alleged foreseeability
to YSA of the juveniles’ crimes. They at no time have identified any evidence
bearing on the impact rule. We affirm the entry of summary judgment in YSA’s
favor and against the Mikolawskis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/19
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