Speck v. Finegold

PRICE, Judge,

concurring and dissenting:

The instant appeal arises from a background accurately set forth in the majority opinion. The original complaint contains five counts, in both trespass and assumpsit. It appears to this writer that to clearly appreciate the scope of our decision, it is necessary to address the appeal on a count by count basis; such an analysis is indeed necessary to delineate those areas in which I dissent from the majority.

*368The first count in the complaint includes claims by appellant parents against appellee Finegold, while the second count contains the identical claims against appellee Schwartz. Both counts contain the traditional allegations of negligence, and in that respect the pleadings appear to be proper.1 The difficulty arises, however, with respect to the damage claims contained in paragraphs 10 and 11 of the first count and paragraphs 20 and 21 of the second count.2

These counts contain, on behalf of each parent, a claim of damages for the past, present and future costs and expenses of rearing an additional child. It is this item of recovery, if the majority opinion is being properly interpreted by this writer, that the majority permits by the sweeping statement: “the tort-feasor is liable for all damages which ordinarily and in the natural course of things have resulted from *369the commission of the tort.” (At 508). It is from the allowance of that item that I most vigorously dissent.

I agree with the general proposition that public policy and social necessity mandate a holding that the birth of any child is not a wrong that results in “damage” to the parents, regardless of the theory or form of pleading. Although the majority finds error in the decision of the lower court on this issue, I consider that decision perfectly proper. The allowance of such an item of recovery will, I submit, have no sensible or just stopping place. The law and the courts generally are not equipped, nor do I consider them competent, to enter into this complex, intangible weighing of the parenthood of any child. The issue has been addressed by writers, both legal and social, over the years. The opinion of the majority, as well as the comprehensive opinion by the Honorable Silvestri Silvestri of the Court of Common Pleas of Allegheny County, summarizes these cases and arguments. An additional recounting of those authorities is here unnecessary. My decision differs from the majority as to the propriety of permitting recovery for the expense and cost of raising this additional child.

Counts one and two also include a claim for special damages occasioned by the need to raise a defective child. The mysteries of life are such that no parent is guaranteed the birth of a perfectly healthy child. For the same reasons as stated above, I cannot agree that this claim states a recognizable item of damages.

Also included in the first and second counts are the claims for emotional distress, mental anguish and physical inconvenience of both parents occasioned by the birth and necessity of raising a defective child. I concur with the majority in the disallowance of these claims.

The remaining claims for damages under counts one and two are the traditional direct damages caused by the failure of the vas ligation and abortion. I concur with the majority that these items are properly recoverable.

The third count is simply a reiteration of the first and second and need not be further discussed.

*370The fourth count is the claim of the child, Francine, for, inter alia, pain and suffering and medical expenses. I concur in the conclusion of the majority that this claim must be denied. I must comment, however, that the rationale adopted by the majority in this regard appears inconsistent with their willingness to consider basically the same “mysteries” of life in permitting the parents to recover the added expense and cost of raising this child.

The fifth count has been withdrawn and need not be discussed.

I would affirm the order of the Court of Common Pleas of Allegheny County.

. Both Finegold and Schwartz filed motions to strike alleging that appellants had combined claims by both Frank Speck and Dorothy Speck in the same count contrary to Pa.R.C.P. No. 1020(b), 2228(a), and failed to set forth separate counts for their claims arising in trespass and assumpsit contrary to Pa.R.C.P. No. 1020(d)(1). The court below sustained appellees’ motions, and leave was granted to permit the Specks to amend their complaint.

. A summary of the individual damages claimed by appellants in paragraphs 10, 11, 20 and 21 is as follows:

For Frank Speck:

1. expenses in connection with the performance of the bilateral vas ligation;

2. pain and inconvenience resulting from the bilateral vas ligation;

3. loss of consortium during the period of his wife’s pregnancy, child birth, and post natal recuperation, and care;

For Dorothy Speck:

1. pain, inconvenience and mental anguish as a result of the pregnancy, child birth and post natal care and treatment.

A list of the damages claimed by both appellants is as follows:

1. expenses in connection with the attempted abortion;

2. expenses in connection with the pregnancy of Mrs. Speck;

3. expenses in connection with the raising of an additional child;

4. expenses in connection with the medical attention, treatment and care of the additional child;

5. emotional distress and physical and mental anguish resulting from the raising of an additional child;

6. mental anguish and emotional distress resulting from the birth of a defective and diseased child.