Loading...
HomeMy WebLinkAbout2023-04100 KATHERINE M. and DANIEL : IN THE COURT OF COMMON PLEAS OF STRAIT (husband and wife), : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : CIVIL ACTION v. : : GRAYSON RALPH BOWERS, : DVM, : Defendant : NO. 2023-04100 CIVIL TERM BEFORE MASLAND, P.J., SMITH and HYAMS, JJ. OPINION and ORDER OF COURT HYAMS, J., November 10, 2025. For disposition in this civil action commenced by the owners of a deceased cat 1 against a veterinarian is a motion for partial judgment on the pleadings filed by the 23 defendant. An answer to the motion was filed by Plaintiffs, and briefs have been 45 received from the parties in support of, and in opposition to, the motion. For the reasons stated in this opinion, granted in part and denied in part. STATEMENT OF FACTS This case was commenced by the filing of a complaint in the office of a Cumberland County magisterial district judge on February 28, 2023, which resulted in a 6 dismissal without prejudice on April 14, 2023, followed by an appeal by the plaintiffs to 1 See 2 Defendant, Gray 3 . 4 . 5 the Pleadings, filed March 24, 2025. 6 See Strait v. Bowers, MJ-09303-CV-0000019-2023, Notice of Judgment/Transcript, filed May 9, 2023. 1 7 the Court of Common Pleas on May 9, 2023. The facts alleged in a complaint filed by Plaintiffs on May 23, 2023, may be summarized as follows: Plaintiffs are Katherine and Daniel Strait, residents of Cumberland County, 8 Pennsylvania. owner/founder of . . . Hillmount Animal Hospital, located Carlisle, Cumberland 9 County, Pennsylvania. On May 3, 2021, a six-month-old cat owned by Plaintiffs was seen by Defendant 10 at his practice . . . for a spay and front de That afternoon, one of the plaintiffs was advised by Defendant that the cat was a hermaphrodite and that he had 11 contacted Plaintiffs to inform them of the risks involved in the removal. Plaintiffs were 12 told following the operation that their cat was doing well, and Plaintiffs paid the bill for 13 the surgery 14 but the cat subsequently died, having incurred a severe bowel rupture 15 during the surgery. 7 Notice of Appeal, filed May 9, 2023. 8 9 10 -6. 11 -10. 12 13 14 ¶15-16. 15 2 16 her. 17 18 contains claims against Defendant for alpractice, 1920 reach of Contract, egligent Misrepresentation, iolations of the Pennsylvania 21 Unfair Trade Practices and Consumer Protection Law, and egligent Infliction of 22 Emotional Distress. breach of contract, it is alleged that 50. This relationship is a contractual relationship between Plaintiffs and Defendant in which Plaintiffs paid Defendant for veterinary care for their cat. 51. Plaintiffs entered into a contract with Defendant for their cat . . . to be spayed and declawed. * * * * 54. Defendant breached the contract by not providing the contracted for care and 23 caused negligent misrepresentation, it is alleged that 59. Defendant negligently informed Plaintiffs that \[their cat\] had no uterus or reproductive organs and that she only had one testicle and one ovary. 60. Defendant made the above misrepresentation during the course of his 61. As cat owners, Plaintiffs relied upon the expertise of Defendant as a licensed veterinarian to provide appropriate treatment to \[their cat\]. not being properly spayed and treated, 24 ultimately resulting in her death. 16 17 18 19 20 21 22 23 -51, 54. 24 -62. 3 V Practices and Consumer Protection Law, it is alleged that 71. Defendant engaged in unfair or deceptive trade practices when he represented 25 negligent infliction of emotional distress, it is alleged that trusted veterinarian. services. 26 distress. 27 Defendant does not appear to deny that 28 his services were paid for, 29 and denies (a) hermaphrodite and had no uterus or reproductive organs and that she had one testicle and 25 26 -77. 27 I sub judice for judgment on the pleadings was filed before his answer to the complaint was filed and the pleadings closed, and also prior to any ruling on preliminary objections which he had filed. See Since neither side seems to regard these procedural anomalies as significant, the court will disregard the pleading sequential incongruity pursuant to Pennsylvania Rule of Civil Procedure 126 (Application and Construction of Rules) and deem the preliminary objections waived by the filing of the answer. Cf. Cinque v. Asare, 401 Pa. Super. 339, 343, 585 A.2d 490, waived all matters that must be addressed in preliminary objections . . . .). 28 29 4 30 \[that\] she was doing well, (b) acceptable professional standard and that his conduct was the cause in bringing about the 31 death of \[the cat\], (c) that there was 32 Complaint, 33 sub judice for partial judgment on the pleadings was filed on breach of contract, Defendant argues (a) that . . . obligations \[alleged to be contractual\] are based on larger social 34 policies embodied by the law of tort, (b) 35 s and (c) that as a 36 consequence their contract claim is not legally cognizable. negligent misrepresentation, Defendant argues the absence an allegation of the requisite scienter on the part of Defendant as to 37 his purportedly incorrect statement , the lack of an element 38 of inducement in the representation for action on the part of Plaintiffs, and the absence 39 of any causative reliance on the part of Plaintiffs on the representation. violations of Practices and Consumer Protection Law, Defendant argues that the absence of an 30 31 32 33 34 35 36 46. 37 38 39 5 allegation that the engagement by Plaintiffs of Defendant was in any way prompted by 40 his purportedly deceptive advertising practices, and the inapplicability of the act to 41 providers of professional services, precludes recovery under the act. Finally, with respect to Plaintiffs claim for negligent infliction of emotional distress, Defendant argues that perception of injury to a close family member would be unavailable to Plaintiffs in this case, inasmuch 42 as a cat is not within the class of close family members and the death of the cat herein 43 was not witnessed by Plaintiffs, 44 DISCUSSION Statement of Law Judgment on the pleadings. A judgment on the pleadings \[in favor of a defendant\] will be granted where, on the facts averred, the law says with certainty that no recovery is possible. . . . \[In this regard, p\]rinciples applicable to a judgment on the pleadings are the same as the principles applicable to a preliminary objection in the nature of a demurrer, thus, \\a\]ll material facts set forth in the Complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. (Citations and brackets omitted). Emerich v. Philadelphia Center for Human Development, Inc., 554 Pa. 209, 213 n.1, 720 A.2d 1032, 1034 n.1 (1998) (citations omitted). Judgment on the pleadings may be entered as to fewer than all counts of a complaint. See, e.g., Temple University Health System, Inc. v. National Union Fire Insurance Company of Pittsburgh Pa., 2005 WL 167583 (Philadelphia Co. 2005). 40 41 42 43 73. 44 6 Breach of contract. for malpractice ordinarily is negligence, and not the violation of the contract of Physicians and Surgeons §155 (Nature) (May 2025 Update) (citations omitted). In this regard, it has been 45 Thus, the Pennsylvania Supreme Court has upheld the dismissal of a contract claim, premised upon bailment principles, by a plaintiff against a veterinarian whose allegedly deficient treatment culminated in the death of a dog entrusted to her for surgery. Price v. Brown, 545 Pa. 216, 680 A.2d 1149 (1996). On the other hand, it has a Vogelsberger v. Magee-Womens Hospital of UPMC Health System, 2006 PA Super 146, ¶64, 903 A.2d 540, 560. plaintiff and promised by the defendant in terms that commit the defendant to that performance without reference to, and irrespective of, any general standard of care, the Id. (trial reversed). In this context, by way of example, a valid breach of contract claim will be held to have been advanced where it is alleged that a Id., citing Zehr v. Haugen, 318 Or. 647, 871 P.2d 1006 (1994). Negligent misrepresentation. follows: 1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.! 45 Price v. Brown, 545 Pa. 216, 222, 680 A.2d 1149, 1152 (1996). 7 US Coal Corporation v. Dinning, 2019 PA Super 326, ¶__ n.13, 222 A.3d 431, 440 n.13. Negligent misrepresentation differs from intentional misrepresentation in that the misrepresentation must concern a material fact and the speaker need not know his or her words are untrue, but must have failed to make a reasonable investigation of the truth of these words. Id. Law. sumer Protection to even the bargaining power between consumers and sellers in commercial transactions, and to promote that objective, it aims to protect the consumers of the Commonwealth Commonwealth v. Golden Gate National Senior Care LLC, 648 Pa. 604, 625, 194 A.2d 1010, 1025 (2018) (citation omitted). \[E\]very plaintiff asserting a private cause of action under the UTPCPL must Toy v. Metropolitan Life Insurance Company, 2004 PA Super 404, ¶27, 863 A.2d 1, 11. 46 manifestation of the truth, is among the practices that may be considered non-actionable under the act. Commonwealth v. Golden Gate National Senior Care LLC, 648 Pa. 604, 625, 194 A.2d 1010, 1025 (2018 of exaggeration or overstatement expressed in broad language, it may be deemed non- Negligent infliction of emotional distress. he cause of action for negligent infliction of emotional distress is restricted to four factual scenarios: (1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the 46 See Note, Fencing Off the Path of Least Resistance; Re-Examining the Role of Little FTC Act Actions in the Law of False Advertising, 72 Tennessee L. Rev. 653, 656 (2005). 8 plaintiff observed a tortious injury to a close relative.Weiley v. Albert Einstein Medical Center, 2012 PA Super 106, ¶__, 51 A.3d 202, 217 (citations omitted). It does not appear that a cat would qualify as a close relative for purposes of these criteria. See Miller v. Peraino, 426 Pa. Super. 189, 194, 626 A.2d 637, 640 (1993) ; see also Daughen v. Fox, 372 Pa. Super. 405, 419, 539 A.2d 858, 865 (1988) (rejecting loss of consortium claim in action by owners of deceased dog against However, it has been noted that liability premised upon a special relationship between a plaintiff and an alleged tortfeasor (under the first scenario referred to above) may be found in certain medical contexts: In 2011, the Pennsylvania Supreme Court . . . clarified a substantial ambiguity in the law by confirming a cause of action existed for negligent infliction of emotional distress radiologist\] where \[her\] baby was born with significant and serious deformities, causing great distress in the unprepared parent . . . . Cotlar, Liability Unmasked: Pennsylvania Tort Law Applied to COVID Anti-Maskers, 92 Pa. B.A.Q. 14, 22 (2021), citing Toney v. Chester County Hospital, 614 Pa. 98, 36 A.3d 83 (2011). was careful to note that \[such\] liability came from a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress. Id., quoting Toney v. Chester County Hospital, 614 Pa. 98, 100, 36 A.3d 83, 84 (2011) (emphasis added). No Pennsylvania authority has been found for the proposition that a veterinarian/client relationship would qualify as this species of the tort, and other states have rejected the proposition. See, e.g., Shriver v. Raptosh, 174 Idaho 498, 557 P.3d 398 (2024); McMahon v, Craig, 176 Cal. App. 4th 1502, 97 Cal. Rptr. 3d 555 (2009). 9 Application of Law to Facts Based upon the foregoing principles of law, the following disposition of perform a certain operation on their cat (spaying), and instead performed a different operation notwithstanding the availability of a uterus and normal ovaries for removal, it appears to the court that the claim can survive a motion for dismissal at the pleading stage of the case. In so ruling upon , as is the case with the rulings upon other aspects of the motion, it must be emphasized that the court is in no way expressing an opinion as to the accuracy of Plaintiffs allegations. With respect to Plaintiffs negligent misrepresentation claim, where it is alleged that Plaintiffs were misled as to the , paid the anticipated uneventful recuperation, recovery on grounds of either (a) an absence of an inducement by the defendant for action on the part of Plaintiffs or (b) the lack of any acts of actual reliance by Plaintiffs. With respect to Plaintiff Unfair Trade Practices and Consumer Protection Law claim, the court is of the view that (a) the purportedly deceptive advertising of Defendant did not rise above the level of non-actionable puffery and (b) the requisite element of reliance on the part of Plaintiffs upon the advertising in deciding to engage the defendant is lacking. With respect to Plaintiff negligent infliction of emotional distress claim, none of present. In this regard, the failure of a cat to qualify as a close relative precludes recovery on an injury-to-bystander theory of liability, and, more to the point of the claim as pled by Plaintiffs, the law has not evolved to the point that a veterinarian/client relationship will be considered sufficient to support such a claim. Accordingly, the following order will be entered: 10 ORDER OF COURT AND NOW, this10thday ofNovember, 2025, upon consideration of Defendant, Gray February 14, 2025, and for the reasons stated in the accompanying opinion, the motion is granted to the extent that Plaintiff , and is otherwise denied. BY THE COURT, ________________ Carrie E. Hyams, J. DISTRIBUTION: Rebecca Glenn-Dinwoodie, Esq. GLENN-DINWOODIE LAW, LLC 107 N. Broad St. Doylestown, PA 18901 Attorney for Plaintiffs Kristina Bergsten, Esq. THE ANIMAL LAW FIRM 30 W. Third Street Media, PA 19063 Attorney for Plaintiffs Kelly A. Trewella, Esq. Joseph A. Breymeier, Esq. Ryan M. Emmett, Esq. NAULTY SCARICAMAZZA & McDEVITT, LLC 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 Attorney for Defendant 11